L SUBBIAH GOWDER Vs. RAMAYYA GOWDER

JUDGEMENT

(1.) The second appeal is by the legal representatives of the first defendant and by the second defendant, the plaintiff being the contesting respondent. The contesting respondent filed the suit, giving rise to the second appeal, claiming that he was entitled to an annuity of 100 paras' of paddy per year from item Nos. 1 to 6, 12 to 26 and 31 to 38, in schedule B appended to the partition deed, Ext. A-2, of 1895. His further claim was that the annuity was originally due to his mother and that the mother executed a will in his favour. The defendants' main contention was that the annuity was personal to the mother of the plaintiff; and that after her death, there remained no further right to be willed away by her to the plaintiff. Both the lower Courts have dismissed this contention and have decreed the suit. The question in second appeal whether that decision requires any variation.

(2.) Under Ext. A-2 the D Schedule properties were kept in common; and 20 items of expenses were mentioned in the E-schedule, of which I am concerned with items 12 to 20 incidentally and with item 17 in particular. The person mentioned in item 17 was the mother of the plaintiff. Items 12 to 19 were eight women members of the family, in whose favour annuities were provided. Item 20 was the son of a deceased woman member, in whose favour also a provision for annuity of 100 paras of paddy per year was provided. I may at this stage point out that out of the nine persons only two brought the matter before courts, the person named in item 15 being the other. That matter was decided in favour of the heir of the person named in item 15 by the Trial Court; but on appeal the decision was reversed, which was confirmed in second appeal by the Madras High Court. Ext. B-3 is the judgment of the High Court. It was held therein by King J. that the annuity enured only as a maintenance right or a life interest, which lasted only during the lifetime of the annuity holder, and that the person who claimed that right by inheritance was not entitled to the same. The only difference in the case before me is that the present claim is based on a will. It is obvious that this difference is not of any consequence.

(3.) In the decision of the Madras High Court, King J. has held that although it was not impossible to create permanent annuities and that they were not unknown to law, in practice they were very uncommon, and that the annuities provided in Ext. A-2 were very like the ordinary provision for maintenance of women in Hindu families. At this stage it will be instructive to note S.173 of the Indian Succession Act. I may say that this provision was not brought to the notice of King J. and has been brought to my notice for the first time. However, the principle underlying or embodied in S.173 of the Indian Succession Act must apply to the present case as well. That section provides that where an annuity is created by will, the legatee is entitled to receive it for his life only unless a contrary intention appears in the will. This principle appears to be quite reasonable, because if a permanent annuity is contemplated, as pointed out by King J., though such a permanent annuity is not unknown to law, there should be clear words to indicate the permanent nature of the annuity. In the absence of such clear indication of intention, it is only reasonable to think that the annuity is to enure only for the life of the annuity holder.