Renupada Mukherjee, J.
1. These two appeals arise out of two money suits, one of which was instituted by Swarnalata Bose, appellant in S. A. 1645 of 1953, and the other by Nirode Ranjan Ghosh, appellant in S. A. 1646 of 1953. The suit filed by Swarnalata in the Trial Court bore No. 34 of 1950, and the suit filed by Nirode bore No. 42 of 1950. The suit of Swarnalata was instituted for realisation of maintenance and annuity money provided in the will. Nirode's suit was instituted for realisation of annuity money provided in the same will; there was an additional claim for annuity money alleged to be due on an annuity bond executed by respondent Promode Chandra Roy Choudhury. The claim of the plaintiffs in both the suits was dismissed by the Trial Court which delivered one judgment in the two suits, and the decrees of dismissal passed by the Trial Court were confirmed in appeals by the Lower Appellate Court. So the two plaintiffs have preferred these two appeals which were heard analogously as some common questions of law and fact are involved in both the appeals.
2. The facts material for the purpose of these two appeals are not in dispute and they may thus be set out in brief:
3. One Mohim Chandra Roy Choudhury, a zamindar of Atharabari in Mymensingh district which is now included in East Pakistan, was the owner of considerable landed properties. He had two daughters, but no male issue. The daughters were Swarnalata Bose, appellant in one of these appeals, and Hemalata Ghose, deceased mother of the other appellant Nirode Ranjan Ghose. Before his death Mohim executed a will on 17th Aswin, 1297 B. S. (2nd October, 1890). Mohim gave hi3 wife Jnanada permission to adopt a son by a deed, dated 24th Magh, 1290 B. S. After the death of Mohim his will was duly probated and Jnanada also took respondent Promode Chandra Roy Choudhury in adoption. The will of Mohim contains various dispositions consistent with the magnitude of his properties. In these two appeals we are concerned with the interpretation and construction of terms 3Ga and 3Gha of the will which provide for payment of maintenance to his two daughters and annuities in their favour and also in favour of their sons and grandsons from generation to generation, Appellant Swarnalata has claimed a sum of Rs. 3880/9 as, from the respondent according to the terms of the will as being due, to her on account of unpaid maintenance and annuity money and also interest due on them. Appellant Nirode has similarly claimed a sum of Rs. 4798/5 as, in terms of the will as also on the basis of an annuity bond, dated 26-7-1923, executed between the respondent on one hand, and the descendants of Mohim, on the other, by way of settlement of their disputes.
4. The only substantial defence of the respondent in the Courts below was that both under thewill of Mohim and the annuity bond, specific properties were charged for payment of the maintenance and annuities, and as the appellants, insteadof proceeding against the charged properties,brought these suits as ordinary money suits for recovery of arrears of maintenance money and annuities, and as the respondent has got no personal liability to pay the maintenance and annuities apartfrom the charged properties, the suits are liable tobe dismissed. This defence of the respondent wasupheld in both the Courts below, and the correctness of the decision has been challenged in thesetwo appeals.
5. The points which require our decision are:
(1) Are the appellants entitled to recover their maintenance and annuity money only from the properties charged under the will of Mohim Chandra Roy Choudhury for payment of the maintenance and annuities or from other properties of his estate as well after giving up the charge?
(2) Is appellant Nirode Ghosh entitled to recover his annuity money under the annuity bond, dated 20-7-1923, from other properties of the respondent without proceeding in the first instance against the properties charged in the bond for payment of the money?
6. We shall take up these two points one after another.
7. In order to appreciate the question whether the maintenance-holder annuitants under the will are entitled to realise their dues from other properties of the testator, besides the property charged for their payment, it is necessary to reproduce here Clauses Ga and Gha of term 3 of the will. They run in the following terms:
3 (Ga). My first daughter Sm. Hemlata and my second daughter Sm. Swarnalata will each get throughout their lives a sum of Rs. 1200 per year (Rs. 2400 together) on account of their maintenance etc., payable in four instalments in Sraban, Kertic, Magh and Chaitra from out of my estate.
3 (Gha). Each of my daughters besides getting the above sum on account of her maintenance will get an annuity of Rs. 2400 (Rs. 4800 together) separately down to her sons and grandsons etc.; but if any of them dies sonless, her annuity will lapse. For payment of the money provided in this clause as well as in Clause (ga), the property of Schedule 7 of this deed will remain charged; but if any of my daughter does not leave any son or grandson at the time of her death, her annuity will lapse and the charged property will be released from that obligation.
8. Upon a construction of Clauses (Ga) and Gha) term No. 3 which have a direct bearing in these two appeals, the Lower Appellate Court came to the conclusion that there was no personal covenant to pay, and the legacies given by way of maintenance and annuities are in reality specific legacies. In support of his finding that there was no personal covenant to pay the learned Judge of the Lower Appellate Court relied on a case reported in Raghukul Tilak v. Pitam Singh : AIR1931All99 , where it has been held that by the definition of charge no personal liability is created, but where a charge is the result of a contract there may also be a personal remedy to be found. The learned Judge of the Lower Appellate Court is of opinion that in this case no such personal liability was intended or undertaken by the testator in the will in question. In my opinion, the learned Judge approached the case from a wrong perspective, and he did not properly comprehend the scope of the dispositions made in Clauses 3 (Ga) and 3 (Gha) of the will. A case of personal covenant which is a matter of mutual agreement does not at all arise in a will under which the testator bequeaths his properties in a particular manner which is to take effect after his death. He does not enter into any agreement with anybody regarding the manner of the disposition of his property. To say, therefore, that there was no personal covenant to pay in the will under consideration is to misconceive the very nature and scope of the document. The case cited above, therefore, has no application to the facts of the present case.
9. The only relevant question which arises for our consideration in this connection is whether the maintenance and annuities were given as specific legacies to be met from out of a specified portion and no other properties of the testator, or whether the charge was created only for safeguarding the interest of the maintenance holders and the annuitants, and the money was realisable from the entire properties of the testator. In this connection the learned Advocate-General, appearing on behalf of the appellants, drew our attention to the case of Paget v. Huish, 1863-1 H and M 663, and contended that where the testator directs that annuities should be paid from out of the rents and profits of a particular property of his, the legacy is demonstrative and not specific, I am of opinion that this contention of the learned Advocate-General is well founded. Apart from the above English decision, there are provisions in our Statute, viz., the Indian Succession Act which defines a specific legacy and a demonstrative legacy.
10. A specific legacy has been defined in Section 142 of the Indian Succession Act as follows
'Where a testator bequeaths to any person a specified part of his property, which is distinguished from-all other parts of his property, the legacy is said to be specific.'
11. A demonstrative legacy has been defined in Section 150 of the same Act, and it runs in the following terms :
'Where a testator bequeaths a certain sum of money, or a certain quantity of any other commodity, and refers to a particular fund or stock so as to constitute the same the primary fund or stock out of which payment is to be made, the legacy is said to be demonstrative.'
12. The explanation attached to the main part of the section need not be quoted.
13. Having regard to the above definitions we are of opinion that the legacies in the present case in the shape of maintenance and annuities charged on a portion of the testator's estate fall within the category of demonstrative legacy and not of specific legacy, because the maintenance and annuities are not equivalent to the bequeathal of a specific part of the testator's property, but only a particular item of his property is made primarily liable for their payment.
14. Dr. Gupta, appearing on behalf of the respondent contended, on the other hand, that on a true construction of the requisite provisions of the will, it should be held that the testator intended that the maintenance and annuities would be realisable only from the charged properties of the testator, and no other portion of his estate. Upon a careful perusal of Clauses 3(Ga) and 3(Gha) of the will, I am unable to accept this interpretation of the clauses. It is true that in Clause 3.(Ga) which provides for the maintenance of the daughters, there is an express direction that the maintenance money would be given from the estate of the testator, but there is no such specific direction in Clause (Gha). In my opinion, this omission in Clause (Gha) is immaterial, because the two clauses are interlinked, and it is stated in Clause (Gha) that over and above getting maintenance in terms of Clause (Ga), the daughters would also get annuities, as provided in the former clause. This does not mean that the annuities were to be paid only out of the income of the charged property. Besides, the annuities were given to the daughters not only for their lives, but also to their sons and grandsons from generation to generation. They would lapse or revert to the parent estate only on failure of sons and grandsons at the time of the death of the annuitants. No doubt, a particular property was charged for payment of maintenance and annuities. But the charge was created for ensuring payment of the money. The value of the charged properties might diminish in future. That property might be lost to the estate of Mohim by reason of revenue sale or by acquisition by Government, as, in fact, it has been acquired by the Government of East Pakistan during the pendency of the appeals in this Court. It would be absurd to hold that the annuities would lapse with the loss of the charged property, because the annuities were given to the daughters and their sons and grandsons, from gene^ ration to generation without any restriction or qualification. I, therefore, reject Dr. Gupta's contention that the maintenance and annuity moneys are realisable from the charged property only. I hold that they are realisable from other properties of the testator as well & the appellants are entitled to get the maintenance & annuities from other properties after relinquishing their charge as they have done in these cases. It goes without saying that the respondent will not have any personal liability of his own, but will be liable only to the extent of deceased Mohim Chandra Roy Choudhury's estate in his hand. The first contention urged on behalf of the appellants, therefore, succeeds.
15. The second question raised in this Court concerns only appellant Nirode in respect of that part of his claim which is based on the annuity bond or 1923 (exhibit 1). Nirode has claimed annuity at the rate of Rs. 200 per month on this bond. It is not necessary for us to deckle here as to what amount he is entitled to get by way of annuity under the terms of this document, because this part of his claim, in my opinion, is premature, and is not, therefore, maintainable for the following reasons.
16. Paragraph 13 of the annuity bond is relevant for our consideration. After making provision for some annuities in favour of some of the descendants of Mohim, it is stated that the property of schedule 9 of the bond would remain charged for payment of the annuities. The annuitants would be entitled to realise their dues collectively or separately, and also amicably or by a suit. If they had to bring a suit they would, in the first instance, have to put to sale the charged property, and if the sale proceeds are found insufficient they would be at liberty to proceed against other properties of the respondent.
17. In this case, appellant Nirode who wag plaintiff in Money Suit No. 42 of 1950 did not proceed against the charged property, as required by paragraph 13 of the annuity bond. It is true that the property has fallen in East Pakistan, but this fact did not relieve him of the obligation of proceeding against the charged property in the first instance.
18. The learned Advocate General contended on behalf of appellant Nirode that during the pendency of his appeal in this Court, the Government of East Pakistan has acquired the charged property, and as that property is no longer available to Nirode, he is entitled to proceed against the respondent personally. This contention cannot be accepted, because the acquisition admittedly took place several years after the institution of the suit by Nirode on 9-8-1950. Nirode should have brought his suit for enforcement of the charge at that time. The fact that the charged property has fallen in East Pakistan should not be simpliciter a ground for instituting a money suit against Promode in the Union of India. The creation of Pakistan in this particular case has caused as much inconvenience to Nirode as to the respondent, and that would not be a valid ground for relinquishing the charge. Under the terms of the annuity bond Nirode was entitled to proceed against other properties or the respondent after exhausting his remedies against the charged properly and not before. As that property was in existence at the date of the suit, Nirode's claim in so far as it is based on the annuity bond must bo dismissed as being premature, and therefore, not maintainable.
19. The second point raised in this appeal on behalf of the appellant Nirode, therefore, fails.
20. In view of the foregoing findings, I am of opinion that the Courts below committed an error in law in dismissing the suits in toto. There is no question that the maintenance money due to appellant Swarnalata and the annuities provided in the will are in arrears for the period claimed in the suit. I shall, therefore, now examine for what amount the appellants are entitled to get decrees. The amount in the case of appellant Swarnalata would be Rs. 1,200 per year on account of maintenance and Rs. 2,400 per annum on account of annuity. Appellant Nirode claimed annuity under the will at the rate of Rs. 1,200 per annum in his share. This amount was reduced by the Trial Court to Rs. 600 per year, but the Lower Appellate Court held that this was wrong and that if Nirode had been entitled to get any decree, his claim would have been decreed at Rs. 1,200 per annum on the basis of the will. I, therefore, hold that appel-lant Swarnalata will get Rs. 3,600 per annum in all and appellant Nirode will get Rs. 1,200 per annum by way of annuity under the will of Mohim Chandra Roy Choudhury. The appellants claimed interest, but there being no provision for payment of interest in the will, I disallow the claim for interest. The Courts below further held that if the plaintiffs do get any decree, the decretal amount will be subject to deduction of income tax at source under the Pakistan Income-tax Act. It is difficult to understand why the Courts below have held this, because the income-tax authorities will be at liberty to realise income-tax from the appellants if they come within the purview of the Income-tax Act. There would, therefore, be no deduction on this account and the respondent must pay the gross amounts to the appellants which they are entitled to get under the will. After making calculations on the basis of these figures and principles, learned. Advocates for both parties agreed before us that appellant Swarnalata will get a decree of Rs. 3,731-14-0, and appellant Nirode will get a decree for Rs. 1,650/-.
21. On grounds set forth above, we allow these appeals and set aside the judgments and decrees of the Courts below and decree Money Suit No. 34 of 1950 in favour of Swarnalata Rose in part for Rs. 3,731-14-0. We decree Money Suit No. 42 of 1950 in favour of Nirode Ranjan Ghose in part for Rs. 1,650/-. As the claim of appellant Swarnalata Bose had been reduced only by a very small amount she will get her full costs in all the Courts from the respondent. Respondent Promode Chandra Roy Choudhury will bear his own costs in all the Courts, so far as Money Suit No. 34 of 1950 is concerned, because his success in this suit is negligible. Appellant Nirode Ranjan Ghose will get costs in all the Courts in proportion to his success and respondent Promode Chandra Roy Choudhury will get costs against that appellant in proportion to his success which will be set off against the decretal amount. The decretal amounts will be recoverable by the plaintiffs appellants only from the estate of deceased Mohim Ghandra Roy Choudhury in the hands of the respondent, and the respondent will have no personal liability under these decrees.
(S. A. 1645 and 1646 of 1953).
B.N. Banerjee, J.
22. I agree with the order made by my Lord, but I desire to express my own reasons for so doing in so far as S. A. 1645 of 1953 is concerned.
23. Money Suit No. 34 of 1950, out of which S. A. 1645 of 1953 arises, was filed by the plaintiff appellant Swarnalata Bose against defendant respondent Promode Chandra Roy Choudhury, claiming arrears of maintenance and annuity payable to her, under the terms of the will of her deceased father Mohim Chandra Roy Choudhury. The claim was laid sit Rs. 3,880-9-0, including principal and interest.
24. Testator Mohim Chandra Roy Choudhury was possessed of considerable landed properties, mostly in the district of Mymensingh, now in East Pakistan. By a will and last testament, dated 2-10-1890, the testator made certain dispositions of his properties, and also made provisions of maintenance of and payment of annuities to his daughter Hemlata Chose and Swarnalata Bose.
25. The testator died on 31-1-1895, and the will was probated on 25-3-1895.
26. The will is in Bengali language and relevant clauses of the will are Clauses 3 (Ga) and 3 (Gha).
27. Under the provisions in aforesaid clauses Hemlata and Swarnalata would each get during their life time Rs. 1,200 per year out of the estate on account of their maintenance in four equal kists payable in Sraban, Kartic, Magh and Chaitra of the Bengali year. They were also to get Rs. 2,400/- each per year as annuity payable in similar four kists. This annuity was made hereditary in the line of the daughters. In case, however, any of the daughters died without a son, the annuity payable to her would come to an end.
28. For the payment of the maintenance allowance and the annuity, properties mentioned in schedule 7 annexed to the will, and situated in the district of Mymensingh, now in East Pakistan, were charged. Defendant Promode Chandra Roy Choudhury was adopted a son to the testator by his widow Jnanada, under an Anumatipatra. Defendant was a residuary legatee under the will.
29. The suit was resisted by the defendant. He did not dispute that the plaintiff was entitled to maintenance and annuity in terms of the will made by his adoptive father, but contended that the suit was not maintainable, because certain properties had been charged by the testator for payment of the maintenance and annuity to the plaintiff, and in the absence of any personal covenant, the plaintiff was not entitled to abandon the charge and institute a simple money suit against him for recovery of arrears of maintenance and annuity. He further contended that he was entitled to deduct income-tax under the Pakistan Income-tax Act in respect of the sums payable to the plaintiff.
30. The Courts below gave effect to the contention raised by the defendant and dismissed the suit. Hence this appeal by the plaintiff.
31. The learned Advocate-General appearing for the plaintiff appellant submitted that the only question involved in the appeal was one of interpretation of the will; if on interpretation of the will it is found that the maintenance and annuity payable to the plaintiff was a specific legacy the plaintiff's suit would fail, but, if, on the other hand, the legacy is found to be a demonstrative legacy, the suit brought by the plaintiff would be a proper suit, and would not be liable to be dismissed as not maintainable. According to the learned Advocate-General, on a proper construction of the will, the bequests made in Clauses 3(Ga) and 3(Gha) in favour of the plaintiff must be demonstrative legacies payable out of the testator's general assets and not solely out of the properties charged.
32. Dr. Gupta appearing for the respondent invited our attention to certain sub-clauses of Clause 2 of the will and contrasted them to Clauses 3(Ga) and 3(Gha) in order to show that the testator used different language where he wanted to make a legacy demonstrative. For example, in Clause 2(Ga) expenses for worship of Deity Shiva, installed and to be installed in the cremation ground respectively of testator's grandfather and father, were made payable out of the estate and properties in schedule 3 of the will were charged for such expenses. Dr. Gupta contended that the will properly interpreted as a whole would lead to the conclusion that the bequests in favour of the plaintiff were specific legacies, leaving the plaintiff' with remedies only against the charged properties.
33. Section 142 of the Succession Act provides that where a testator bequeaths to any person a specified part of his property which is distinguished from all other parts of his property, the legacy is specific Section 150 of the Succession Act provides that where the testator bequeaths a certain sum of money and refers to a particular fund or stock so as to constitute the same the primary fund or stock out of which payment is to be made, the legacy is said to be demonstrative. The latter part of the explanation to Section 150 provides that where the legacy, is directed to be paid out of specified property, it is demonstrative. Illustration (in) under Section 150 is to the following effect :
'(iii) A bequeaths to B-
'10,000 rupees out of my estate at Ramnagar', or charges it on his estate at Ramnagar:
* * * * * Each of these bequests is demonstrative.'
In the light of the provisions of the Indian Succession Act above referred to the will has to be examined as a whole in order to ascertain the intention of the testator.
34. It is true that for payment both of the maintenance and annuity properties in schedule 7 of the will were charged. But the question is whether the same must be paid out of the charged properties alone and not out of the estate of the testator in general, The answer to the problem is to be sought in the intention of the testator, viz., whether the testator meant to give the plaintiff legatee annuity and maintenance at all events; if so, then although he charged specific properties therefor, the legacy would not be specific, but a demonstrative legacy.
35. The language used in Clause 3 (Ga) of the will is that the legatee would get the maintenance out of the estate during the whole term of her life. Clause 3 (Gha) makes the annuity payable not only to the plaintiff legatee during her life time, but also to her sons and grandsons and other successors. This discloses the mind of the testator, viz., that the legatee would be getting maintenance and annuity at all events.
36. In that context the creation of a charge on certain specified properties for securing of maintenance and annuity to the plaintiff legatee would not make any difference.
37. So far as the provision for maintenance with which Clause 3 (Ga) read with Clause 3 (Gha) of the will is concerned, I am of opinion that the bequest is of the nature as in illustration (iii) under Section 150 of the Indian Succession Act, and is, therefore, a demonstrative legacy. It is all the more so, because the bequest is expressly made payable out of the estate.
38. So far as the provision of annuity in Clause 3 (Gha) of the will is concerned, the language is somewhat different from that used in Clause 3 (Ga) of the will inasmuch as the expression 'shall be payable out of my estate' vkekj bLVsV gksbZrs ikbZcs is absent. But that, however, will not lead to the interpretation contended for by Dr. Gupta. The dominant intention of the testator was that the legatee would be getting annuity herself during her life, and thereafter from generation to generation.
39. The creation of a charge on certain properties only amounted to constitution of some primary stock out of which the payment was to be made, but without tying down the legatee to that stock only. The legacy was to be paid out of the charged properties primarily, but if such properties became unavailable or difficult of pursuit then the legacy was nevertheless payable out of the general estate of the testator, and the legatee was free to pursue her remedies against any other property of the testator, if she was not paid her dues.
40. The Court of appeal below made a completely wrong approach to the question at issue. The document which called for interpretation was a will under which both the plaintiff and the defendant were legatees. In such a document, there could not be conceivably and personal covenant by the defendant respondent to pay any thing to the plaintiff appellant. Consequently, invocation of the doctrine that a charge does not ordinarily create a personal covenant, though the contract by which the charge is created, might have the effect of creating a personal obligation, as laid down in : AIR1931All99 , was not at all called for. There was no question of any contractual obligation being involved in the present context.
41. I am of opinion that the defendant respondent is liable to apy out of the estate of the deceased, as left by him at the time of his death, maintenance and annuity to the plaintiff in terms of the will, the bequest in favour of the plaintiff being a demonstrative legacy. On default of the defendant respondent to pay to the plaintiff maintenance and annuity, the plaintiff would be entitled to enforce her claim against the defendant-respondent in the manner done by her.
42. In the matter of payment of such legacy, there is no question of deduction of income-tax under the Pakistan Income-tax Act, and that is all the more so, because the defendant is not compelled to pay the maintenance and annuity out of Pakistan properties alone, which, as the defendant respondent alleges, are now vested in the Government under the Estates Acquisition Act of that country.
43. Plaintiff appellant claimed interest on arrears of maintenance and annuity. There is no provision in the will for payment of such interest, in his fairness the learned Advocate-General did not pursue the claim for interest before us.
44. In the above view of the matter, I agree with the order passed by my Lord in S. A. 1645 of 1953.
45. In S. A. 1646 of 1953 I agree with the order passed by my Lord and have nothing to add.