John Edward Power Wallis, C.J.
1. I agree for the reasons given by my learned brother with the decision of the District Judge that the first plaintiff has failed to prove that he was the adopted son of the deceased 'Muthudorasami Thevar and that his appeal (193 of 1911) must be dismissed with costs; the memoranda of objections must also be dismissed with costs. The appeal (173 of 1911) of the Rajah of Ramnad (the 2nd defendant) against the decree in favour of the 3rd plaintiff, who is the father of the 1st plaintiff but claims as assignee of one Poolar Tevan the next reversioner of the deceased Muthudorasanii Tevar has now to be dealt with. The mother of the deceased was the 2nd plaintiff and sued as his heiress, and it was on her death pending the suit the 3rd plaintiff the assignee of the next reversioner was brought on and allowed to continue the suit as her legal representative.
2. The claim is for an annuity of Rs. 700 settled in January 1861 on Sivasami Tevar the father of Muthudorasami and his' heirs as one of the terms of a compromise of a suitin which Sivasami claimed the Zamindari of Ramnad from the then Zemindarini and her adopted son, the grandfather of the present Rajah. The litigation to which this annuity has given rise, subsequently to Sivasami's death, is succinctly stated in paragraph 1 of the District Judge's judgment. His senior widow Kulandai Nachiar disputed the legitimacy of Muthudoraisami, and after obtaining a decision in her favour in the High Court which was afterwards reversed by the Privy Council, instituted O.S. No. 10 of 1867 against the Rajah of Ramnad, in the Madura District, who pleaded unsuccessfully that the annuity was only settled on the lineal heirs of the deceased Sivasami. In 1880 Muthudorasami, Sivasami's son sued the Rajah in O.S. No. 16 of 1880 in the District Court of Trichinopoly, and obtained a decree under which he drew the allowance till his death in 1905. In the present suit the defence has again raised the contention that the annuity was confined to the lineal heirs of Sivasami, and the District Judge has held that it is not res judicata by reason of the decision in O.S. No. 10 of 1867, on the ground that Kulandai Nachiar, the plaintiff in that suit cannot be considered to have represented the estate. He has however arrived at the same conclusion as the District Judge in that suit, whose judgment Exhibit R was approved by the High Court in Appeal, Exhibit R(3), and has rejected the contention that the annuity was only settled on the lineal heirs of Sivasami. I may at once dispose of this contention which was again raised before us, by saying that I see no reason to differ from those decisions. The compromise was arrived at while the decree of the Court of Sudder Adaulat dismissing Sivasami's claim to the Zamindari was under appeal to the Privy Council, and was embodied in two documents, Exhibits Q2 and Q3, one in Tamil and one in English, both signed by the pleaders of the parties and filed in the Sudder Court. The English version Exhibit Q3 is as follows : 'The plaintiff has thus relinquished all right and claim (to the Zamindari) the defendant and her heirs holding the Zamindari shall, from the 1st November 1860 pay to the plaintiff and his heirs a monthly allowance of Rupees seven hundred within the 10th of every succeeding month,' The words Santhathi Paramparyamayi used in the Tamil version are of Sanscrit origin signifying literally from generation to generation. The same word santhathi is used in an earlier portion of the document which provides that neither the plaintiff Sivasami nor his heirs shall have any claim to the Zamindari, and as pointed out more than once in the Judgment: It is absurd to suppose that it was the intention that the settlement should be binding only on the lineal heirs of Sivasami and might be disputed by collaterals. Further the District Judge stated in his Judgment of 1869 that these words were often used loosely among the Tamil people to signify heirs general and the same construction has often been placed on similar words by the , Privy Council. It is, I think, clearly shown that under the terms of the compromise the annuity is descendible to the heirs of Sivasami generally and is not limited only to his lineal descendants.
3. A further contention has however been raised before us that the provision that 'the defendant and her heirs holding the Zamindari shall from the 1st November 1860 pay to the plaintiff and his heirs a monthly allowance of Rs. 700 within the 10th of every succeeding month' (Exhibit Q3) is bad in law and that the plaintiff takes nothing under it. This contention was not raised in the suits of 1867 and 1880 already mentioned, or in the written statements or issues in the present suit. It no doubt appears from paragraph 9 of the District Judge's judgment that an argument based on the nature of the interest conveyed to Sivasami and his heirs was addressed to him, but he appears to have understood it as directed to the contention that the annuity was descendible only to Sivasami's heirs lineal and not to his heirs general. It is not disputed that, if the annuity were charged upon the lands of the Zamindari, it would constitute a rent charge and would be good. The District Judge has held that it is so charged and the first point for consideration is whether he is right as to ' this. If the annuity had been made payable out of the rents and profits, that of course would have constituted a charge, but it is made payable by the Zamindarini and her heirs holding the Zamindari and I am not satisfied that these words are sufficient to impose a charge. The grant is analagous to maintenance allowance payable by the proprietor of an impartible estate to the junior members of his family for maintenance which, it is well settled, are not deemed to be charged on the estate as a whole. Having regard to the enormous extent of the Zamindari which covers half a district, it was perhaps hardly thought necessary to create a charge binding the whole estate for so small a sum as this. We have been referred to Narayana Ananga v. Madhava Deo I.L.R. (1892) M. 268 a decision of the Privy Council in 1 which a sum of Rs. 300 for maintenance of a junior member and his family is referred to in the beginning of their Lordships Judgment as a charge created by the Zamindar, but a reference to the pririted book shows that no charge was claimed in the pleadings and that no question as to any charge was raised at the trial or in the appeal to the High Court; and that in the way the case came before their Lordships, nothing turned on the question whether there was a charge or not, and no such question apparently was raised.
4. Assuming that the grant was merely of an annuity payable to Sivasami and his heirs by the Zamindarini and her heirs holding the Zamindari, I do not think such a grant offends against either the rules of English or of Hindu Law. According to Halsbury's Lawsof England, Vol. 24 at Rent Charge article such an annuity is in the nature of personal estate but may be made descendible in the same manner as real estate, and in India there is no reason why it should not be descendible according to the ordinary rules of Hindu Law. In case of non-payment but not otherwise, relief may be sought by administration of the estate of the deceased settlor whe provision may be made for it out of the assets of the deceased; Re Hargreaves (1890) 44 Ch. D. 236 Halsbury, Vol. 24, p. 520
5. It is however contended that the compromise creates a covenant running with the land in favour of Sivasami and his heirs obnoxious to the rule in Austerberry v. Corporation of Oldham (1885) 29 Ch. D. 755. In my opinion it has not that effect, but merely renders the estate of the covenantor (including in that term not only the Zamindarini but also her adopted son whom she represented) liable in the hands of their legal representatives to the extent of the assets ; and in this view, the 2nd defendant as their legal representative is liable to the extent of the assets in his hands which include the Zamindari. The defence relies on the decision of the Privy Council in Chundi Churn Barna v. Rani Sidheswari Debi (1888) 15 I.A. 149 : I.L.R. 16 C. 71 but in my opinion that case does not affect the question. A Rajah in 1776 had made a grant in favour of certain of his dependants confirming them in the possession of three villages, and providing that, if they were not sufficiently supported by his successors, they were to be entitled to four more villages which were named, and the suit was brought for the recovery of the four villages on the ground that the event specified had happened. Their Lordships thought that such a grant might either be regarded as a present assignment to persons not yet in existence subject to a suspensive condition which might prevent its taking effect at all or for generations to come, or else as a covenant running with the Raj estate, and binding its possessor to give the villages to these persons in the event specified. In either case they held it prevented the owner from alienating his estate discharged of such future interest and imposed a restraint upon alienation contrary to the principles of Hindu Law. No such results follow from recognising the present gift which moreover is not in favour of the strangers but of members of the family. In the Tagore Case Ind. Ap. Supp. Vol. 47 at p. 70 after laying down the illegality under Hindu Law of gifts to unborn persons their Lordships make an express reservation ' as to certain exceptional cases of provisions by way of contract or of conditional gift on marriage or other family provision, for which authority may be found in Hindu Law or usage'. In Karim Nensey v. Heinrichs I.L.R. (1901) B. 563 their Lordships observe ' gifts or contracts expressed to be for maintenance, and indefinite as regards duration, may be shown by the acts of the parties or other circumstances to be intended to operate in perpetuity ; but prima facie they are limited to the life either of grantor or grantee' ; and in Aziz-un-nissa v. Tasadduq Husain Khan (1901) I.L.R. 23 A. 324 (P.C.) another decision of their Lordships the question was whether the sum of Rs. 70 payable monthly under an award was intended to create an heritable interest and it was not suggested that if it did it would be bad.
6. Here I may say that case cited for the plaintiff Chalamanna v. Subbamma I.L.R. (1883) M 23 does not setem to me to afford much assistance as it was found there that the intention was to create a charge on the produce of the estate.
7. However the explanation of a nibandha orcorrody taken from the Dipacalica in Colebrook's Digest Vol. I, page 443 includes such gifts as ' I will give 150 swarnas every month of Karthigai ' and ' I will give monthly one swarna ' in which there are no words of charge assuming however that there is no charge, I think that following the practice in the case of maintenance allowances, and also the practice in England as to making provision in administration for perpetual annuities payable out of the estate, it will be proper to make the annuity a charge on a part of the Zamindary and that the case Should be sent back for that purpose.' In 1895 the Rajah's father having involved himself in difficulties executed a trust deed under which the trustees were to provide for payment of some of his liabilities and hold the estate in trust for his son the present 2nd defendant. Paragraph 23 of the deed provided such part of the income as might Be necessary should be applied in payment to Muthudorasami Tevar and his heirs of the monthly sum of Rs. 700 payable under the decree in O.S. No. 16 of 1880 on the file of the District Court of Trichinopoly. At the trial the plaintiff relied upon this provision as a firesh grant in favour of the deceased and his heirs a contention rejected by the District Judge. On appeal the defence has raised a new case based on this deed, and contend that the 2nd defendant holds the Zamindari as transferee under the deed and not as heir of the late Rajah? and that he is not liable to pay the annuity sued for to the heirs of the deceased Muthudorasami as the reservation is only of the annuity to the deceased and his heirs under the decree in O.S. No. 16 of 1880, and it has since been held, as mentioned in para. 12 of the plaint that that decree was in favour of Muthudorasami personally and that his heirs are not entitled to execute it. Assuming for a moment th it it is open to the defence to raise a new case like this at such a late stage of the suit, I think these contentions fail upon the merits. The reservation in para. 23 of the trust deed is expressly in favour of Muthudorasami and his heirs, and to borrow the language of Vaughan Williams L.J. In re Rome Pike v. Hamlyn (1898) 1 Ch. D. 153 which was cited for the defence, it seems difficult if not impossible to suggest any reason for mentioning the heirs unless it was intended to provide for the payment of the annuity to them. The annuity was in fact payable to them, under the compromise of 1861, as every one knew, and appears to have been supposed--erroneously--it now turns out--to be also payable to the heirs under the terms of the decree in O.S. No. 16 of 1880. In these circumstances I think the words referring to the decree were mere misdescription to which the maxim falsa demonstmtio non nocet is applicable. This conclusion is supported by the provisions of paragraph 26 of the' deed that the Zamihdary and other property dealt with by the deed are to be transferred to the present Rajah (2nd defendant) his heirs and assigns 'absolutely so that he may have the same kind and nature of estate, right and interest therein as he would have had if the same had devolved upon him from the settlor by right of inheritance according to the said law and custom of primogeniture and Hindu Law.' Then follow certain reservations which are not material. These provisions in my opinion clearly disprove the contention, that it was the intention to transfer the Zamindari to the present Rajah discharged of the liabilities attaching to it in respect of the annuity now in question. Lastly it is far from clear that it was open to the late Rajah so to discharge his heir lay means of a voluntary conveyance in his favour and in any case, I think the court should lean strongly agairisf a construction of the deed which would have that effect. Another ground of appeal is that the District Judge was wrong in! allowing the 3rd plaintiff to be brought on as the legal represent v tative of the deceased 2nd plaintiff, the mother of Muthudorasami who survived him. As already mentioned the next reversioner is'one Poolar Tevar, who on the 8th April 1910 executed a deed Exhibit Y in favour of the 3rd plaintiff, in which, after reciting that there was some question whether Poolar Tevar or the 3rd plaintiff was the next reversioner, the deed provides that in consideration of a payment of Rs. 1,000 the former should give up in favour of the third plaintiff his claim as heir of the deceased and all rights connected therewith, and that the 3rd plaintiff should enjoy the estate with all rights of ownership, and that the executant arid his heirs should have no claim to it. This appears to me to be a valid transfer until it is set aside by Poolar Tevar to the 3rd plaintiff of all his rights as reversioner,. of the deceased, and I think the District Judge was therefore right in allowing the third plaintiff to continue the suit as the legal representative of the deceased 2nd plaintiff. The decree will be affirmed subject to the modification already mentioned as to the new charge which will be postponed to the claims of the 3rd and 4th defendants, and also by making the annuity payable on the 15th of each month, and the appeal will be dismissed with costs. The memorandum of objections is dismissed with costs.
Seshagiri Aiyar, J.
8. I entirely agree.
9. The 1st plaintiff claims to be the adopted son of one Muthudorasami Tevar who died on the morning of the 17th of November 1905, The 2nd plaintiff is the mother of the deceased. Their claim is that the monthly allowance of Rs. 700 due from the Rajah of Ramnad, the 2nd defendant in this case, is payable either to the 1st plaintiff as being the adopted son of the deceased Muthudorasami Thevar, or in the alternative if the adoption should be found against, to the 2nd plaintiff as being the mother . of the deceased. The 2nd plaintiff died in the course of the suit. The 3rd plaintiff was added on his allegation that he has acquired a right to the allowance by virtue of an assignment in his favour by one Poolar Thevar who admittedly is the heir of Muthudorasami Thevar failing the adoption. The defendant, the Rajah, resisted the claim of all the three. He denied the adoption of the 1st plaintiff and, as I have held in the connected appeal that the adoption has not been proved to have taken place, that question does not arise in the present appeal. He resisted the claim of the mother on the ground that the allowance was payable only to the lineal heirs of the deceased and that Consequently she was not entitled to it. As the 2nd plaintiff died since the institution of the suit her claim need not be considered in this appeal.
10. The defence to the claim of the 3rd plaintiff was very meagerly stated in the written statement. It was amplified in this Court a great deal. In the first place it was stated as in the case of the mother, that the allowance was not payable to any but the lineal heirs of the deceased and consequently the collateral heirs of Muthudorasami Thevar had no right to claim it. The claim was also resisted on the ground that the agreement to pay a monthly allowance from generation to generation was invalid and unenforceable. It was further pleaded that as the defendant, the Rajah, obtained the property not by inheritance from his father but by virtue of a deed of trust executed in his favour the obligation to pay the allowance did not attach to him. A further defence was raised to the effect that the deed of assignment to the 3rd plaintiff from Poolar Thevar, the heir of Muthu Dorasami was a sham transaction and that it contained no words of transfer which would vest the rights of Poolar Thevar in the 3rd plaintiff.
11. The District Judge found that the deed of assignment was valid and conferred title to the property of the deceased Muthu-doraisami Thevar, and that the Rajah as being in possession of the Zemindari of Ramnad was bound to pay the allowance to the 3rd plaintiff. The Rajah has preferred this appeal.
12. Before dealing with the various questions raised in the appeal it is necessary to refer to the events which have led up to the present claim. A suit was filed by Sivasamy Thevar'in the Madura Civil Court O.S. No. 3 of 1853, against Parvata Vardhini Ammal for the recovery of the Zemindari of Ramnad on the ground that he was entitled to it in preference to the widow in possession. This suit was dismissed in the Court of First Instance, and the appeal against that decision to the Sudder Adaulat Court was also dismissed. Sivasami then filed an application for leave to appeal to the Privy Council. At this stage the parties entered into a compromise. In consequence of that compromise the application to appeal was withdrawn and Sivasami agreed to receive a sum of Rs. 700 monthly for himself and his heirs from the Zemindar of Ramnad in consideration of his having given up his claim to the Zemindari. Parvatha Vardhini adopted Muthu Ramalinga Sethupati who became the Zamindar of Ramnad. He was succeeded by his son Baskara Sethupati. The present defendant is his son.
13. The allowance continued to be paid during the lifetime of Sivasami. On his death his widow Kolandai Nachiar filed a suit for the recovery of the arrears of allowance. Meanwhile one Ramamani Ammal brought a suit to have it declared that she was the lawfully wedded wife of Sivasami and that her son Muthu-duraisami was the legitimate son of her husband. It was ultimately decided that Ramamani was not a concubine but that she was the lawfully wedded wife of the deceased Sivasami. After the termination of this litigation in favour of Ramamani and her son a suit was instituted by the son Muthudoraisami for the arrears of maintenance due to him from the date of the death of his father. It was O.S. No. 16 of 1880 on the file of the District Court of Trichinopoly. He obtained a decree in that suit. The first and 2nd plaintiffs in this case applied to the District Court of Trichinopoly to execute the decree contending: that the decree gave them a right to receive the allowance without recourse to a regular suit. The District Judge held that the original decree in favour of Muthudoraisami was not executable by his heirs and referred them to a regular suit. The present suit is the result of that order.
14. Mr. K. Srinivasa Aiyangar's first contention is that the right created under the razinamah was enforceable only against Parvatha Vardhini and is of no avail against her successors in the zamindari. It was admitted by the learned ,Vakil that the fact that it was a female holder of the zamindari that granted the allowance would not make any difference in the solution of this question. He contended that Exhibit Q2 was the only razinamah that was filed in Court and that by its terms it does not affect Parvatha-Vardhini's heirs in the Zamindari. The document literally, translated reads ' That the defendant who is in the enjoyment of the zamindari and her heirs should continue to pay the plaintiff generation to generation an allowance,' etc....This was accompanied by an English razinamah which is Exhibit Q3 in this case. It is somewhat differently worded. It says that''The plaintiff having thus completely relinquished all right and claim the defendant and her heirs holding the zamindari shall from the 1st November 1860 pay to the plaintiff and his heirs a monthly allowance, etc It was argued that Exhibit Q3 was intended to be translation of Exhibit Q2 and that the razinamah.which was put in courtVnd acted upon was Q2. It was suggested that Exhibit Q3 must have been prepared for the purpose of transmitting a translation to the Privy Council. This is clearly wrong. Exhibit Q2 was admittedly filed on the 8th January 1861 and the direction of the Registrar to translate and. send copies to the Privy Council was not given until the 18th January 1861 (Vide Q4). It seems more probable that Q2 and Q3 were duplicates, and were both filed in court. They were both signed in the original by the parties and their pleaders. I am of opinion that we must read Q2 and Q3 together, especially as the language of Q2 is ambiguous, to find, out what the parties meant to effect by the compromise.
15. Further the question as to whether under this razinamah only a personal right as against the grantor was secured was not pleaded in the written statement and there was no issue about it. If this contention were well founded, it would have been a; complete answer to the suit of Muthudoraisami Thevar in the District Court of Trichinopoly. The razinamah was acted upon for over half a century and was construed by courts and understood by the parties as conferring rights as against persons holding the zamindari. The decision in the previous suit evidenced by Exhibits S and S 2 proceeded upon this footing. I am of opinion that this contention is not open to the appellant.
16. Apart from these technical grounds I am satisfied that there is no substance in the argument. The document charges Parvathi Vardhini and her heirs holding the zamindari with the liability to pay this allowance. The contention that the grantor had no power to bind her descendants was raised with reference -to the observation of Channell J. in Read v Price (1909) 1 K.B. 577. That case was decided on the ground that if two or more persons are jointly liable, the liability of the deceased obligor does not pass to the administrator jointly with the obligors pn whom by survivorship such liability has devolved. It is no authority fop the position that no person can covenant that his heirs shall be liable. The other decisions: relied upon by the learned Valkil namely, Thara Sundara Debi v. Saroda Charatf Banerjee (1910) Cri.L.J. 146 Rajah Padmanand Singh v, Ramaprasad Malvi (1911) Cri.L.J. 127 Padmanund v. Rama (1912) Cri. L. J. 354 all relate to the question as to whether under the Civil Procedure Code a future right to maintenance can be attached and sold. They have no bearing on the question we have to decide.
17.. The case most strongly relied upon was that of Chandi Charan Barua v. Sidheswari Debi (1888) I.L.R. 16 C. 71 (P.C.). In that case the original grant recited that a perpetual remuneration should be given to certain individuals then living. In lieu of it, an immediate assignment of three villages was made. Then the document proceeded to say : ' If ever in the time of my descendants you are not provided with the means of maintenance by them, then let those descendants of yours who may be living at that time produce this deed, and taking possession of the three above mentioned villages and also of the four villages now held by me, enjoy possession of them rent free from generation to generation.' After the deaths of the original grantor and grantee, the event contemplated happened. Thereupon the descendants of the grantee sued to recover possession of the additional villages by reason of the default made by the grantors's heirs. The Judicial Committee of the Privy Council held that as regards these four villages there was no contract made with the grantee, at the time of the grant and that a promise to make a future grant in favour of persons yet unborn was not an enforceable contract. In the present case there was a completed contract at the time of the grant, and not merely a promise to convey in future in favour of persons yet unborn.
18. The case of Narayana Ananga v. Madhawa Deo I.L.R. (1892) M. 268 before the Privy Council, is similar to the present case. In that case the holder of an impartible Zamindari in making a grant used the following words. ' I have agreed to give you, through the Collector, every month Rs. 300, on account of the maintenance of yourself and your younger brothers, three in all and the rest of your family.' In a suit by the son of the youngest brother against the successor of that Zamindar for the allowance secured by this grant the Judicial Committee of the Privy Council gave a decree in favour of the plaintiff. Lord Hobhouse in delivering the judgment of the Committee said : ' It is contended, on behalf of the defendant, that the payment of Rs. 300 a month was only to ensure for the life of Jogi Deo, or, at the most, for the lives of the tnree brothers. It is immaterial which of those constructions is put forward. Either of them seems to their Lordships to be directly at variance with the terms of the agreement.' In another place it is taken for granted that the maintenance was a charge upon the Zamindari. The language used in the razinamah in the present case is very similar to that employed in the document commented on by the Privy Council. If the grant in that case was regarded as not being personal to the grantee and as being enforceable against the heirs of the grantor, it is equally clear that the grant of the monthly allowance in the present case enures for the benefit of the heirs of Sivasami and is enforceable against the successors of Parvatha Vardhini in the Zamindari. To my mind the case in 16 Madras is almost conclusive upon this question. In another case Mahomed Hossain Khan v. Mahomed Nehaluddin Khan (1883) 13 Cal. L.R. 330 the Judicial Committee held that a grant of a similar nature is chargeable on the Zamindari and enforceable by the descendants of the original grantee.
19. Mr. S. Srinivasa Aiyangar referred us to the statement of law contained in Volume 24 of 'Halsbury's Laws of England' to the effect that a grant of this nature can be secured by a contract, that it is heritable, and can be enforced against persons who succeeded to the estate of the original grantor. In Section 903 of that Volume it is stated that ' The right created by an instrument (whether deed, will, codicil or statute) to receive a definite annual sum of money is an interest which may be strictly speaking, either a ' rent charge ' or an ' annuity.' There can be no question that an annuity need not be charged upon the estate. The case of Turner v. Turner (1783) 1 Bro. C.C. 316; Amb. 776 decided that an annuity though a personal estate, if given to a man and his heirs, would descend to the heir in default of alienation. In S. 933 the mode of creating annuities is referred to: 'To create an annuity by instruments inter vivos, a deed, as a general rule is necessary. An annuity is frequently secured by a personal covenant.' That an annuity can be for the life of the annuitant or perpetual has also been laid down in a number of decided cases. Ordinarily under the English Law the remedy open to a person in whose favor an annuity has been created is to seek for the administration of the estate of the grantor and if it is secured by will to sue the executor that a fund be set apart from which the annuity may be made payable in perpetuity. Mr. K. Srinivasa Aiyangar argued from this that as the present claim is not for administration and as there is no precedent in this country for the setting apart of a particular fund for allocating a specific portion of property from which the annuity may be paid, the suit is not sustainable. The remedy open to a person in whose favor an annuity is created is not to bring an administration action only. If assets are admitted a suit to recover arrears will lie. Of course it will always be open to the defendant to plead that he has no funds in his hands from which the annuity can be paid. It may be that the annuitant runs the risk of getting a useless decree in case he does not obtain a charge upon any specific property, for the payment of his annuity. In the present case, the plaint claims that the annuity should be charged on specific property. Even if the allowance in the present case is not to be regarded as a charge on the whole Zamindari, I see no objection to granting the plaintiff's prayer that it be secured to him by making it a charge on a portion of the property in the hands of the defendant. My view is that the language of the razinama amounts to creating a charge on the Zamindari. Even in that view it is desirable that the charge should be restricted to specific portions of the Zemindari. This is often done in maintenance cases ; and it is in the interests of the defendant that he should not be fettered in the enjoyment of his property by fixing on it a general charge affecting the whole estate. For all these reasons I am of opinion that the allowance secured by Exhibits Q2, and Q3, is enforceable against the heirs of the grantor and payable from out of the assets of that gantor which are in the hands of the defendant, subject to the reservation that a specific portion of his estate be charged with its payment.
20. The next contention of the learned Vakil for the appellant is that this contract to pay a monthly allowance does not run with the land and therefore the grantee's heirs cannot sue to recover it from persons holding the Zamindari. Two decisions of the Allahabad High Court, viz., Sri Thakurji Maharaj v. Lachmi Narain (1913) 11 A.L.J. 212 and Bam Gobind v. Sri Thakurji Maharaj (1918) 11 A.L.J. 281 were cited in this connection. In both those cases there was a transfer of property on condition that the transferee should pay the land revenue upon the portion retained by the transferor and should further pay him a monthly allowance. The transferee conveyed his property to third persons. It was held that those third persons were not bound to pay that monthly allowance for all time to come. No case is quoted in the judgment nor is the deed of transfer set out. It is probable that a purely personal right was secured by the contract. In the present case the language of the grant makes the grantor's heirs liable for all time to come.
21. I am also inclined to think that a grant of this kind is covered by the second clause of S. 40 of the Transfer of Property Act which says 'where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby.' In the present case Sivaswami was entitled under the contract to an allowance. The contract is annexed to the ownership of the Zamindari of Ramnad as is clear from the language employed in Exhibits Q2 and Q3. It may be that Sivaswami's right did not amount to an interest in the property. None the less according to the language of S. 40 the benefit is enforceable against a gratuitous transferee and against all transferees with notice of the original grant. There are no Indian cases upon this point, but as the language seems very apt to cover the present case, although in terms chapter 11 of the 'Transfer of Property Act' is not applicable to Hindus, I see no reason why the principle of that section should not be applied to the facts of the present case.
22. I may refer to the decision of the Court of Appeal in Exparte Graham (1888) 42 Ch. D. 343 quoted by Mr. K. Srinivasa Aiyangar. It is an authority for the position that, so long as the grantee is in possession of the rents and profits of the land from which the allowance is payable, although no charge was created in his favour nor was there any covenant 'running with the land, the grantee could enforce his rights as against the grantor. Before dealing with the other contentions of the appellant, it is necessary to dispose of the question whether the allowance made payable under Exhibits Q2 and Q3 was a charge upon the Zamindari of Ramnad. I am inclined to hold that it is. We have to remember that the document is of 1861 when the parties were not as fully conversant wtih legal technicalities as they are to-day. It must also be borne in mind that Sivaswami claimed the whole Zamindari, and it is hardly conceivable, that he would have been content to take a personal covenant for payment of the allowance when he had laid claim to the Zamindari itself. Further if no charge is intended to be created upon the Zamindari, it was hardly necessary in these two documents to use the expression 'the defendant and her heirs holding the Zamindari. ' Moreover the grant was in the nature of one for maintenance and it is well understood that maintenance ordinarily comes out of an estate in the possession of the promisor. It is conceded that no special language is necessary to create a charge. It depends upon the intentions of the parties and I am of opinion that the parties intended from the circumstances, I have set forth, that this maintenance should be a charge on the Zamindari. In Narayana Ananga v. Madhawa Deo I.L.R. (1892) M. 268 to which I have already referred, Lord Hobhouse assumes that language similar to the present would create a charge upon the Zamindari ; and it was held in Mahomed Hussain Khan v. Mahomed Nihaluddin Khan (1883) CRI.L.R. 380 that it is permissible to refer to the surrounding circumstances to see whether there was an intention to create a charge. Reference may also be made to the case of Hemchunder v. Abulchunder (1913) CRI.L.J. 118. My conclusion is that the allowance in favor ' of Sivaswami and his heirs is a charge on the Zemindari.
23. Mr. S. Srinivasa Aiyangar contended that such permanent and heritable grants are not unknown to Hindu Law. The ancient Hindu Smriti writers referred to it as a Nibhanda. Ordinarily the term imports permanency. The origin of a Nibhanda grant ssems to lie in the Ruling Chiefs making hereditary grants to their dependants as remuneration for meritorious services rendered to' them. They were money allowances from generation to generation or grants of land. In later years this practice was followed by Zemindars. All the authorities relating to the ' Nibhanda grant' are collected in Colebrook's Digest, Vol. I, pp. 442 and 443. See also Balavantrav T. Bapaji v. Pursliotam Sideswar (1872) 9 Bom. H.C.R. 99. I am referring to this contention to point out that there is nothing repugnant to Hindu Law in making such a perpetual grant. It was pointed out in Nafat Chandra Kundu v. Ratnamala Debi (1910) CRI.L.J 85 and Dinesh Chandra Roy Chowdhury v. Biraj Kamini Dassee I.L.R. (1911) C. 87 that the principles of the Tagore Case (1872) I.A. Supp. p. 47 against grants in perpetuity should be restricted to cases of grants contained in wills, the Judicial Committee pointed out in that case that there was nothing in Hindu Law to warrant a grant of the kind before them in perpetuity in favor of unborn persons. But where a hereditary grant of this kind is in the contemplation of Hindu text writers their Lordships have expressly guarded themselves against saying that such a provision will be obnoxious to the rule against perpetuities.
24. The next question for consideration is whether the defendant is not liable because he has taken the estate not as heir of the last owner but under a deed of trust created by his father. No issue was taken upon this point; in the absence of such an issue we are not in a position to say under what circumstances the trust deed, Exhibit T was executed. In my view the fact that the defendant took the Estate as a gift from his father will not take away the liability which would have devolved on him if0 he had succeeded to the property as son and heir. As pointed out in Nagalingam Pillai v. Ramachandra Tevar I.L.R. (1901) M. 429 where property is given by will to a person who would otherwise be entitled to it as heir, the character of the property is not changed. The same principle should be extended to transfer inter vivos. Moreover, in this case, Exhibit T, the trust deed, shows that the settlor intended that the Zamindari should continue to be liable as if the property descended in the ordinary course of succession and not by assignment under the trust deed. The maintenance of the younger brother is provided for and language is employed in many places indicating that the fact that there was a trust deed should make no difference regarding the liability of the Zamindari for obligations resting upon it. A good deal of argument was addressed to us regarding the provision in Exhibit T to the following effect ' In the seventh place shall apply such part or parts thereof as may be required for payment to Muthu Doraiswami Thevar and (his) heirs of the monthly sum of Rs. 700 payable under the decree in O.S. No. 16 of 1881 on the file of the District Court of Trichinopoly.' It was not disputed that the decree in the District Court of Trichinopoly did not make the allowance payable to Muthu Doraiswami Thevar and his heirs. ' It was therefore argued that these words ' and his heirs ' in Exhibit T were ' a surplusage and all that the document intended to secure was the payment to Muthu Doraiswamy Thevar of the amount of the decree. If this question had been raised in the issue the meaning of this clause could have been rendered clear. For example it is not a violent suggestion to make that what, the parties intended to say was that the payment to Muthu DoraiswamiThevar and his heirs should be made as provided for in the razinamah on which the decree was obtained in Trichinopoly District Court. The language of the document is capable of being made certain by extraneous evidence. It was therefore incumbent on the defendant to have raised a specific issue whether the trust deed did oblige him to pay the descendants of Muthu Doraiswami Thevar, the maintenance from out of the estate. The language of the residuary clause 26 seems to imply that all subsisting obligations upon the zamindari are to be met by the defendant from the income of the zamindari. I cannot, therefore, accept the contention that the fact of the execution of the trust deed makes a difference in regard to the position of the defendant.
25. It is further argued that under the assignment deed to the third plaintiff no right to the maintenance passed to him. It is common ground that Poolar Thevar, the assignor, was the heir to the estate and effects of Muthu Doraiswami, The deed of assignment Exhibit Y, says :--'I have hereby given up to you the title of heir possessed by me and all rights connected therewith.' It sets out by saying that third plaintiff himself was the nearest heir. It also says that in case he is not the heir ' and if it is held that Poolar Thevar the executant of Exhibit Y, is the beir, all the right of the latter should devolve on the third plaintiff. The language of the document is, very explicit, and I feel no manner of doubt that under Exhibit Y all the rights of Poolar Thevar accrued to the 3rd plaintiff.
26. The last question to be considered is whether the fact that Poolar Thevar was not the lineal descendant of. Muthu Duraiswami but was only a collateral, disentitles him from recovering the maintenance or from assigning it to the 3rd plaintiff. Such a contention was not raised when Kolandai Nachiar the widow of Sivaswami Thevar brought a suit to recover the maintenance. She was not the lineal heir of Sivaswami. The words used in Exhibit Q2 and Q3 are that Sivaswami was entitled to enjoy the allowance, Santhathi Paramparyamay. Those words convey a heritable estate from generation to generation. They are even stronger than the words Puthra Pouthra Paramparya. No authority has been quoted for the proposition that the word 'Santhathi' is to be restricted to the lineal descendants. It means the heirs in general and as Poolar Thevar is undoubtedly in the line of heirs to Sivaswami he is entitled to recover the allowance ; and his assignee has the same rights to it. I am of opinion that the appeal fails and should be dismissed with costs, subject to the modification suggested by the learned Chief Justice
[In A. 193 of 1911 His Lordship also concurred with the learned Chief Justice in holding that the plaintiff had failed to prove that he was the adopted son of deceased Muthu Doraisami Thevar and dismissed the appeal with costs.]
27. The memorandum of objections is also dismissed with costs.