1. This is a defendants' appeal arising out of a suit for a declaration that the plaintiff Mt. Kalawati, is, by virtue of an auction-purchase, the owner in possession of a certain share in properties specified and is entitled to get the said share in its entirety partitioned through the Revenue Court.
2. Wazirunnissa was the owner of village Ruppur. On 13th January 1919 she executed a registered document, called a deed of agreement, under which she provided that she shall pay Rs. 20 per month to her daughter-in-law, Mt. Faruqunnissa, and that the said maintenance allowance should continue to be paid to her (Faruqunnissa's) descendants from generation to generation. She further provided that the maintenance allowance should be a charge on a 8 biswas, 2 biswansis, 4 kachwansis, 8 nanwansis and 18 tanwansis share in mahal Surkh of village Ruppur Bahadurpur and the said share shall remain hypothecated in lieu of the payment of the said maintenance allowance. She further provided that after her death only that portion of the property aforesaid which would devolve upon her son Marghub Hasan, who was the husband of Mt. Faruqunnissa, should remain charged and hypothecated. She clearly stated that the said agreement would remain operative in favour of the descendants of Mt. Faruqunnissa from generation to generation.
3. Mt. Faruqunnissa died in 1920 and Mt. Wazirunnissa herself died in 1922. Marghub Hasan died in the same year but shortly after Wazirunnissa. It is an admitted fact that according to the devolutions of shares under the Mohamedan Law if the estate of Mt. Wazirunnissa be regarded as consisting of 2240 sihams then the result of the -devolutions after the successive deaths was that a junior widow of Marghub Hasan named Ashrafulnissa got 60 sihams, the three sons of Mt. Faruqunnissa got 105 sihams each and their step-brother, the son of Mt. Ashrafulnissa also got 105 sihams.
4. Mt. Ashrafulnissa brought a suit for the recovery of her dower debt against the assects of her deceased husband, Marghub Hasan and obtained a decree on 5th December 1923. She sold this decree on 15th December 1923 to Mt. Kalawati, the present plaintiff. Mt. Kalawati got the estate of Marghub Hasan deceased attached on 4th April 1924. But before the property could be sold, the three sons of Mt. Faruqunnissa brought suit No. 24 of 1926 in the Court of the Munsif for the enforcement of their share of the charge under the agreement of 1919 against Iqbal Hasan their step-brother and against one Zahurulhasan, who was a purchaser of a part of Iqbal Hasan's interest. They at first impleaded Mt. Kalawati as one of the defendants but later on got her name struck off from the array of the defendants. The suit was contested but resulted in a decree in favour of the plaintiffs for the realisation of the arrears of maintenance by sale of the property charged. This decree was dated 29th June 1926 and was affirmed on appeal on 14th December 1926.
5. After this Mt. Kalawati the purchaser of the dower decree from Mt. Ashrafunnissa put her decree into execution and got a share of Iqbal Hasan put up at auction and she purchased it herself on 23rd July 1926. The extent of the share purchased by her is a matter of controversy which we shall discuss later. Having obtained formal delivery of possession through the Civil Court Mt. Kalawati applied to the Revenue Court for the separation of her share by partition against the other cosharers. Objection was raised by the defendants who are appellants before us and the Revenue Court referred the plaintiff Mt. Kalawati to the Civil Court for obtaining a declaration of her right. The present suit was accordingly brought by her.
6. The Court below has held that the interests of all the brothers including Iqbal Hasan were purchased at auction by Mt. Kalawati and that the sale was subject to the maintenance charge that was valid. It has however held that the charge was void in law and was unenforceable against the present plaintiff and has accordingly given the plaintiff a decree for the declaration asked for. The defendants have come up in appeal and challenge the findings of the Court below.
7. On the first question the position, in our opinion, is very clear. When, Mt. Kalawati put up the property for sale objection was taken on behalf of the judgment-debtors that there was a charge on the property which should be announced. The decree-holder, by an application dated 20th April 1926 suggested to the Court that the amount of the charge should be deducted from the profits of the property said to be sold by auction and that value be fixed with reference to the remaining amount only. The sale proclamation is not on the record but the document containing the list of auction bids indicates that the property put up for sale consisted of 3881/2 sihams out of 480 sihams comprised in 2240 sihams in 8 biswas 2 biswansis 5 kachwansis and 3 tanwanis is of land situate in mauza Ruppur Bahadurpur mahal Surkh (Red), and it was clearly notified that Rs. 20 per month as maintenance allowance granted by Wazirunnissa in favour of Faruqunnissa was to be regarded as an encumbrance which the decree-holder alleged to be fictitious. But as the price offered was in excess of the amount due by Rs. 500, the entire property after deducting 1/19th share was to be sold. The sale certificate which was issued to Mt. Kalawati after the confirmation of the sale is dated 8th March 1927 and contains-the same recitals. The report of the office after the auction sale also indicates that the property was sold, but the value announced was assessed after deducting the amount of the charge. This office report, being a subsequent document, is not very material. In the same way the admission made on behalf of the defendants in the mutation Court that the decree-holder had purchased that share is not absolutely conclusive. But the fact remains that it was the whole share after deducting 1/19th share which was sold, but the charge was announced and it was also made clear that the decree-holder was not admitting the validity of the charge.
8. In our opinion, the contention of the defendants that instead of selling 18/19 share in 388 1/2 sihams a small interest representing the property charged was carved out and excluded cannot be accepted. The finding of the Court below on this point is therefore correct. The second point is not free from, difficulty. We have already set forth the substance of the agreement of 1919. The Court below has thought that the agreement is void because it offended against the rule of perpetuity which affected wakfs and gifts under the Mohamedan Law. It is nobody's case that the document in question was in the nature of either a wakf or a gift.
9. The binding character of the agreement so far as Mt. Wazirunnissa is concerned is not disputed. Indeed the Court below has found that there was mutuality and there was consideration for this agreement. It is also not disputed that the maintenance allowance was a valid charge on the property specified during the lifetime of Mt. Wazirunnissa. The contention is that after the death of Mt. Wazirunnissa her heirs and representatives, are not bound by this charge.
10. That an agreement of this kind creates a charge and not a mortgage is clear from a case somewhat similar on facts which is to be found in Mt. Khatun v. Tahira Khatun (1913) 19 IC 661. The ultimate decision in that case is however not in point. That case also shows; that it is the substance of the provisions which have to be considered and not the use of the words, 'makful or mustagharak.' 'A charge' is defined in. Section 100, T.P. Act, as being created where immovable property of one peril. (1913) 19 IC 661. son is, by act of parties or by operation of law, made security for the payment of money to another and the transaction does not amount to a mortgage. When a transaction amounts to a mortgage is stated in the definition of a mort-gage in Section 58 of the Act. Very often, the line of demarcation between a simplc mortgage and a charge is very thin and sometimes even indistinguishable, but there is no doubt that the legislature contemplates a clear distinction between the two. There may be a variety of reasons for a transaction being only a charge and not a mortgage. But it seems quite clear that the mere fact that there is a personal covenant to pay the amount would not necessarily result in the transaction not being a charge. It is equally clear that when the intention of the parties is to ceate a liability in perpetuity not capable of being redeemed absolutely at any time the transaction cannot possibly be a mortgage.
11. In our opinion the case is to a great extent covered by the authority of their Lordships of the Privy Council in the case of Rajah of Ramnad v.Sundara Pandiyasami Tevar AIR 1918 PC 156. In that case certain parties had come to a compromise in 1861, the material portion of which was to the affect that
as consideration for the plaintiff having lost certain rights, the defendant and her heirs who are in enjoyment of the zamindari should pay to the plaintiff and his descendants, from generation to generation, an allowance at the rate of Rs. 700 a month from 1st November 1860.
12. One of the points which was raised in the suit brought to recover the arrears of allowance due to a subsequent heir was whether it was a creation of a kind of perpetuity which the law did not allow or was an attempt to create a permanent relation which was impossible of creation. At. p. 586 their Lordships observed:
Whatever might be said about that, if this agreement lay in covenant, seeing that it lies in charge, there is no difficulty in making it perpetual as long as there are lineal or collateral heirs of the grantee, and in our view the District Judge and Sheshagiri Ayyar, J., in the High Court were right in holding that this is a charge,
13. As a result their Lordships upheld the decree in favour of the plaintiffs under which the arrears of allowance were allowed after the lapse of many years and in the next generation. It-was not held that the charge was void. In view of this pronouncement it is quite clear that the rule against perpetuity would not apply to a charge of this kind which does not amount to a transfer of interest within the meaning of Sections 13 and 14, T.P. Act.
14. The learned advocate for the plaintiff has however strongly urged that this particular agreement was void inasmuch as Mt. Wazirunnissa did not create a. charge on a specific property after her death but on an uncertain, unknown and undefined part of inheritance of one of her heirs. We have already referred to the provisions under which the charge was to be confined to that portion of the property only which came to devolve on Marghub Hasan. At the time when the agreement was executed it could not be known in advance whether Marghub Hasan would succeed her at all and would get any share nor could it be known what the exact extent of Marghub Hasan's share would be as the number of heirs who would survive the lady could not at that time be definitely ascertained. It is also-equally clear that Mt. Wazirunnissa was not directing that the charge should continue on any specific part of the property mentioned in the deed but only on that portion of it which would be the inheritance of one of her heirs Marghub Hasan. In this way she was obviously attempting to put Marghub Hasan at a disadvantage in comparison with the other heirs of the executant. She was really trying to burden the inheritance of one of her heirs while keeping the shares taken by the other heirs free from all such charge. In this way, there is no doubt that she was attempting to defeat the provisions of the Mohamedan Law under which the power of testamentary disposition of a Mohamedan is very much restricted and when exercised in favour of heirs the consent of the other heirs is a necessary requisite.
15. This condition therefore tended to-defeat the provision of the Mohamedan Law and would be void under Section 23, Contract Act. We are therefore of opinion that although it was open to Mt. Wazirunnissa to create a charge on the property named in the agreement) she had no authority to create a charge on the unknown shares of one of her heirs, Marghub Hasan. The charge attempted to be created on the share of Marghub Hasan is therefore invalid and illegal and cannot be enforced. Even if the charge were valid, it is quite obvious that to the extent of the shares of the three sons of Faruqunnissa there would be a pro tanto merger. The same persons could not both be charge-holders and own the properties charged. They could not possibly enforce the charge against themselves; and m the absence of any intermediary encumbrancer, contemplated by Section 101, T.P. Act, they could not keep alive the charge over their own shares. But, of course, there would be no merger so-far as the charge on the share of their step-brother is concerned.
16. We have already pointed out that in the suit of 1926 the three sons of Faruqunnissa succeeded in obtaining a decree for sale in enforcement of this charge against the share of Iqbal Hasan which had to remain in his hands after the purchase made byZahurulhasan. The present plaintiff, Mt. Kala-wati, is the auction-purchaser in execution of a decree, of the interest of Iqbal Hasan. Ordinarily she would be a representative of Iqbal Hasan and would be bound by the finding in that suit against Iqbal Hasan. So far as the subject-matter in dispute is concerned, namely, the share of Iqbal Hasan in this property the judgment of the Munsif which had ordered its sale' would bind the parties even in a subsequent suit brought in the Court of the Subordinate Judge far the defeated party or his representative cannot be allowed to go behind that decree and claim that the very property which had been ordered to be sold for arrears of maintenance allowance is not so liable. But so far as the matter in issue in the former case is concerned, namely, whether the charge was valid or invalid the judgment of the Munsif cannot bind the parties in a case which is heard by a Subordinate Judge when the Munsif was not competent to hear the subsequent suit. We therefore think that ordinarily Mt. Ka-lawati would be estopped from going behind the previous decree so far as Iqbal Hasan's share is concerned but would not be so prevented so far as the other properties are involved.
17. The learned advocate for the plaintiff however contends before us that under Section 91, T.P. Act of 1882, an attaching creditor was a person who had a right to redeem the mortgage and under Order 34, Rule 1, Civil P.C., he was a necessary party in a suit for sale on the basis of the mortgage. It is therefore contended that inasmuch as Mt. Kalawati had attached this share of Iqbal Hasan before the adjudication in the suit of 1926 and after having been impleaded she was excluded from the array of parties she cannot be bound by the decision arrived at in that case. It is conceded that in ordinary cases an auction-purchaser of the rights and interests of a judgment-debtor is a representative of the judgment-debtor and is bound by any decision against the judgment-debtor but it is contended that in view of the special provisions contained in Section 91(f), T.P. Act, an attaching creditor is on a stronger footing and he must be assumed to be in the same position as a puisne mortgagee who has not been impleaded in a suit brought by a prior mortgagee.
18. Ordinarily an attaching creditor does not acquire any interest in the property attached. He merely obtains a right to prevent the judgment-debtor from transferring the property in avoidance of the attachment. But no doubt Section 91(f) allowed attaching creditors the right of redemption and in a regular suit for sale on the basis of a mortgage it can very well be said that an attaching creditor was a necessary party under Order 34, Rule 1, and should have been impleaded.
19. But it must be borne in mind that a charge is not exactly identical with a mortgage and although a similar remedy is available a suit for the enforcement of a charge is not necessarily the same as a suit for sale on the basis of a mortgage-deed. One obvious distinction is that a mortgage is for a fixed term whereas a charge may be in perpetuity. In the case of a mortgage it can be ultimately redeemed whereas a charge in perpetuity cannot be redeemed at all. There is therefore no question of redeeming a charge but only paying up the arrears of maintenance due and preventing the sale of the property in execution of decree. Section 100 of the old Act of 1884 made the provisions relating to mortgage suits applicable to cases of charges 'so far as may be.' Similarly Order 34, Rule 15 of the new Code, makes the same procedure applicable to a charge 'so far as may be.'
20. The provision in Section 91(f) was in the nature of an exception specially applied by the legislature to the case of mortgages, which has now been deleted from the amended Act. There is no authority in support of the view that that exception should be extended to the case of charges as well. We think that we should not extend that exception to a charge in perpetuity and hold contrary to ordinary notions that an attaching creditor acquires such a paramount interest as not to be bound by the decree passed against the judgment-debtor whose property he has attached. As the attaching creditor did not insist on his remaining in the array of the parties, and purchased the property during the pendency of the suit for the enforcement of the charge she is bound by the decision. The result therefore is that the plaintiff is entitled to have the entire property purchased by her partitioned through the Revenue Court, but that the charge to the extent of the proportionate amount would attach to that part of the property which had belonged to Iqbal Hasan. The charge will continue in perpetuity generation after generation in favour of the descendants of the defendants-appellants on the share which had devolved on Iqbal Hasan and would be to the extent of Rs. 2-14-5 per month.
21. We accordingly allow the appeal and modify the decree of the Court below in the terms indicated above. We direct that the parties should receive and pay costs in proportion to their success and failure in both Courts in the ratio of the plaintiff getting 7/20 of her costs in both Courts from the defendants and the defendants getting 3/20 of their costs from the plaintiff in both Courts.