B.K. Mukherjea, J.
1. This appeal is on behalf of defendants 2 and 3 and it arises out of a suit commenced by three plaintiffs for recovery of a sum of Rs. 1763 odd annas alleged to be due as two-thirds share of certain annuities payable for the years 1336 to 1342 B.S. under the terms of a deed executed by the predecessor of defendants 1 to 3. There was also a prayer for declaration of a charge in respect of the amounts decreed upon the estate left by the grantor.
2. Now, the facts are not disputed. Defendants 1 to 3 represent the estate of one Bhairab Chandra Chowdhury, who created an annuity in favour of his daughter Shiba Sundari and her lineal descendants by a document executed on 7th February 1856. The material portion of the document stands as follows:
You are my daughter and I being pleased very much with you, I wanted to give you some immovable property for defraying the expenses, of your food and clothing hut (hat not being possible now I am creating this mashohara in your favour fixing a sum of Rs. 41 and annas odd per mounth or Rs. 500 a year as your allowance. la my absence you will be entitled to realize this amount together with your sons, grandsons and other heirs of your body from my heirs and successors.
3. Then there was a clause providing that none but the lineal descendants of the grantee would be entitled to have this allowance and that the daughters and other agnatic relations of the said, daughter Shiba Sundari would not be entitled to the allowance. It appears that Shiba Sundari enjoyed the annuity during her lifetime and she died leaving behind her four sons, to wit, Mahendra, Prasanna, Harendra and Narendra. Of these four sons, Harendra died first without leaving any wife or issue and Narendra, the fourth brother, is alleged to have separated from the other two, who continued to live together in common mess. Mahendra died next leaving a widow named Rashmoni. After that Narendra died and his son Surendra has been made a pro forma defendant in this suit. Prasanna died last and his two sons were Ramesh and Suresh. Both these brothers are dead. Plaintiffs 1 arid 2 are the two sons of Suresh and plaintiff 3 is the widow of Ramesh. The three plaintiffs claim two-thirds share of the annuity as representing the line of Prasanna who is alleged to have got besides his own one-third share the other third share of Mahendra after the death of the latter. The defence of the contesting defendants was that no charge was created by the deed and none could be declared by the Court. It Was contended further that the annuity being descendible only to the lineal heirs of the grantee the shares of Harendra, Mahendra and Ramesh must have lapsed and reverted back to the grantor and his heirs. In other words, the contention was that the plaintiffs were entitled to only one-eighth share in the annuity created in favour of Shiba Sundari.
4. The trial Court gave the three plaintiffs a money decree against the contesting defendants but refused their prayer for declaration of a charge. On appeal the lower Appellate Court was of opinion that plaintiff 3 was not a lineal descendant of the grantee and was therefore not entitled to have any share in the annuity and consequently the decree would be in favour of plaintiffs 1 and 2 alone. The, Subordinate Judge however was of opinion that plaintiffs, 1 and 2 would be entitled to have two-thirds share of the annuity claimed, inasmuch as the share of Mahendra would devolve upon Prasanna after the death of the former, Prasanna being his undivided brother whereas Narendra had already separated from him. It is against this decision that the present second appeal has been preferred. Dr. Basak, who appears in support of the appellants, has raised before us a two-fold contention. In the first place he has argued that the plaintiffs are not entitled to any relief whatsoever inasmuch as the grant fails altogether after the death of Shiba Sundari, the donor having attempted to create, after her death, a line of succession which is repugnant and contrary to Hindu law. The second argument which he has put forward is this, that the shares of Harendra, Mahendra and Ramesh must be deemed to have gone back to the grantor and his heirs and consequently plaintiffs 1 and 2 are not entitled to get more than one-eighth share of the amount claimed.
5. Now, so far as the first ground is concerned, it is not disputed that no such case was made in the written statement of the contesting defendants; on the other hand, the case made therein was that the deed was a valid and operative one and on a proper construction of its terms no charge could be declared and the shares of those lineal descendants of the grantee as did not leave any lineal descendants behind them would go back to the heirs of the grantor. It is also not disputed that this point was not raised either in the trial Court or in the Court, of Appeal below. Dr. Basak however says that he is entitled to-raise this point as a pure point of law in second appeal. It appears to me that there-are considerable difficulties in his way. It transpires from the records that after the death of Shiba Sundari her sons did institute several suits for the purpose of recovery of this maintenance allowance from the predecessors of the defendants. These suits culminated in decrees and some of them have been made exhibits in this case. If, as Dr. Basak contends, the gift failed altogether after the death of Shiba Sundari, it was open to the defendants' predecessors to contend in those suits that no-annuity was payable to the plaintiffs. As this was a ground of defence which was open to the defendants but which was not raised, I think, the principle of constructive res judicata can very well be invoked in their favour. Mr. Chowdhury, who appears for the respondents, has further contended before us that grants of this description which rank in Hindu law as nibandha or corrody do come within the exceptions to the principle enunciated in Tagore v. Tagore (1872) I.A. Sup. Vol. 47, which were indicated in the very judgment of their Lordships of the Judicial Committee. He has argued that nibandha or corrody amounts to creation of what is called an incorporeal right and it is a species of property which is recognized in Hindu law. He says therefore that if the intention of the transferor to create a nibandha is apparent from the deed itself and his clients do come within the category of persons sought to be benefited by it, they are entitled to have the annuity even though they do not come in as the heirs of the original grantee. In support of this contention reliance has been placed upon a decision of this Court, viz. Jatindra Mohan Mandal v. Ghanashyam Chowdhury (1923) 10 A.I.R. Cal. 27. The point may have some substance in it which I need not decide in the present case and I am only referring to this argument for the purpose of showing that these and other answers were available to the plaintiffs, if, as a point of fact, the contesting defendants had cared to raise this question in the proper place and at the proper time. Another question of fact might have to be investigated viz. as to which of the descendants of Siva Sundari were alive at the date of the grant. In view of these circumstances I do not think it proper that the defendants-appellants should be allowed to raise this point for the first time in second appeal.
6. The only other point which has been raised by Dr. Basak relates to the share of the plaintiffs. Now, as the deed states, none who is not a lineal descendant can have any interest in the annuity. Neither Rashmoni, the widow of Mahendra, nor Satadalbasini, the widow of Ramesh, can therefore lay any claim to this allowance. The question therefore arises as to whom would the shares go if some of the lineal descendants of the grantee who enjoyed the annuity themselves died without leaving |any lineal descendants behind them. In my opinion, reading the document as a whole, the only proper inference seems to be that it was not the intention of the donor that the shares of these persons would lapse and revert back to the grantor and his heirs, if the other lineal descendants, of the original grantee are alive. The position therefore is this the annuity could be claimed by the lineal descendants of the original grantee who may be living at any particular time and the shares amongst them, in my opinion, should be calculated on the principle of per stirpes and not per capita. In the present case Prasanna was entitled undoubtedly to one-third share and this interest has devolved upon plaintiffs 1 and 2.
7. So far as Mahendra's share is concerned, I am unable to agree with the lower Appellate Court that it would go to Prasanna and not to Prasanna and Narendra jointly. The reason assigned is that Prasanna was at that time living together with Mahendra whereas Narendra had already separated. The principle of law according to the Dayabhaga School seems to be that if a brother dies leaving another brother who was living jointly with him that would not entitle the joint brother to have preference over a separated brother unless the former could be said to have re-united. In the present ease there is no evidence or suggestion whatsoever that there was any re-union between Prasanna and Mahendra and in these circumstances I am unable to say that Prasanna would have a preferential right of succession to the interest of Mahendra to the exclusion of Narendra. In these circumstances, I would vary the decree passed by the lower Appellate Court to this extent: that plaintiffs 1 and 2 will be entitled to get half of the annuities and not two-thirds as claimed. They would therefore be entitled to recover Rs. 1836-15-8 together with the costs of both the Courts below. There will be no order as to costs in this appeal.
Latifur Rahman, J.
8. I agree.