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Rajah D.K. Thimmanayanim Bahadur Varu, Rajah of Kalahasti and ors. Vs. Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1928Mad713
AppellantRajah D.K. Thimmanayanim Bahadur Varu, Rajah of Kalahasti and ors.
RespondentRajah Damara Kumara Venkatappa Nayanim Bahadur Varu and ors.
Cases ReferredIn Be Lee v. Mac Millan
Excerpt:
- phillips, offg. c.j.1. all these appeals relate to the recovery of allowances payable out of the kalahasti estate. appeals nos. 28, 39 and 387 are from o.s. no. 50 of 1916 and 58, 69 and 70 are from o.s. no. 86 of 1916 and all relate to the allowance payable to one chennappa, the father of the plaintiff, in o.s. no. 86 of 1916; whereas the remaining appeals, nos. 280, 288, 352 and 353, relate to an allowance granted to one lakshmikantamma, widow of the rajah venkatappa, by his will in 1894. these latter will be dealt with after considering the first batch of appeals. one venkatappa, rajah of kalahasti, died in 1881 leaving a will whereby he left the estate to his eldest son muthu venkaappa and granted allowances to his other sons. in 1890 the second son timma filed a suit against rajah.....
Judgment:

Phillips, Offg. C.J.

1. All these appeals relate to the recovery of allowances payable out of the Kalahasti estate. Appeals Nos. 28, 39 and 387 are from O.S. No. 50 of 1916 and 58, 69 and 70 are from O.S. No. 86 of 1916 and all relate to the allowance payable to one Chennappa, the father of the plaintiff, in O.S. No. 86 of 1916; whereas the remaining appeals, Nos. 280, 288, 352 and 353, relate to an allowance granted to one Lakshmikantamma, widow of the Rajah Venkatappa, by his will in 1894. These latter will be dealt with after considering the first batch of appeals. One Venkatappa, Rajah of Kalahasti, died in 1881 leaving a will whereby he left the estate to his eldest son Muthu Venkaappa and granted allowances to his other sons. In 1890 the second son Timma filed a suit against Rajah Muthu Venkatappa for partition of the estate alleging that it was joint family property and not an impartible estate. This suit was compromised and a decree passed therein on 30th March 1893, whereby it was decreed that the estate was impartible and certain allowances were fixed for each of the brothers and their male descendants and made payable out of the estate The allowance was then fixed at Rs. 600 per mensem for ten years from 1892, and thereafter at Rs. 700 per mensem. This provision was embodied in the District Court's decree, but in appeal the High Court deleted so much of the decree as related to the allowances on the ground that they were beyond the scope of the suit and merely gave a decree declaring that the estate was impartible. Under the final decree, therefore, this maintenance allowance was not charged upon the estate, but it was so charged under the terms of the compromise. The next step was taken by another brother, Chennappa, the father of the plaintiff, in O.S. 86 of 1916,. He brought a suit, O.S. No, 88 of 1895, for the recovery of the allowance due to him under the compromise. This suit was compromised on 20th April 1896, and an allowance of Rs. 650 per mensem was ordered to be paid to the plaintiff and his male descendants and this allowance was made a charge upon the estate. Chennappa took out execution of this decree on several occasions, but finally it was held that the decree was not executable, but that a suit should be filed thereon. The final order in this respect was passed by the High Court on 7th January 1915. Accordingly Chennappan's son who had obtained an assignment from his father brought O.S. No. 86 of 1916 to recover these allowances, and certain transferees of a portion of the past allowances brought O.S. No. 50 of 1916 for recovery of the amount assigned to them. The District Court has allowed the claims and has passed a decree for the sale of portions of the estate which are now in the hands of alienees. So far as the appeals against the decree in O.S. No. 50 of 1916 are concerned, it appears that plaintiff 1 died shortly after they were filed. In one of these appeals an attempt was made to bring his legal representatives on record but long out of time, and in the others no such application has been made and it is only now that we are asked to excuse the delay and bring on the legal representative. No grounds for excusing the delay have been put forward and certainly there are no valid reasons for excusing the gross negligence of which the appellants have been guilty. As the decree is a joint decree in favour of three persons, it would be useless to set aside as regards two of them a decree which the third party can execute. The decree must, therefore, stand as it cannot be set aside against him in his absence. As the appeals have abated so far as plaintiff 1 is concerned, it follows that they must be dismissed with costs: vide Wajid Ali Khan v. Puran Singh : AIR1925All108 . The memorandum of objections in appeal No. 69 is not pressed and is dismissed. The Letters Patent appeal which concerns stay of execution must fail on the abatement of Appeal No. 39 and is also dismissed with costs.

2. The remaining appeals are divided into two sets: those relating to the allowance granted to Venkatappa by the decree in O.S. No. 33 of 1895; and the other set, with which I will deal later, relating to an allowance made payable to Venkatappa's widow Lakshmikantamma under her husband's will and under the decree in O.S. No. 15 of 1897, a suit brought to enforce the terms of the will.

3. In the first set of appeals the first question for consideration is: What is the nature of the maintenance allowance decreed to Venkatappa and from what date did it form a charge on the Kalahasti Estate? O.S. No. 12 of 189C was a suit for partition, but the partition was disallowed (except as to certain moveable properties) and the estate was declared impartible and certain allowances were held to be payable to the male members of the family and their male descendants. It is suggested for appellants that the allowance granted under the compromise was merely a maintenance allowance such as would ordinarily be payable in law to male members of an undivided family, the senior of which held an impartible estate. Apart from the fact that this provision of law, which can only be customary law, can hardly be called well settled, the contention cannot be accepted; for the allowances were fixed by a compromise which was a settlement of family disputes. There is no reason to suppose-that the claim that the estate was subject to partition was a purely fictitious claim or that its abandonment did not receive valuable consideration in the shape of the allowances. It is thus clear that the terms of the compromise came into existence as the settlement of a bona fide family dispute. The compromise was embodied in the original decree but most of its terms were omitted in the final appellate decree. Nonetheless the terms of the compromise were binding on the parties and from its date the allowance formed a charge upon the impartible estate. It is contended for appellants that the compromise itself is inadmissible in evidence for want of registration under the provisions of the Registration Act. Under Section 17 (2) (vi) of that Act a decree or order of Court need not be registered. The part of the compromise allowing this charge is not embodied in the decree and the argument is that, as it is not so embodied, in order to be admissible in evidence it must be registered. This point has been considered on several occasions. In Hemanta, Kumari Debi v. Midnapur Zamindari Co. A.I.R. 191 P.C. 79, it was held that, when a compromise was recorded in a decree, not only those portions thereof which became operative under the decree, were exempt from registration, but also the other provisions which were not embodied in the decree. A prior case, Pranal Anni v. Lakshmi Anni [1899] 22 Mad. 508, was distinguished on the ground that in that case there were two separate agreements, one of which had not been put before the Court for judicial consideration and, therefore, required registration. Again, in Ariyaputhra Goundan v. Ettiya Goundan [1917] 6 M.L.W. 635, Bakewell, J., and myself, following this Privy Council case, held that the portions of the razinama, which had not been embodied in the decree, but which had been under the consideration of the Court, did not require registration. This view was accepted by the Full Bench in Poonvanayi Ayina v. Kundron Choken [1920] 43 Mad. 688, which held that the mere recording, of a compromise petition by a Court was sufficient to bring it within the meaning of Section 17 (2) (vi), Registration Act. The compromise of 1893 is, therefore, admissible in evidence and the charge must be deemed to have been created on 30th March 1893 and alienations since that date must be deemed to be made subject to the charge.

4. It was also argued that Venkatappa had made partial alienations of his allowance and that these are bad in law. It was, however, admitted that the alienations included all the arrears of maintenance up to the date of alienation. As the charge was a recurring one, it would have to be executed from time to time as the instalments became payable. The ordinary objections, there-[fore, to the partial assignment of a decree do not apply here, for the assignment merely places the assignees in the same position as the charge holder so far as executing the decree by instalments is concerned. It was also held in Muthiah Chettiar v. Govinda Doss Krishna Doss A.I.R. 1921 Mad. 599, that a partial transfer of a decree is valid and can be recognized by Courts. The further contention that the transfer by Venkatappa to his son, the plaintiff in O.S. No. 86, of his right to future maintenance is bad under Section 6 (d), T. P. Act, must also be disallowed. That section prohibits transfers of a right which is restricted in enjoyment in the owner thereof. Undoubtedly many cases of maintenance would be of that nature, as, for instance, the right of a widow to residence in the family house; but, where a maintenance allowance has been fixed and decreed by Court, the right is merely] the right to a fixed sum of money and it cannot be said to be restricted in enjoyment to the maintenance holder The transfer of such a right must be deemed to be valid: vide Annapurni Nachiar v. Swaminatha Chettiar [1910] 34 Mad. 7.

5. The provision in the compromise, that the allowance should be payable to these brothers and their male descendants is a somewhat unusual one and is objected to by the appellants, firstly, on the ground that it is a breach of the rule against perpetuities; and secondly, that it creates an estate unknown to Hindu law. In so far as the first argument is concerned, it is clear that this provision of an allowance charged upon the estate creates an estate in the grantee and to that extent would not offend against the rule of perpetuities. If it be conceded that such an estate is created, the words 'and to his male descendants' would apparently create an estate known to English law as an estate in tail male and such an estate is not known to Hindu law. We are not, however, concerned with this point in the present case which relates only to the estate created in the actual grantee, Venkatappa, and the grant would be good so far as his estate is concerned, although it may be bad in so far as it creates an estate in his male descendants, and Mr. Krishnaswami Aiyar conceded that, even if this provision created an estate in tail male, it would be valid in so far as Venkatappa's right is concerned.

6. Arguments have been advanced with respect to specific items of the plaint property that they are not liable for the charge of this allowance inasmuch as they have been alienated under such circumstances as to take priority of the charge. These items have been sold in execution of decrees obtained against the estate, but it has not been shown with regard to any of them that they were subject to a charge prior in date to 30th March 1893, when Venkatappa's charge came into existence. The contention that mortgages created after that date in order to pay off family allowances should have preference cannot be maintained, for the charge thus created was a charge subsequent to the charge of 1893. In no case have the appellants been able to point to any item which was subject to a charge prior in date to March 1893, and consequently all these properties are liable now to discharge the suit debt. It is suggested that the plaintiff has selected at random certain portions of the estate and that it is inequitable that those alone should be asked to provide the decree amount. This suggestion has not been made out by any specific evidence and inasmuch as plaintiff has the right to choose the property against which he will proceed, there seems to be no reason for any interference now, for the appellants, if their contentions are sound, will have a right of contribution against other portions of the estate and this will remedy any hardship they now suffer.

7. The remaining appeals, Nos. 280, 288, 352 and 353 of 1921, are concerned with the maintenance allowance of Lakshmikantamma, the widow of Muthu Venkatappa. Many of the questions to be dealt with are the same as those in the other batch of appeals. Appeals Nos. 280 and 352 are filed against the decree in O.S. 57 of 1915, a suit brought by Lakshmikantamma herself, and Appeals Nos. 288 and 353 are against the decree in O.S. 33 of 1918 brought by the widow's assignee. Both suits are based upon the decree in O.S. 15 of 1897, whereby Lakshmikantamma's maintenance allowance of Rs. 600 per mensem was declared and made a charge upon the Kalahasti Estate. Under the husband's will the widow, obtained no specific charge on the estate and could only claim the allowance as a legatee or as a Hindu widow, but from the date of her suit, namely 22nd March 1897, she became entitled to a charge for her allowance by virtue of the decree, dated 22nd August 1900, which must be deemed to refer back her right to the date of her plaint. As these appeals are concerned mainly with the relative priority of Lakshmikantamma's claim and the claims of the several appellants it is important to remember that the widow's claim dates back to 22nd March 1897 and any mortgages or charges created after that date would not affect her right.

8. The appellants are the alienees of portions of the Kalahasti Estate and claim priority on various grounds. The main contention is that where the appellants have paid off debts due by the widow's deceased husband they are entitled to priority. This argument is based upon the principle that a creditor of the deceased testator is entitled to proceed against any portion of the estate including the portions in the possession of general or specific legatees. This principle is laid down in Davies v. Nicolson 44 E.R. 1158, and Eustace, in Be Lee v. Mac Millan [1912] 1 Ch. 561, but it has been recognized that in certain circumstances the creditor's right may be defeated: vide Gilles-pie v. Alexander 3 Buss. 130, and Greig v. Somer ville 1 Russ. &M.; 338. Accepting this principle of law there is the further consideration whether, when the creditor has himself been satisfied with a mere money decree against the estate, the purchaser in execution can claim the right to proceed against any portion of the estate-a right which his predecessor-in-interest did not choose to exercise. I think it is quite clear that he cannot do so. If the creditor wishes to proceed against property in the hands of the legatees, he must take appropriate proceedings, such as an administration action in which the respective rights of all parties can be determined. In the case of none of the creditors with which we are concerned was such appropriate action taken, and consequently the purchaser in execution of a mere money decree would obtain no priority over the widow's charge. In this country the creditor's position has not perhaps been placed as high as in England, for we find in Ram Dhun Dhur v. Mahesh Chunder [1883] 9 Cal. 406, it was held that the mortgage created by an heir after the testator's death was valid as against one of the testator's creditors, inasmuch as the decree in the creditor's suit had not created a charge on the testator's property. Similarly, in Ambika Charan Dutt v. Mukto Kisori [1906] 10 C.W.N 38, a mortgage by a legatee was upheld; and also in Bepin Krishna Ghose v. Byomkesh Deb : AIR1925Cal395 , it was held that the provisions of Section 52, T. P. Act, did not apply to mortgages created before the order for administration. Again in Lakshmi Narasimham v. Pillalamarri Jagannadha Row [1915] 18 M.L.T. 117, it was held that when the heirs had become insolvent the estate of the deceased vested in the Official Receiver, and the creditor could not claim any special charge over it. It is clear from all these cases that the creditor, in order to obtain priority, must take steps to enforce his claim, and that if he omits to do so the subsequent purchaser of property in execution of the creditor's money decree cannot claim such a right.

9. Apart from the fact that Lakshmikantamma was a legatee, she was also a Hindu widow entitled as such to maintenance, and it has been held in this country that such a right, when specifically charged upon the estate, takes priority over the claims of unsecured creditors. In Somasundaram Chetty v. Unnamalai Ammal [1920] 43 Mad. 800, where the point now before us was specifically decided, it was held that a charge on joint family property created by a decree for maintenance payable to the widow of a member of a joint Hindu family takes precedence over the right of a subsequent purchaser of the same property in execution of a money decree binding on the family. A perusal of the elaborate judgment of West, J., in Lakshman, Ramachandra Joshi v. Satyabhambhai [1877] 2 Bom. 494, would show that the learned Judge was of the same opinion, although the actual point did not arise for determination before him. Whether as legatee or as widow the charge of Lakshmikantamma must have priority over the appellants who rely on the rights of prior creditors.

10. The next class of cases deals with claims to subrogation. In no particular instance in this case can the simple doctrine of subrogation, enunciated in Section 74, T. P. Act, be applied. There are cases where the persons claiming subrogation have partially paid off the prior, secured debts, but it has been consistently held that unless the prior debts are discharged the partial payment does not give a right to subrogation. This was held in Hanumanthayan v. Meenatchi Naidu [1912] 35 Mad. 183. In Swaminatha Pillai v. Krishna Iyer [1915] 38 Mad. 548 subrogation was allowed in the case of a partial payment, but the prior debt was wholly discharged by that partial payment and any apparent conflict between the two cases is explained in Lakshminarayana Rao v. Allananeni Venkayya A.I.R. 1922 Mad. 441, affirming the decision in Hanumanthayan v. Meenatchi Naidu [1912] 35 Mad. 183. The case relied on by the appellants in Ummachakutti v. Ummerkutti 29 Ind.Cas. 583, is not in point, for that was not a question of subrogation and relief was granted under the ordinary rules of equity. In no case are the provisions of Section 74, T. P. Act, applicable, nor do I think that the complete discharge of prior debts has been proved in the case of any one of the appellants most of whom have purchased the suit property in execution of decrees supplemental to the earlier decree on a prior encumbrance. In the case of mortgage decrees passed before the Civil Procedure Code of 1908 came into force Section 89, T. P. Act, would be applicable, and under that section upon a decree for sale being passed the rights of the mortgagor and the security are extinguished: vide the judgments of the Privy Council in Het Ram v. Shadi Ram A.I.R. 1918 P.C. 34 and Matru Lal v. Durga Kunwar A.I.R. 1920 P.C. 79. In the latter case, payment of the decree amount, as opposed to the amount due under the original mortgage, was ordered by the decree, but the order was made not upon the merits but by consent and whether such an order should have been made is very doubtful in view of the later decision of the Judicial Committee in Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P.C. 11.

11. The other claims are made by persons who have purchased property and whose purchase money has been applied in payment of allowances to other members of the family charged upon the estate, or where the purchase money has been applied in payment of such allowance holders or of the arrears of peishcush. In none of these cases can it be said that there is any charge created in the purchaser, whether the purchase was by private sale or in Court auction. The property purchased had never been definitely allocated to any prior encumbrances and consequently the purchasers cannot claim priority over the widow's charge.

12. A further contention is raised that the widow has split up her claim and that the parties are entitled to have the securities marshalled. While O.S. 57 of 1915 was being heard the plaintiff assigned her rights to plaintiff 2 who was then impleaded. This transfer being made after the suit cannot affect the decision of this case, but may be of importance if any future suit for maintenance is filed.

13. The last point to be dealt with is the question of limitation. Although prima facie the suit might appear to be barred by limitation it has to be remembered that from the year 1899 to 1903 the estate was under the Court of Wards and also there has been an acknowledgment of liability in Exs. B-16 and B 17 of 1911. These are acknowledgments made by the Rajah's vakil in execution proceedings. The contention that they are not specific acknowledgments and must be restricted solely to the execution proceedings has no force, for the liability to pay the debt is definitely acknowledged by an authorized agent and it is immaterial that the right to enforce the liability in any particular manner is not admitted: vide Sukhamoni Chowdhuri v. Ishan Chunder Roy [1898] 25 Cal. 844 and Maniram Seth v. Seth Rupchand [1906] 33 Cal. 1017. The liability to pay having been admitted the creditor can pursue his claim in any way recognized by law.

14. There is one set of items in respect of which it is claimed that the prior encumbrance was fully discharged, namely items 116 to 124. From Ex. 68 it would appear that the decree debt was fully discharged on 30th September 1912. Apparently defendant 9 paid a portion of the decree amount, but the evidence as to the payment of the balance is extremely unsatisfactory. D. Ws. 1 and 2, who were examined to prove the payment, know very little about it and the documents which could definitely prove the fact are not before us. The account Ex. 71, which is all that is filed is far from satisfactory when viewed in the light of the evidence of D Ws. 1 and 2. With respect to items 138 and 292 it is contended that the prior mortgage debt was discharged; and although Ex. S is the receipt for the amount payable under Ex. 53, it specifically purports to be a receipt of partial satisfaction only and there is no adequate evidence that defendant 19 paid off the whole amount. I, therefore, think that this claim has been rightly disallowed by the lower Court.

15. Items 2 and 5 were sold in execution of the decree in O.S. 15 of 1897 before it had been held that the proper method of enforcing that decree was by way of a suit. These items were sold in E.P. 59 of 1906 and it is contended by the respondents that they must have been sold in execution of that part of the decree in O.S. 15 of 1897 which relates to arrears of maintenance and that, therefore, they must be deemed to have been sold subject to the charge for future maintenance. Neither the execution petition nor the order for the sale has been produced and it is most unlikely that Lakshmikantamma would have reserved her charge when bringing these properties to sale inasmuch as they constituted only a small portion of her security. As she has failed to prove that the sale of these two items was held subject to her charge for future maintenance, it may be presumed that no such reservation was made, and the lower Court's decree must be modified as regards these items. The lower Court has apparently mistaken item 1 for item 130 of the same name, and the appeal in regard to item 1 must be allowed as it was brought to sale, like items 2 and 5, in execution of the decree in O.S. 15 of 1897. The remarks with regard to items 2 and 5 are applicable also to item 132, which must be allowed to defendant 12. With this modification all these appeals must be dismissed with costs of plaintiffs-respondents as against all appellants except defendants 3, 5 and 12.

Odgers, J.

16. Appeals Nos. 58, 69, 70 and 387 of 1919 and 28 and 39 of 1920. These are two sets of appeals. The first of these is an appeal from O.S. 86 of 1916, in which defendant 23 was the late Rajah of Kalahasti and it arose out of the claim for maintenance by the brother of the Rajah and, in fact, it may be said that all these appeals, viewed as a whole, involve in one aspect or another the question of competition between maintenance holders or charge holders for maintenance on this estate and persons who have acquired in whole or in part the rights (as they claim) of various mortgagees from time to time. In 1881 Rajah Venkatappa, who is generally called the C.S. I. Rajah, died. He left six sons and made a will, Ex O. By the will he gives to various sons different parts of the estate, e g., to Timma, his second son, he gave Garimenapante inam village to be enjoyed from son to grandson. After C.S. I. Rajah's death the trouble between his sons and their creditors and the charge maintenance holders began. Timma, one of the sons, instituted O.S. 12 of 1890 for partition of the estate and the moveables. This suit was compromised and all the parties recognized the estate as impartible as against the will, Ex 0, which purported to divide the estate. By the compromise plaintiff 1 and his brothers, defendants 2, 3, 4 and 5, were to receive allowances, at the rate of Rs. 600 a month, for ten years and Rs. 700 a month, afterwards, out of the income of the estate. This compromise was embodied in a decree, Ex. A-2, but the High Court deleted the clauses as to maintenance on the ground that they were not within the suit. The High Court's decree is Ex. A-3 and judgment Ex. A-5. The provisions of the compromise as to maintenance were, therefore, excluded by the High Court. In 1905, Chinnappa, another of the C.S. I. Rajah's sons, brought a' suit, O.S. 33 of 1895, asking that the compromise be declared valid and binding on defendants 1 and 2 and that they be directed to pay the plaintiff the allowance as therein provided. This was also compromised. Ex B- 2 and the amount of allowance was, fixed at Rs. 650 a month. Similar agreements were entered into by the younger brothers, Exs. 66 and 67. The present suit from which this is an appeal is based on the compromise in O.S. 33 of 1995. On 23rd March 1894, Maddu Venkatappa, who was defendant 1 in O.S. 12. of 1890, died leaving a will. There were then a series of execution petitions in O.S. 33 of 1895 and from 1899 to 1905 the Court of Wards assumed the management of the estate from Ankappa who was the adopted son of Timma's eldest brother. Chinnappa's son, Venkappa, brought O.S. 41 of 1906 (which is the same as No.3 of 1910) on the file of the Temporary Subordinate Judge of North Arcot against his father Chinnappa, Timma and others also for maintenance. This again was compromised and the decree is Ex. C-4. On 9th December 1911 an execution petition was put in O.S. 33 of 1895 (Ex. H-l in Chinnappa's suit) and objection was taken that the decree in Suit 33 of 1895 was merely declaratory and, therefore, non-executable, but this contention was overruled. On 31st December 1900, Chinnappa assigned part of his decree and the assignee tried to execute: c. Ex. N-2. The order is Ex. N-8. The petition was dismissed as the auction-purchasers; who were not parties to O.S. 33 of 1895, but who purchased the' properties in execution of other decrees could not be regarded as the representatives of the judgment-debtor within Section 47, Civil P.C. From this decision of the District Judge an appeal was taken to the High Court (reported in Gansham Doss v. Rajah of Kalahusti [1915] 2 M.L.W. 326 in which it was held that the transferee decree-holders had no right of sale. Finally, on 7th May 1913, there was a further assignment by Chinnappa, Ex. J. and it is on this that the present suit is brought This assignment, Ex. J was, for the amount of arrears of maintenance due to Chinnappa under the decree in O.S. 33 of 1895 with intent up to the end of March 1913.

17. The document also recites Suit 3 of 1910 brought by Venkappa, the son, against Chinappa, in which the son's allowance was fixed at Rs. 125. So the assignment entitled the son Venkappa to take out execution of the decree in O.S. 33 of 1895 and, from the amount realized to recover the amount due by him i.e. Venkappa. Subject to certain conditions he assigned absolutely the entire right vested in him (Chinnappa) in respect of the decree in O.S. 33 of 1895. Certain points have been taken by Mr. Govindaraghava Ayyar, who appears for the appellants in this set of appeals, Nos. 58, of 1919, 28 and 39 of 1920. The defences are set out by the learned Subordinate Judge in para. 19 of his judgment and some of these have again been taken by the learned vakil before us.

18. The first point is a very short one, and concerns the will, Ex. O, and the question is: Does it create a charge for maintenance? There is no doubt that it does not. The will no doubt purported to divide the estate, but although it gives cash allowances there are no words charging those payments upon the estate.

19. The second point is as to the compromise in O.S. 12 of 1890, and the question is whether it ought to be registered or not. The Subordinate Judge, in para. 87 of his judgment, holds that the compromise, or rather the portion of it with which we are concerned, was judicially acted upon and, therefore, exempted from registration. The matter is settled for us, as it seems to me, by the Full Bench decision in Poorvanayi Ayissa v. Kundran Choken [1920] 43 Mad. 688, and it is admitted by the learned vakil for the appellants that if Poorvanayi Ayissa v. Kundran Choken [1920] 43 Mad. 688 is accepted by us this point goes. No reasons have been advanced why the Full Bench decision is wrong. Therefore, it seems to me, it must be accepted and, if accepted, it certainly binds us and it could not be questioned except by a reference to another Full Bench.

20. The third point is: Will a separate suit lie? Reference has already been made to Ex. N-8, order on the execution petition when Chinnappa's assignees attempted to execute. Four of the respondents in that petition are defendants in O.S. 86 of 1916 from which one of these is an appeal. If we decide that a charge is declared in the compromise Ex. A-l then there must be a separate suit as it is clearly not a mortgage decree. This is pointed out in para. 30 of the judgment. There can, I think, be no doubt whatever that the compromise decree did charge the income of the estate with the payment of these allowances. Therefore, a separate suit will lie.

21. The fourth point is very faintly urged and it is to the effect that it would be a hardship that the assignees should be subjected to bring separate suits, and that is a matter with which we may possibly sympathize, but we are quite unable to help from a legal point of view.

22. The more serious objection is the fifth, namely, that the compromise in O.S. 33 of 1895 creates a perpetuity or an estate unknown to Hindu law. That compromise, Ex. B-2, it will be remembered, was in the suit of Chinnappa against Akkappa, and it was arranged thereby that the plaintiff should have Rs. 650 a month instead of the old allowance of Rs. 600, rising to Rs. 700. This allowance was to be paid to the plaintiff and his male-descendants. It is said that this is an attempt to create a tail male. Had it been to the plaintiff and his heirs or plaintiff and all his descendants, it is said that it would be unobjectionable. The District Judge regards the words used 'puthra powthra parampariyam' as an equivalent of 'from generation to generation' and, if he is right, they may be correctly interpreted as words of inheritance. This may be the proper interpretation, but the words used seem to me to be designed to prevent the allowance as such being paid to females and to be confined to male issue. The first thing to premise about this matter is that Chinnappa was alive at the date of the suit and took an interest under the decree, and the learned vakil for the respondent has pressed upon us the view that this is really an allowance to a named person with payments to his heirs. There is really no question here of perpetuity. The same words occur in Ex. 66 and Ex. 67. The question has also been argued by Mr. A. Krishnaswami Ayyar for the appellants in A.Ss. 69, 70 and 387 of 1919 and he referred to Rajah, of Ramnad v. Sundara Pandiasami Tevar A.I.R. 1918 P.C. 156. This was a case of compromise between the ancestor of the appellant and an ancestor, though not the lineal ancestor, of the respondent whereby, as between two parties claiming an impartible zamindari, Rs. 700 a month was to be paid to the ancestor of the present respondent. It was contended before their Lordships of the Privy Council that this was a creation of a kind of perpetuity. Their Lordships say:

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 Mr. Justice Seshagiri Iyer in the High Court were right in holding that this is a charge,

and they held that it was unobjectionable. Reference was also made to Maharaj Bahadur Singh v. Balchand Chowdhury A.I.R. 1922 P.C. 165 which was not a case of the grant of a present estate at all. It was a covenant to grant a site on a hill at some future date. It was held that the covenant did not run with the land and did infringe the rule against perpetuities. It seems to me that under the Privy Council ruling in Rajah of Ramnad v. Sundara Pandiasami Tevar A.I.R. 1918 P.C. 156, and having regard to the fact that Chinnappa was alive and did not die for about two years after the date of the suit, there is no attempt here to create a perpetuity, but it simply directs the holder of the estate from time to time to pay certain definite sums.

23. The sixth point is as to variance in the rate of maintenance. For instance, in Venkatappa Nayanim Varu v. Timma Nayanim Varu : (1914)27MLJ656 the Court purported to alter the rate of maintenance and reduce it to Rs. 400 a month. The case in Venkatappa Nayanim Varu v. Timma Nayanim Varu : (1914)27MLJ656 has been overruled, though on another point, and it seems to me that, where the rate of maintenance has been made the subject of a compromise which has been incorporated in a decree, without consent or overriding the 'decree, the Court has no power, just because it thinks Rs. 400 a month a fairer rate of maintenance than Rs. 600 or Rs. 650, to alter the rate of maintenance.

24. The next point is as to the assignment of future maintenance and the document in question is Ex. J which has been already referred to. The assignment of Ex. J is dated May 1913, and conveys or assigns the maintenance together with interest due up to the date 31st March 1913. It seems to me a misuse of language to say that that clause amounts to an assignment of future maintenance or a partial assignment of maintenance, because at the actual date of the assignment maintenance was accruing from day to day, although it was only payable quarterly. There is no doubt that, as laid down in Subraya v. Krishna A.I.R. 1924 Mad. 22 a personal right of maintenance is not transferable, that is, residence, sharing in the house or receiving batta in lieu of residence in the family house. It was held that these rights were purely personal and within Section 6 (d), T. P. Act, and therefore, nontransferable. But these considerations do not apply, for instance, to an annuity to a man and his heirs which has been held not to be a personal and limited right and, if fixed by the decree, may be attached and, therefore, assigned, though a mere right to receive maintenance in the future cannot be so treated; and Mr. Justice Seshagiri Iyer in Seshappa Heggade v. Chandayya Heggade : (1919)37MLJ402 held that right to maintenance may be assigned where it has already become payable.

25. The learned Judges of the Calcutta High Court in Padmanund Singh v. Rama Proshad [19133 17 C.W.N. 662 held that if an interest in property is periodically to be paid it is alienable. It is difficult to see why any distinction should be made between a decree which has been obtained in respect of maintenance and one which has been obtained in respect of any other debt due. If the latter can be assigned, there seems to be no adequate reason to hold that the former cannot be assigned. Mr. Krishnaswami Ayyar, en this set of cases, finally argued that where a charge holder has partially assigned his decree, as he maintains has been the case with these maintenance holders, these partial assignments cannot take priority as the right to enforce the charge by sale is one and entire, and the right of sale can only be exercised once and not enforced piecemeal. For instance, he insists that Ex. J does evidence an assignment of future maintenance. I suppose this is based on the assignment of 'entire right in respect of the decree in O.S. 33 of 1895.' It is said to fall under Section 6, T. P. Act, and, therefore, to be invalid. In support of this two English oases are cited. Forster v. Baker [1910] 2 K.B. 636, where a judgment-creditor assigned part of the judgment debt and the assignee applied for leave to issue execution. This was refused on two separate grounds: by the Judge of first instance on the ground that there cannot tie an absolute assignment within Sub-section 6, Section 25, Judicature Act, of a definite part of an existing debt or other legal chose in action; by the Court of appeal on the ground that the judgment-creditor can only issue a single execution upon his judgment, cannot split up his judgment debt and issue separate executions upon the different parts. But in In re Steel Wing Co., Ltd. [1921] 1 Ch. 349 following the case in Foster v. Baker [1910] 2 K.B. 636, it was held that such an assignment i. e., partial assignment, did operate in equity to transfer the part assigned and constituted the assignee a creditor in equity of the original debtor so that the assignee could, when the debtor is a company, present a petition for winding up.

26. As against this we have' the following 'Indian authorities: Sabjan Sahib v. Abdul Azeez [1917] 42 I.C. 684, a decision of a Bench of this Court where it is pointed out by Mr. Justice Seshagiri Ayyar that in 'S. 25, Judicature Act, the language is an absolute 'assignment of a chose in action,' but that in Section 130, T. P. Act, the word 'absolute' is omitted. In the opinion of the learned Judge this may be a deliberate departure from the English flaw: Muthiah Chettiar v. Govindoss Krishnadoss A.I.R. 1921 Mad. 599, which was a Bench of three Judges in which it was held that the Civil Procedure Code recognized the validity of the transfer of a part of a decree. 'It was an appeal from the judgment of Oldfield, J., (Seshagiri Ayyar, J., dissenting) dismissing an appeal from an order of the District Judge who refused the application of the appellant to make him a party to the execution proceedings on the ground that he was the transferee of one-eighth share in a mortgage decree. Although the Bench was not a Full Bench, it was a Bench of three Judges who were unanimous as to this point: Ram Sahai v. Madan Lal Kanhaiya Lal : AIR1926All346 . It, therefore, appears to me that the current of judicial opinion in India is that partial assignment is valid; and it will be observed that P.O. Lawrence, J., in In re Steel Wing Company Ltd. [1921] 1 Ch. 349 went so far as to say that a partial assignment of a chose in action, though invalid tinder the Judicature Act, might be recognized at equity. I would, therefore, hold that the assignment, Ex. J., is not an assignment of future maintenance, nor is it a partial assignment. Even if it is the latter, it is valid. If there are other assignments of future maintenance in the cases which have passed into decrees, in so far as they have done so, the law seems to me to be settled against the contention of the appellants.

27. The last point argued by Mr. Govindaraghava Iyer is the priority of alienations about which we shall hear a great deal more in the subsequent appeals. The case he puts forward is a purchase by defendant 2 of the decree in O.S. 54 of 1907 which was a purchase in respect of a mortgage decree, the mortgage being dated 24th February 1899. That will hardly come into the discussion of the law to be hereafter undertaken on subrogation as the purchase was so recent, it being agreed with regard to subrogation in the other appeals that no purchase after March 1893 can be considered in this connexion. His instances are all those of simple money decrees.

28. Appeals Nos. 69 and 70 are against O.S. 86 of 1916 by different defendants, namely 69, by defendants 14, 15 and 22, and 70 by defendant 21. Appeal 387 is against the decree in O.S. 50 of 1916, an assignee's suit, Appeals Nos. 387, 28 and 39 may be at once disposed of in that they have abated. In Appeal No. 387, defendant 54's representative bought in execution of a money decree of the 20th July 1884 and 5th December 1888, O.S. 187 of 1912 which was on two bonds. He bought the property subject to a mortgage and redeemed the property in the hands of defendant 5 whose mortgage was dated 4th August 1908. One of the assignees, plaintiff 1, died on 14th December 1919. The contention is that he is effectively represented by the other two plaintiffs as they are joint assignees. Defendant 1 is likewise not represented in Appeals Nos. 28 and 39. The law seems to be perfectly clear and has been recently laid down in Srinivasalu Chetty v. Guravaiah A.I.R. 1927 Mad. 505, that where one plaintiff dies and the appeal abates the appeal must be dismissed against the other plaintiffs also; and in Wajid Ali Khan v. Puran Singh : AIR1925All108 , where there were four plaintiffs, it was held that the abatement against one operates as against all: Narain Das v. Sheo Din : AIR1926All234 , where the rights of the claimants are distinct, and can be considered individually and disposed of separately the law may be different. We have been shown no ground for excusing the inordinate delay which has occurred. These appeals must be dismissed with costs.

29. The memorandum of objections in Appeal No. 69 we have heard nothing about and it must be dismissed. There is also a Letters Patent appeal which concerns a stay of execution, but it will fail as Appeal No. 39 has abated and must, therefore, be dismissed with costs.

30. Mr. Alladi Krishnaswamy Ayyar contended that the compromise already referred to was merely declaratory, and the fact that it has made the allowance a charge on the property makes no difference. On the other hand it is contended that the compromise was a bona fide settlement of a family dispute and I think there can be no doubt that, looking at the terms of the compromise, it was so. We have seen that the sons filed suits against their father for partition and afterwards for maintenance allowances. That there was a family dispute there can be no doubt and that the compromise Ex. J., and Exs. 66 and 67, were attempts to compromise it and there can also be no doubt that there has been no allegation of 'fraud or undue influence or anything of that kind. There is no reason to say that they are not bona fide. We have been taken through the various items in which Mr. Krishnaswami Ayyar's clients are interested. For instance, defendant 21's items are items Nos. 66 and 67,135 to 140 and 142 to 155 of Schedule B. Some of these were purchased in Court sale in pursuance of a supplemental decree in O.S. 40 of 1910 which is simply a personal decree on a personal covenant. It is said that the debt was for necessary purpose and it is or part of it is the original debt of the C.S. I. Rajah, and, after obtaining the property by purchase, he redeemed the mortgage in favour of defendant 2, but the learned vakil admits he cannot prove necessity at this time of day, and if defendant 2's mortgage is too late for any consideration on the ground of subrogation, it would appear that this purchase must also be too late. The same will apply to items Nos. 101, 102 and 103. They, therefore, come down to mere money decrees. In Appeal 69, defendant 15 is interested in items Nos. 127 of 132. Item No. 130 was bought in execution of a mortgage decree of 1898. Items Nos. 131 and 132 were decrees obtained for allowances and purchased thereunder. Items 127 to 129 appear to be equally: affected either in point of time or by being purely money decrees; defendant 14 is interested in items 104 and 108, of which part is said to be earlier than 1893: of. Ex. 11, a mortgage dated 23rd July 1896 by Akkappa to Maddu Venkatappa which recites the deed of 30th June 1893, Ex. 62, which recites again a mortgage-deed of the 12th December 1892. The claim is on behalf of the appellants for Rs. 11,000 of the old debt which may again raise the question as to whether there can or cannot be partial subrogation which may be considered hereafter, but in any case it may be here pointed out that there is no proof as to which part, if any, or whether that part amounting to Rs. 11,000, is an old debt and ascribable to a claim which arose before March 1893. As to defendant 22, items 113 to 126 he seems to have purchased in execution of simple money decrees.

31. I, therefore, think that all points raised in this group of appeals fail and that they all must be dismissed with costs.

32. Appeals Nos. 280, 288, 352 and 353 of 192l--These appeals relate to the maintenance allowance of one Lakshmikantamma, widow of Maddu Venkatappa, who has been mentioned in connexion with the first batch of appeals, as being one of the sons of the G.S. I. Rajah and who died on 22nd March 1894, leaving a will dated 15th February 1894, Ex. H, whereby he-gave his wife Rs. 600 a month for her; maintenance. Lakshmikantamma brought a suit for her maintenance, O.S. 15 of 1897, alleging that the allowance was a charge on the whole zamindari and asking for a declaration to that effect. A decree was made in this suit in August 1900 .declaring the allowance of Rs. 600 to be a charge on the Kalahasti Estate. The decree is Ex. A-5, There was an appeal to the High Court, Ex. A-2, which was dismissed on the question as to whether defendant 1, the adopted son in possession, had assented to the legacy to the late Rajah's- widow. The latter brought several execution petitions on her judgment, e.g. E.P. 58 of 1911, Ex. B-5, on which the High Court held, Ex. E-1, that she was not entitled to bring the attached property to sale in execution of her decree in 15 of 1897: see also Ex. E to the same effect. In consequence of this decision of the High Court she filed 57 of 1915, while, on 27th February 1914, she assigned the arrears of allowance to the plaintiff in O.S. 33: see Ex. K. On 25th January 1920, she assigned by Ex. D to plaintiffs 2 and 3 an the present suit, her arrears of maintenance amounting to Rs. 42,600 and also -future maintenance to fall due under the decree in 15 of 1897.

33. Before coming to the points of law which apply either severally or in the alternative to the contentions and titles of the various contesting appellants, it may be as well to clear the ground by noticing that item 1, in which defendant 3 is interested, has admittedly to be allowed, as apparently the Subordinate Judge has made a mistake in the identity of the village. The item was brought to sale in E.P. 39 of 1912 in O.S. 15 of 1897 which was the charge decree.

34. As to items 2, 3 and 5, in which defendants 3 and 5 are respectively interested: item 2 was brought to sale in E.P. 59 of 1906 and in 10 of 1912 in O.S. 15 of 1897. It was brought by defendant 2 in O.S. 15 of 1897 and given to defendant 3 by Ex. 20. Item 5 was brought to sale and brought by the plaintiff in E.P. 59 of 1906 also in O.S. 15 of 1897. It seems to me extremely doubtful whether these items were sold by the widow subject to the plaintiff's charge. I agree with my learned brother Phillips, J., that they should be allowed. Then, with regard to items 116 to 124: the contention is that the appellant-defendant 9 ought to be subrogated because in Ex. 68, the register of execution petitions, the decree is said to have been fully satisfied. The amount shown in this execution petition is Rs 19,000 odd. The application was struck off and in the accounts of defendant 9, Ex. 71, we see only Rs. 6,000 paid in satisfaction of the decree and the oral evidence of D. Ws. 1 and 2 does not appear to carry the matter any farther. Neither the payer nor the payee is called, but the agent is D. W. 1. There is, therefore, no satisfactory evidence that this payment was in fact made and the decree discharged' by payment. Then, as to items 138 to 292 in which defendant 20 is interested as he redeemed the 19th: those concern some 27 villages in the estate the history of which is recounted' in Narasingerji Gyanagerji v. P. Parthasarathi A.I.R. 1921 Mad. 498, and also to some extent in Narasingerji v. Parthasaradhi Rayanim Garu A.I.R. 1924 P.C. 226. They are said to arise from purchase by defendant 20 in 1915, Ex. 69, on a decree by Venkatachalam, the assignee decree-holder of two mortgages of Venkappa in 1884 and 1888, respectively: see Ex. P., which is a mortgage of 1893 in favour of Rajah Venugopal which is assigned by this indenture. The receipt, Ex. S, says that Rs. 5,60,000 odd were received from the vendee of Ex. P in 'part satisfaction' of the amount due and there does not seem to be any evidence forthcoming to show that defendant 19 paid off the whole amount. For these reasons the claims on the evidence as to items mentioned must be disallowed.

35. I proceed to the points of law which have been taken in support of the claims of one or the other alienees who are claiming against the representatives of the maintenance holder, Lakshmikantamma.

36. The first point of law is that the debts of Lakshmikantamma's deceased husband will take precedence over her claim whether it be viewed as a legacy under Ex. H or as a claim for maintenance established by a decree in her favour in O.S. 15 of 1897. With regard to the position of the widow as a legatee the contention is that the appellants can follow the assets of the husband which went into the hands of his widow for the purpose of recovering their dues and reference is made to Section 140, Probate and Administration Act, and two English-cases, Davies v. Nicolson 44 E.R. 1158 and Eustace, In Re Lee v. Mao Millan [1912] 1 Ch. 561. It is to be noticed that both the English cases are administration suits, that is to say, the debts, legacies, and the assets of the deceased are all put into the melting pot and the order of distribution is decided in the suit. This is far from saying that a creditor can catch his legatee and force her to disgorge on proof that the debt owing to him is her husband's debt. Had the creditors chosen to proceed to show that there were not sufficient assets to pay the legacies, which they might no doubt have done in a proper proceeding, the question would have been far different, because, of course, a man must be just before he is generous and must pay his debts in the ordinary course of administration before the legatees can be allowed to take their benefits under his will. This the creditors have not done. What they have done is to merely obtain money decrees against the heir-at-law of the deceased to which the legatees are not parties.

37. The only decrees involved in this part of the case are those in O.S. 125 of 1899 and 187 of 1912. The first was against Akkappa and the second against Timmu. It seems to me, therefore, that the creditors, not having chosen to bring a suit or suits for the administration of the property of Maddu Venkappa, cannot now be heard to say in this suit that the legatee must restore what was left to her by Ex. H in order to satisfy their claims. There seems, on the other hand, to be some body of authority in this country for holding a view against the creditor's rights. For instance, in Ram Dhun Dhur v. Mohesh Chunder Chowdhury [1883] 9 Cal. 406 it was held that the creditor's-rights will not prevail against a charge holder, where neither the direction in the will for the payment of debts, nor the decree in the creditor's suit created a charge on the property of the testator. As the learned Judges point out in that case, the decree which the creditor had obtained had no other effect than as a mere money decree and had not the effect of creating a charge in the will of the testator which simply gave a general direction to pay his debts. So, in Ambika Charan Butt v. Srimati Mikto Kisori 10 C.W.N 38, a decree of a creditor was merely a money decree and created no charge as against, in that case, a mortgagee. In Bepin Krishna Ghose v. Byomkesh Dehi : AIR1925Cal395 , the heirs of a certain man had executed several mortgages of immovable property belonging to his estate prior to an order being made in a suit for the administration of the estate. The mortgagee applied for sale of the immovable properties and for payment to himself from the proceeds in the first instance. It was held that this was outside Section 52, T. P. Act, and that as regards the mortgages before the order in administration they would not be affected by it: see also Gade Lakshmi Narasimham v. Pillalamarri Jagannadha Row [1915] 18 M.L.T. 117, where the heirs of a certain person became insolvents after a decree had been passed for the realization of the debts of the deceased debtor in the hands of his heirs. Oldfield, J., and Sadasira Iyer, J., held that the property of the deceased is not so hypothecated for his debt as to. prevent his heir disposing of it, or to allow a creditor to follow it in the hands of a third, party. I am, therefore, of opinion, on these authorities, that the creditors cannot prevail in this case against the legatee, Lakshmikatamma, regarded as a legatee, without an administration action which has not been brought and which this suit is certainly not. Regarded as a maintenance right, Mr. Alladi Krishna-swami Ayyar admits that there is a Madras case against him in Somasundarama Chetty v. Unnamalai Ammal [1920] 43 Mad. 800, where Oldfield, J., and Seshagiri Ayyar, J., held that though, in the administration of a. Hindu's estate, binding debts would take? precedence over mere claims for maintenance or residence on the part of female members of the family, there is no clear authority for the proposition that a charge bona fide created for maintenance as there is here, can be defeated by a. creditor who lent money for a family purpose.

38. The cases in Sham Lal v. Banna [1882] 4 All. 296 and Gur Dayal v. Kaunsila [1883] 5 All. 367 are examined by the learned Judges, and it is pointed out that in neither of these was a charge created for the maintenance claimed and that the remark in Gur Dayal v. Kaunsila [1883] 5 All. 367, that even if there is a charge it would be subordinated to the claim of a creditor is not supported by any text of Hindu law or any of the decided cases. There is, moreover, the elaborate judgment of West, J., in Lakshman Ramchandra Joshi and another v. Satyabhanabai [1877] 2 Bom. 494, in which the learned Judge points out that, if property is sold for binding debts, the sale is good and the debts would take precedence, but not, for example, over the claim to maintenance-fixed by a decree. In this state of the law I do not think it possible to hold]' that the maintenance charge on the estate must give way to the claims of the creditors which are not so charged; and the cases where the maintenance is not a charge, of course, stand on a wholly different footing.

39. Mr. Alladi Krishnaswami Ayyar, having failed to convince us on either of these points, proceeds to a further point, namely, that his clients or some of them are entitled to be subrogated by their purchases to the rights of their vendors and hence to squeeze out the claim of the widow to maintenance. Most, if not all, of the claims under this head rest on part payments either (a) of prior mortgagees while the mortgages are still on foot; or (b) of payments made after the mortgage had passed into a decree and execution had been taken thereon. The very limited right of subrogation given by statute in this country is to be found in Section 74, T. P. Act, which is, of course, confined to the second or any subsequent mortgagee; that is to say, the section does not embrace strangers from outside who pay off part of the mortgage amount or buy property in execution of a mortgage decree. The words of the section are perfectly clear and lay down that the subsequent mortgagee shall, on obtaining a receipt for the payment of the money, acquire in respect of the property all the rights and powers of the mortgagee as such to whom he has made the tender. I take leave to gravely doubt whether the doctrine of subrogation is really admissible in this case at all because, as Mr. Justice Sundara Ayyar points out in Narayana Kutti v. Pachiammal [1913] 36 Mad 426, unless subrogation is under the section, it must be classed as what is called ' conventional subrogation, ' which will not prevail without the consent of the party to whom subrogation is to be made. In other words, conventional subrogation can result only from a direct agreement, express or implied, made with either the creditor or debtor, and it is not sufficient that a person paying the debt of another should have merely an understanding on his part that he is to be subrogated to the rights of the creditor, though, if the agreement has been made, a formal assignment will not be necessary. The learned Judge goes on to point out that the scope of the rule is narrower in this country and that a mere agreement cannot give a person lending money to discharge the mortgage a lien over the property (see Section 54, T. P. Act) and that as equitable interests are not recognized as distinct from legal interests, it is very doubtful whether there is any right of subrogation outside the section of the Transfer of Property Act. But as the discussion of the law has been allowed to proceed on this topic I propose to deal shortly with it. Now the first requirement is that the mortgage must be extinguished and it must be extinguished by a payment made by the party claiming subrogation. He cannot stand by till the claim is extinguished by somebody else and then claim subrogation. The case quoted in Saminatha Pillai v. Krishna Iyer [1915] 38 Mad. 548 and Hanumanthaiyan v. Meenatchi Naidu [1912] 35 Mad. 183 clearly show that there is no title to priority until the debt has been completely discharged by payment.

40. As pointed out in the latter case the result would otherwise be that a number of persons would be entitled to rank as first incumbrancers and it would be impossible to work out the rights of the parties. The earlier case of Rupabai v. Audimulam, 11 Mad. 345, which was a. case of an agreement, was explained and Hanumanthaiyan v. Meenatchi Naidu [1912] 35 Mad. 183 and Saminatha Pillai v. Krishna Iyer [1915] 38 Mad. 548 were referred to and explained in a case to which I was a party with Spencer, J., in Lakshminarayana Rao v. Allameneni Venkayya A.I.R. 1922 Mad. 441, in which we held that there can be no claim to priority by subrogation unless the prior mortgage is completely discharged. Mr. Krishnaswami Ayyar relies very strongly on the Privy Council case in Ayyareddis v. Gopalakrishnayya A.I.R. 1924 P.C. 36. There certain land was subject to three simple mortgages, of which the second was on the crops as well as the land. A purchaser of the land subject to the three mortgages and the respondents who were assignees of his interest paid to the second mortgagee money to save the crops from sale under a decree which he had obtained upon his mortgage. It was held that the payments made to the second mortgagee were to be regarded as purchases pro tanto of the second mortgage, not as a discharge of it and that accordingly the respondents were entitled in respect of the payment they made to priority over the third mortgagee. The point really insisted upon before their Lordships of the Privy Council seems to be that as the second mortgage was upon the crops as well as upon the land, the sums paid to the second mortgagee to save the crops from seizure must be deemed to be sums paid in reduction of the second mortgage, and not purchases pro tanto of it. Their Lordships regarded the incumbrance as a composite security, crops and land. There as no real discussion of the law of subrogation, much less a discussion as to whether a part payment will confer such a right. The decision seems to turn on the distinction between purchase and redemption. No question of subsisting charges were discussed, but the case was really one as to the distribution or allocation of the money paid to save the crops. I do not think, therefore, that that carries the case any further.

41. Now as to (B), payments after the mortgage has passed into a decree: that depends on Section 89, T. P. Act, which provides that, when the mortgagor fails to pay the amount due and an order absolute for sale is passed thereupon, the defendants' right to redeem and the security shall both be extinguished. This is explained in Vanamikalinga Mudali v. Chidambara Chetty [1906] 29 Mad. 37, where it is said that where a person interested in immovable property, such as the owner of the equity of redemption or a puisne mortgagee discharges a prior encumbrance, the presumption is that such encumbrance enures to the advantage of the party making the payment, if it is for his benefit so to treat it and that the provisions of Section 89 have reference to the execution of a mortgage decree and should not be invoked so as to render the application of this principle impossible in cases where an order absolute for sale has been made. On the other hand, there are two cases, Het Ram v. Shadi Ram A.I.R. 1918 P.C. 34 and Matru Lal v. Durga Kunwar A.I.R. 1920 P.C. 79, both of the Privy Council, which held that on the extinction of the security and the right to redeem under Section 89, T. P. Act, the mortgagee had in their stead a right of sale by virtue of the decree, and the later Allahabad case held that the amount to be paid by the second mortgagee, where the first mortgagee obtained a stay of sale without making him a party and the second mortgagee thereafter sued on his mortgage, was to be calculated on the basis of the decree and not with regard to the amount due on the prior mortgage. The cases were further considered by their Lordships of the Privy Council in Sukhi Ghulam v. Safdur Khan A.I.R. 1922 P.C. 11, which was a case under the Civil Procedure Code and their Lordships held that the law remains now as it was before the passing of the Transfer of Property Act, namely, that a subsequent mortgagee is entitled to set up a prior mortgage-interest which he has acquired as against a subsequent mortgagee. It is said that in the present case all but one of the instances are under the Transfer of Property Act.

42. In Venkataramanna Reddi v. Rangaiah Chetti A.I.R. 1922 Mad. 249, which came after Het Ram v. Shadi Ram A.I.R. 1918 P.C. 34 and Matru Lal v. Durga Kunwar A.I.R. 1920 P.C. 79, but before Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P.C. 11, it was held that partial discharge might give rise to subrogation if the mortgagee had released his claim over the balance of the amounts due to him, but that the purchaser had no general right of subrogation by reason of having paid off a portion of the decree obtained on the prior mortgage. In Parvati Ammal v. Venkatarama Iyer A.I.R. 1925 Mad. 80, Wallace, J., had to consider the question for the purpose of limitation as to whether the payer is subrogated to the rights of a mortgagee or of the decree-holder, and he held that he was subrogated to the rights of the decree-holder. But in S. A. No. 1803 of 1923 (since reported in Kotappa v. Raghavayya : AIR1927Mad631 , in modification of this view, he held that a subsequent mortgagee who pays off a mortgage and is not a party to the suit stands in the position of a prior mortgagee only. This was a case where the mortgage was used as a shield or weapon of defence and was a case of limitation. All the mortgages in the present case are prior to 1897 and are, therefore, barred. I am, therefore, of opinion that nothing can be made of either of these branches of the doctrine of subrogation in favour of the appellant's claim and that, having regard to the case in Sukhi v. Ghulam Safdar Khan A.I.R. 1922 P.C. 11, the oases in Het Ram v. Shadi Ram A.I.R. 1918 P.C. 34 and Matru Lal v. Durga Kunwar A.I.R. 1920 P.C. 79 must be regarded as at least strictly confined to their subject-matters and not as laying down any general principle of law.

43. The next short matter is the splitting up of securities, that is to say, by purchase by the widow herself, Lakshmiikantanam's, in execution of decrees. It is clear that we cannot interfere after the suit has been instituted in which these purchases were made. It will doubtless be open to the appellants to contest 'those transactions in a separate suit, should they so desire. We have been taken through not only the titles of the -various appellants, but also the evidence with regard to the merits of some of them on the part of the respondents. I have already dealt with the claim of defendant 9 on the merits. With regard to defendant 13 as to items 133 to 135, beyond the recital in the document there does not seem to be any proof that the money borrowed was actually applied to the payments of allowances. The mere recital is not sufficient to give the appellant the right of subrogation over the maintenance holders.

44. As to items 134 and 135 in which defendant 13 is also interested: a stranger attached the decree for allowance and brought these items to sale and defendant 13 bought them. There is no indication that the allowance holder meant to enforce the charges. He was merely content with the money decree. As to defendant 23: he took an assignment and subsequently paid off the puisne mortgage, Ex. N. In the original suit the amount borrowed is due on several decrees beginning with 15 of 1899. This is governed by what has been said on the other batch of cases. As to O.S. No. 8 of 1908 and 3 of 1907 which are also mentioned in Ex. N: we have no evidence to hold that they are entitled to keep these old mortgages alive. Reference may also be made to what has been said on the doctrine of part payment above. As to defendant 24 who is interested in 33 to 35, he can only claim subrogation as to 33 and 34 and this cannot be put higher than money decree because the mortgage was for money due on four promissory notes, two of which are said to relate to allowance payments in 1896. There was apparently no charge in respect of these moneys and they are not entitled to rank higher than mere money decrees. As to defendant 25: he is interested in items 3 and 4, mere private sales, which can give him no right whatever. As to defendant 30: he is interested in items 99, 108 and 109. The items were sold for deficiency on Ex. 53 and not in execution of the mortgage itself: see sale certificates Exs. 63, 64, and 65 which refer to the sale of lots of the ' attached properties. '

45. The last point is as to limitation. The estate was under the Court of Wards from 1899 to 1905 and by Section 55 (4), Madras Courts of Wards Act, this period will be excluded from limitation. After the estate was released E.P. 60 of 1906 was filed for the whole account of arrears: see Exs. B-2, B-16, B-17. These acknowledgments are made of part-payments such, as would be, in my opinion, within Section 19, Lim. Act. In Maniram Seth v. Seth Rupchand [1906] 33 Cal. 1017, it was held that the document relied upon was an acknowledgment signed by the respondent. In that case the counter-affidavit signed by the appellant's agent stated, ' For the last five years I have opened a current account with the deceased.' It was held that this was sufficient acknowledgment within Section 19. In Sukhhmoni Chowdhuri v. Isham Chunder Roy [1898] 25 Cal. 844 all the joint owners of certain property had filed a petition in Court for the appointment of the manager of their estate. It was held that this was an acknowledgment of the joint; debt by the co-owner who had not contributed money in order to save the estate from sale. It, therefore, seems to me that this question of limitation must be answered as the learned Subordinate Judge answered it, namely, that the suits are not barred. I, therefore, hold that, with the exception of the three items 1, 2 and 5, dealt with at the beginning of this judgment on this second batch of appeals, and also the item 132, in which defendant 12 is interested-and defendant 3, 5 and 12 will be exonerated from payment of costs--the appeals as to the other items must be dismissed with costs of plaintiffs-respondents for the reasons given except as above noted.

Srinivasa Ayyangar, J.

46. I agree generally with the conclusions arrived at by my learned brothers whose judgments in this appeal have just been, pronounced and which I have had the opportunity of perusing beforehand. I should have thought it unnecessary to add anything to the detailed examination by them of the cases were it not for a feeling in my mind that in respect of two matters it would be useful to state the grounds in a slightly different manner. I propose not to embark on a recapitulation of all the points dealt with by them, but to content myself with briefly referring to what I have to state on the two points.

47. The first is with regard to the question of non-registration of the agreement of compromise and the consequent inadmissibility in evidence of the same. I respectfully agree that, though not registered, it is admissible in evidence. But it may as well be in this connexion to bear in mind that under the terms of Section 17, Registration Act, what is exempted or excepted from compulsory registration is ' any decree or order of Court. ' I take it that the Registration Act being an Act applicable to instruments in writing, what the Act exempts from liability to compulsory registration is a written decree or order which may fall within the description of instruments in Sub-clauses (a) (b) (c) and (d) of Clause (1) of the section, but which are excluded if they should also fall under the description or definition of a decree or order. With all respect it seems to me that, unless the compromise becomes embodied either directly by incorporation or indirectly by clear reference so as really to constitute or tantamount to incorporation, the exemption cannot be relied upon. In the Full Bench case Poorvanayi Ayissa v. Kundran Choken [1920] 43 Mad. 688 the order ' recorded ' was construed as such a reference to the petition of compromise as in law to amount to a setting out in full of the same. The reasoning, as well as the decision of their Lordships of the Judicial Committee in the case of Hemanta Kumari Debi v. Midnapur Zamindari Co. A.I.R. 191 P.C. 79, were to the same effect.

48. In the present case, as has already been observed, the compromise in its entirety was embodied in the decree of the Court of first instance, but the High Court, by its decree in appeal, directed certain clauses to be expunged from the decree of the lower Court, and amongst those clauses the clause in the compromise relating to the allowance and the charge is one. The High Court did not and did not purport to, expunge that clause from the compromise that had been duly recorded; but expunged it only from the decree obviously on the ground that those matters were beyond the scope of the suit, whether rightly or wrongly it need not now be considered'. All that the appellate Court did was while recognizing the compromise and the record of the same, to confine the decree to portions of the compromise which were within the scope of the suit and expunge from the decretal directions the matters covered by the clauses falling beyond the scope of the suit. A pointed by their Lordships of the Privy Council the recording of the compromise-is an order which refers to and virtually incorporates by such reference the compromise itself and nothing turns on the question whether there is an executable decree or not in respect of any of the matters. I am, therefore, of the opinion that the order of the appellate Court with regard to the amendment of the decree of the lower Court in the case, had reference only to the expunging of the clauses from the decree as a decree of Court, but not from the decree so far as it was a record of the compromise. There is, therefore, to my mind, no room for the contention on behalf of the appellants founded on the clauses relating to the charge having been expunged from the decree by the Court of appeal. I may, it seems to me, usefully refer also to another aspect of the same question.

49. The expression to be found now in Section 17, Registration Act, Clause 2, Sub-clause 6, is, ' any decree of a Court. ' It may fall to be observed that the expression is not ' any final decree or order of a Court, ' and the legislature has deliberately amended the sub-clause by the addition of the word ' any. ' The Registration Act. itself is a mere legislative provision for the public record of rights and the exemption of decrees and orders of Court from the operation of Section 17 must also be regarded as based on the consideration that decrees and orders of Court may also be regarded as suitable means of the public recording of rights. There is, therefore, no reason to suppose that any decree or order of Court ' is any the less ' any decree or order of Court ' because it is subsequently modified or set aside. Having regard to what is referred to as the 'purpose of the statute' by their Lordships of the Judicial Committee in Hemanta Kumari Debt v. Midnapur Zamindari Co. A.I.R. 191 P.C. 79 there is no reason to limit the expression any 'decree or order of Court' only to one not set aside subsequently.

50. It seems to me that any other construction may lead to very disastrous and unexpected results. If an agreement of compromise should, by a Court of first instance, be embodied in a decree but portions thereof should be deleted from the decree, let us say more than 12 years after the date thereof, by the Privy Council, then it may follow that the parties, without any fault of their own, may lose all the benefits of a compromise while possibly being subjected to all the obligations thereof. We can not suppose that such a result was contemplated by the legislature. I do not, therefore, see any reason why exemption from compulsory registration should not be accorded even to agreements originally included in a decree or order of Court, but happening subsequently to be deleted from them by decrees or orders of Court, the principle being that, once an agreement becomes embodied or incorporated in a decree or order of Court, the necessity for registration ceases and the same can be proved and enforced if otherwise provable or enforceable.

51. As regards the question of subrogation: I only wish to add that though it is an equitable right based on a comparatively elastic doctrine, still it has been stretched already as far as it could be, and that there is no basis for the contention in these connected appeals founded on a further extension thereof. One thing at least seems to me to be clear and that is, that the circumstances under which rights are claimed on the ground of subrogation must be such as to leave no doubt as to the intention of the parties and also as to the possibility of an assignment if contemplated. I agree that in none of these instances, with regard to which rights of subrogation were claimed, it has been made out on the facts, and, further I am unable to regard the circumstances of any such case as indicating any constructive intention on the part of the parties or the possibility of any assignment if contemplated. I agree that the first batch of appeal falls and should be dismissed with costs.

52. With regard also to the second batch of appeals arising out of what has been termed the maintenance claim: I propose to add only a few observations of my own. Mr. Alladi Krishnaswami Ayyar contended strenuously that the alienees were entitled to certain priorities over the charge claimed by the plaintiffs. The ground of his argument was as follows: The plaintiffs' claim in this suit may be regarded either as a legacy or as a maintenance. In the former, it is clear on the law that all legatees should be postponed to the creditors and that the creditor may proceed to recover his claim even against the property specifically bequeathed. If the claim should be treated as based on the right of a widow for maintenance, the entire estate is subject to the claim of the creditors in the first instance. If, therefore, we should find that any alienations were made by the holder of the estate for the purpose of paying off the creditors of the deceased, such alienees are entitled to claim priority over the charge created in favour of the widow either as legatee or as maintenance holder.

53. It is true that there has been very clear statements of law with regard to this in the Indian decisions. He cited two English decisions which have been referred to in my learned brothers' judgments, Davies v. Nicolson 44 E.R. 1158 and Eustace, In Be Lee v. Mac Millan [1912] 1 Ch. 561. There can be no doubt whatever that a creditor of the deceased testator or intestate has a right to have his claims satisfied from the entire estate of the deceased. But whether the deceased is represented by an executor or administrator or a mere heir-at-law, there are two kinds of actions available to a creditor; a suit on the debt against the defendant in his character as legal representative when the decree is made limited to the assets of the deceased. In such a case the expression ' assets of the deceased ' must be regarded as being only such assets as have not been validly disposed of already and as have not ceased to form part of the estate. This is smaller remedy, and if he elects smaller remedy he would have to be content with it, at any rate in those proceedings. He has also a larger remedy by an administration action. If his cause of action should be that in the administration of 'the estate by the legal representative, whoever he may be, there has been committed by him any breach of trust or breach of obligation imposed by the law, then he may file an administration action, whereupon the Court will consider the whole of the administration of the estate by the representative and further proceed to administer it itself,. incidentally setting aside such acts of maladministration as might have been committed by the representative. If, therefore, a creditor of the deceased desires to question any act of administration by the legal representative of the deceased, he could do so only in a properly constituted administration action in which are made as parties all persons who have acquired or are claiming rights under or through the legal representatives. The Court will then have to adjudicate on the acts of the administration and determine the rights of the other parties with regard to the claims advanced in the action. The Court in such an action taking over the administration itself may in its discretion deem it unnecessary to disturb any of the alienations effected by the legal representative and provide otherwise for the payment and satisfaction of the debt of the creditor. It is clear that such a right, if at all, can be established only in an administration suit to which all persons interested in the estate of the deceased are, or may be, either directly or indirectly parties.

54. A person may have a right, but it may also be and often is that such right has to be established or enforced only in a particular manner. It may be observed that both the English decisions cited by Mr. Alladi Krishnaswami Ayyar were in actions for the administration of the estate. If, therefore, a creditor having two remedies does not elect to file an administration action and dispute the acts of administration of the legal representative, it follows on principle that he must be confined to the remedies he has elected.

55. Apart altogether from that, even assuming that a creditor may have the right in certain circumstances to proceed against the property in the hands of a legatee or a maintenance holder, it does not follow that the alienee under an act of alienation for the payment of the debt can be regarded as also having such rights. The creditor has an election of remedies and the act of alienation is that of a legal representative. The creditor of the legal representative and the alienee from him can claim only under or through the legal representative and there is no room in any case for the application of the principles of subrogation and there is no principle for holding that what the creditor of the deceased might have elected to do, the creditor of the legal representative or the alienee from him has the right of enforcing.

56. Mr. Alladi Krishnaswami Ayyar also referred to Section 140, Probate and Administration Act. It is as follows:

A creditor who has not received payment of his debt may call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator's estate were or were not sufficient at the time of his death to pay both debts and legacies and whether the payment of the legacy by the executor was voluntary or not.

57. While this section recognizes the right of the creditor to call upon a legatee to refund it, it is significant that in this section it is not defined to whom the legatee is to make the refund. Obviously it cannot be to the creditor. It must be to the legal representative, the executor or administrator. If, therefore, the legatee should, even after being so called upon by the creditor, fail to make the refund and the creditor should want to enforce the right given to him under that section, the proper suit in which a creditor can enforce such obligation on the part of the legatee to refund to the legal representative the amount of the legacy, would only be an administration suit.

58. As regards the other matters: I consider it unnecessary to add anything to what my learned brothers have said in their judgments and I agree with them that the second batch of appeals should also be dismissed with the modification indicated.


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