Basil Scott, Kt., C.J.
1. The plaintiff sued for a declaration that the will and codicil of the deceased Desai of Navalgund was inoperative and the defendants as executors had no rights under it, and that the plaintiff No. 2 was the lawfully adopted son of the deceased, and they prayed for an injunction restraining the defendants from entering into possession of the plaint property. The Desai of Naval and was the last of a series of Desais whose title came into existence in the time of the Bijapur monarchs 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 Lingappa belonged, many grants in inam of villages had been made to the Desai for the time being. Sometimes they were expressed to be for the Desai and his karkuns and sometimes they were grants given to the Desai simply. After the disturbance and the un-settlement caused by the irruption of Tipoo Sultan into the Southern Maratha country, the grants to the Desai family were eventually confined to ten villages.
2. 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 Section 2 of Bombay Act XI of 1843 that his services as a revenue official would not be required of him. At that time and for many years afterwards the officials of the British Government in the Southern Maratha country were occupied in investigating and passing decisions and coming to settlements regarding claims to inam lands held, whether for service or as reward for past services, and in the course of the proceedings the Desai for the time being was offered the option of commuting his service by payment of an annual sum in the nature of a quit rent for the lands which he held up to that time on service tenure, or by occasional payments in the nature of fines, both which classes of payments were styled ' Nazarana.'
3. Under the Government Resolution No. 455 of the 6th of February 1862, the request of the Revenue Commissioner for sanction to the treatment of the Navalgund Desai's potgee 'as a personal holding continuable to the holder on the terms of the Summary Settlement was sanctioned, and in consequence of that sanction the offer of the settlement was made to the Desai, and that offer was accepted on the terms that the commutation payment should be in the nature of an annual Nazarana or quit rent. That was in the year 1862. At that time there was no express legislative provision sanctioning such settlements, although it may well be argued that the commutation of a service, which was no longer wanted, by an agreement to pay a fixed yearly sum was within the competence of the executive authority in the Bombay Presidency. But any doubt as to the validity of the settlement is put an end to by reference to Section 12 of Bombay Act II of 1863, which applies to the districts in which the Navalgund Desai's inam villages lay. It is in the following terms:-
All notices and orders issued, and nil settlements made in the districts subject to the operation of Act xi of 1851, previous to the passing of this Act for the purpose of carrying out its objects, shall be as valid and as binding on Government, and on the holders and owners of, and all persons interested in, lands affected by such notices, orders, and sol Moments as if this Act had been passed before the said notices and orders were issued, and the said settlements made, which shall accordingly by reyirded and taken to have been niado under this Act, all the provisions of which, as to the future rights, privileges, and duties of the holders and owners of land to be brought under settlement by it shall apply to the holders and owners of land already brought under settlement as aforesaid.
4. It has not been contended that the Bombay Legislature had not authority to enact that section validating the settlements so made, and the settlement made with the Navalgund Desai must, therefore, be taken to be a settlement valid and binding upon the Government.
5. What then was the position of the Navalgund Desai after this settlement? He was no longer liable to render any service in respect of the lands held by him, and they were, therefore, no longer held upon a service tenure. The terms upon which they were held were that a fixed annual quit rent should be paid for them. It is contended for the plaintiffs that the lands as service lands in the possession of the Desais for the last 200 years were impressed with the character of inalienability. It has been suggested, but faintly, that the inalienability arose by reason of family custom, but no evidence of any importance has been adduced in support of that contention.
6. The more serious argument is that lands assigned as emoluments of district revenue officers were inalienable by custom and by express legislative provision. The first legislative provision on the subject, to which we have been referred, is Regulation xvi of 1827. As regards the argument based on custom we must consider whether the character of inalienability was attached to these lands by law or custom at the time of the passing of that Regulation. The question was discussed by. Sir Michael Westropp in Krishnarav Ganesh v. Rangrav (1867) 4 B.H.C.R.11. He says :-
As to civil hereditary offices, and the inaras (watan) annexed to them, the balance of authority seems to incline in favour of the alienability in permanence (previously to British legitlation) as well of the offices as of the inams nppendant to them, together or separately.... In the case of some, but not of all, such offices, the assent of the Native Government seems to have been necessary to the validity of the alienation, and also, if the watan were undivided, the assent of the coparceners, if any.
7. With reference to those last remarks, it is to be observed that after the settlement, which derives its conclusive validity from the legislative provisions of Act 11 of 1863, there can be no doubt as to the assent of the Government for the time being to the alienability of the inams, and as far as concerns the-testator in the present case, there is no question of any coparceners, unless it be held that the 2nd plaintiff is an adopted son, and in that position entitled to the rights of a coparcener. Authority, therefore, is in favour of the conclusion that up to the legislation of 1827 these inams were not inalienable.
8. The Regulation 16 of 1827, Section 20, prohibited alienation, by any hereditary officer, of his official emoluments, and directed that such official emoluments enjoyed by a cosharer should not leave the family in which the office was vested. The Regulation of 1827 was superseded by the Vatan Act of 1874. But that Act came into force long after the settlement of the inam lands in 1862, and settlements which have been effected under, and are within the purview of, Act II of 1863, prevent the inam lands, to which they relate, from being subject to the provisions of the Vatan Act, because the holder under the settlement is no longer a hereditary officer holding for service.
9. Is there then any reason why the inams held by the Desai should, subsequent to the settlement, be regarded as impressed by any inalienable character such as does not appertain to the property of an ordinary Hindu landowner It appears to us that there is not, and that conclusion is supported by the judgment of the Privy Council in Rajah Mahendra Singh v. Jokha Singh (1873) 19 W.R. 211 with reference to what was known as Mafeebirt tenure.' Service was commuted for a quit rent, and it was held by the Judicial Committee, if the donee's descendants continue to pay the rent, the tenure is altered from service to rent. In the case of service land, which in practice at all events is not usually alienated, it is difficult to establish a family custom, which should have any effect, as distinct from the ordinary incidents of a service tenure, and evidence that land has remained in a family for a long period of years, and descended by the rule of primogeniture where it is service land, is more consistent with the fact of its being held for service than with the theory of any special family custom. Moreover when the service has come to an end the last holder, if he have no sons or cosharers, can put an end to tenure based upon family custom: see Rajkishen Singh v. Ramjoy Surma Mozoomdar I.L.R. (1872) Cal 186. If then the inams of the Desai may be treated as the property of an ordinary Hindu landowner, subject to the payment of the agreed quit rent to Government, there is no reason why he, in the absence of coparceners, should not dispose of that property by will. He has made some provision for his wife, the first plaintiff, providing her with Rs. 100 a month, and a certain retinue, and if he did make a will, as is alleged, it is difficult to see how a subsequently adopted son can defeat the provisions of that will.
10. The will was propounded for probate in the District Court of Belgaum, a Court competent to try the questions arising in this suit. That Court decided that the will and codicil, under which the defendants claim, was a testamentary document executed by the testator, and as a consequence the provisions of the testator speak from the time of his death. These testamentary provisions include a provision for charity, based upon the recognition of the fact that he has no natural born son, and upon the assertion that he has not given and will not give the widow authority to adopt any son after his death. The contention, however, on behalf of the second plaintiff is that he is a validly adopted son of the testator. In order to prove that eleven witnesses are produced who speak to words uttered by the testator within twenty-four hours of his death in which he stated that he had revoked his will and given his widow authority to adopt a son. These allegations were put forward in the Probate Court by the same parties, the first and second plaintiffs, in their contention with the executors, who are the present defendants, who were then propounding the will and the codicil. Thirteen other witnesses were upon that occasion produced to prove the statements of the testator as to revocation of the will and authority to adopt and those thirteen witnesses were disbelieved by the Probate Court. The decision of the Court upon that point was affirmed by the High Court in appeal. The allegation of the plaintiffs involves the destruction of the conclusion arrived by the Probate Court negativing the alleged revocation and affirming the testamentary character of the will which contains the statement with reference to authority to adopt. It appears to us that the learned Judge of the lower Court was in error in thinking that it was open to him, after the decision of the District Court in the will case, to try the question of the authority which was bound up with the question of revocation in the present suit. The issue which was decided by the Probate Court was that the words of Clause 9, as part of the will, formed part of the testamentary document speaking from the death of the testator, and that conclusively determined between the parties the question whether or not the testator had revoked his will twenty-four hours before his death, and whether or not the statement, as to his having given any authority to his widow to adopt, expressed his wishes at the time of his death. Therefore, under Section ii of the Civil Procedure Code the Subordinate Judge should not have tried the issue, because the District Court which tried the probate case was competent to try the present suit, although in order to relieve the superior Court of part of Scott C.J. its work Section 15 of the Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it, and therefore, this suit was instituted in the Court of the First Class Subordinate Judge: see Nidhi Lal v. Mazhar Husain I.L.R. (1884) All. 230 and Matra Mondal v. Hari Mohun Mullick I.L.R. (1889) Cal. 155.
11. We now come to the case of the third plaintiff. He can only be joined in this suit with the other plaintiffs if he makes common cause with them, and claims that he is entitled jointly, severally or in the alternative, upon proof of the allegations contained in the plaint. His case is, he being a man of forty years of age, born subsequent to the settlement of 1862, that from his own knowledge he can say that his father and grandfather and great-grand-father were karkuns under the Desai of Navalgund, and that therefore, they were entitled as beneficiaries, as persons answering a particular description in the sanads to share in the revenues, of the iham villages with the Desai. In so far as there is any contest between the third plaintiff and the first and the second plaintiffs as to their respective rights to the revenues of the inam villages, the third plaintiff is not competent to join with them in this suit, but we do not think that any question of misjoinder really arises, because upon the evidence in the case the only inam, in which it is clearly shown that the karkuns, whom the third plaintiff claims to represent, were interested, was an inam of land amounting twenty acres in Kalapur which is not in question in this suit (see Ex. 77, Clause 11, 1, and Ex. 91). The third plaintiff therefore in relation to lands in suit stands in no better position than the first and the second plaintiff. In respect of the lands in suit, other than the Patilki and Kulkarniki Vatans, in which the first plaintiff, as the widow of the testator, would be interested as Vatandar, and which under Section 5 of the Vatan Act of 1874 would not be alienable by the will, the suit must fail. If it is agreed which lands mentioned in the plaint are held upon service tenure, as Patilki or Kulkarniki Vatans, they can be excluded from the decree dismissing the suit, and the plaintiff will be entitled to a declaration regarding them. If an agreement cannot be arrived at, there must be a remand to the lower Court to ascertain what those lands are. We think that in this case &c.; the costs of both parties in both the Courts should come out of the estate.