SMT HEMANGINI DEVI Vs. ANIL KRISHNA BANERJEE

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree of the learned Subordinate Judge of Patna dated 26 November 1934, by which he decreed the plaintiff's suit which, was instituted to recover certain arrears of annuity under the provisions of a will executed by one Kedarnath Banerji on 3rd March 1914, by which the plaintiff's father was given an annuity of Rs. 300 per annunm descendible in the male line generation after generation.

(2.) The case of the plaintiff is that on the death of the testator on 25 July 1914 the probate of his will was granted on 6 February 1915 to one Haridas Banerji who was another annuitant and executor named in the will, that the father of the plaintiff received only one instalment of his annuity in or about the year 1916 but subsequently the annuity was altogether stopped. The appellant Hemangini Devi disputed the genuineness of this will and applied for the revocation of the probata thereof but the matter was ultimately decided by the High Court in this manner that the lady was added as a co-executrix on 16 March 1920. The plaintiff's father died on 3 May 1921, and the annuity having been in arrears for a considerable period the plaintiff has instituted this suit for realization of the annuity from 24th. July 1915 up to 24 July 1933, the date of the action; there is also a claim for interest on the arrears at 6 per cent, the total claim being fixed at Rs. 5004. The substantial defence to the action was that the will did not create any charge for the payment of annuity to the plaintiff or to his father and that the defendant acquired a complete Hindu widow's estate on the death of the husband and any restriction or limitation over the enjoyment of that right was invalid in law. It was denied that any annuity was ever paid to the father of the plaintiff but on the other hand it was asserted that Annada Charan Banerji waived, disclaimed and relinquish, ed all benefits arising out of the will and the plaintiff himself acquiesced in the same. Limitation was also pleaded as a bar to the claim of the plaintiff.

(3.) The learned Subordinate Judge has held that Annada Babu never gave up his right to the legacy under the will of Kedarnath Banerji and the plaintiff's right is not barred by the principles of waiver, estoppel or acquiescence. He also held that Annada Babu received his legacy in 1916 and overruled the defence of limitation holding that the suit was governed by the provisions of Art. 123, Limitation Act, and in the result granted a decree to the plaintiffs for such of the sums which were recoverable within 12 years of the date of the action; that is to say he gave a decree for 12 years annuity making a total of Rs. 3600 together with interest at 6 per cent, thereon and corresponding costs. He did not allow any future interest in this case and directed that the decretal amount should be realized from the income of the properties described in Schedule 2 of the plaint. Hence the appeal by the defendant before us.