1. The arbitration award of 1838 (exhibit No. 2), Which was assented to by the ancestors of the parties, provided that Narsinh Khanderav should continue to hold the deshpande vatan, and should pay an increased allowance to the plaintiff's father and two uncles. The plaintiff's case is that the allowance so fixed is payable in perpetuity, and he accordingly sues to recover it by virtue of the award. Assuming, but by no means deciding, that the ancestor of one of the parties had power to bind his descendants to pay a fixed allowance in perpetuity, and that the ancestors of the other party had power to bind their descendants to be content with such allowance, however their circumstances might alter, yet we do not think that we should be hasty to assume such an intention, and we certainly find no trace of it in the arbitration award. The award shows that there already existed an arrangement, which, as stated in Shidojirav v. Naikojirav 10 Bom. H.C. 228 is a common one in deshpande families, by which the eldest member takes the whole vatan, giving to the other members certain revenues or allowances for their maintenance. A dispute had arisen among the parties in consequence of the increase in the number of members of the plaintiff's branch of the family, and a suit had, consequently, been brought against the defendant's father, the friendly settlement of which suit was the object of the reference to arbitration. As already stated, the arbitrators determined that Narsinh should pay an increased allowance to the three brothers, the father and uncles of the plaintiff, so as to bring up his income to Rs. 401 per annum, and that thenceforth there should be no further disputes or demands between the parties, unless at any time they should see fit to make a partition. Whether rightly or wrongly, the arbitrators recognized the existence of a possible right to partition; but the only question which they decided was that Narsinh should pay an increased allowance to his relatives, because their family had become large and their allowance, which had from time to time varied, had become insufficient. It is contended that effect should be given to this award as a decree; but no Court would pass a decree fixing a grant of maintenance in perpetuity; and an allowance fixed by a decree as maintenance is ordinarily liable to be varied, if the party who is ordered to pay it shows that there are circumstances which render it equitable to vary the amount. There is no reason to suppose that the arbitrators had any idea of fixing the allowance for a longer period than the life-time of the parties; and all the parties to the award being now dead, no effect can any longer be given to the award.
2. The plaintiff's suit to enforce the award must, consequently, tail. His pleader informs us that the plaintiff still considers himself entitled to demand a partition; but on this point it is unnecessary for us to express any opinion. Nor do we say that the plaintiff might not make out a case for an allowance, independently of the award, if he chose to abandon all claim to a partition, and rely upon the custom frequent in deshpande families, to which we have alluded. But in the present case he sues solely on the award, and does not abandon his claim to a partition, and we cannot, therefore, in this, case consider whether, apart from the award, he is entitled to any and what allowance for his maintenance, in addition to the portion of the vatan of which he appears to be already in possession.
3. We reverse the decrees of the Courts below, and reject the claim. The plaintiff must pay the fees which he would have had to pay if he had not been allowed to sue as a pauper.