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 192 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 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..... "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 annuity payable to Sivaswami and his heirs by the zamindarin and her heirs holding the zamindari, I do not think that it offends against the rules of either English or Hindu law." In his view the grant did not create a covenant running with the land so as to be obnoxious in law, but merely rendered the estate of the zamindarin and her adopted son (whom she represented) liable in the hands of their legal representatives to the extent of the assets. After referring to various authorities he said " Assuming that there is no charge, I think that, following the practice in the case of maintenance allowances, also the practice in England as to making provision in administration for perpetual annuities payable out of the estate, it will be proper to make the annuity a charge upon a part of the zamindari, and that the case should be sent back for that purpose." Seshagiri Aiyar J. was of opinion that the language of the compromise agreement made the annuity a charge upon the estate, but in any case he saw no objection to making it a charge upon part of the estate, as was done frequently in the case of maintenance allowances. He referred to the authorities collected in Colebrooks Digest, Vol. I., pp. 442,443, as to nibhanda grants as showing that there is nothing repug nant to Hindu law in a grant of a perpetual money allowance. In the result the decree of the District Judge was amended by the addition of words declaring the 91 Law Rep. 46 Ind. App. 64 ( 1918- 1919) Raja of Ramnad V. Sundara Pandiyasami Tevar 193 annuity a charge on part of the estate, but in other respects was affirmed. 1918. Nov. 7. De Gruyther K.C. and E. B. Raikes for the appellant. The agreement is not enforceable against the ranis successors. It does not by its terms create a charge upon the estate, but is merely an agreement in covenant. The rani had no power to bind her successors personally. 1918. Nov. 7. De Gruyther K.C. and E. B. Raikes for the appellant. The agreement is not enforceable against the ranis successors. It does not by its terms create a charge upon the estate, but is merely an agreement in covenant. The rani had no power to bind her successors personally. This is not a case of maintenance payable by custom as to which special considerations may apply. In Mahomed Hussain Khan v. Mahomed Nehaluddin Khan (( 1883) 13 Cal. L. R. 330.), relied on in the High Court, the grant in terms created a charge. Lakshmi Narayana Ananga v. Madhawa Deo (( 1892) L. R. 20 I. A. 9.) was a maintenance case, and although the judgment refers to the grant being a charge, that question was not involved in the case. It is conceded that Balvantrav v. Purshotham Sidheshvar (( 1872) 9 Bomb. A. C. 99.), if applicable, is against the appellants contention. Having regarded to the words used in the Tamil petition the right to the annuity was confined to lineal heirs Ekradeshwar Singh v. Janeshwari Bahuasin. (( 1914) L. R. 41 I. A. 275, 285.) In any case, the respondent is not entitled to recover the arrears since he was not the widows legal representative. The arrears were the widows property in the absence of evidence that she had thrown them into her husbands estate Akkanna v. Venkayya (( 1901) I. L. R, 25 M. 351); Maynes Hindu Law, 8th ed., par. 627. The suit abated as to the arrears Balabai v. Ganesh. (( 1902) I. L. R. 27 B. 162.) [Reference was also made to Order XXII., it. 1, 3, 5, 10.] Sir Erle Richards K.C. and Kenworthy Brown for the respondent were not called upon. The judgment of their Lordships was delivered by LORD PHILLIMORE. This is an appeal from the decree of the High Court of Judicature at Madras, affirming, with a modification, the decree of the District Judge of Madura, who ordered that the second defendant, that is, the present-appellant, should pay out of the income of the Ramnad zamindari to the third plaintiff, the present respondent, the sum of Rs.24,126 10a. 8p. with interest, and should also pay future instalments from the date of the plaint at the rate of Rs.700 a month, and gave that plaintiff the costs of the suit. 8p. with interest, and should also pay future instalments from the date of the plaint at the rate of Rs.700 a month, and gave that plaintiff the costs of the suit. The first question which the Board has to decide is upon the construction of a deed of compromise, which is the root of the title of the third plaintiff. That compromise passed between the ancestor of the appellant and the ancestor, though not the lineal ancestor, of the respondent, and by that compromise between two parties each claiming the impartible zamindari, the ancestor of the present appellant retained the zamindari subject to giving up one village and paying an annual sum of Rs.700 per month to the ancestor of the present respondent. It has been contended that the effect of that compromise was to limit the payment of the Rs.700 to the lineal heirs of the grantee, and that, as the present respondent is only a collateral heir and only represents, by virtue of the assignment under which he claimed, a nearer collateral heir of the grantee, he is not within the terms of the deed. Both Courts below have taken the opposite view, and their Lordships see no reason to differ from that view. The ground may be put quite shortly It was a compromise dividing the estate—not dividing the estate equally by any means, but giving a share to the grantee of this annuity, and a larger share to the other party. The less successful party got a village and an annuity, the more successful party got all the rest of the property. There is every reason to suppose that the intention of the parties was that, just as one side was to keep the majority of the property for himself and his heirs, lineal or collateral, as the case might be, so the other side was to have the village; and, in the same way, the annuity, for himself and his heirs, lineal or collateral, as the case might be. If the question of construction be determined with reference to the village, the sense of this view is even more marked. Therefore one of the grounds for the appeal fails. 91 Law Rep. 46 Ind. App. If the question of construction be determined with reference to the village, the sense of this view is even more marked. Therefore one of the grounds for the appeal fails. 91 Law Rep. 46 Ind. App. 64 ( 1918- 1919) Raja of Ramnad V. Sundara Pandiyasami Tevar 194 A second contention was that this was a creation of a kind of perpetuity, which the law did not allow, or an attempt to create a permanent relation which was impossible of creation. Whatever might be said about that, if this agreement lay in covenant, seeing that it lies in charge, there is no difficulty in making it perpetual as long as there are lineal or collateral heirs of the grantee, and in our view the District Judge and Seshagiri Aiyar J., in the High Court, were right in holding that this is a charge. In that respect, and in that respect only, we differ from the view taken by the learned officiating Chief Justice. If it is a charge, the modification which the High Court made in the decree of the District Judge is, by the allowance of counsel for the appellant, not injurious to his client. The decree of the District Judge may well be read as making the annuity a charge on the whole zamindari, and it is very much more convenient, and indeed in the interest of the appellant, that it should be limited in the way proposed by the decree of the High Court—that is to say, that it is to be referred back to the District Judge so that he shall settle on what part of the Ramnad zamindari the charge shall be allowed. That being so, there is no objection to the decree so far. A point was taken that the third plaintiff, claiming under an assignment from a nearer reversioner, had not made out his title to the assignment ; that it was void for want of consideration ; that it was obtained by fraud, or some similar objection. It is enough to say that their Lordships agree with the Courts below in saying that there is nothing in any of these points. The one matter which requires a little more consideration is as to the title of the third plaintiff to maintain his decree for the arrears of the annuity. It is enough to say that their Lordships agree with the Courts below in saying that there is nothing in any of these points. The one matter which requires a little more consideration is as to the title of the third plaintiff to maintain his decree for the arrears of the annuity. Now, the suit in the first instance was brought by the first plaintiff, who claimed to be the adopted son of the previous grantee, and the widow of the previous grantee as second plaintiff, and she sued for herself and for her heirs " Plaintiffs therefore pray "—that is, the adopted son and the widow—" for a decree in favour of the first plaintiff and his heirs, or the second plaintiff and heirs as may be found entitled." No doubt the prayer goes on to pray that the declaration may be in favour of the first plaintiff and his heirs or the second plaintiff and revesioners, and that the arrears may be paid to the first plaintiff or the second plaintiff as the case may be. The first plaintiff sued as an adopted son, and his claim was found to be unfounded, and he was dismissed, and has not appealed. The second plaintiff, the widow, died in March, 1910, and shortly afterwards the next reversioner sold his rights to the third plaintiff for a small consideration and in order to effect a family settlement. Among the rights which he professed to pass were the widow’s claims to the allowances. The second plaintiff, the widow, died in March, 1910, and shortly afterwards the next reversioner sold his rights to the third plaintiff for a small consideration and in order to effect a family settlement. Among the rights which he professed to pass were the widow’s claims to the allowances. Thereupon the present third plaintiff petitioned to be substituted in the suit in place of the second plaintiff, so that he might carry it on, and he set out by reference the deed of assignment as part of the title, and prayed that he might be “brought on record as legal representative in place of the deceased second plaintiff." The present appellant resisted this application on the ground that the assignment was fraudulent, and perhaps for other reasons ; but he took no objection based on the fact that the third plaintiff was claiming to be brought on the record as the legal representative of the deceased second plaintiff , he did not say that, while he might go on the record as the assignee of the next reversioner, and to that extent fulfil part of the position of the deceased second plaintiff, he was not the legal representative of the deceased second plaintiff, and could not exhaust the whole claim by-being substituted for her ; and, he not taking that point, the learned judge made an order which declared the third plaintiff to be the legal representative of the deceased second plaintiff, and that the suit do proceed. It may be observed in passing that if the third plaintiff was only a partial legal representative of the second plaintiff the suit which was proceeding as to the arrears would have been defective. It is now said, and very elaborately argued on behalf of the appellant, that the present respondent is not, and cannot be, the legal representative of the widow so as to be in a position to claim for, or give, a good discharge for the arrears, which were very considerable, of the annuity, and that therefore the suit fails as regards all that claim, and must be limited to a declaration de futuro. Their Lordships think the answer to this is that a widow may so deal with the income of her husbands estate as to make it an accretion to the corpus. It may be that the presumption is the other 91 Law Rep. 46 Ind. App. Their Lordships think the answer to this is that a widow may so deal with the income of her husbands estate as to make it an accretion to the corpus. It may be that the presumption is the other 91 Law Rep. 46 Ind. App. 64 ( 1918- 1919) Raja of Ramnad V. Sundara Pandiyasami Tevar 195 way. A case has been cited to their Lordships which seems so to say. But at the outside it is a presumption and it is a question of fact to be determined, if there is any dispute, whether a widow has or has not so dealt with her property. The third plaintiff, when he petitioned to be substituted in her place, relied upon a title which purported to assign to him the widows arrears of the annuity as well as the right to the annuity de futuro, and if there was an accretion to the estate that title would be a good one, the next reversioner could pass it to him, and he properly represents the estate in respect of the whole. As no objection was taken, as no issue was raised, as the matter was not even raised on appeal from the District Judge (because we cannot take a general allegation in the memorandum of appeal as pointing to this question), it was too late to raise it after the High Court had decided the matter, and it is therefore not open to their Lordships to consider whether or not a good case could have been made requiring the addition of some other representative of the widow. Upon the whole, the case for the appellant fails, and their Lordships will humbly advise His Majesty that the decree of the Court below should be affirmed, and that this appeal should be dismissed with costs.