BALI DEBYA Vs. KARIMAN HALVAI

JUDGEMENT

(1.) THIS appeal arises out of, suit brought by the plaintiff to recover room the present holders of certain properties he arrears of annuity said to be due to him, The suit has been decreed except as to a Kition found to be barred by limitation in 30th the Courts below, The annuity in question is a legacy made under the Will ) one Chandrabali Dabya; and the questions urged before uh arc, first, that this annuity is not a perpetual annuity as held by the Courts below but limited to the, lifetime of the son of the testatrix who died unmarried; secondly, that it does not constitution a charge upon the property, and, thirdly, that the provisions as to perpetual annuity offend against the provisions of Section 101 of the Indian Succession Act. No doubt, as has been pointed out by the learned Subordinate Judge, there is a reference in the Will to payment by the son of Chandrabali Debya ; but that specific reference cannot be taken to limit in any way the generality of the operative words of this Will in which it is clearly provided that the annuity is to be received by the first annuitant, one Ram Tad Jamadar, and by his sons, grandsons and so on in due order of succession. These words make it clear that the intention was that this should be a perpetual annuity. It is further provided in the Will that this annuity is payable out of the rents and profits of the properties mentioned in the Will and this, as is held by the Courts below on the authority of the case reported as Rajarajeiwara Borai v. Sundarapandiyatwami Thevar 27 Ind. Cas. 283 : 27 M.L.J. 694 is sufficient to constitute a charge. The suggestion that the provisions under the Will as regards this annuity offend against the provisions of Section 101 of the Indian Succession Act appears to be made in this Court for the first time. Section 101 does not appear to be at all applicable to the present case, the sections applicable being Sections 160 and 161. For these reasons, we dismiss this appeal with costs.