Maintenance charge in perpetuity upheld in part, but unenforceable against an undefined heir's share; auction-purchaser remained bound.

A maintenance charge created by a 1919 deed was not invalid merely because it was intended to operate in perpetuity, but it could not be enforced against an undefined share that might devolve on a particular heir, as that would unlawfully burden an uncertain inheritance in a manner inconsistent with Mohammedan law. The charge therefore failed against Marghub Hasan's unascertained share and could not affect the sons of Faruqunnissa by merger. An auction-purchaser of Iqbal Hasan's interest, however, was bound by the earlier decree enforcing the charge against that very share, so the charge continued on the purchased property to the extent fixed by the Court.

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Issues: (i) whether the maintenance arrangement created by the deed of 1919 was a valid and enforceable charge, including as against the share devolving on Marghub Hasan; and (ii) whether the auction-purchaser of Iqbal Hasan's interest was bound by the earlier decree enforcing the charge against that share.

Issue (i): whether the maintenance arrangement created by the deed of 1919 was a valid and enforceable charge, including as against the share devolving on Marghub Hasan.

Analysis: A charge may be created by act of parties without amounting to a mortgage, and a perpetual liability of this kind is not hit by the rule against perpetuity merely because it is intended to continue from generation to generation. However, the arrangement here did not fasten the charge on any defined property of the settlor generally after her death, but attempted to burden only the uncertain and unascertained share that might devolve on one particular heir. That was an attempt to discriminate against one heir and to impose a burden inconsistent with the restrictions of Mohammedan law on testamentary disposition in favour of heirs, and it therefore offended the prohibition of agreements defeating the law.

Conclusion: The charge could not validly be enforced against the unknown share of Marghub Hasan and was invalid to that extent; the charge was also incapable of affecting the shares of the sons of Faruqunnissa because of merger.

Issue (ii): whether the auction-purchaser of Iqbal Hasan's interest was bound by the earlier decree enforcing the charge against that share.

Analysis: An auction-purchaser of a judgment-debtor's interest ordinarily represents the judgment-debtor and is bound by a decree passed against him in relation to the same property. The earlier decree had directed sale in enforcement of the charge against Iqbal Hasan's share, and the purchaser bought during the pendency of that enforcement. The special right of redemption given to an attaching creditor in mortgage matters was not extended to a charge in perpetuity, and the purchaser could not avoid the binding effect of the decree as to Iqbal Hasan's share.

Conclusion: The purchaser was bound by the earlier decree so far as Iqbal Hasan's share was concerned, and the charge continued on that share to the extent fixed by the Court.

Final Conclusion: The appeal succeeded only in part: the decree was modified so that the plaintiff obtained partition of the purchased property, but the proportionate maintenance charge remained attached to the share that had belonged to Iqbal Hasan.

Ratio Decidendi: A charge intended to run in perpetuity is not invalid merely on that account, but it is unenforceable where it unlawfully attempts to burden an undefined share of a particular heir in a manner defeating the governing personal law; an auction-purchaser remains bound by an earlier decree enforcing a charge against the very share purchased.

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