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(iv) That barsati floor as has been shown in brown colour shall be owned by Decree Holder and her husband as sole owner/landlord till they are alive and thereafter it shall be devolved upon all the sons equally.

(v) That the common portion as has been shown in blank in the site plan shall be maintained by the parties in a joint way for common us.

(vi) That site plan shall be read as part and parcel of this deed.

(ix) That Decree Holder, J.Ds, and parties to this deed shall also bear and include the express meaning of their legal heirs representatives, assign & representatives etc.

(x) That parties to the deed shall honestly and faithfully observe the above noted terms and conditions."

6. This compromise agreement dated 11th January, 1983 was taken on record on 24th January, 1983 after recording statement of parties on 21st January, 1983 in the execution proceedings as per site plan Annexures Ex.C-1 and C-2. A reading of the compromise agreement would show that share of Rishi Pal Singh, Rajendra Pal Singh and Harendra Pal Singh was specially demarcated and shown in different colours in the site plan marked as Ex.C-2. Padam Singh, who was the registered owner of the entire property but was not a party to the suit CS(OS) 163/1980, was a party to the compromise agreement. The barsati floor, i.e. the suit property, shown in brown colour was to be owned by the decree holder i.e. Chandra Kala Devi and her husband Padam Singh as sole owner/landlord till they were alive and thereafter devolve on the sons equally.

23. The issue which would arise for consideration, is whether the compromise agreement dated 11th January, 1983 would have affected the aforesaid Will dated 1st November, 1982 of Padam Singh and had had the effect of creating a vested right in favour of the three sons, thereby rendering the purported and alleged Will of Chandra Kala Devi in favour of the appellants inconsequential.

24. To our mind, the answer to the question would depend upon whether the compromise agreement with reference to the barsati floor, which was shown in brown colour, had vested and had settled the ownership in the three sons, or the ownership rights had remained vested with Padam Singh and his wife Chandra Kala Devi. We have already quoted the relevant portion of the compromise/settlement agreement which, with reference to the barsati floor, had stated that it shall be owned by the decree holder i.e. Chandra Kala Devi and her husband Padam Singh, who shall be the sole owners/landlords till they were alive and thereafter, shall devolve upon the three sons. We may also note that the compromise agreement had the effect of giving other portions in the property to the three sons.

"11. Now, there can be no doubt about the rule that where the enjoyment of the property is postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested and not contingent. (See Explanation to Section 19 of the Transfer of Property Act, Explanation to Section 119 of the Indian Succession Act. See also Williams on Executors and Administrators, 13th Edn., Vol. 2, p. 663, para 1010, and Jarman on Wills, 8th Edn., Vol. 2, p. 1397.) This rule operates normally where the entire income is applied, for the benefit of the donee. The distinguishing feature in this case is that it is not the entire income that is available to the donees for their actual use but only a portion thereof. But it is to be observed that according to the scheme of the trust deed, the reason for limiting the enjoyment of the income to a specified sum thereof, is obviously in order to facilitate and bring about the discharge of the debts. As already explained the underlying scheme of the trust deed is that the enjoyment is to be restricted until the debts are discharged. Whatever may be said of such a provision, where a donee is not himself a person who is under any legal obligation aliunde to discharge such debts, the position in this case is different. The two sons are themselves persons who, if the settlor died intestate, would be under an obligation to discharge his debts out of the properties which devolve upon them. It is only the surplus which would be legally available for division between them. In such a case, the balance of the income which is meant to be applied for the discharge of the debts is also an application of the income for the benefit of the donees. It follows that the entire income is to be applied for the benefit of the donees and only the surplus, if any, is available to the donees. Hence the provision in the trust deed that Lots I to IV are to devolve on Rajes and Lot V on Ramendra and that the surplus income of each of these lots after the discharge of the debts is also to devolve in the same way, clearly operates as nothing more than the present allotment of these properties themselves to the donees subject to the discharge of debts nationally in the same proportion. Thus taking the substance of the entire scheme of this division between the two sons the position that emerges is as follows: (1) Specified lots are earmarked for each of the two sons. (2) The present income out of those lots is to be applied for the discharge of the debts after payment of specified sums therefrom by way of monthly payments to the two sons and presumably such application is to be notionally pro rata. (3) Any surpluses which remain from out of the income of each of the lots are to go to the very person to whom the corpus of the lot itself is to belong on the termination of the trust. (4) In the event of any of the two sons dying before the termination of the trust, his interest in the monthly payments out of the income is to devolve on his heirs. These arrangements taken together clearly indicate that what is postponed is not the very vesting of the property in the lots themselves but that the enjoyment of the income thereof is burdened with certain monthly payments and with the obligation to discharge debts therefrom notionally pro rata, all of which taken together constitute application of the income for his benefit.