JUDGMENT Niamatullah, J.
1. The plaintiff-appellant brought the suit, which has given rise to this appeal, for recovery of what has been called malikana allowance and interest payable by defendants 1 to 5 (contesting respondents in this Court), as the present holders of village Katia. The Court of first instance decreed the suit but the lower appellate Court dismissed it. The claim has reference to an agreement alleged to have been entered into among five brothers, one of whom was Ragha Singh, plaintiff's deceased husband, at the partition of ancestral property which consisted of shares in several villages, including the village Katia which was allotted to another of the five brothers, namely Umrao Singh with an important reservation to be presently mentioned. Umrao's interests passed to defendants 1 to 5 by private purchase from his heirs. No formal deed of partition or agreement appears to have been drawn up, but the terms of it are clearly stated in the wajib-ul-arz of village Katia prepared at the settlement of 1873. The relevant portion of the wajib-ul-arz is translated below:
At the time of partition of zamindari villages regard was had to the profits of each. On the villages (named) being allotted to Ragha Singh cosharer and those (villages named) being allotted to Puran Singh there was deficiency in the profits (of their: shares). It was, therefore, agreed that the cosharers to whom Katia was assigned should pay Rs. 58-11-0 a year as detailed below, that is Rs. 56 to Puran Singh and Rs. 2-11-0 to Ragha Singh, that these sums should be paid by the person in possession of this village (for the time being) and that Puran Singh and Ragha Singh have a right to this profit (is munafia ka ikhtiyar hasil hai), for this reason, the payment is regarded as malikana in this village.
2. It should be noted that the village Katia was part of the joint property and was brought into hotchpot. That the entry in the wajib-ul-arz, quoted above, is good prima facie evidence of the agreement recited therein cannot be questioned. Indeed, the lower appellate Court has accepted it as such, but has refused to give effect to it on the ground that malikana was not a charge on the village enforceable against the transferees, as defendants 1 to 5 are. I am clearly of opinion that the malikana reserved to Puran Singh and Ragha Singh amounts to an interest in land and is a much higher right than a mere charge in their favour. The village Katia and other villages belonged jointly to the five brothers. As the effect of partition, exclusive ownership in village Katia (except the right to receive profits to the extent of Rs. 58-11-0 out of the total rental) was assigned to Umrao Singh. Correspondingly, the rights of Puran Singh and Ragha Singh the erstwhile joint owners, were put an end to except so far that they were entitled to receive profits amounting to Rs. 58-11-0 which should be regarded not as a new right conferred on them but as the residue left to them after adjustment at the partition. It is a proprietary interest differing from the ordinary ownership only in that it is a fixed amount and not being the profit of a definite fractional share does not admit of any variation. The position would not have been materially different if a fractional share say one anna had been reserved to Puran and Ragha Singh to make up the deficiency in their shares.
3. The judgment of the lower appellate Court proceeds on a variety of grounds some of which, in my opinion, afford no foundation for the view that it has taken. The comment of the learned Judge that the entry in the wajib-ul-arz of 1873 was not "confirmed by the wajib-ul-arz of the last settlement" is difficult to understand. If the wajib-ul-arz of 1873 which is an official record of relations subsisting among the cosharers, is to be used as a piece of evidence, and if its genuineness is not in dispute, the fact that the entry was not repeated in the subsequent wajib-ul-arz cannot detract from its value. As a matter of fact, we do not know whether a wajib-ul-arz was subsequently prepared and if it was prepared the agreement referred to in the earlier wajib-ul-arz was omitted therefrom. The remark of the learned Subordinate Judge is based on the circumstance that the plaintiff made no attempt to produce the wajib-ul-arz which he assumed was prepared at the next settlement.
4. Another objection taken by the lower appellate Court is that there is nothing to show that the shortage of profits in the shares allotted to Puran Singh and Ragha Singh at the partition made in the wajib-ul-arz of 1873, which was compensated by the malikana in question, continues up to date. I fail to see the force of this remark. The rights of parties to a partition are determined at that time once for all. Property allotted exclusively to one of the cosharers may yield more or less profits in future years and if one of the cosharers is fortunate enough to obtain enhanced income from the share allotted to him, he cannot subsequently be called upon to forgo any compensation that might have been given to him at the time of partition to make up a deficiency then existing.
5. The view of the learned Subordinate Judge that the agreement to pay Rs. 58-11-0 to Puran Singh and 'Ragha Singh was of a personal character and that the allowance thus agreed to be paid was not charge on the village Katia is based on three considerations: Firstly,it is said that the heirs of Puran Singh and Ragha Singh are not specifically mentioned; secondly, that the agreement makes no provisions for future fluctuations, and thirdly, that the plaintiff did not claim a decree for sale. I may say at once that none of these reasons appeals to me in support of the argument that the malikana is not a charge. As I have already stated in an earlier part of this judgment the malikana reserved to Puran Singh and Ragha Singh is a right of a higher character than a mere charge in their favour. Even if it were otherwise, there is no doubt that the terms of the agreement as detailed in the wajib-ul-arz do not create merely a personal liability, The wajib-ul-arz makes '' the proprietor for the time being" liable to pay the malikana. Puran Singh and Ragha Singh have been given the right to recover the "profits" from the person in possession of the village (qabiz gaon) Assuming no interest in land was reserved to Puran Singh and Ragha Singh the profits of the village, out of which the malikana allowance is to be paid, are clearly charged with it. Where a fund is indicated for payment of a certain allowance the latter must be deemed to be a charge on the former. The use of the word "malikana" is, in my opinion full of significance. In Churaman v. Balli [1887] 9 All. 591 this Court had the occasion to consider a clause occurring in a sale-deed which reserved an annual payment of Rs. 25 to the vendor by the vendee. The allowance was styled malikana. It was held that the word should be construed as creating a perpetual and heritable charge upon the property. Indeed, the learned Judges observed that the use of the word "malikana":
showed an intention that the payment of the Rs, 25 should be an annual charge upon the property and the profits arising therefrom analogous to that of a malikana reserved on a settlement by a Government Settlement Officer for a zamindari, that the use of the word was intended to reserve and create a perpetual and heritable charge upon the property and that the Court was not prevented from coming to this conclusion' by the omission of the specific words of inheritance.
6. There are numerous other cases decided by the Calcutta High Court which support the same view. They are fully discussed in the case above referred to.
7. The learned Subordinate Judge has held that defendants 1 to 5 cannot be regarded as having constructive notice of the existence of the charge. On this point he observes that:
unless the settlement of 1873 was in force when these defendants came into possession by transfer it was not obligatory on them as prudent men to look into' the papers of a settlement which had proceeded the last one of 1896-97, if the papers of the last settlement did not contain references to those of the preceding one. In the absence of evidence constructive notice of the contract cannot be fastened on the appellants.
8. I am unable to accept this view of law. Question of notice can only arise if the defendants put forward a plea based on the provision of Section 41, T.P. Act. I take it that para. 6 of their written statement raises such a plea. The section makes it incumbent on the party pleading the estoppel of the particular kind contemplated by it to prove that he took the transfer in question after taking reasonable care to ascertain that the transferrer had power to make the transfer and that he himself acted in good faith. The Court of first instance points out that the defendants led no evidence of any kind on this question and that the slightest enquiry on their part would have led to the discovery of the clause in the wajib-ul-arz. I do not consider it necessary to discuss whether it is open to the defendants to plead a bona fide 'purchase for consideration without notice in the circumstances of this case. It is open to question whether, if the vendor possessed lesser interest than what he sold, the vendee's position would be better only because he was ignorant of the real state of his vendor's title. It is likewise open to question whether Section 41, T P. Act, in terms applies to a case of this kind. I am content to rest my decision on the view that the defendants failed to adduce any evidence in support of their plea assuming that it is otherwise a good plea. For the reasons stated above, I set aside the decree passed by the lower appellate Court and restore that of the Court of first instance. The respondents shall pay the costs of the appellant in all the Courts.