B A BRENDON Vs. SHRIMANT SUNDERABAI

JUDGEMENT

(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.