1. This appeal arises out of a suit to recover Rs. 1,563 on the basis of the Will of the late Babu Bijoy Kissen Mnkherjee of Uttarpara.
2. Bijoy Kiasen died on the 17th Magh 1300 leaving seven sons and several daughters. Of his eons, the eldest, was Narendra Nath, the second Surendra Nath and the third Nagendra Nath. It is unnecessary to mention the names of the other sons. Narendra died on the 16th Pous 1312, and Nagendra died on the 20th Magh 1318. The appellants are the sons and grandsons of Narendra Nath, and the respondents are the sons of Nagendra Nath.
3. Bijoy Kissen, by his Will dated the 16th Magh 1300, devised his movable and immovable properties to his sons and gave certain legacies to his daughters and other persons. By the first paragraph of his Will he gave to his eldest son Narendra Nath certain Mauzas within Lot Dwarbashini and certain other Mouzahs in the same loft were given to his second son Surendra Nath Certain other properties were also given to each of them, which are set out in schedules 1 and 2 respectively to the Will. Similarly some specified properties were given, to each of the other sons including Nagendra Nath in other paragraphs of the Will and these are set forth in the schedules. In the second paragraph it is stated: 'The profits from the said Lot Dwarbashini are much larger than those from the Mahals allotted to my other sons, and out of the Mahals allotted to my other sons certain portions of the Mahals within Lot Pautra allotted to my third son Nagendra Nath Mukherjee, fourth son Satyendra Nath Mukherjee and fifth son Jatindra Nath Mukherjee are under water. In regard to the profits of the aforesaid Lot, Dwarbashini, I make this provision that my eldest son Narendra Nath Mukherjee shall, year after year, go on paying to my third son Nagendra Nath Mukherjee the sum of Rs. 500 per annum out of the income from the : Mahals that he (Narendra) shall obtain, as per schedule 1 and comprised within Lot Dwarbashini, and shall execute in terms of this Will an agreement in favour of the said Nagendra Nath Mukherjee promising to pay the same that after my death, if the said Narendra Nath Mukherjee does not pay it and execute the agreement amicably, then my third son the said Nagendra Nath Mukherjee, shall, under the provisions of this Will, be competent to take legal action and by instituting a suit recover the said amount from the Mahals appertaining to the share as per schedule 1 and obtaining a decree realise the same, year after year, from the said Narendra Nath Mukherjee, and all these Mahals and other properties shall be fully liable for the said amount : and further that my second son Surendra Nath mukherjee shall, after my death, pay from the profits of the Mahals as per schedule 2 within Lot Dwarbashini, that he shall obtain the sum of Rs. 1,000 per annum to the aforesaid Satyendra Nath, Jatindra Nath Mukherjee, that is to say, Rs. 500 annually to my fourth son Satyendra Nath Mukherjee and Rs. 500 annually to my fifth son Jatindra Nath Mukherjee and execute separate agreements in favour of the said Satyendra Nath and Jatindra Nath Mukherjee each, promising to pay profits at the rate of Rs. 500 per annum, and that if such agreements be not executed, the said Satyendra Nath Mukherjee and Jatindra Nath Mukherjee shall take legal steps and institute separate suits to recover profits at the rate of Rs. 500 per annum, as provided by this Will, out of the profits of the Mahals representing the share as per schedule No 2 and obtaining a decree against the said Surendra Nath Mukherjee, realise the same, and all the properties specified in schedule No. 2 shall be fully liable for the said amounts.'
4. The third paragraph which refers to the properties given to Nagendra and the fourth and fifth sons runs as follows: A ten annas share of Lot Pautra bearing No. 44 of the Touzi of the District Hooghly Collectorate and carrying a Sadar Jama of Rs. 11,158-14-6 per annum constitutes my Zemindari and a six annas my Patni under the shares of the late Kali Kinkar Choudhury of Barnnmera, District 24-Par-gannahs. A sum of Rs. 750 per annum is payable to the heirs of the said Kali Kinkar Choudhury as profits of the said Patni Mahal. Certain Mouzas appertaining to the said Lot as also the sum of Rs 500 per annum out of the profits of Lot Dwarbashini and certain other properties specified in schedule No. 3 to this Will are allotted (by me) to my third son Nagendra Nath Mukherjee, and the said Nagendra Nath Mukherjee shall obtain the same after my death. I also allot to my fourth son Satyendra Nath Mukherjee certain Mouzas comprised within the said Lot and Rs. 500 per annum out of the profits of Lot Dwarbashini as well as certain other properties specified in schedule No. 4, and the said Satyendra Nath Mukherjee shall obtain the same after my death. I farther allot to my fifth son Jatindra Nath Mukherjee certain Mouzas appertaining to the said Lot and Rs. 500 per annum out of the profits of Lot Dwarbashini as well as other properties specified in schedule No. 5, and the said Jatindra Nath shall obtain the same after my death. My other sons shall have no concern with the said properties, nor shall the said Nagendra Nath, Satyendra Nath and Jatindra Nath Mukherjee be competent to dispute with one another regarding the properties allotted to them respectively.' The other provisions of the Will which have a bearing upon the question before us will be referred to later.
5. The plaintiffs, who as stated above are the sons of the third son Nagendra, brought this suit on the allegation that the right to the sum of Rs. 500 payable annually out of the profits of Lot Dwarbashini to Nagendra was not restricted to the life of Nagendra but descended to his heirs and as the defendants (the heirs of Narendra) had stopped payment after the death of Nagendra, the present suit was brought for the recovery for the arrears from the latter part of 1318, and for the years 1319 and 1320, with interest thereon at 12 per cent per annum. The defence was that the provision for the payment of Rs. 500 annually was personal to Nagendra, and the right to get it ceased on his death.
6. The Courts below concurred in holding that the gift of Rs. 500 annually was in perpetuity and that the plaintiff's father was given an absolute and heritable interest in the same and accordingly gave a decree, for the sum claimed in the suit to the plaintiffs. The defendants appeal to this Court.
7. It is contended on behalf of the appellants that the Rs. 500 provided by the Will to be paid annually by Narendra to Nagendra is an annuity that, under Section 160 of the Indian Succession Act, the legatee is entitled to receive for his life only unless a contrary intention appears by the Will and that there is no such intention. reference is also made to the English authorities on the point. On the other hand it is contended on behalf of the respondents that the devise is not in the nature of an annuity but is in fact a gift of the corpus, and that in any case the intention of the testator was to make it perpetual.
8. The English law on the point is thus stated by Fry, J. in Blight v. Hartnoll (1881) 19 Ch. D. 294 : 51 L.J. Ch. 162 : 45 L.T. 524 : 30 W.R. 513; 'As a general rule there can be no doubt that the gift of an annuity to A is a gift of the annuity during the life of A and nothing more. It is equally free from doubt that where the testator indicates the existense of the annuity without limit after the death of the person named and, therefore, implies that it is to exist beyond the life of the annuitant, there the annuity is presumed to be a perpetual annuity. It is equally without doubt that there are cases in which the Court has some to the conclusion that the gift is not really that of annuity, but the gift to a person of the income arising from a particular fund without limit, and there the Court holds that the unlimited gift of the income is a gift of the corpus from which the income arises.''
9. In Lett v. Randall (1860) 2 De G.F. & J. 338 : 3 Sm. & G. 83 : 30 L.J. Ch. 110 : 6 Jur. (N.S.) 1359 : 3 L.T. 455 : 9 W.R. 130 : 45 E.R. 671 : 1 the rule is thus stated by Lord Campbell, L.C.; 'To make an annuity created by Will, perpetual, there must be express words in the Will so describing it, or the testator must, by some language in the Will, indicate an intention to that effect. The most common indication is a direction by the testator to segregate and appropriate a portion of his property from the interests or profits of which the annuity is to be paid. Where this is done, the annuity when mentioned in the Will represents the corpus so appropriated and the corpus passing by the bequest of the annuity, the annuity may be said to be perpetual.' But if the gift is expressly one of annuity, the fact that it is secured by a fund or payable out of the income of a fund or the rentals of land does not make it perpetual, unless the testator shows an intention to dispose of the whole fund. See Jarman on Wills, 6th Edition, pages 1138 1139, and the cases cited therein.
10. Section 160 of the Indian Succession act, which is applicable to Hindus, lays down: 'Where an annuity is created by Will the legatee is entitled to receive it for his life only, unless a contrary intention appears by the Will. And this rule shall not be varied by the circumstance that the annuity is directed to be paid out of the property generally or that a sum of money is bequeathed to be invested in the purchase of it.'
11. It is urged on behalf of the appellants that the fact that the annuity is payable out of the income or profits of any property is not an indication to make the annuity perpetual unless the whole of the property or fund is disposed of, in which case the unlimited gift of the income might be held to be a gift of the corpus from which the income arises, that in the present case the portion of Lot Dwarbashini out of which Rs. 500 is payable to Nagendra having been given absolutely to Narendra, there could not have been any such intention and that Section 160 of the Succession act goes further and says that the annuity is not perpetual, not only where it is made payable out of property generally, but also where a sum is bequeathed to be invested in the purchase of it. On the other hand it is contended on behalf of the respondents that under the Indian Succession act, it is only where the annuity is payable out of property generally or out of money bequeathed to be invested in the purchase of it, that the annuity is to be held to be limited to life in the absence of a contrary intention, and not where it is payable out of the profits or income of a particular property as in the present case and that in the present case, it is not an annuity at all, and even if it is an annuity, it is a gift of part of the corpus of Dwarbashini representing the sum of Rs. 500 annually.
12. We think it unnecessary to consider whether the provisions of Section 160 of the Succession Act are more favourable and otherwise to the annuitant than under the English law, because under both the question is one of intention. No doubt the segregation of any particular property is the common mode of indicating an intention to make an annuity perpetual, but we do not think that that is the only mode and the Will may indicate an intention in other ways that the sum payable is really not an annuity, or at any rate is intended to be perpetual.
13. The main question for consideration, there fore, is whether the sum of Rs. 500 payable to Nagendra is an annuity and if so, whether there was an intention to make it perpetual.
14. The scheme of the Will appears to be to make an equal division of the properties as far as possible among the sons, and to allot specific properties to each of the sons, so that there might not be disputes which frequently arise where properties are held jointly. The properties, however, are not of equal value and the profits of Lot Dwarbashini are much larger than those from the Mahals allotted to the other sons. Instead of dividing Dwarbashini into small portions it was given to the first two sons, certain specified Mouazas in the Mahal being given to each of them, and they were to pay a portion of its profits to some of the other sons. In consideration of the fact that the profits of that Mihal were larger and also because certain portions of the Mahals allotted to the third son, Nagendra, and to the fourth and fifth sons were (sic), it is provided that Nagendra is to get rupees five hundred annually out of the profits of the portion of Maha Dwarbashini allotted to the share of Narendra, and the fourth and fifth son, are to get each a sum of Rs. 500 from the profits of the other portion of Dwarbashini which was allotted to the share of h second son Surendra. The profits of the Mouzahs allotted to the second son in Mahal Dwarbashini seem to be larger than those of Mouzis allotted to Narendra, as the former is to pay Rs. 1,000 (Rs. 500 each to the fourth and fifth sons), whereas Narendra is to pay Rs. 500 to Nagandra only Now the share given to Nagendra consists of certain properties mentioned in the third schedule and the sum of Rs 500 which he is to get out of the profits of Mahal Dwarbashini from Narendra. It is distinctly stated in the 3rd paragraph of the Will that certain Mouzas appertaining to the said lot (Lot Pautra) as also the sum of Rs. 500 per annum out of the profits of Lot Dwarbshini and certain other properties specified in schedule No. 3 to this Will are allotted to my third son Nagendra Nath Mnkherjee.'
15. It appears, therefore, that the sum of Rs 500 per annum out of the Profits of Lot Dwarbashini formed part of the share allotted to Nagendra and stands on the same footing as the property specifically allotted to him. The shares allotted to the fourth and the fifth sons also similarly consist of certain properties and the sum of Rs. 500 (each) out of the profits of Lot Dwarbishini payable to them by the second sun Surendra.
16. It is true that no words of inheritance have been used with reference to the sum of Rs. 500 payable out of the profits of Lot Dwarbashini, but the Will nowhere uses such words. The same expression used with reference to the gift of the immovable properties to each of the sons is used with reference to the sum of Rs. 500 payable out of the profits of Lot Dwarbashini, and admittedly the gift of the immovable properties allotted to each of the sons is absolute.. The gift of Dwarbishini to Narendra and the second son was absolute subject, however, to the payment of Rs. 500 annually as directed in the Will, and made a charge upon the property, and subject to the gift over as provided in paragraph 22 of the Will.
17. There is some indication in the 22nd paragraph of the Will that the gift of Rs. 500 was not personal. That paragraph runs as follows:-- God forbid, if any of my sons dies leaving only a childless widow and no heirs such as such as daughters, in that case the properties, etc., allotted to his share shall be divided and taken in equal shares by those of my sons surviving at the time, and my sons shall go on paying to such childless widow of my deceased son during her lifetime an allowance for maintenance and performance of pious acts at the rate of Rs. 35 per mensem.' New the words .'properties, etc., allotted to his share' would include the sum of Rs. 500 to be paid out of the profits of Dwarbaahini to Nagendra and the fourth and fifth sons, being part of the share allotted to each of them, and the clause provides that on the death of any of the sons without issue his share, which (in the case of Narendra and the fourth and fifth sons) would include the said sum of Rs. 500, would dissolve on the surviving sons. This shows that the gift of Rs. 500 was , not limited to the life of Nagendra or the fourth and fifth sons.
18. It is contended that the reason why Rs. 500 was given oat of the profits of Mahal Dwarbashini to Nagendra and the fourth and fifth sons was that portions of the Mahals allotted to them were haja at the time, that it was not likely that the lands would continue in the same condition for ever and that, therefore, the payment of Rs, 500 was intended to enure only for the life of Nagendra, within which period the testator probably expected that the condition of the lands would be changed. But in the first place, the expression haja thakai does not necessarily mean that it was temporarily under water : it refers to the character of the land and implies the liability to be flooded or being under water. In the next place, the suggestion does not support the contention that the payment of the sum of Rs. 500 was limited to the life of Nagendra, because Nagendra might die the day after the death of the testator and in that case the payment would cease according to the appellants' contention, even if the Mahals allotted to Nagendra continued to be in the same condition (haja) after Nagendra's death.
19. The Will provides that Narendra would execute an agreement to pay the sum of five hundred rupees to Nagendra, but no argument can be founded on it in favour of the appellants, as the agreement was to be executed whether the payment is held to be limited to the life of Nagendra or not. Probably it was supposed that an execution of the agreement by Narendra would facilitate realization of the amount and would bind Narendra more effectually.
20. Reliance is placed upon the 8th paragraph of the Will, which runs as follows : 'I give to my eldest son Narendra Nath Mukherjee and second son Surendra Nath Mukherjee properties of larger values and yielding larger profits on condition that they shall train and educate my minor sons, protect their persons and maintain them, if they neglect to do anything on behalf of the minors they shall be fully liable to the minors for losses caused by infringement of the above terms, and the properties as per schedules Nos. 1 and 2 shall also remain liable for the said losses.' It is contended that this paragraph militates against the view that the intention of the testator was to equalize the shares. The first two sons were, no doubt, to train and educate th.9 minor sons, the 6th and 7th dons. But the expense to be incurred for the education of the minor sons was not to be met by first and second sons from their own pockets. The 6th paragraph provides that the properties allotted to the minors were to be held in Ijara by the first five sons during their minority, the net profits payable to each of them being fixed at Rs. 2,750 out of which Rs. 500 was to be spent for the education of each, and the balance invested in Government promissory notes. The minors were not given anything out of the profits of Dwarbasini and it may be that in consideration of the first two sons training, educating and maintaining the minors, the latter were not to get anything from the former out of the Dwarbasini. However that may be, so far as Nagendra and the fourth and fifth sons are concerned, the second paragraph of the Will clearly shows that a sum of Rs. 500 out of the profits of Dwarbasini was given to each of them not only because the profits from Dwarbasini are much larger than those from the Mahals allotted to the other sons, but also because portions of the Mahals allotted to Nagendra and the 4th and 5th sons were haia. The Will must be read as a whole, and reading it as a whole we think that the clear intention of the testator was that the sum of Rs. 500, which is made payable out of the properties of Dwarbasini by Narendra to Nagendra, is not really an annuity, and in any case it was not limited to his life only, but forms part of the properties allotted to him and is absolute and perpetual, and this is the view which has been taken by both the Courts below.- The whole difficulty has been raised by the absence of any words of inheritance, but as stated above, such words have not been used by the testator in any part of the Will, even with regard to gifts which admittedly are absolute.
21. The next question relates to interest. The Courts have decreed interest at 12 per cent. It is contended that having regard to the provisions of Section 132 of the Probate Act, the plaintiffs are not entitled to more than 6 per cent. interest. But we think that the provisions of Sections 130 to 134 relate to interest on annuities or legacies : payable. by the : executor, and cannot apply: to the sum of Rs. 500 to be paid out of the profits of Dwarbasini which Nagendra was entitled to as part of the properties obtained by him under the Will, and was in enjoyment of for several years before his death, and which devolved upon the plaintiffs as his heirs.
22. The appeal is accordingly dismissed with costs.