Judgement Appeal from a decree of the above Court (August 19, 1907) reversing a decree of the Subordinate Judge of Sitapur (September 8, 1906). The principal question decided was as to the right of succession to the estates of Ramkote and Hadipur, the last owner of which was Kalka Bakhsh Singh. The controversy between the parties was as to which of several documents propounded was operative in law to regulate the succession. Kalka Bakhsh died on October 14, 1893, leaving him surviving his eldest son Umrao Singh, his third son Baldeo Bakhsh, who were the plaintiffs, and two grandsons, the defendants Lachhman Singh and Bharat Singh, the sons of his second son Prithipal Singh, who had died in the year 1892. On January 9, 1862, Kalka Bakhsh executed a document in the terms following— " As the British Government has conferred on me generation after generation the proprietary right in Ramkote estate therefore I wish and file this application that after my death Umrao Singh the eldest son (sic) my estate should continue in my family undivided in accordance with the custom of rajgaddi and that the younger brothers should be entitled to get maintenance from the gaddi nashin." With this document Kalka Bakhsh presented a petition stating that in accordance with the orders of Government he submitted his will to the authorities. Both Courts in India, following the decisions in Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 Ind. Ap. 259.) and Haidar Alt v. Tasadduk Rasul Khan (( 1890) L. R. 17 Ind. Ap. 82.), held that the said document operated as a valid devise of the estate to Umrao Singh. The next document is dated May 28, 1884, and is set out in their Lordships judgment. On October 4, 1893, Kalka Bakhsh executed another will devising his estate to his two surviving sons Umrao Singh and Baldeo Bakhsh. After his death the names of the appellants and respondents were registered in the Revenue records as owners of their respective shares; and on June 20, 1894, Umrao Singh transferred his interest in the estate to his brother Baldeo Bakhsh. The plaintiffs on September 30, 1905, sued to recover the third share of which the respondents had been recorded as owners; basing their title either on the will of 1862 or on that of 1893. The respondents relied on the document of May 23, 1884. The plaintiffs on September 30, 1905, sued to recover the third share of which the respondents had been recorded as owners; basing their title either on the will of 1862 or on that of 1893. The respondents relied on the document of May 23, 1884. The findings of the Subordinate Judge as to these three documents were to the effect that the one executed on January 9, 1862, was a valid will in favour of the first appellant, that the document of May 23, 1884, was obtained by undue influence and was not executed by Kalka Bakhsh " with his free will and consent/ and that Kalka Bakhsh was not of sound disposing mind on October 4, 1893. He decreed in favour of the plaintiffs. The Appellate Court affirmed these findings as regards the wills of 1862 and 1893; but with regard to the document of 1884 it was of opinion that its execution had not been procured by undue influence, that it was testamentary and had not been revoked and that it operated as a valid devise, and that by virtue of s. 96 of the Indian Succession Act the defendants were entitled to the one third share which by that document had been given to their father. It accordingly dismissed the suit with costs. The material portion of the judgment was as follows. After holding that Kalka Bakhshs signature was intended to give effect to the document as a will so far as it was of a testamentary character, it referred to the argument " that the document could not operate as a will at all because the executants calls it a sanad and because in part at least it is not of a testamentary character. The first part of this argument is met by the case of Ishri Singh v. Baldeo Singh (( 1884) L. R. 11 Ind. Ap. 135; S. C. I. L. R. 10 Calc. 792.), where a document called a tamliknama was held to operate as a will. The second part is met by the decision in Lali v. Murlidhar (( 1906) L. R. 33 Ind. Ap. 97; S. C. I. L. R. 28 Allah. 488.), and other like cases in which it has been held that a part of a wajib-ul-arz may operate as a will. The second part is met by the decision in Lali v. Murlidhar (( 1906) L. R. 33 Ind. Ap. 97; S. C. I. L. R. 28 Allah. 488.), and other like cases in which it has been held that a part of a wajib-ul-arz may operate as a will. Both parties throughout this case until the further hearing in this Court admitted that so much of this document as is of a testamentary character should take effect as a will if the document is not invalid on the ground of undue influence. " The next question is as to the construction of this document. The respondents urged that Kalka Bakhsh intended thereby to leave his estate to his three sons as joint tenants, and that as Pirthipal died in the lifetime of his father the whole estate passed to the respondents, the surviving sons, under this document. But it appears to me to be quite clear that Kalka Bakhsh did not intend to make his sons joint tenants. Pirthipal was living apart from his father and his brothers and nothing could have been farther from the intention of Kalka Bakhsh than that his three sons should be joint tenants. He evidently contemplated a division of the estate between them, for he said after my death my three sons will (or) let my three sons divide (taksim) my movable and immovable property.1 In my opinion, the devise was to the three sons as tenants in common. Under s. 96 of the Indian Succession Act, which is applied to the wills of taluqdars by a. 19 of the Oudh Estates Act, the devise to Pirthipal takes effect in favour of his sons, the appellants. The word used in s. 96 of the Succession Act is bequest, but the words bequest/ bequeath, &c, are used in the Oudh Estates Act in the sense of devise, and under the latter part of s. 19 of the Oudh Estates Act, the word bequest in s. 19 of the Succession Act must be given the same meaning as is attached to it by the Oudh Estates Act." De Gruyther, K.C., and Kyffin, for the appellants, contended that on the evidence the will of October 4, 1893, was proved to have been executed by Kalka Bakhsh whilst of sound disposing mind. It superseded the will of January 9, 1862, which was a valid and effective devise of the whole estate in favour of Umrao Singh. "Unless superseded the earlier will vested that estate in Umrao. The respondents rely on the instrument of May 23, 1884, but it was contended that that was not in law or in fact a testamentary disposition of the estate see In the Goods of Robinson (( 1867) L. R. 1 P. & D. 384.); Hall v. Hall. (( 1868) L. R. 1 P. & D. 481.f1) The evidence shewed that it was not executed by Kalka Bakhsh as a will and was never intended by him to operate as such. It purported to be a family arrangement inter vivos executed to compose existing family strife. But it was invalid in law as having been procured by undue influence. It was also without consideration—see Indian Contract Act, s. 25—and was not enforceable as regards the immovable property in suit for want of registration see Act III. of 1877, ss. 17, 23, 24, and 49, and the Tagore Case (( 1872) L. R. Ind. Ap. Supp. 47, 65.), which invalidates any attempt to make property inheritable otherwise than as the law directs. Sir II, Finlay, K.C., and Ross, for the respondents, contended that it was rightly found by the High Court on the evidence that the instrument of May 23, 1884, was not proved to have been procured from Kalka Bakhsh by undue influence. It was executed as a will and intended to be operative as such and had never been revoked. The will of October 4, 1893, was proved to be invalid for want of sound disposing mind on the part of Kalka Bakhsh at that date. The plaint treated the document of May 23, 1884, as a will, and it was not open to the plaintiffs in appeal to deny the allegation of their plaint and for the first time to set up the case that it was a transaction inter vivos invalid for present purposes for want of registration. If the point were open it was not sustainable, for the evidence shewed that the instrument was intended to operate as a will and was so understood by the parties. If the point were open it was not sustainable, for the evidence shewed that the instrument was intended to operate as a will and was so understood by the parties. It was operative as a will so far as it was testamentary, and none the less so because some of its provisions were of a non-testamentary character. Reference was made to Lali v. Murlidhar (L. R. 33 Ind. Ap. 97.) and Ishri Singh v. Baldeo Singh (L. R. 11 Ind. Ap. 135.), where a tamliknama and a wajib-ul-arz were respectively held to operate as wills. It was not procured by undue influence or threats and was not void under s. 25 of the Indian Contract Act. As regards registration s. 18 of Act III. of 1877 made the registration of wills optional. Sect. 57 of Act X. of 1865, made applicable to taluqdars wills by s. 19 of Act I. of 1869, was referred to. De Gruyther, K.C., in reply, referred to the pleadings to shew that the plaintiffs had called the instrument of 1884 a will and a deed indiscriminately. Registration in this case was imperative. The judgment of their Lordships was delivered by LORD MACNAGHTEN. This is an appeal from a decree of the Court of the Judicial Commissioner of Oudh reversing the decision of the Subordinate Judge of Sitapur. The dispute between the parties relates to the right of succession to one third of the estate of Ramkote, of which a Hindu gentleman named Kalka Bakhsh Singh was the last owner. In the course of the discussion before this Board the controversy was reduced to two questions and two questions only (1.) Was a certain document executed by Kalka Bakhsh on May 23, 1884, a testamentary or a non-testamentary instrument? (2.) Is that question now open having regard to the course of the proceedings in the Courts below ? After the confiscation of Oudh the second summary settlement of the Ramkote estate was made with Kalka Bakhsh. He obtained a sanad from the Government. His name was entered in lists 1, 4, and 6, prepared under the provisions of s. 8 of Act. I. of 1869. And he remained absolute owner of the property until his death. Kalka Bakhsh died on October 14, 1893. He had three sons, Umrao Singh, Pirthipal Singh, and Baldeo Bakhsh. He obtained a sanad from the Government. His name was entered in lists 1, 4, and 6, prepared under the provisions of s. 8 of Act. I. of 1869. And he remained absolute owner of the property until his death. Kalka Bakhsh died on October 14, 1893. He had three sons, Umrao Singh, Pirthipal Singh, and Baldeo Bakhsh. Pirthipal Singh died in his fathers lifetime, leaving two sons, who were defendants in the suit and are the respondents to this appeal. On January 9, 1862, Kalka Bakhsh, in compliance with the directions issued by the Government, declared that his wish was that after his death his estate should continue in his family undivided, in accordance with the custom of rajgaddi, and that the younger brothers should be entitled to maintenance. It is not disputed that this declaration was a valid testamentary disposition by Kalka Bakhsh of his estate in favour of his eldest son. Kalka Bakhsh and his second son Pirthipal Singh were on bad terms, so much so that Pirthipal Singh threatened personal violence to his father, and Kalka Bakhsh commenced criminal proceedings against his son. The quarrel, however, was for the time composed by the intervention of two friends of the family, Jote Singh of Bihat and Ratan Singh of Rojah. At their instance the following document was drawn up and signed by Kalka Bakhsh in their presence on May 23, 1884 " This sanad is executed by me, Thakur Kalka Bakhsh, taluqdar of Ramkote. For Pirthipal Singh, who is my son, I fix Rs.300 annually, so that he may maintain himself. Besides this, whatever I may give I will give equally to the three sons, except provisions, which they may take from my godown (kothar). He may take 6 annas in kharif (crop) and 10 annas in rabi (crop) out of my treasury (tahwil). The marriage and gauna expenses of the sons and daughters shall be borne by me. After me the three sons are to divide the property, movable and immovable. This has been settled through the mediation of Thakur Jote Singh of Bihat and Thakur Ratan Singh of Rojah." Kalka Bakhsh, though he executed the document without demur, did not comply with its terms, if, indeed, he ever meant to do so. After me the three sons are to divide the property, movable and immovable. This has been settled through the mediation of Thakur Jote Singh of Bihat and Thakur Ratan Singh of Rojah." Kalka Bakhsh, though he executed the document without demur, did not comply with its terms, if, indeed, he ever meant to do so. In February, 1886, Pirthipal Singh, who apparently was then in destitution, brought a suit to recover arrears of maintenance and a sum of money equal to an amount alleged to have been given by Kalka Bakhsh to his youngest son Baldeo Bakhsh. The suit, which was founded on the instrument of May, 1884, was dismissed by the Subordinate Judge, and the dismissal was affirmed on appeal, except as regards arrears of maintenance then due, amounting to Rs.412.8. In May, 1892, Kalka Bakhsh brought a suit for cancellation of the instrument of May, 1884. Pirthipal, however, died in November, 1892, before the suit could be heard, and it was consequently withdrawn. After Kalka Bakhshs death there was the usual quarrel as to registration in the Revenue records. On May 14, 1894, the Deputy Commissioner of Sitapur, without pronouncing any opinion on the questions in dispute, made an order directing the entry of one third of the estate in the name of Umrao Singh, one third in the name of Baldeo Bakhsh, and the remaining third in the names of Pirthipals two sons. Umrao Singh then transferred his interest in the estate to his brother Baldeo Bakhsh, and they brought this suit as co-plaintiffs to recover the one third of the estate entered in the names of the sons of Pirthipal Singh. They relied mainly on a will alleged to have been executed on October 4, 1893, up to which date, as they contended, the testamentary instrument of January 9, 1862, was in force. They asserted too that the instrument of May 28, 1884, was obtained from Kalka Bakhsh by undue influence and was wholly inoperative. The Subordinate Judge gave effect to the plaintiffs claim except so far as it was founded on the alleged will of October, 1893. He decided against them on the issue as to the validity of that document, stating that the execution thereof "was not very clear to his mind." The decree was made without costs. The Subordinate Judge gave effect to the plaintiffs claim except so far as it was founded on the alleged will of October, 1893. He decided against them on the issue as to the validity of that document, stating that the execution thereof "was not very clear to his mind." The decree was made without costs. On appeal the Judicial Commissioners affirmed the findings of the Subordinate Judge in regard to the will of 1862 and the alleged will of 1893. But as regards the instrument of 1884 they held that its execution was not procured by undue influence, and that it operated as a valid devise to Pirthipal Singh, the benefit of which passed on his death to his two sons. In the result they reversed the decree of the Subordinate Judge and dismissed the suit with costs. Their Lordships agree with the Court of the Judicial Commissioner in thinking that the instrument of 1884 was not procured by undue influence. Indeed, there seems to be no ground whatever for such a suggestion. On the other hand, it seems clear that that document is a non-testamentary instrument. It was a family arrangement arrived at by the mediation or arbitration of two gentlemen, who were old friends of the family, and interested in maintaining its honour. It was plainly intended to be operative immediately, and to be final and irrevocable. It fails of effect simply because it was not registered, as required by the Registration Act III. of 1877, s. 17. It is therefore void as regards immovable property. As regards the second question their Lordships must hold that they are not precluded by what took place in the Courts below from considering and determining the real question in the case. In the Courts below neither party pursued a consistent course. As long as the question of the validity of the alleged will of October 4, 1893, was undetermined the appellants contended that the instrument of May, 1884, was testamentary, while the defendants contended that it was a settlement and not a will. As soon as the alleged will of 1893 was successfully impeached, the defendants maintained that the instrument of 1884 was a will and not a settlement, and the appellants changed their attitude. As soon as the alleged will of 1893 was successfully impeached, the defendants maintained that the instrument of 1884 was a will and not a settlement, and the appellants changed their attitude. Their Lordships think that, notwithstanding the conflicting views presented by the appellants in the Courts below, they are bound to give effect to the real character of the instrument. At the same time they consider that the appellants, though successful in the result, ought not to be allowed costs on this appeal or any costs in the Courts below. Their Lordships will therefore humbly advise His Majesty that the appeal ought to be allowed and the decree of the Subordinate Judge restored, and that any costs paid under the order of the Court of the Judicial Commissioner must be returned. There will be no costs of the appeal.