Charles Sargent, C.J.
1. The plaintiffs, who are the sons of Yashvantrav, a deshmukh, pray for a declaratory decree that the defendants are not entitled to any portion of the profits of the deshmukh vatan, and for a perpetual injunction restraining them from executing a decree of 22nd June, 1859, obtained by them against Yashvantrav against the vatan property. The defendants base their claim on a sanad executed in their favour by Yashvantrav on the 26th August, 1850, by which he appointed them hereditarily the vatan gumastas, and as remuneration for the performance of its services therein particularly specified, assigned to them Rs. 201 in cash and 15 maunds of grain, to be deducted from the income of the vatan coming to their hands. Yashvantrav died on the 12th November, 1871. It is not in dispute that the vatan services were remitted on 23rd January, 1864, under the Summary Settlement Act, and that the office of gumasta is now a sinecure.
2. With respect to the objection taken to the value of the suit being more than Rs. 5,000, and, therefore, beyond the jurisdiction of the Second Class Subordinate Judge, we think the reasons given by the lower Court of appeal conclusive. There were not materials before the Subordinate Judge to show that the value-exceeded Rs. 5,000, nor was the point taken before him and, lastly, there is no evidence before us to enable us to say that the Subordinate Judge had not jurisdiction.
3. Passing to the merits of the case, the first question is, whether Yashvantrav could appoint an hereditary vatani gumasta, and assign to the office a remuneration, in perpetuity, payable out of the income of the vatan. In Ravji Raghunath v. Mahddevrav Vishvanath 2 Bom. H.C. R 237 it was held that the holder of a Deshpande vatan cannot create an hereditary deputy, and that no such appointment could have effect beyond the incumbent's life, being beyond the. competency of the holder of the vatan.
4. In the present case the management of the vatan is vested by the sanad in the defendants and their heirs in perpetuity under the title of gumastas, but the remuneration attached to the office is equally in derogation of the successors' rights, as in the case of a deputy, and is, therefore, at any rate in the absence of proof of custom, invalid against such successors; but in any case we think that, having regard to the terms of the sanad, it was in the power, whether of the original grantor or any of his successors, to determine the office and the remuneration at any time after the vatan services ceased, as was the case in 1864. The sanad is, in terms, the grant of an office the performance of whose duties are remunerated by a portion of the income of the vatan, and which in Forbes v. Meer Mahomed Tuquee 13 Moore's I.A., 438 is treated by the Privy Council in discussing the general question as liable to resumptions when the services cease.
5. It was said, however, that the defendants must be deemed to have been in adverse possession of the 201 rupees and the 15 maunds of grain since 1864, when the services ceased. Assuming the grant to be invalid, as we have held, as against the successors of Yashvantrav on his death, adverse possession would only run from that time as against them, and twelve years had not elapsed before the present suit was filed; and although the grant might have been cancelled by Yashvantrav in 1864, there is no evidence to slow that it was so cancelled by him, or that the defendant's ever claimed or enjoyed the Rs. 201 and 15 maunds of grain during Yashvantrav's life otherwise than in virtue of the office. As regards the latter view of the plaintiffs' rights, although there has been no formal resumption by them of the sanad, the present suit may be treated as having that effect, without prejudice to the defendants, who, if they could have proved a custom, would have done so to establish their right to create an hereditary gumasta notwithstanding the inalienability of the vatan.
6. With respect to the proceedings in execution of the decree of the 22 nd June, 1859, the surviving plaintiffs were not parties to any of them, including Mr. Ranade's order of the 18th June, 1881 and are, therefore, not bound by them under the provisions of Section 244 of the Code of Civil Procedure.
7. In either view, therefore, of the sanad we are of opinion that the plaintiffs are now entitled to the declaratory decree and injunction as prayed for, and the decree of the Court below should be confirmed with costs.