Judgement

APPEAL from a judgment of the High Court of Madras (March 13, 1873), reversing a decree of the Civil Judge of Berhampore (December 23, 1871).

The talook of Chinnakimidy, otherwise called Pratapagheri, is an ancient hereditary zemindary, which descended from father to son for many generations before the British Government took possession of the territory subject to Fort St. George, at Madras, and made a permanent settlement with the zemindaries in the Northern Sircars in the year 1804.

At that time the assessment fixed upon this zemindary (then called Pratapagheri) was Star pagodas 15,714. 12., which was thereafter annually paid by the zemindar.

But the Madras Government, although it executed at that date a sunnad milkut istimrar in favour of the then zemindar, and sent the same to the Collector of Ganjam, declined to enter into any permanent settlement of the zemindary. It withheld the issue of the sunnad, and no kabuleat was ever executed by the zemindar as prescribed by Madras Regulation XXV. of 1802. The Government, moreover, on each occasion of a death vacancy appointed and recognised the successor to the zemindary, and a great mass of evidence was adduced in the suit out of which this appeal arose, in support of the right of the Government so to do. But after the decision of Her Majesty in Council in the Marungapury Case ((2) Law Rep. 1 Ind. Ap. 282.), it was admitted that the succession to the zemindary must be determined by the ordinary rules of the Hindu law of inheritance, irrespective of the recognition which had been made by the local government of the Appellant as successor to the last holder.

Adikonda Deo, the last zemindar, died on the 23rd of November, 1868, leaving the Appellant, his undivided brother, two daughters, an illegitimate son, Ramahrishna Deo, and his widow, then enceinte. On the 20th of November he was alleged to have exe cuted the following document, marked in the suit and referred to by their Lordships as exhibit Q —

"Agreement executed by Sri Vira Sri Viradhi Vira Pratapa Sri Adikonda Anunga Bhima Deo Kesari Maharaz, the lord of Pratapagheri talook, to Kundono Devi Patta Mahadevi, on Friday the 6th day of the increasing moon of the month of Margasira, that is, the 7th day of Vruschica of the year named Vibhava, Era 43, corresponding with the 20th of November, 1868, is as follows—

" As I know that my end, consequent upon the expiration of the term fixed by fate, is approaching (I do hereby declare) that in case you, who are at present pregnant, be delivered of a male issue, the said child alone shall inherit my talook, as well as all my property, both moveable and immoveable. Becoming the owner of moveable and immoveable properties, till he arrives at proper age you will look after him ; or if a daughter be the result of your present pregnancy, you, adopting a son, who may be in your opinion worthy of the throne, and making him owner of the talook, &c, shall, pending the attainment of the said boys majority, take care of him. This agreement is executed with my free will."

On the 2nd of December, 1868, the Collector of Ganjam wrote to the Board of Revenue, announcing the death of Adikonda Deo. In his letter he said " On the 24th of November, the day after he expired, I received a letter purporting to come from him, dated the 19th (though his residence is not twenty miles off, and the matter was emergent), in which he announced the approach of death, and nominated his son, the eldest of the three bastards, as his successor. Since then I have received two letters from his widow, claiming to succeed her husband in the absence of legitimate issue, and announcing further, that she is now three months gone with child. This was the statement in her first letter (referred to as E in the judgment) ; in her second, she adds that “ it was her husbands express wish, if she brings forth a son, such son should succeed; if a daughter, that she (the widow) should then adopt a son."

On the 11th of Decembe