RAJARAJESWARA DORAI ALIAS MUTHURAMALINGA DORAI AVERGAL RAJAH OF RAMNAD; RAMA RAJA THEVAR Vs. VSUNDARAPANDIASWAMI THEVAR; RAJARAJESWARI DORAI ALIAS MUTHURAMALINGA DORAI AVERGAL

JUDGEMENT

(1.) I agree for the reasons given by my learned brother with the decision of the District Judge that the first plaintiff has failed to prove that he was the adopted son of the deceased "Muthudorasami Thevar and that his appeal (193 of 1911) must be dismissed with costs; the memoranda of objections must also be dismissed with costs. The appeal (173 of 1911) of the Rajah of Ramnad (the 2nd defendant) against the decree in favour of the 3rd plaintiff, who is the father of the 1st plaintiff but claims as assignee of one Poolar Tevan the next reversioner of the deceased Muthudorasanii Tevar has now to be dealt with. The mother of the deceased was the 2nd plaintiff and sued as his heiress, and it was on her death pending the suit the 3rd plaintiff the assignee of the next reversioner was brought on and allowed to continue the suit as her legal representative.

(2.) The claim is for an annuity of Rs. 700 settled in January 1861 on Sivasami Tevar the father of Muthudorasami and his" heirs as one of the terms of a compromise of a suitin which Sivasami claimed the Zamindari of Ramnad from the then Zemindarini and her adopted son, the grandfather of the present Rajah. The litigation to which this annuity has given rise, subsequently to Sivasami s death, is succinctly stated in paragraph 1 of the District Judge s judgment. His senior widow Kulandai Nachiar disputed the legitimacy of Muthudoraisami, and after obtaining a decision in her favour in the High Court which was afterwards reversed by the Privy Council, instituted O.S. No. 10 of 1867 against the Rajah of Ramnad, in the Madura District, who pleaded unsuccessfully that the annuity was only settled on the lineal heirs of the deceased Sivasami. In 1880 Muthudorasami, Sivasami s son sued the Rajah in O.S. No. 16 of 1880 in the District Court of Trichinopoly, and obtained a decree under which he drew the allowance till his death in 1905. In the present suit the defence has again raised the contention that the annuity was confined to the lineal heirs of Sivasami, and the District Judge has held that it is not res judicata by reason of the decision in O.S. No. 10 of 1867, on the ground that Kulandai Nachiar, the plaintiff in that suit cannot be considered to have represented the estate. He has however arrived at the same conclusion as the District Judge in that suit, whose judgment Exhibit R was approved by the High Court in Appeal, Exhibit R(3), and has rejected the contention that the annuity was only settled on the lineal heirs of Sivasami. I may at once dispose of this contention which was again raised before us, by saying that I see no reason to differ from those decisions. The compromise was arrived at while the decree of the Court of Sudder Adaulat dismissing Sivasami s claim to the Zamindari was under appeal to the Privy Council, and was embodied in two documents, Exhibits Q2 and Q3, one in Tamil and one in English, both signed by the pleaders of the parties and filed in the Sudder Court. The English version Exhibit Q3 is as follows : "The plaintiff has thus relinquished all right and claim (to the Zamindari) the defendant and her heirs holding the Zamindari shall, from the 1st November 1860 pay to the plaintiff and his heirs a monthly allowance of Rupees seven hundred within the 10th of every succeeding month," The words Santhathi Paramparyamayi used in the Tamil version are of Sanscrit origin signifying literally from generation to generation. The same word santhathi is used in an earlier portion of the document which provides that neither the plaintiff Sivasami nor his heirs shall have any claim to the Zamindari, and as pointed out more than once in the Judgment: It is absurd to suppose that it was the intention that the settlement should be binding only on the lineal heirs of Sivasami and might be disputed by collaterals. Further the District Judge stated in his Judgment of 1869 that these words were often used loosely among the Tamil people to signify heirs general and the same construction has often been placed on similar words by the , Privy Council. It is, I think, clearly shown that under the terms of the compromise the annuity is descendible to the heirs of Sivasami generally and is not limited only to his lineal descendants.

(3.) A further contention has however been raised before us that the provision that "the defendant and her heirs holding the Zamindari shall from the 1st November 1860 pay to the plaintiff and his heirs a monthly allowance of Rs. 700 within the 10th of every succeeding month" (Exhibit Q3) is bad in law and that the plaintiff takes nothing under it. This contention was not raised in the suits of 1867 and 1880 already mentioned, or in the written statements or issues in the present suit. It no doubt appears from paragraph 9 of the District Judge s judgment that an argument based on the nature of the interest conveyed to Sivasami and his heirs was addressed to him, but he appears to have understood it as directed to the contention that the annuity was descendible only to Sivasami s heirs lineal and not to his heirs general. It is not disputed that, if the annuity were charged upon the lands of the Zamindari, it would constitute a rent charge and would be good. The District Judge has held that it is so charged and the first point for consideration is whether he is right as to this. If the annuity had been made payable out of the rents and profits, that of course would have constituted a charge, but it is made payable by the Zamindarini and her heirs holding the Zamindari and I am not satisfied that these words are sufficient to impose a charge. The grant is analagous to maintenance allowance payable by the proprietor of an impartible estate to the junior members of his family for maintenance which, it is well settled, are not deemed to be charged on the estate as a whole. Having regard to the enormous extent of the Zamindari which covers half a district, it was perhaps hardly thought necessary to create a charge binding the whole estate for so small a sum as this. We have been referred to Narayana Ananga v. Madhava Deo (1892) I.L.R. 16 M. 268 a decision of the Privy Council in 1 which a sum of Rs. 300 for maintenance of a junior member and his family is referred to in the beginning of their Lordships Judgment as a charge created by the Zamindar, but a reference to the pririted book shows that no charge was claimed in the pleadings and that no question as to any charge was raised at the trial or in the appeal to the High Court; and that in the way the case came before their Lordships, nothing turned on the question whether there was a charge or not, and no such question apparently was raised.