Judgement

Appeal from a judgment and decree of the High Court (August 1, 1913) reversing a decree of the first class Subordinate Judge of Belgaum (April 6, 1910).

The first appellant was the sole widow of Lingappa Jayappa Sar Desai of Navalgund. The deceased was the last of a series of Desais whose title came into existence in the time of the Bijapur monarchy in the 17th century. The Desai was the chief revenue officer of the district under both the Mahomedan rule and the Maratha rule which followed it. During the tenure of office of the family to which the deceased belonged many inam grants of villages had been made to the Desai for the time being. The services of the Desai as a revenue officer were not made use of during the British rule, and he was informed in 1848 by the Collector, under the provisions of s. 2 of Bombay Act. II. of 1843, that his services as a revenue official would not be required. At that time and for many years afterwards the officials of the British Government in the Southern Maratha country were occupied in investigating and coming to settlements regarding claims to inam lands held for service or as a reward for past services.

As a result of those investigations, and on the request of the revenue commissioner, a Government resolution on February 6, 1862, sanctioned the treatment of the Navalgund Desais " potgee " as a personal holding continuable on the terms of summary settlement. In consequence of that sanction the offer of a settlement was made to the Desai in 1862, and was accepted on the terms that the commutation payment should be in the nature of a nazarana or quit rent. By s. 12 of Bombay Act II. of 1863 all settlements of the above character made in the district were expressly validated.

The deceased Desai by his will and a codicil, dated respectively June 6 and August 13, 1906, disposed of all the vatan property to the respondents upon certain trusts, the first respondent being named as executor. The will stated j that the testator had not authorized his wife to make an (adoption, and that he did not intend to do so. The Desai died on August 23, 1906, without issue.

The first respondent applied in the Court of the District Judge for probate, the application being opposed by the first and second appellants. It was alleged that the deceased had verbally revoked the will, and had given his wife authority to adopt a son to him, and that accordingly she had adopted the second appellant. After hearing evidence upon those allegations the District Judge on September 27, 1909, found against them, and ordered probate to issue. His decision was affirmed by the High Court.

Meanwhile, on February 22, 1909, the appellants instituted the present suit in the Court of the first class Subordinate Judge of Belgaum against the respondents. They claimed, inter alia, (a) a declaration that the deceased had no power to make the will on the grounds that the deceased was mentally incompetent, and that the vatan lands were inalienable; (b) a declaration that the second appellant was the adopted son of the deceased; (c) an injunction restraining the respondents from recovering possession of the property in suit. By their plaint they valued each of the declarations at Rs. 130, and the injunction at Rs. 5, and paid court fees upon that basis.

The Subordinate Judge delivered judgment on April 16, 1910. He declined to decide issues as to the due execution and alleged revocation of the will owing to the pendency of the probate proceedings, but he decided all other issues in favour of the appellants. On the same date he made a decree embodying the two declarations and the injunction prayed for.

On July 19, 1910, the respondents lodged an appeal to the High Court. The appeal came oil for hearing on March 11, 1912, when a preliminary objection was taken that the appeal lay to the District Court. The learned judges (Chandavarkar and Batchelor JJ.), following previous decisions of the Court, held that the objection was valid, a