1. The first defendant in these suits is the present Zamindar of Kalahasti, an impartible estate. The 1st plaintiff in O.S. No. 9 of 1910 and the sole plaintiff in O.S. No. 17 of 1910 are brothers of the 1st defendant. The 2nd plaintiff in O.S. No. 9 of 1910, is the minor adopted son of the 1st plaintiff. They brought these suits for a declaration of their rights to maintenance at the rate of Rs. 650 per mensem and for recovery of the same with arrears and interest as a charge upon the estate. They also claimed priority over the mortgage rights of certain mortgagees who were made parties to the suit and thus raised questions which need not now be considered as they are not pressed in these appeals. The 1st defendant acknowledged that the plaintiffs were entitled to be maintained out of the estate but pleaded that the financial condition of the estate was such that he could not afford to give his brothers more than Rs. 400 per mensem which was in fact the amount that they were receiving during the period when the estate was under the management of the Court of Wards. The lower Court gave the plaintiffs a decree for Rs. 400 per mensem during their joint and several lives for the maintenance of their branches of the family and directed that the sums due on account of past and future maintenance at this rate should be recoverable as a charge upon the estate. From this. plaintiffs' appeal on the ground that the amount awarded should not have been less than Rs. 650.
2. The position taken for the appellants is this. The present 1st defendant brought a suit O.S. No. 12 of 1890 for partition against the then Zamindar Muthu Venkatappa to which all the brothers were made parties. It ended in a compromise in which the estate was declared to be impartible and the succession to it was declared to be governed by rules of primogeniture, simultaneously it was agreed that the Zemin dar's brothers, mcluding the present plaintiffs and the 1st defendant and their male descendants should be entitled to a maintenance allowance from the income of the estate of Rs. 600 per mensem for the first ten years and of Rs. 700 per mensem thereafter. The District Court passed a decree in terms of the compromise but on appeal the High Court held in Venkatappa Nayanim v. Thimma Nayanim I.L.R. (1894) M. 410 that the stipulations which were outside the scope of the suit should not have been embodied in the decree and these included the stipulations as to allowances, so they were excluded.
3. After the death of Muthu Venkatappa, Akkappa succeeded to the Zemindari, and during his time two of the brothers of Muthu Venkatappa viz., the present 4th defendant and the father of the 6th defendant brought suits against Akkappa in respect of their maintenance allowances and obtained consent decrees for Rs. 650 per mensem.: The other brothers, viz., the 1st plaintiff in O.S. No. 9 of 1910 and the plaintiff in O.S. No. 17 of 1910 and the present Zamindar got registered agreements executed (Exhibits A.C. and I) with Akkappa in similar terms of, Rs. 650 per mensem. On the death of Akkappa the 1st defendant became Zamindar.
4. Now it is urged that the appellants have by virtue of exhibits A and C become creditors of the Estate and not mere maintenance holders, that the agreements are binding on all the successors of the Zemindar who executed them and that there- fore no less sum than what was agreed upon therein can now be given as maintenance. Further it is argued that the compromise having been entered into as a settlement of certain claims to portions of the estate is binding on all who took part in it and their representatives, and creates vested rights in favour of those whose rights are declared in it.
5. Lastly it is contended on the evidence that the amount claimed was not excessive and that the estate could well afford it. On the last point I agree with the Subordinate Judge's opinion that nothing more than Rs. 400 is proper and reasonable for the reasons given in paragraph 10 of his judgment.
6. As for the other points now taken in the appeals it is noticeable that Exhibit A, though purporting to have been executed in pursuance of the razinamah in O.S. No. 12 of 1890, contains terms very different from the- compromise petition (Exhibit D). Not only is the amount of maintenance different in the two documents as I have already stated, but the periodical instalments in which payments are to be made are different, and Exhibit D states the source to be the income of the Zamindari whereas Exhibits A. and C. provide for recovery of the allowance from the estate as well as its incomes. Exhibits A. and C. are three years later than Exhibit D.
7. It is thus impossible to treat Exhibits A. and C. as having the same force and binding character as a decree in a suit terminating litigation and compromising a bona fide claim to property. Nor can the appellants rely on those terms of the compromise (Exhibit P) which have not passed into a decree or order of Court so far as they affect the immoveable property comprised in the document, as the agreement of compromise was not registered. Vide Chelamanna v. Rama Rao I.L.R. (1911) M. 46. Exhibits A. and C are registered and purport to be agreements relating to the payment of maintenance allowances, as is distinctly stated in the first clause of the document.
8. An amount provided as maintenance for a member of a family does not lose its character as a maintenance allowance by being embodied in an instrument or decree, the character, I mean of being liable to be increased or decreased under a cha'nge of circumstances, (Vide Gopikabai v. Dattatraya I.L.R. (1900) B. 386. Subramaniam Patter v. Vembammal : (1904)14MLJ339 and Maharajah Greeschand Roy v. Sambhoochand Roy (1835) W.R. 598. For these reasons alone I consider that the Subordinate Judge had power to direct the 1st defendant to pay maintenance, at a lower rate than Rs. 650. But as reliance is placed on the binding character of the registered documents under which it is claimed that plaintiffs and their male heirs have acquired a right to an hereditary annuity for all time, I may observe that in so far as Exhibit A. and C. provide that Seshachalapati and Venkatappa and their male descendants have a vested right to recover the fixed allowances through the present Zamindar and after him through the rightful owners of the Zamindari or their heirs, assignees, executors, administrators, trustees, etc.; from the estate and its incomes by declaring a recurring charge on the Kalahasti estate, these documents create a future interest' in' immoveable property in favour of persons unborn, and thus impose a restraint upon alienation which is contrary to the principles of Hindu Law. In excluding females and collaterals they provide for a line of succession not according to law, and they are therefore invalid' (Vide Mukhopadhyaya's Law of Perpetuities in British India, pp. 123 to 128 and the Privy Council decision in Chandi Churn Bama v. Sidhesswari Debt I.L.R. (1888) C. 71. .
9. I would therefore dismiss these appeals with costs.
10. The 3rd Respondent in Appeal 216 who got a consent' decree in O.S. No. 33 of 1895 (Exhibit E) on 22nd April 1896 for maintenance allowance of Rs. 650 per mensem has filed a memorandum of objections claiming priority over the appellant's right on the ground of his decree being prior in point of time to Exhibit C which is dated 17th November 1896.
11. In these suits it is unnecessary to determine questions of priority between the various maintenance holders inter se seeing that their right to receive maintenance rests in the first instance not on their decrees or agreements but on their relationship to the owner of the Zamindari.
12. The objection memorandum in App. 216 of 1911 is for this reason dismissed with costs. That in Appeal 217 is out of time and is also dismissed with costs.
Sankaran Nair, J.
13. I agree.
14. I think that considering the income of the Zamindari Rs. 400 is a fair rate of maintenance.
15. The terms of the compromise in O.S. No. 12 of 1890 relating to maintenance were not embodied in the decree. It is not those terms that are now sought to be enforced. The subsequent registered agreement of 1896 is so far as the rate is concerned only binding on the Zamindar who executed it. It is not shown that it was executed under circumstances which would make it binding on the succeeding Zamindars who take the property in their own right.
16. It was not contended, nor could it be successfully contended, that the maintenance formed such a charge on the Zamindari as would preclude the Zamindar for the time being from alienating portions of it for necessary purposes. It would be unreasonable to hold in the circumstances that the maintenance is a fixed unvarying amount.