1. One Gopal Gobinda Choudhury by his Will made provision for the payment of Rs. 25 per month to his brother Kunja Lal if he was alive at the death of the testator and if he was dead, his sons were to get maintenance from the estate for their lives. Kunja Lal received maintenance at the rate of Rs. 25 so long as he was alive and on his death, his sons used to get the maintenance. it was, however, red used by consent from Rs. 25 to Rs. 15 and subsequently by a compromise decree it was farther reduced to Rs. 10 per month. By this compromise it was agreed that the plaintiff and his brother Kali Kumar would get Rs. 10 per month but that if the defendant did not make punctual payment for four consecutive months, then he would be liable to pay at the rate of Rs. 15 per month. Kali Kumar having died, the plaintiff sought to recover the maintenance at the rate of Rs. 15.
2. The Court of First Instance gave him a decree at the rate of Rs. 10 per month. On appeal the learned Subordinate Judge has held that the gift was taken by the sons as tenants in-common and that on the death of one, the other would get only a proportionate amount. That Court accordingly gave a decree at the rate of Rs. 5 only. The plaintiff has appealed to this Court.
3. It is contended that the plaintiff is entitled to get at the rate of Rs. 15, at any rate at the rate of Rs. 10.
4. The learned Subordinate Judge says: 'Prima facie an annuity to two persons should be construed to mean that on the death of one of them, the other should get a proportionate amount.' That is so see Jogeswar Narain Deo v. Rarn Chandra Dutt 23 C. 670 : 23 I.A. 37 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445. He refers to the case of Mathura Prasad v. Buktnini Koer 13 Ind. Cas. 148 : 17 C.L.J. 87 But that case shows that where there are indications of a contrary intention, the gift may be taken as a joint gift,
5. In this case, we think there are ample indications to the contrary. In the first place Gopal, who had been adopted into a wealthy family, was making provision for his natural father's family. He says: 'I have not been able to confer any special benefit on my natural father's family. Therefore my uterine brother Kunja Lal, if alive at the time of my death, would get from my estate Rs. 25 per month and on his death his sons would get the said amount as monthly maintenance from the estate for life.'
6. It appears, therefore, that so far as the sons mere concerned, the gift was not intended for any particular person but to all the sons of his brother, namely, to a class, and the sons should be considered as a unit for the purpose of the gift. Then it is to be observed that the gift was not to descend to the heirs of the sons but to enure only for their lives, and so to question of the heirs of one of the donees being deprived can arise in this case.
7. There is no indication that the intention of the grantor was to make a separate grant of a proportionate sum in favour of each of the sons: and upon a construction of the whole document, we are of opinion that the grant was to the sons of Kunja Lal, as if they were one grantee with right of survivorship inter se.
8. In this view of the matter, we think that the plaintiff was entitled to the entire amount of the maintenance as agreed upon in the compromise decree on the death of his brother.
9. We were referred to the cases of Gopi v. Jaldhara 7 Ind. Cas. 697 : 33 A. 41 : 7 A.L.J. 941 and Kishori Dubain v. Mundra Dubain 10 Ind. Cas. 565 : 33 A. 665 : 8 A.L.J. 757. But in both those cases the gift was an absolute one and was descendable to the heirs of the grantees and can, therefore, be distinguishable on that ground. On the other hand in the case of Navroji Manockji Wadia v. Perozbai 23 B. 80 : 12 Ind. Dec. (N.S.) 53, the gift was held to be a joint gift, and the learned Judges distinguished the case of the Judicial Committee Jogeswar Narain Deo v. Ram Chandra Dutt 23 C. 670 : 23 I.A. 37 : 7 Sar. P.C.J. 13 : 6 M.L.J. 75 : 12 Ind. Dec. (N.S.) 445.
10. The next question is whether the agreement to pay Rs. 15, in the event of the defendant failing to pay punctually the amount of Rs. 10 per month for four consecutive months, is a stipulation by way of penalty. Wo think upon a consideration of the terms of the compromise that it is so and that it was inserted for the purpose of enforcement of punctual payment of the gift. The plaintiff, however, is entitled to a reasonable compensation for the non paymant of the amount, and we think that 12 per cent. interest would be a reasonable compensation upon the said sum of Rs. 10 per month which he is to get under the compromise.
11. The contention raised on behalf of the defendant-respondent is that the plaintiff was not entitled to any maintenance at all and that under the terms of the Will the sons were entitled to get maintenance only if the father was not alive at the time of the death of the testator.
12. It is unnecessary, however, to go into the question, because after the death of Kunja Lal there was a compromise decree under which the defendant or his father agreed to pay the sum of Rs. 15, which was subsequently reduced to Rs. 10, to the plaintiff and his brother. That being so, this contention must be overruled.
13. The result is that the decree at the lower Appellate Court is set aside and in lieu thereof it is ordered that the plaintiff will get a decree for arrears of maintenance at the rate of Rs. 10 per month with interest thereon at 12 per cent, per annum up to the date of the institution of the suit and thereafter at the rate of six per sent, per annum.
14. The parties will be entitled to proportionate costs in all Courts. The costs payable by the defendants will be paid out of the estate of the minor.