Varadachariar, J.
1. The Taluq Board of Koilpatti sued the Sivagiri zemindar for a declaration of rights and for recovery of money on foot of an agreement, Ex. A., executed on June 6, 1895, by a former zemindar of Sivagiri in favour of the Tinnevelly Taluq Board in whose territorial jurisdiction Sivagiri was then included.
2. The correspondence exhibited in the case establishes that the then zemindar, was keen upon having' a Taluq Board Hospital established at Sivagiri, the headquarters of his zemindari, but the Taluq Board was not prepared to do so Unless !he zemindar agreed to make a contribution both towards the costs of construction and towards the expenses of its maintenance. The zemindar having accepted this condition, the Hospital was opened in September 1894, in a building temporary occupied for the purpose; but, before beginning the construction of a permanent building, the Board insisted on and obtained a registered document Ex. A from the zemindar. By this document, the zemindar on behalf of himself, his heirs and successors bound himself
To pay to the Board an annual contribution of Rs. 500 on or before September 30, every year in consideration of the establishment and maintenance by the said Taluq Board of a dispensary at Sivagiri.
and also
Pay to the said Taluq Board Rs. 2,000 towards meeting the cost of construction of a building for the dispensary when the work shall be begum.
3. A building was accordingly constructed by the Board, the zemindar paid his contribution of Rs. 2,000 and he as well as his successors continued to pay the annual contribution of Rs. 500 till September 1924. The defendant who had by this time come into possession of the zemindari declined to make any further contribution on the ground that the Taluq Board was realising quite a large sum by way of cesses, and no longer stood in need of a contribution from him for the purpose of the Hospital. Hence this suit.
4. The learned Subordinate Judge has held that on a true construction of Ex. A, it only bound the then zemindar and not his successors in the estate. He was also of opinion that so much of the agreement as related to the annual contribution of Rs. 500 did not amount to a contract because there was no corresponding obligation on the part of the Board to continue to maintain the Hospital for all time: he held that this portion of Ex. A was only in the nature of a continuing offer which could be revoked and had been revoked by the defendant. Finally he held that the obligation, if any, imposed by Ex. A upon succeeding zemindars could not be enforced as against the estate because of the provision of Section 4 of the Madras Impartible Estates Act (II of 1904) and he was of opinion that the present case did not fall within the exceptions saved by Section 7. He accordingly dismissed the suit. Hence this appeal by the Taluq Board,
5. The first ground of the lower Court's decision may easily be disposed of. It is perhaps possible to criticise Ex. A as introducing the reference to 'heirs and successors' in an inappropriate place but reading Ex. A as a whole, we have no doubt that it was the intention of the parties to enter into the arrangement not merely on behalf of the then zemindar but also on behalf of his heirs and successors in the estate, whether he could validly-do so is another matter. We do not pursue the point further because Mr. Srinivasa Aiyangar, who appeared for the respondent before us, did not attempt to support this ground of the lower Court's decision.
6. In dealing with the second point, we cannot agree with the lower Court in splitting up Ex. A into two independent parts, one relating to the construction of the Hospital, and the other relating to its maintenance. Not merely the substance of the thing but even the collocation of words in Ex. A suggests that the Taluq Board agreed to establish a Hospital at Sivagiri only on condition of the zemindar agreeing to contribute annually a part of the expenses of its maintenance. To say that there was one offer to contribute towards the costs of the construction and this was accepted by the Board and the whole matter terminated on the construction of the Hospital, leaving the question of its maintenance to be governed by a separate offer and acceptance does not seem to us a reasonable construction of Ex. A. It is obvious that it was not worth while bringing a Hospital into existence--the correspondence makes it clear that the Taluq Board would not have put itself to the trouble and expense of constructing a Hospital at Sivagiri without some definite arrangement for meeting the costs of its working expenses. The learned Judge's theory that for the expenses of each year there is a separate offer by the zemindar of a contribution which must be deemed to be accepted by the Board by maintaining the Hospital for that year seems to us wholly artificial and unnatural. It might as well be said that the offer is one from day to day or even hour to hour. We are not prepared to uphold the power of revocation claimed by the zemindar on this basis.
7. The argument has also been put in a slightly different form, namely, that as there is no obligation on the part of the Taluq Board to maintain the Hospital, there is no 'consideration' for the zemindar's promise and there is accordingly no legal or enforceable contract. It may be conceded that where a promise by A is consideration for a promise by B, the former, so long as it remains executory will not amount to consideration in the eye of the law unless it involves a legal obligation which A may be compelled to perform. In this connection some arguments were urged before us to show that the Taluq Board has not bound itself and could not bind itself to maintain the Hospital. We do not propose to enter upon a discussion of this question because for the purpose of this argument we are prepared to assume that the Taluq Board was not compellable to continue the Hospital at Sivagiri. Even where the promise on one side does not involve a legal obligation, there can be little doubt that its performance will constitute sufficient consideration, that is, as an executed consideration, for the promise on the other side.
8. A comparison of Westhead v. Sproson (1861) 6 H & N 728 : 30 LJ Ex. 365 : 7 Jur (N.S.) 502 : 4 LT (N.S.) 408 : 9 WR 695 : 123 RR 792, referred to in this connection with Morrell v. Cowan (1877) 6 Ch.D 173 and Morrell v. Cowan (1878) 7 Ch D 151 : 17 LJCh. 73 : 37 LT 586 : 26 WR 90, will suffice to show that once the executed promise becomes the consideration, it is not for the Court to examine the quantum or adequacy of the consideration except where the language of the document is ambiguous. A mere promise to supply goods to another on credit where there is no obligation undertaken to do so may not amount to consideration in law for a guarantee in respect of past debts due by such other person. But if the merchant does in fact supply goods on the strength of the guarantee, the benefit of the guarantee may, of the language of the document is clear enough, attach not merely to the goods supplied after the date of the guarantee but also to prior debts. If, as we have already held, the proper construction of Ex. A is that in consideration of the zemindar's promise, the Board has fulfilled its promise at least to the extent of constructing the Hospital, there can no longer arise any question of absence of consideration for the zemindar's promise. Mr. Srinivasa Aiyangar asked whether, in this View, it would not follow that the Board could claim annual contribution from the zemindar even if it should cease to maintain the Hospital. We do not think it would. The very idea of a 'contribution' and the reference to 'maintenance' in Ex. A imply the continued maintenance of the Hospital by the Board, but to reach this result it is not necessary to treat the matter as a question of 'consideration.' It may well be regarded as a 'condition' or limit of the obligation itself.
9. There remains the question whether the obligation imposed on himself and his successors by the then zemindar under Ex. A is binding on the successors in the title to the zemindari of Sivagiri. Though the lower Court has regarded this question as concluded by the provisions of the Madras Impartible Estates Act, it was realised in the course of the arguments before us that the point involved wider issues. It was agreed that if Ex. A could be construed as creating a charge on the zemindari, the answer to this question would be easy enough. The learned Advocate-General accordingly relied on the decision of the Judicial Committee in Rajah of Ramnad v. Sundara Pandiyasami Thevar 42 M 581 : 49 Ind. Cas. 704 : AIR 1918 PC 156 : 17 ALJ 153 : 36 MLJ 164 : 23 CWN 549 : 29 CLJ 551 : 25 MLT 400 : 21 Bom.LR 885 : (1919) MWN 511 : 10 LW 322 : 46 IA 64 (PC) in support of his contention that Ex. A, must be held to create a charge. Their Lordships do not go into the reasons for taking that view in that case, apparently because they were prepared to adopt the reasons given by Seshagiri Iyer, J. in the High Court (see Rajah of Ramnad v. Sundara Pandiyaswamy Thevar 27 MLJ 694 : 27 Ind. Cas. 283 : AIR 1916 Mad. 664. Giving the matter our best consideration, we are unable to hold that either the language of Ex. A or the surrounding circumstances suffice to import the creation of a charge on the zemindari. Several of the reasons relied on by Seshagiri Iyer, J. in Rajah of Ramnad v. Sundara Pandiyaswamy Thevar 27 MLJ 694 : 27 Ind. Cas. 283 : AIR 1916 Mad. 664 do not exist here If the obligation is to be held to rest merely on covenant, it seems to us farfetched to rely upon the analogy of nibandha in the Hindu Law to make the obligation valid and perpetually binding on all persons coming into possession of the zemindari, whether by inheritance or by survivorship or by alienation- We do not rest our conclusion on the provisions of the Madras Impartible Estates Act,' because Mr. Srinivasa Aiyangar admitted that if the obligation under Ex. A would not fall within the exception enacted in Section 7 of that Act, it would not also be covered by the prohibition enacted in Section 4. We do not think that we can describe the obligation as amounting to a 'debt' in the natural or usual sense of that term. It is not by any means analogous to the case of present debt payable by instalments. On the ground that an obligation of this kind resting only on covenant cannot be enforced against the zemindari in the hands of persons who have succeeded to it by survivorship and those coming after them, we affirm the decree of the lower Court and dismiss the appeal with costs.
Mockett, J.
10. I agree with my learned brother for the reason given by him that as between the Taluq Board and the zemindar, there was an enforceable contract by which the Taluq Board was entitled so long as it maintained the dispensary, to claim from the zemindar the sum of Rs. 500 annually. But the real question is, how far that contract binds the zemindar's successors. The respondent has before us raised a contention which was not pleaded in the Court below and which is not mentioned in the grounds of appeal. It is argued that under Ex. A a charge is created' on the zemindari and reliance is placed on the decision of the Judicial Committee in Rajah of Ramnad v. Sundara Pandiyaswamy Thevar 27 MLJ 694 : 27 Ind. Cas. 283 : AIR 1916 Mad. 664 a case in which the Board held that a charge was created on the estate of the Rajah of Ramnad. This argument was essential to the appellant's case as I do not understand that it was contended that it was possible for the zemindar to bind his successors except by a charge on the estate. Whether an intention to create a charge exists, naturally depends upon the document in each case together with its surrounding circumstances, Janardhan v. Anand 32 B 386. In this case the oral evidence for the plaintiff is in no way explanatory of the facts from which Ex. A emerged being confined to proof of documents. But para. 4 of the plaint refers to Sivagiri as having a 'dense population' but no dispensary and para. 5 states that the zemindar realised the urgent necessity for a medical dispensary there. Whether the Taluq Board realised this, too, is not stated but it is stated that the Board could not afford a dispensary. That is, they could not then afford it, It is of 'course the duty of the Board to provide such dispensaries especially in places with dense populations.
11. We are dependent almost entirely on the correspondence and other documents. (Exhibit A unquestionably purports to bind the zemindar and his heirs and successors. But it is important to note that the dispensary is to be under the control of the Taluq Board and is open to any class of patients. There is, therefore, no question of the dispensary being for the treatment exclusively of the zemindar retainers. In Rajah of Ramnad v. Sandara Pandiyasami Thevar 42 M 581 : 49 Ind. Cas. 704 : AIR 1918 PC 156 : 17 ALJ 153 : 36 MLJ 164 : 23 CWN 549 : 29 CLJ 551 : 25 MLT 400 : 21 Bom.LR 885 : (1919) MWN 511 : 10 LW 322 : 46 IA 64 (PC), the facts were that there was a claim to the zemindari which was compromised on terms that one party gave up his claim and agreed to receive Re. 700 a month in perpetuity from the other. So in exchange for his claim, one party was to receive a money -payment, from the other in the words of the compromise 'from generation to generation' The English record of compromise reads thus:
The plaintiff having thus completely relinquished all right and claim, the defendant and her heirs holding the zemindari shall, from November 1, 1860, pay to the plaintiffs and his heir a monthly allowance of Rs. 700.
12. Seshagiri Iyer, J. whose judgment met with the approval of the Board, held that the above constituted a charge. In this respect he differed from Sir John Wallis, O. C.J. His reasons were expressed as follows:
It must also be borne in mind that Sivaswami claimed the whole zemindari and it is hardly conceivable that he would have been content to take a personal convenant for payment of the allowance when he had laid claim to the zemindari itself. Further if no charge is intended to be created upon the zemindari. it was hardly necessary in these two documents to use the expression 'the defendant and her heirs holding the zemindari.' More over, the grant was in the nature of one for maintenance and it is well understood that maintenance ordinarily come out of an estate in the possession of the promisor.
13. The learned Judge goes on to hold that from the surrounding circumstances the party who gave up so large a claim intended to secure the maintenance by a charge. In an earlier case, also a decision of the Judicial Committee reported in Narayana Ananga v. Madhava Deo 16 M 268 their Lordships took the view that in the settlement of a dispute between rival parties interested in an impartible zemindari estate, the language of the document and the facts showed that the-interests of the, disputant were intended to be protected by a charge. It does not appear that the present case is anologous to the above authorities. I do not think it was intended to lay down that in all circumstances where a zemindar purported to contract to bind himself and his successors, it would follow that his successors were bound by a charge on the estate. So to hold would appear to put zemindars in a different Category to other persons. The Taluq Board had no claim on the zemindari. In the cases cited the whole basis of the charge was to satisfy such a claim. I think this contract must be dealt with like any other contract. I do not think it can be gathered from the surrounding circumstances that a charge was ever intended to be created and in view of the late stage at which this contention has been raised, I am not in the least satisfied such a charge was created or has been proved. The plaintiffs can, if they think fit, close the dispensary thus restoring the status quo. Herein also another marked difference between the position of a person who has given up all his rights in a zemindari and the facts before us. I agree therefore that this appeal should be dismissed with costs.