Arnold White, C.J.
1. The question which arises for determination in this appeal is whether certain words in Clause 5 of exhibit 'A create a charge within the meaning of Section 100 of the Transfer of Property Act. For the purpose of dealing with this question it is necessary to read the words which it is suggested create the charge by the light of the provisions of the deed as a whole. Now the deed in question is a partition deed entered into between two parties, one Sambasiva Pillai who is the first defendant in the present suit, and one. Manikkam Pillai who is the plaintiff in the present suit.
2. The first clause provides that properties mentioned in schedule A should be enjoyed by Sambasiva Pillai and that properties; mentioned in schedule B should be enjoyed by Manikkam Pillai. Then clause No. 2 provides that, as the value of the properties in schedule A, i.e., Sambasiva Pillai's schedule, is more than that of the properties in schedule B, Manikkam's schedule, a sum of Rs. 875 should be paid by Sambasiva Pillai to Manikkam, and the same clause also provides that as Manikkam has paid Government kist due from Sambasiva Pillai, Sambasiva Pillai should pay a further sum of Rs 725, making altogether Rs. 1,600. Then clause No. 3 refers to a debt incurred by the father of Sambasiva Pillai and Manikkam Pillai for which the father had executed a pro-note for, in round figures, Rs. 3,200. The deed provides that Sambasiva Pillai should pay and discharge his liability, that is half of Rs. 3,200, viz., Rs. 1,600, and the deed further provides that besides this Rs. 1,600; the half share due by Manikkam Pillai, should be paid and discharged by Sambasiva Pillai who already had to pay Rs. 1,600 to Manikkam Pillai as provided in clause No. 2.
3. There is no question that the effect of paragraph No. 3 is that Sambasiva Pillai made himself liable to pay, in all, Rs. 3,200.
4. Now we come to clause No. 5 which contains the wards which the appellant contends, create a charge. Clause No. 5 is 'if either of the parties to the deed '--I only refer to so much of it as is material: 'if either of the parties to the deed should fail to observe the provisions in paragraphs Nos. 3 and 4, he, that is the party in default, shall pay to the other party who has sustained loss twice the amount from their properties.'
5. No question arises in regard to twice the amount as the plaintiff only claims to be indemnified on the ground that he had to pay by reason of the party in default having failed to discharge the liability which he incurred under the provisions of clause No. 3 of the deed.
6. The words which are relied on as creating a charge are 'pay the amount from their properties.' And the first question, which arises for consideration is what is the meaning of the words 'their properties' occurring in clause No. 5. It seems perfectly clear to me that the underlying idea of this deed of partition between these two parties was equality of division, and that any inequality which arose from the difference in the value of the properties comprised in the two schedules or from the fact; that payments had bean made by one of the parties for which the other party was liable or for which both parties were liable, that these inequalities should be adjusted by payment from one party to the other, so that the final result would be that there should be under the partition deed equality of division Therefore it seems to me in reading the words in clause No. 5 by the light of the general provisions of the deed and bearing in mind the fundamental idea of the deed, namely, equality of division, that the word 'properties,' which occurs in clause No. 5, is to be construed as meaning properties referred to in Schedule A or in Schedule B as the case my be.
7. The Advocate-General has pointed out that whenever it is intended to refer to the properties in the schedules in the other clauses of the deed there is an express reference to the schedules That is true enough. But then without a reference to the schedules in the other clauses in the deed, it would be impossible to express the intention of the parties intelligibly. No such necessity arises in regard to clause No. 5, and I am certainly not prepared to say that the word 'properties' in clause No. 5 is used in a different sense from that in which it is used wherever else it occurs in the deed. Now that being, in my view, the construction of the word 'properties' I do not feel much difficulty in dealing with the cases which have been cited by the Advocate-General. The only case to which I need refer is that of Bheri Dorayya v. Maddipatu Ramayya I.L.R. (1881) Mad. 35, which I think is the strongest case in support of the Advocate-General's contention, because it contains language which is very similar to the language in the present dead. There, it was held that a promise to pay out of the debtor's property indefinitely did not create a charge, If I took the view that the word 'properties' in the deed in question in the present case referred to the debtor's 'property' generally one would have to consider how far one would be prepared to follow the ease in Bheri Dorayya v. Maddipatu Ramayya I.L.R. (1881) Mad. 35, in view of some of the later decisions, and in view of the law which has been laid clown in some of she text-books to which our attention has been called. But, as it seems to me, the word 'properties' moans in the present case the properties in the schedules I think the language is specific and not general. Of course, even if it were general, it does not follow that a charge is not created by reason of the fact that the language is general, because, as is pointed out by Mr, Ghose in the passage in his work which the Subordinate Judge himself has cited, a distinction has been drawn between wideness of language and vagueness or indefinite ness of language The passage is set out in paragraph No. 32 of his judgment. 'The truth is indefiniteness is frequently con-founded with what has been called wideness, it being forgotten that the subject-matter of the contract may be wide and yet definite, while on the other hand it may be narrow and yet indefinite,' The proper construction of the words in my view being what I have indicated, I hold that the words are sufficiently apt to create a charge. Therefore I must dissent from the view which was adopted by the Subordinate Judge in this case. His decree must be set aside and the case must be sent back to him to be disposed of according to law. Costs will abide the event.
8. I am of the same opinion.