Judgement

Appeal from a judgment and decree of the High Court (October 28, 1914), affirming, with a variation, a decree of the District Judge of Madura.

The suit was brought in 1908 against the appellant, the Raja of Ramnad, for a declaration of right to an annuity payable at the rate of Rs.700 monthly under an agreement of compromise made in 1861, and for payment thereof together with considerable arrears due.

The agreement sued on was in compromise of litigation in which one Sivaswami Tevar had claimed the zamindari of Ramnad from the then Rani, alleging that he was an adopted son of her deceased husband. The compromise was reported to the Court in two petitions dated January 8, 1861, one in English and one in Tamil. The petition in English stated the terms as follows " The above zamindari, with all its appurtenances^ shall be held and enjoyed by the aforesaid defendant" (i.e., the Rani) " by her adopted son, Matta Ramalinga Setupathi, or by anyone in whose favour the defendant may make

91 Law Rep. 46 Ind. App. 64 ( 1918- 1919) Raja of Ramnad V. Sundara Pandiyasami Tevar

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any arrangement, or by the heirs of the said defendant from generation to generation. To such enjoyment neither the plaintiff" (i.e., Sivaswami Tevar) "nor his heirs shall be competent to raise any objection whatever, nor shall they have any right to put forth any claim thereto. The plaintiff having thus relinquished all right and claim, the defendant and her heirs holding the zamindari shall from November 1, 1860, pay to the plaintiff and his heirs a monthly allowance of Rs.700 every succeeding month." It was also provided that the defendant should pay to the plaintiff Rs.50,000 in cash and make over a village " to be held and enjoyed by the plaintiff from generation to generation." The petition in Tamil provided for the payment of the annuity to Sivaswami Tevar "santhathi paramparayaha," a phrase which the English version of the petition in Tamil rendered "and his descendants from generation to generation."

The present suit was brought in 1908, and was transferred to the District Court. The first plaintiff was alleged to be an adopted son of a deceased son of Sivaswami Tevar, but both Courts in India found against the alleged adoption, and he was not a party to the present appeal. The second plaintiff was the widow of Sivaswami Tevar, claiming as mother of his deceased son, above referred to. The plaint claimed a declaration of the rights of either the first plaintiff and his heirs, or of the second plaintiff and the reversioner of the deceased son, and a declaration of a charge upon the estate in respect thereof, and a decree for payment of arrears. The written statement denied the adoption, and pleaded that only lineal descendants of Sivaswami Tevar were entitled to the annuity.

The second plaintiff died in the course of the hearing, and the present respondent, an assignee of the next reversioner of the deceased son (a collateral to Sivaswami), was placed on the record under circumstances which appear from the judgment of their Lordships.

The District Judge held that by the language of the petition in Tamil, as by that employed in the English petition, the annuity was granted to the heirs general of Sivaswami Tevar, and not to his lineal heirs only, and that the agreement by implication made the annuity a charge upon the estate. He made a decree as prayed in favour of the present respondent.

Upon appeal to the High Court both judges held that according to the terms of the compromise a collateral heir was entitled to succeed to the annuity. The officiating Chief Justice (Sir John Wallis) was not satisfied, however, that the words used were sufficient to impose a charge. "The grant," he said, "is analogous to maintenance allowances pay able by the proprietor of an impartible estate to the junior members of his family which, it is well settled, are not deemed to be charged on the estate as a whole..... But assuming that the grant was merely of an annuit