Bapatla Venkata Subba Rao vs Sikharam Ramakrishna Rao and Another

Chandra Reddy, J.—This appeal is by the 1st defendant against the judgment of the Subordinate Judge, Bapatla. The 1st respondent laid an action the Court of the Subordinate Judge of Ba(sic)la or a declaration that the order of the Collector in proceedings under the Madras Heredi(sic)y Village Offices Act dated 5-8-1950 made in appeal from the order of the Sub-Collector appointing the 1st defendant as the karnam of Ba(sic)la was illegal. The facts giving rise to this appeal may be briefly set out:

Originally there was one karnam for whole of the village of Bapatla. The plaintiff (sic)nged to the family which held that post here(sic)uily from time immemorial, his father Venka(sic)halpathi Rao being the last. There was also an (sic)istant karnam of the village and 1st defen(sic) it''s father was appointed to the post on 10-8-(sic)9. In 1948, there was a bifurcation of Bapatla (sic) two villages, east and west. The plaintiffs (sic)er was appointed karnam of Bapatla West and 1st defendant who then happened to be the (sic)stant karnam was appointed as the karnam Bapatla East, the post of assistant having been (sic)lished.

At the time of the proposals for the appoint(sic)it of karnam for Bapatla, east, the 1st respondent applied to be considered for the post on ground that the selection for both the posts could be made from the members of his family. Tahsildar sent up proposals to the Sub-Col(sic)r suggesting that the 1st defendant who was (sic)ng as the assistant karnam should be appoint(sic)n preference to the 1st respondent and this accepted by the Sub-Collector. On appeal, order of the Sub-Collector was confirmed. If (sic) set aside this order that the present suit instituted by the 1st respondent.

The defence to the suit was that a Civil (sic)t had no jurisdiction to entertain a claim (sic)ay of the offices specified in S. 3 of Madras (sic)ditary Village Offices Act (hereinafter called Act) and that the Collector could choose the qualified person to fill the office from among families of last holders of the office under (1) of the Act and B. S. O. 148, CI. (2) and Choice need not be confined to the members the family which had hereditary right to the (sic) extinct,

The lower Court overruling the objections (sic)ed the suit. It held that the Civil Court''s diction was not excluded, that the provisions 6(1) were mandatory and that persons being to a family which had hereditary right (sic)e office should be selected for the post newly (sic)ed under S. 6(1). Aggrieved by that judgment the 1st defendant has brought this appeal.

In support of the appeal, Mr. Kuppu(sic)ly advanced three contentions:

(1) that the view regarding the competency (sic)e Civil Court to take cognizance of suits of above description is erroneous;

(2) that the selection should be made from (sic)gst members of both the appellants and 1st respondent''s families as the office of assistant (sic)m which was abolished was also heredi(sic) and

(3) that the relevant provisions of the Here(sic) Village Offices Act should be struck down (sic)ey offend against Chapter HI of the Constitution of India.

The answer to be given on the first point bearing on jurisdiction depends upon the interpretation of Ss. 13 and 21of the Act. Section 13recites:

Any person may sue before the Collector for any of the village offices specified in S. 3 or for recovery of the emoluments of any such office, on the ground that he is entitled under sub-s. (2) or (3J of S. 10 of the Madras Proprietary Estates'' Village Service Act. 1894, or under sub-s. (2) or (3) or S. 10 or sub-s. (2) or (3) of section II or S. 12 of this Act" as the case may be to hold such office and enjoy such emoluments; or, being a minor, may sue before the Collector to be registered as heir of the last holder of any such office.

Section 21 excludes the jurisdiction of Civil Courts to decide any claim to succeed to any of the offices specified in S. 3 or any question as to the rate of the emoluments of any such office or except as provided in proviso (II) to sub-s. (1) of S. 13, any claim to recover the emoluments of any such office. The result of a combined reading of these two sections is that matters which fall within the purview of S. 13 cannot be agitated in a Civil Court. In order to attract S. 13, the claim should be made on the ground that he is entitled under sub-s. (2) or (3) of S. 10 etc. Here, we are not concerned with S. 11 or 12 of the Act.

It was contended for the appellant that it comes within the. scope of sub-s. (2) which provides that the succession shall devolve on a single heir according to the general custom and the rule of primogeniture governing succession to impartible zamindaris in Southern India. It is difficult to accede to this contention. An appointment made for the first time under S. 6on the bifurcation of a tillage cannot amount to a devolution of succession. It is only when a person succeeds to another that sub-s. (2) of S. 10 would apply; and an appointment made under S. 6 cannot come within the ambit of sub-s. (2) of S. 10. Sections 12 and 13 of the Act deal only with a claim to succeed to office. This view of mine is reinforced by decided cases of the Madras High Court.

In Narla Ramakrishnayya Vs. Myneni Venkataranga Rao and Another, , it was decided that S. 21 of the Act did not exclude the jurisdiction of Civil Courts to entertain a suit brought by a person whose hereditary right was overlooked by the Revenue Officials and that a claim of that nature fell outside the scope of Ss. 13 and 21. This was approved of by the Pull Bench of the same Court in Manubolu Rangareddi Vs. Maramreddi Dasaradharami Reddi and Others, Mr. Kuppuswamy relied on Rama Rao v. Goparakrishnamurthy, 1956 Andh LT 305 (AIR 1957 Andh Pra 894) (C). I do not think I can derive any assistance from that judgment. All that was laid down there was that if a Tribunal while acting within its jurisdiction reached an erroneous decision in law or fact as to the right of a rival claimant to the karnam''s office, S. 21 bars a suit in a Civil Court.

There are no observations which can lend any support to the contention that an order to be made under S. 6 (1) of the Act is ruled by S. 13 and that the Civil Court''s jurisdiction is ousted to entertain suits of any nature arising under the Act. It follows that the right conferred on the plaintiff by S. 6 (1)of the Act could be enforced by a suit. This contention, therefore, fails and is rejected.

The second point also seems to be devoid of any substance. The position taken by the 1st defendant in the lower Court was that there was an absolute discretion in the Sub-Collector to make the selection, that S. 6 (1) of the Act did not impose an obligation on the appointing authority to confine the selection to the family which had hereditary right to the office abolished and that the 1st defendant was as much entitled to be considered for the appointment as the 1st respondent, as he came from the family of the last holders, though non-hereditary. This argument was negatived and rightly in my opinion. The ground of appeal raised also the same point. Seeing the futility of the contention as put forward in the trial Court, the appellant wants to change the front and adopt a totally different attitude. He wants to urge that the position of the assistant karnam of Bapatla held by his father and afterwards by himself was also hereditary and therefore would fall under S. 6 (1). It is to support this plea that an application for admission of additional evidence was also filed. The submission now made is utferly opposed to the defence raised in the written statement.

It was repeatedly stated there that the office of the assistant karnam was non-hereditary. That being the case, I am not inclined to permit him to raise a plea inconsistent with that taken in the trial Court. It is not necessary to indulge in citation for the position that a party would not be permitted to put forward a new plea contrary to. the one taken by him in the trial Court. That apart, there is no material in support of his contention. The application cannot come under O. 41, R. 27, C.P.C. Consequently, this point has to be decided against the appellant.

There remains the argument that the provisions of the Madras Hereditary Village Offices Act are ultra vires the Constitution in

that they are hit at by Chapter III of the Constitution in dealing with fundamental rights. In dealing with this, it has to be remembered that this contention was not advanced in the lower Court and for the first time was raised in the memorandum of grounds. In this context, it is pertinent to remember that the appellant was appointed as a hereditary karnam under the Act. But for the Act, he would not have had any claim to be appointed to the office of the karnam.

That he put forward a claim to the office under the Act is plain from his written statement. In such a situation, should he be permitted to advance this argument for the first time, i.e., to question the validity of the very provisions under which he sought the post and was appointed to it? In my considered judgment, there would be no justification to allow him to raise this objection for the first time here. But for the Act, the 1st defendant would not have been chosen to fill up the post. He owes his position only to the Act.

It is now fairly well settled that a person who had derived an advantage under a statute could not be permitted to assert its invalidity when ultimately it has been decided against him under the statute. In Rottschaefer''s Constitutional Law at page 29 the position is stated thus :

A person who would otherwise be entitled to raise a constitutional issue is sometimes denied that right because he is estopped to do so. The factor usually present in these cases is conduct inconsistent with the present assertion of that right, or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds. A person may not question the constitutionality of the very pro vision on which he bases the right claimed to infringed... and a person who has received the benefits a statute may not thereafter assert its invalid to defeat the claims of those against whom it been enforced in his own favour.

A passage from Halsbury''s Laws of England (3rd edition) Vol. II page 150 (Simond''s edition also of some assistance :

The qualification of a person to act as a lator could be successfully impeached if it co(sic) be shown that, at the time, he acquiesced in election to which he objected; or that he (sic) concurred in other election of like kind with to which he objected, and which was subject the same objection or that he stood in the s(sic) situation as the defendant, so that he would h(sic) no title to his own office if his objection to defendant''s election were successful; or that was raising an objection which might have b(sic) put forward against himself at a previous elation;...

In Queen v. Lofthouse, (1866) 1 (sic) 433 (D), it was remarked by Blackburn, J. a relator who kept his objection until after was defeated was not a fit person to be entered with the prerogative process of the Cr(sic) Much to the same effect are the observation Justice Shee at page 444 :

On the other point, I agree that we o(sic) not to assist this relator. Cases have been brought to our notice which shew that where a man (sic) the knowledge of the irregularity of a partic(sic) course, nevertheless concurs in It, he ca(sic) afterwards take advantage of the irregularit(sic) the present case, Mr. Maw voted on a vc(sic) paper which he knew or believed to be irregi(sic) He therefore comes precisely within the enunciated by Lord Kenyon C J. in Rex v. Cla(sic) (1800) 1 East 38 at pp. 46-47 (E): ''The C(sic) have on several occasions said, and said (sic)ly, that they would not listen even to a corpo(sic) who has acquiesced or perhaps concurred i(sic) very act which he afterwards comes to com(sic) of when it suits his purpose; and so far I t(sic) we have determined rightly.'' And there are (sic) cases to the same effect. The present relato(sic) concurred in the very act he now complaint for he has used voting papers in blank in very election and in others. Therefore, in exercise of our discretion, we ought not to a(sic) him.

In A.R.V. Achar Vs. Madras State and Another, res(sic)tion of seats to particular communities under Madras City Municipalities Act (Act IV of was questioned as unconstitutional, being posed to the provisions of Arts. 14 and 15 of Constitution. One of the grounds upon which Bench consisting of Rajamannar, C.J., and (sic)tice Venkatrama Ayyar refused to issue a for information in the nature of quo war was that the petitioner

has acquiesced in the election to which objects or that he is raising an objection might have been put forward against himself a previous election or that while cognisa(sic) the objection he voluntarily so acted to (sic) the respondent to exercise the office.

In The Panchayat, Pandarapadu v. Sta Andhra, 1956 Andh LT 781: ((S) AIR 1957 Pra 355) (G), Justice Bhimasankaram con(sic) in the principle enunciated by the Bench in A.R.V. Achar Vs. Madras State and Another, I(sic) dhao Gopal v. Secretary of State, AIR 193(sic)(H), Justice Niyogi and Justice Gruer stated (sic) rule thus :

It is true that an ultra vires statute cannot be validated by acquiescence but it is equally (sic)le an acquiescing party may be estopped from questioning it: See The Doctrine of Ultra Vires, (sic)eet, page 436, Edition 1930.

W. P. No. 375 of 1954 (Andhra) (I), Satyana(sic)ana Raju, J. held that a person who was (sic)self appointed under the Madras Hereditary (sic)lage Offices Act could not question the (sic)idity of the Act. This is ad idem with the (sic)ant case. In these circumstances, I do not (sic)ik there is any ground to permit the appelant to contend for the first time that the very Act for which he would not have had any right the office, was unconstitutional.

Mr. Kuppuswamy, the learned counsel the appellant, lastly wanted to urge that it (sic) 6 (1) of the Act that infringes the fundamental rights enshrined in Chapter III of the constitution. For one thing, this point was deve(sic)d at the last stages of the argument and this not referred to even in the memo of grounds in fact in ground No. 7 it is specifically men(sic)ed that the claim of the appellant is not hit (sic)y the terms of S. 6. He cannot be permitted (sic)aise this ground in the course of the arguments That apart, in regard to this contention, appellant does not stand on a better footing. It is clear from paragraph 5 of the written (sic)ment that it is by virtue of S. 6 that the appellant came to be appointed. Both parties claim under S. 6 (1) but the difference between them as regards the interpretation to be placed that section. Be that as it may, there are no (sic)iable grounds to allow him to make this sub (sic)ion for the first time at the fag end of the (sic)ments, a point which was not even taken (sic)e memorandum of grounds of appeal.

In the result, the judgment under con(sic)ation is confirmed and the appeal dismiss with costs of the first respondent.