APPU ALIAS RAMAN Vs. MARY

JUDGEMENT

(1.) THIS is an appeal preferred by the plaintiff from the decree in a suit for recovery of a sum of R s. 115. 11. The plaintiff also claimed a charge on the plaint property for the amount. The plaintiff's father had a leasehold interest in the plaint schedule property which belonged in jenmom to a Mana. The plaintiff's father assigned the leasehold interest to the 1st defendant under Ext. P2 subject to the payment of an annuity of 6 paras of paddy by the assignee to the plaintiff's family in perpetuity. The annuity was also made a charge on the property. The plaintiff claimed the right to the annuity on the basis of Ext. P-1 will executed by the plaintiff's father on 10-3-1950. The 1st defendant's right in the property under Ext. P-2 was assigned under Ext. D1 in favour of defendants 2 and 3 who are now in possession of the property. The plaintiff alleged that the defendants defaulted in the payment of the annuity from 1127 onwards and that in spite of the demand they have not paid the same. Defendants 2 and 3 contended that the plaintiff had no right to claim any amount as the purchase by the defendants was of the entire interest in the property that the reservation of the right to recover an annuity in perpetuity was repugnant to the nature of the grant and was therefore invalid, that the liability created by Ext. P-2 was a liability in the nature of rent, and that they were entitled to relief under Act I of 1957.

(2.) THE trial court decreed the plaintiff's suit finding that the reservation of the right to recover an annuity was not inconsistent with the nature of the right transferred under Ext. P. 2. THE lower appellate court on appeal by the defendants, came to the conclusion that the reservation of the right to recover an annuity by the vendor was inconsistent with the nature of the grant and that under S. 11 of the Transfer of Property Act it was invalid. It therefore dismissed the suit.