Mookerjee, J.@mdashThis is an appeal by the plaintiffs in a suit for recovery of money claimed as annuity against the first defendant, one of the
representatives of the estate of their maternal grand-father. The Court of first instance decreed the suit. Upon appeal, the Subordinate Judge has
reversed that decision on the ground that the claim was not enforceable in law.
2. Radhankanta Chaudhury, the maternal grand-father of the plaintiffs, took three wives in succession. By his first wife, Achalmani, he had no issue,
and on the 5th December, 1860, he took the first defendant Ghanasyam as his adopted son. By his second wife, Jadabmani, he had two
daughters, Samasundari and Kamini Sundari the plaintiffs are the two sons of Kamini Sundari. By his third wife, Monomohini he had a daughter
Brojogopini, and a son Madan Gopal, who was born in 1876 and is the second defendant in this litigation. On the 19th February, 1872, he
executed in favour of Kamini Sundari, an-ekrarnama duly attested and registered, which recited that by a previous testamentary disposition made
on the 3rd May, 1871, he had provided a monthly grant of Rs. 10 for her maintenance for life after his death, and that as the amount was
insufficient, he desired to increase it by Rs. 2-8-0 a month. The ekrarnama then proceeded as follows:-
I promise by this ekrarnama that from this date I will go on paying you the aforesaid Rs. 12-8-0 per month during your lifetime. If, at the time of
your death any son of yours be alive, then he, being entitled to this allowance in absolute right, will be endowed with the power of gift and sale. But
if you die sonless during the life time of your husband, then your husband will get the aforesaid allowance during his life time. Excepting a son, no
daughter of yours will be entitled to the allowance. I, and on my demise my heir, sons, grandsons and others in succession, that is, those persons,
who will in succession come into possession of my moveable and immoveable properties, will abide by the said provisions of this ekrarnama. If I
or my successors do not abide by the provisions of this ekrarnama then you (or they) will get the allowance by establishment of the said right
through Court. And after the expiry of the term of this ekrarnama myself during my life or my successor on my demise will get the allowance
mentioned in this ekrarnama. Further on payment of the allowance, month by month, I shall obtain a receipt signed by your husband during his
lifetime. After the death of your husband, I (or they) shall obtain receipts signed by yourself. Further, if you relinquish the allowance mentioned in
this ekrarnama without the consent of your husband, then the right of your son will not be destroyed, and from that time, though you be living, the
said right will vest in your husband for his life.
3. On the 2nd July, 1877, shortly alter the birth of his son, Radha Kanta Chaudhury revoked the Will of the 3rd May, 1871, and made a fresh
testamentary disposition. This Will recited the ekrarnama in favour of Kamini Sundari as also a similar ekrarnama in favour of Sama Sundari, and
directed that the allowances fixed thereby would be received from his natural or adopted son according to the terms of the respective ekrar. The
Will made a similar provision for annuity in favour of the daughter Brojo Gopini and her possible son, and added that a similar allowance would be
paid, if any other daughter were born to her as also to her son. The estate was divided between the adopted son and the natural born son, the
former to take a three annas share and the latter thirteen annas share. The adopted son was appointed executor and was directed to carry out the
provisions of the Will from the estate in his hands. On the death of the testator, the adopted son took out probate on the 6th August, 1879. The
annuity mentioned appears to have been paid to Kamini Sundari during her life time, and since her death, which took place in 1905, it has been
realized by her sons by suit. Brojogopini also recovered the sums due to her as annuity by suits instituted from time to time. The present action was
commenced by the sons of Kamini Sundari on the 15th December, 1917, for recovery of arrears due for a period of nine years and eleven months
from 1907 to 1917. The defendant urged that the claim was not enforceable. The Courts below have disagreed upon the question of the legality of
the claim. The Subordinate Judge, reversing the decision of the primary Court, has held that as the plaintiffs, the sons of Kamini Sundari, were born
after the death of their maternal grandfather, the grant of an annuity in their favour was really a gift, to unborn persons, and, was consequently, void
under the rule recognized by the Judicial Committee in Tagore v. Tagore L.R.I.A. Sup 47 : 9 B.L.R. 377 : 18 W.R. 352. This view has been
assailed by the appellants as erroneous in law.
4. Annuities of this character were family to Hindu Jurists and do not constitute by any means a novel conception in Hindu Jurisprudence. Mr.
Justice Muthusami Ayyar pointed out in the case of Chalamanna v. Subbamma (1884) 7 M 23 that a solemn and binding promise in this form,
equivalent to a declaration of trust, was not unknown to the Hindu Law. Jimutavahana states that corrody signifies what is fixed by a promise in this
form: ""I will give that in every month of Kartick"" (Dayabhaga Chap. II, para 13). Sreekrishna comments on this passage that corrody or Nibandha
signifies ""anything which has been promised, deliverable annually or monthly or at any other fixed periods."" A reference to Chapter II para. 9
shows that a corrdoy, according to the text of Yajnavalkya, (Book II, 121), is placed in the same category as other classes of property, namely,
land and chattles. Raghunandan quotes this verse of Yajnavalkya in his Dayatattwa, Chap. II, para. 20 (ed. Golap Chandra Sarkar, text p. 6
translation p. 12) and cites from the author of the Kalpataru the definition-
a corrody is what is granted by the king and the like receivable periodically from a mine or similar fund."" To the same effect are the comments of
Vijnaneswara in the Mitakshara Chap. I, S. 5, para. 4 : ""a corrody-so many leaves receivable from a plantation of betel paper or so many nuts
from an orchard of areca"" ; see also the elucidation by the authors of the Subodhini and the Balambhatti (Mitakshara by Setlur p. 646) ; and the
explanation o� Nibhandha taken from the Dipacalica in Jagannath''s Digest, Tr. Colebrooke 1798 Vol. II, p. 278, see also Balwantarao v.
Purshotam 9 Bom. H.C.R 99 where the principal texts are set out in the judgment of Westropp, C.J. The substance of the matter is that a grant of
this character is a right of property, and as it is an incorporeal right, the test of validity in each case is whether, under the circumstances, the donor
has sufficiently indicated an intention that the transfer should take effect as a corrody and with that intention has done all that is practicable by way
of transferring such indicia of property as may be in existence. In the case mentioned, a Hindu executed in 1845 a document called a sanad,
attested by witnesses, whereby he agreed to pay to his sister, and, after her death, to her daughter, Rs. 10 per annum from the produce of an
estate inherited by him from his maternal grandmother. It was ruled by Turner, C.J. and Muthusami Ayyar, J. that the grantor, who had full power
over his share, intended to create a charge on the produce of the estate he had inherited, and that the charge would be supported under the Hindu
Law as a corrody and under the English Law as a settlement.
5. In such circumstances, there is no room for the application of the rule enunciated in Tagore v. Tagore L.R.I.A. Sup Vol. 47 : 9 B.L.R. 377 : 18
W.R. 352 as to the invalidity of a gift to an unborn person. That rule, it is well known, has its limitation. The decisions in Nafar Chandra Kundu v.
Ratnamala (1911) 13 C.L.J. 85 : 15 C.W.N. 66 and Dinesh Chandra v. Birajkamini (1912) 39 Cal. 87 laid stress upon an important passage in
the judgment of the Judicial Committee where Mr. Justice Willes observed as follows:
Their Lordships, adopting and acting upon the clear general principle-of Hindu Law that a done must be in existence, desire not to express any
opinion as to certain exceptional cases of provisions by way of contract or of conditional gift on marriages or other family provisions for which
authority may be found in Hindu Law; a passage indicative of such authority, may be found in the text of Vyasa and the comments thereon by
Jagannath in his Digest (translated by Colebrook, Book II, Chap. IV, S. 2, para 30). Reference may also be made to paragraphs 49 to 52 which
treat of valid irrevocable gifts.
6. In the two cases mentioned, a bequest to a would-be daughter-in-law was sustained, though the bequest when made might possibly have to
take effect in favour of a girl who might be born after the death of the testator. On the authority of the decisions in Nafar v. Ratnamala (1911) 13
C.L.J. 85 : 15 C.W.N. 66 and Dinesh v. Biraj (1912) 39 Cal. 87 a bequest for the marriage expenses of great-grandsons and great-
granddaughters of the testator who were born long after his death, was upheld without question in Upendra v. Bhupendra (1916) 21 C.W.N. 280.
7. The passage from the judgment of the Judicial Committee in Tagore v. Tagore L.R.I.A. Sup Vol. 47 : 9 B.L.R. 377 : 18 W.R. 352 mentioned
above, was again relied upon in the case of Rajarajeswara Dorai alias Muthuramalinga Dorai Avergal Rajah of Ramnad Vs. V.
Sundarapandiaswami Thevar, where an annuity in favour of a junior member of a family and his descendants from generation to generation was
upheld as not obnoxious to any rule of Hindu or English Law against perpetuities. This view was fortified by reference to the decisions of the
Judicial Committee in Narain v. Madhav (1893) 20 I.A. 9 : 16 M. 268, Mohammed Hossain v. Mohammed Nahaluddin (1883) 9 C 915 : 13
C.L.R 330, Karim v. Heinrichs (1901) 25 B 563, Azizunnessa v. Tasadak Hossain (1901) 28 I.A. 65 : 23 A 324. The decision of the Judicial
Committee in Chandicharan v. Sidheswari (1889) 15 IA 149 : 16 C 71 was distinguished on the ground that the grant in that case imposed a
restraint upon alienation contrary to the principles of Hindu Law; the grant was either a present assignment to persons not yet in existence, subject
to a suspense condition which might prevent its taking effect at all or for generations to come, or else, the grant was in essence a covenant running
with the estate and binding its possessor to give the villages to those persons in the event specified. The Judicial Committee held that in either view,
the grant prevented the owner from alienating his estate in discharge of such future interest. No such results follow from recognizing the present gift,
which moreover is not in favour of strangers but of members of the family. The decision of the Madras High Court in Raja of Ramnad v. Sundara
(1914) 27 M.L.J. 694 has been affirmed by the Judicial Committee, Raja of Ramnad v. Sundara (1919) 46 IA 64 : 42 M. 581. In answer to the
contention that the grant 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, Lord Phillimore observed that whatever might be said if the agreement lay in covenant, seeing that it lay in charge, there was
no difficulty in making it perpetual, as long as there were lineal or collateral heirs. It is worthy of note that it was conceded in course of argument
that the contention of the appellant could not prevail, if the decision in Balavant Rao v. Purusottam 9 Bom. H.C.R 99 was applicable. There can be
no doubt that, in the case before us, the annuity was directed to be paid out of the estate of the testator, and this shows an intention to create a
charge thereon, see the decision of the Judicial Committee in Khajeh Solaiman v. Nowab Sir Salimullah (1922) P.C. 107 : 49 C 820 : 49 I.A 153
which reversed the decision in Khajeh Habibullah v. Khajeh Solaiman (1919) 30 C.L.J. 102. Viscount Cave stated there that the view taken by
the Board was in accordance with the decisions in Nowab Amjad Ali v. Mohumdee (1866) 11 M.I.A. 517, Lakshmi v. Madhawa (1893) 20 I.A.
9 : 16 M. 268, Khwajah Mohammed v. Husaini (1910) 37 I.A. 152 ; 32 A. 410 and Raja of Ramnad v. Sundara (1919) 46 IA 64 : 42 M. 581.
We are consequently of opinion that on principle as well as on the authorities the annuity payable out of the estate (and consequently charged
thereon) to the daughter and after her death to her son was operative in law, even though the son might be born after the death of the testator; a
grant of this description does not violate the rule against remoteness.
8. In the view we take, it is not necessary for us to consider, whether the principle of inapplicability of the doctrine of perpetuities to purely
personal covenants recognized by the House of Lords in Walsh v. Secretary of State (1863) 10 H.L.C. 367 and Witham v. Vane (1883) Challis
on R.P. App. governs the case before us. Nor need we examine the applicability of the principle that such an annuity is in the nature of a personal
estate, but may be made descendible in the same manner as real estate, and that in the case of non-payment, but not otherwise, relief may be
sought by administration of the estate of the deceased settler when provision may be made for it out of the estates of the deceased, Re Hargreaves
(1890) 44 Ch. D 236, Turner v. Turner (1783) 1 Br.C.C. 316 ; Amb. 776, Wallaston v. Wallaston (1877) 7 Ch. D. 58.
9. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside, and that of the Court of first instance restored, with costs
here and in the lower Appellate Court.
