JUDGMENT

1. This is an appeal by the defendants. Lal Kedar Nath Singh was the plaintiff. The suit was one for possession of certain property on the ground that the plaintiff was legatee of his great-grandfather Lal Udit Narain Singh. This is the pedigree showing the descendants of Lal Udit Narain Singh.

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2. Lal Udit Narain Singh was sole owner of the superior proprietary tenure of mauza Nasirpur. He also possessed certain mortgagee rights in the under-proprietary tenure of certain plots in the same village. Whether the property was ancestral or self-acquired is no longer of importance. In the year 1902 he made a partition of mauza Nasirpur, dividing it into five and a half shares. One and a half shares went to the eldest son Rampal Singh, leaving four shares, of which Udit Narain Singh himself retained one share. His other two surviving sons Indra Bahadur Singh and Raghunandan Singh got one share each. The fourth son Lachhman Singh was dead but his son Bishunpat Singh got the remaining share. On 18th March, 1906 Udit Narain Singh made a will, in which he recited the partition he had made, and bequeathed his own share amounting to 2 annas and 10-10-11 pies to Kedar Nath Singh, the present plaintiff. The mortgagee rights are claimed by the plaintiff under a clause of the will which says "on my demise this property or whatever property I may leave shall be owned by Lal Kedar Nath Singh."

3. Having made this will Udit Narain Singh died on 12th April, 1906. The plaintiff immediately applied for mutation. Bishunpat Singh, now appellant No. 1, objected to the mutation. He was referred to the Civil Court and plaintiff got mutation. Bishunpat Singh then proceeded to bring his suit. The plaint is dated 19th September, 1907. That case ended in a compromise which was embodied in a decree dated 18th December, 1907. By that compromise Rampal Singh, the eldest son of Udit Narain Singh and grandfather of the present plaintiff, received one and a half shares, and Bishunpat Singh, Indra Bahadur Singh and Raghunandan Singh got one share each. What is called the iqrarnama or agreement of 1902, by which Udit Narain Singh had divided his property among himself and his sons, was cancelled and so was Udit Narain's will. If this compromise holds good, plaintiff's case fails and the present appeal succeeds.

4. The learned Subordinate Judge held that the compromise decree could not stand because "the only benefit alleged to the plaintiff minor by the compromise was that Rampal Singh, grandfather of plaintiff, was to be given one and a half shares instead of one share and that this was the consideration which led the Court to allow plaintiff's father and guardian ad litem to compromise on behalf of the minor (plaintiff)". He went on to say that the evidence in the case satisfied him of the existence of a custom by which the eldest son was entitled to one and a half shares. From this he concluded that there was no benefit to the minor in the additional share obtained by his branch of the family, which he would have been entitled to under the custom apart from the compromise. He found therefore a misrepresentation on the part of Chandra Bahadur Singh, the father and guardian of the plaintiff who was then a minor, and he further found that the Court would not have sanctioned this compromise had it not been for this misrepresentation. We take a somewhat different view from that. The question was not whether there was or was not such a custom in the family. The question was rather whether there had been a partition of the family property in 1902. If there was such a partition, then Udit Narain Singh became full owner of the share he reserved for himself and he was competent to bequeath it to the present plaintiff. The question is whether the facts were properly placed before the Court at the time when the Court sanctioned the compromise on behalf of the minor. This is a question of considerable difficulty. The law on the subject is not doubtful. On th