Lallubhai Shah, Kt., Ag. C.J.
1. The question that arises in tins second appeal relates to the construction of Exhibit 74 in the case which is described as a Sanad. The plaintiffs, who claim under this document, sued for an order directing the defendants to pay into the treasury every year the amount of assessment plus the local fund tax in respect of the three lands mentioned in the plaint or to deduct that amount at the time of receiving the jagiriamal from the treasury. The plaintiffs also claimed Rs. 456-1-0 with interest, being the amount rightly recovered by the village authorities as assessment in respect of the lands in suit, but wrongly retained by the defendants in respect of the years 1910-11-12. The defendants to the suit included defendant No. 14 who was one of the executants of this deed, Exhibit 74. The other defendants are either representatives of the other executants of the document, or purchasers of their shares in the Inam. The defendants are the owners of the eight anna share of the Inami rights in the village of Sindi.
2. The trial Court disallowed the general prayers of the plaintiffs, but decreed their claim for Rs. 458-1-0 and costs to be recovered from defendant No. 14 personally, and from the estates of the other deceased executants of Exhibit 74
3. The plaintiffs appealed to the District Court, and the only question raised in the appeal was whether a decree personally against all the defendants should have been passed or not, This point was decided against the plaintiffs appellants on the construction of Exhibit 74, and the decree of the trial Court was confirmed.
4. The plaintiffs have preferred this second appeal; and the question is whether on a proper construction of Exhibit 74 they are entitled to a personal decree against those who hold the lands either as representatives of the holders of the eight anna share in the Inam, or as purchasers of the interest of any of them,
5. It is not necessary to set forth the whole of the document, but after referring to the circumstances under which the Inam of seventy Bighas of excellent lands in the village was to be made in favour of the present plaintiffs' father Madhavrao Narayan Gadre, and after referring to the fact that he had selected certain lands in the village of that description, the document provides as follows:
The terms of the lands so given are:
(1) Exemption of the assessment of thy said lands has been made in favour of you and your heirs.
(2) In case there is any obstruction (made) by Bhaubands in respect of the Inam of seventy bighas (in case) you have occasion to pay the assessment, we will pay it. If you have to pay it, the said sum of assessment will be paid by us without reference to each other.
Besides this if the lands or a portion thereof wore to go from your possession owing to (the intervention of) Bhaubands or owing be any other cause, we shall indemnify you in respect of the loss caused to you. If we do not do so, we shall at our cost buy and give to you Government pro-notes which will yield to you the sum which you would have got by way of income of the said land.
6. On a proper construction of this document, it seems to us to be clear that the executants of this document made a gift, not only of their occupancy right in the land, but of the Inam rights which they had in connection with the land, and they granted for all time the exemption of the assessment of the suit lands to Madhavrao and his descendants. Even if there was no further covenant with regard to making good the loss if the assessment were recovered from him, or if the lands were lost to him on account of the intervention of Bhaubands, it seems to us that those who are successors-in-title of those executants would be bound by the right given to the present plaintiffs in respect of the assessment of the suit lands. It is a substantial right created in favour of the plaintiffs in respect of the lands and it is a right which must in its very nature run with the lands.
7. The learned District Judge has taken the view that under the covenant, which is contained in Clause 2 of the terms quoted above, only the executants of this documents would be personally liable to make good the loss. But here the position seems to be this. The assessment was in the ordinary course realized by the village officers to be paid over to the Inamdars. The assessment which has been recovered from the plaintiffs must be taken to have been paid over to the present defendants as holders of the Inam rights in respect of these lands, and if under this document they are not entitled to the benefit of that money, it is obligatory upon them to return the money to the plaintiffs. The substantial right created by this document being of this nature, it seems to us that the plaintiffs are entitled to a decree for the amount claimed by them in this suit against all the defendants. The question of adjustment of the rights of the defendants inter se with reference to this sum of Rs. 456-1-0 does not arise in this appeal, and we are not concerned with that question in any way. It is not alleged by any defendant in this suit that ho has not received the benefit of the assessment recovered from the plaintiffs in respect of these lands.
8. It is clear that only the defendants who receive the benefit would be liable to refund the amount; but in the present case no distinction on that score is suggested as regards any of the defendants.
9. We, therefore, vary the decree under appeal by ordering that the plaintiffs do recover Rs. 465-1-0 with costs throughout from the defendants.