BHOLA NATH BANERJI Vs. SARBAMANGALA DEBI W/O KUMAR DEBENDRA NATH ROY

JUDGEMENT

(1.) This is an appeal on behalf of the defendants and arises out of a suit commenced by the plaintiff for recovery of arrears of a maintenance allowance payable to her under the will of her grandfather, whose estate is now in the hands of the defendants. The facts are not in dispute. The plaintiff's grandfather, one Kali Das Mukherji died leaving behind him a will which provided inter alia that a maintenance allowance at the rate of Rs. 25 per month should be paid to the plaintiff out of the estate left by the testator. Whoever was in possession of the estate for the time being was enjoined to pay this allowance. Under the terms of the will, the properties of the testator were to vest in the first place in his daughter-in-law Bindurekha, the mother of the plaintiff, who was to enjoy the same in the limited rights of a Hindu widow during her lifetime. After her death, the testator's daughter Sarat Kamini was to possess the estate in similar rights, and when she died, it was to go absolutely to the present defendants who are the sons of Sarat Kamini. Bindurekha had taken out letters of administration with a copy of the will annexed and while she was in possession of the estate, a suit was instituted by the present defendants and their mother for removing her from the position of an administration and for other reliefs. To this suit the present plaintiff was also made a party.

(2.) The suit ended in a compromise on the basis of which a decree was passed, and its terms inter alia were that both Bindurekha and Sarat Kamini would surrender their whole interests in favour of the present defendants who were to get the properties under the will of Kali Das after the death of these two widows. Bindurekha got, in lieu of surrendering her rights, an annuity of Rupees 800 a year charged on certain properties. Provisions were made in the solenama for paying up the arrears of maintenance allowance payable to the plaintiff, and the present defendants expressly undertook that in future they would go on paying regularly the sum of Rs. 25 a month to the plaintiff as directed by the will of Kalidas. As this allowance was not paid the plaintiff was obliged to institute this suit, and she claimed an allowance for a period of 10 years at the rate of Rs. 300 a year together with interest upon it at the rate of 12 per cent, per annum. The plaintiff also prayed that the maintenance allowance might be declared to be a charge upon the estate of Kalidas now possessed by the defendants. The defendants in their written statement denied that the plaintiff had any right to the legacy, and they set up the plea of limitation as a bar to the suit. They further pleaded that the plaintiff was not entitled to a declaration of charge as prayed for by him and that the interest claimed was exhorbitant. The trial Court overruled all these defences, and decreed the plaintiff's suit in its entirety. On appeal the decision has been affirmed.

(3.) Mr. Bagchi who appears in support of the appeal has raised three points for our consideration. In the first place he has argued that the suit is barred by limitation. His second contention is that no charge was created in the present case and no declaration of charge could be made in favour of the plaintiff. The last point raised is that no interest on the legacy at a rate exceeding 6 per cent, per annum can be allowed in law. So far as the first point is concerned, both the Courts below have held concurrently that the suit being one for recovery of a legacy payable under the will of Kalidas is governed by Art. 123, Limitation Act, and the plaintiff has a period of 12 years from the date when the legacy became recoverable. This view is challenged by Mr. Bagchi who argues in the first place that the rights of the plaintiff under the will were extinguished and became merged in the rights created by the compromise made between her and the defendants in Suit No. 234 of 1922. The suit was consequently one to recover money due on a compromise and the period of limitation would be three years under Art. 62 or Art. 115, Limitation Act.