Narla Ramakrishnayya vs Myneni Venkataranga Rao and Another

Anantakrishna Aiyar, J.—This is an appeal against the judgment of Mr. Justice Kumaraswami Sastriar in S.A. No. 1379 of 1926. The

original suit which gave rise to this second appeal was instituted by two members of the Myneni family for a declaration that the last holder of the

office of the Village Munsif of Dhulipudy was Myneni Bhishiah alias Nagabhushanam, that the plaintiffs are the only surviving members of the last

male-holder''s family from whom on revision a selection should be made of the person best qualified for the office and that the appointment of the

defendant (a member of the Narla family) as the permanent Village Munsif of Dhulipudy is illegal, and for some other reliefs. Both the District

Munsif and the Subordinate Judge held that the Civil Courts have jurisdiction to try this suit, and the learned Judge of this Court was also of the

same opinion. The first point raised by Mr. G. Lakshmanna, the learned advocate for the appellant, is that tne Civil Courts have no jurisdiction in

the matter. To appreciate the arguments advanced by the learned advocate for the appellant, it is necessary to state a few more facts. The village

establishments in Guntur District were revised once in 1900 and again in 1912. The revenue village of Dhulipudy was split into two revenue villages

in 1900 - Dhulipudy and Karankipalem. In 1912, those two villages were split up into three revenue villages of Dhulipudy, Karankipalem and

Addankipalem. As observed by the Collector in disposing of an appeal filed before him by the present plaintiffs in a suit instituted under Madras

Act III of 1895 and also by the Lower Courts in the present suit, there were a number of changes in the appointments that were made at the time

of these two revisions of the village establishments which led to a lot of confusion as seen from various orders which were passed by the Revenue

Authorities which are not easily reconcilable. The final appointment to the village of Dhulipudy was of the defendant - a member of the Naria

family. That led to the present suit.

It is convenient at this stage to refer to some of the relevant provisions of Madras Act III of 1895. u/s 6 of the Act,

the Board of Revenue may... divide any village into two or more villages, and, thereupon, all hereditary village offices in the villages or portions of

villages or village. divided shall cease to exist and new offices, which shall also be hereditary, shall be created for the new village or villages. In

choosing persons to fill such new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of

the last holders of the offices which have been abolished.

Right of suit before Collector is given u/s 13 of the Act in respect of the offices for recovery of emoluments of such offices and for registry as

heir; jurisdiction of the Civil Courts is barred u/s 21 in respect of certain matters. Section 23 deals with appeals against orders passed by the

Collector u/s 6 of the Act and from decrees and orders passed u/s 13. Section 20 provides for the framing of rules not inconsistent with the Act in

regard, among others, to the holding of inquiries u/s 6 and the hearing of appeals u/s 23.

The first question raised before us is whether a right of suit in the Civil Court is available to the plaintiffs for the reliefs mentioned already,

claimed by them.

It is admitted that the office of the Village Munsif of the village of Dhulipudy was hereditary before 1900, and continued to be so at the time of

the revisions in 1900 and 1912. The plaintiffs contend that the family of the last holder of the office is Myneni, and that under the last clause of

Section 6(1) of the Act, ""in choosing the persons to fill the new offices, the Collector shall select the persons whom he may consider the best

qualified from among the families of the last holders of the offices which have been abolished"". For the purpose of this argument, we must assume

that the family of the last holder of the office is Myneni and that the plaintiffs are properly qualified for the office, it being admitted that the

defendant belongs to a different family - Narla family. The scheme of the section seems to be that at the time of such revision and when a village is

divided, the old hereditary village office should cease to exist, and new offices should be created for the new villages. It is specifically declared that

in such cases, the new offices shall also be hereditary. The dispute turns on the exact meaning to be given to the last sentence in Section 6(1). For

the appellant it was argued that it only means that the Collector should also consider whether there are any persons in the family of the last holder

of the office who has got the requisite qualifications but that the Collector''s discretion in selecting the best candidate from among all the persons

available, is not in any way hampered by the section. The contention was that the reference to the family of the last holder was only a sort of

suggestion to the Collector in making the selection, and that it was in no sense a mandatory provision. I am unable to agree with this view. The

office of the Village Munsif has been hereditary generally in the Presidency from very early times. That hereditary right is valued very much. The

Legislature has in Section 6 recognised these facts. It is specifically provided that though the old hereditary village offices shall cease to exist in such

cases, the new offices shall also be hereditary. It is in recognition of the important nature of these hereditary offices, and the great value attached to

the same by the persons interested, that the Legislature has specifically stated that in choosing persons to fill such new offices, ""the Collector shall

select the persons whom he may consider the best qualified from the families of the last holders of the offices which have been abolished"". The use

of the word ""shall"" is very significant. In Craies on Statute Law, 3rd Edition, p. 204, it is stated as follows : ""It should be observed that the word

''shall'' is now avoided in statutes except where it creates a duty"". In my opinion the hereditary right is a legal right, and the same has been

preserved by the Act; the present is therefore a case where in respect of an existing right some remedy has been provided for by the Act. u/s 23,

there is a right of appeal provided, from an order passed u/s 6; but that does not take away the right of recourse to Civil Courts when the legal

right is infringed. It is a well-understood principle of law that when a statute does not for the first time create a right in favour of a person but only

provides for a new mode of enforcing the pre-existing legal right, then, in the absence of any clear indication in the statute to the contrary, the right

of suit in the Civil Court to enforce the right is not taken away from him. The new remedy is taken to be an additional remedy. Here, the inquiry u/s

6 is admittedly of an administrative character, and the appeal from an order passed u/s 6 is also of the same character. In fact, the appellant asks

us to construe the last sentence of Section 6(1) as only a piece of administrative instruction to the Revenue Officers to whom power is given u/s 6

to pass orders relating to the matter. It is difficult to hold that by providing for such administrative orders, the Legislature intended to take away the

right of suit to enforce the pre-existing hereditary right. In this connection, I may also mention that Section 6,is not the natural place where one

would expect any administrative advice or instructions to be enacted; such advice and instructions would be more appropriate in respect of rules to

be framed u/s 20 of the Act.

If the Act provided for a suit in Revenue Court u/s 13 of the Act in respect of such a matter, then, having regard to the provisions of Section 21,

it might, at least plausibly, be contended that right of suit in the Civil Court has been taken away; but having regard to the scope of Sections 13 and

21 (to be noticed later on), no suit is maintainable u/s 13 of the Act in circumstances like the present.

In my opinion, it is not from the mere fact that an obligation has been cast on the Collector by Section 6(1) in making the selection that ''we spell

out a right'' in the family. Hereditary rights were well known to law as administered in this Presidency. The Legislature enacted that the new offices

to be created for the new villages by that very Act should also be hereditary. As I read the section, what has been done by the Legislature is this -

hereditary rights existing in the family of the last holder have been recognised and preserved by the Legislature by Section 6. In my view, it is not a

case of any right being ''created'' for the first time in the family, but the case is one of recognition and preservation by the Legislature of a pre-

existing legal right existing in the family. The law is familiar with (a) rights vested in an individual; (b) rights vested in a family; and (c) rights vested in

the public. The present is a case of a ''right vested in a family'' - which was a well-known right before the Act - being recognised and provided for

by the Legislature. If the Legislature intended that such pre-existing rights should cease once for all and be no longer entitled to any sort of legal

recognition or enforcement, it would surely have chosen other words than those that exist in the section to express its intention. It is a principle of

law that existing legal rights should not be intended to be interfered with or taken away, except to the extent to which it is reasonably clear under

the terms of a statute that they have been. A provision like the one contained in the last sentence of Section 6(1) of Act III of 1895 finds a place

also in Madras Act II of 1894, Section 15; and under that Act, learned Judges of this Court have held that the last holder''s family has got a legal

right of suit in the Civil Court when the hereditary right is infringed by the Revenue Officials in the matter of making appointments in such cases. See

Krishnaswami Naidu v. Akkulammal (1918) 9 L.W. 90, Kodandaramayya v. Ramalingayya (1920) 12 L.W. 663 and Alagiasundaram Pillai v.

Midnapore Zamindari Co. (1919) 12 L.W.767 (per Odgers, J.). See also per Wallace, J., in Subba Rao v. The Secretary of State (1929) 58

M.L.J. 698. In those decisions learned Judges of this Court have held that Civil Courts have jurisdiction to entertain suits in cases similar in

principle to the present, and that necessary declarations could be granted to the family of the last holder. If the right possessed by the family be not

a legal right, it is difficult to support the decisions mentioned above by those learned Judges. As remarked already, it is difficult to say that the

obligation cast on the Collector by Section 6 is not mandatory. If not mandatory, the provision should be treated as only in the nature of an

administrative instruction, and to be really directory only, but it is impossible prima facie to understand that the Legislature intended to do any such

thing in the main enacting section of the Act, which admittedly deals with important legal rights, and that it enacted a clause with -the use of the

word ""shall"" intending thereby only to give some sort of administrative advice to the authority which it empowered to make such appointments.

Such a suggestion is, in my opinion, most unlikely, having regard to the wordings of the enactment and to the circumstances that the same clause

occurs both in the Act of 1894 and in the Act of 1895. As already remarked, a different language would have been employed if the provision was

not intended to be mandatory in its character, and any administrative instruction would naturally be dealt with u/s 20 which makes provision for

rules to be framed by the Board of Revenue.

I may remark that in Alagiasundaram Pillai v. Midnapore Zamindari Co. (1919) 12 L.W. 767 Justice Bakewell made the following remarks

towards the end of his judgment:

For the same reason I am of opinion that the ruling of Napier, J., in the case already cited Krishnasivami Naidu v. Akkulammal (1918) 9 L.W. 90

does not apply, because the plaintiffs claim a personal right and not as members of the public. I do not understand that ruling to apply to an

appointment outside the family of the last holder, in which case the member of the family might sue on behalf of himself and all other members of

the family, because their joint right to be considered had been infringed.

For these reasons, and speaking with all respect, I think that the decision in Kanthavadivelu Mudaliar v. Ramaswami Mudaliar (1927) 54

M.L.J. 357 has not properly taken into consideration the wordings of Section 6 and the inferences following from the same, and would also seem

to be in reality inconsistent with the decisions of various learned Judges in the cases mentioned above, and I would accordingly respectfully dissent

from the same.

The second point raised is that even if it should be held that the plaintiffs have a legal right, the same is not available to be enforced in the Civil

Courts having regard to the provisions of Section 21 of the Act. It has been decided by Sadasiva Aiyar, J., in Krishnaswami Naidu v. Akkulammal

(1918) 9 L.W. 90, by Ayling and Coutts Trotter, JJ., in Kodandaramayya v. Ramalingayya (1920) 12 L.W. 663, by Odgers, J., in

Alagiasundaram Pillai v. Midnapore Zamindari Co. (1919) 12 L.W. 767 and by Miller, J., in Kesiram Narasimhulu v. Narasimhulu Patnaidu ILR

(1907) 30 M. 126. : 16 M.L.J. 514 that Section 21 of the Act takes away the jurisdiction of the Civil Courts only in cases in which jurisdiction is

conferred on the Revenue Courts by Section 13 of the Act. Sections 13 and 21 deal only with claim to succeed to the office. So far as the case

before us now is concerned, when the old office is abolished and ceases to exist, the appointment to the new office could not be said to be by

virtue of a claim to succeed. This was the view of Sadasiva Aiyar and Odgers, JJ., in the cases mentioned, and is the view taken by Kumaraswami

Sastriar, J., in the second appeal in the present case; and, with respect, I agree with those learned Judges in that view. As observed by Ayling and

Coutts Trotter, JJ., in Kodandaramayya v. Ramalingayya (1920) 12 L.W. 663

That a suit should be in a Civil Court regarding a newly created village office and its emoluments, whereas it would not be in the case of an older

office, is anomalous and may be the result of oversight in drafting; but we cannot see that it involves any injustice or real inconvenience; and

however it may be it seems to be the only proper interpretation of the two Acts.

It may be mentioned for what it is worth, that though the Act was amended in 1930 in respect of some other matters, the Legislature did not

make any amendments to Sections 6, 13 or 21, as it might be expected to do having regard to the difference of opinion that prevailed in this Court

about the construction of Section 13 of the Act, since Justice Bakewell had taken a contrary view, if the Legislature thought that its intention has

been misunderstood by Courts.

On the merits I think the learned Judge Kumaraswami Sastriar, J., is clearly right in his opinion that the family of the last holder is Myneni. As

remarked by the learned Judge, Exhibit C is practically conclusive on the question. It may be observed that the Collector on appeal in fact decided

that Myneni family was the family of the last holder. It would appear that by reason of some other proceedings, the Board of Revenue came to a

contrary conclusion. But the Collector''s decision on appeal in such cases is final, and it has not been made clear in this case how the Board of

Revenue happened to interfere with that decision of the Collector. In fact, when the Board of Revenue was subsequently approached to interfere

with a later order passed by the Collector on appeal relating to the appointment of the present defendant to the office, the Board held that it had no

jurisdiction to interfere with an order passed by the Collector on appeal in such a matter. See Exhibit P. 2. The plaintiffs before filing the present

suit had also filed a suit u/s 13 of Madras Act III of 1895 before the Deputy Collector, Tenali Division. Having failed to obtain relief from the

Deputy Collector, the plaintiffs appealed to the District Collector (Exhibit Q. 3), who held that ""any suit for a newly created office will, if

maintainable at all, lie only to the ordinary Civil Courts."" In the present case, it is clear that the last holder''s family was Myneni family, and therefore

the appointment of the defendant as the permanent Village Munsif of Dhulipudy is illegal. The declaration granted by the learned Judge to that

effect will stand, but not the other declarations. With this modification, the Letters Patent Appeal is dismissed with costs.

Reilly, J.

Section 6(1) of the Madras Hereditary Village Offices Act provides that on the grouping, amalgamation or division of villages all hereditary

village offices of certain classes in the villages so affected shall cease to exist and new hereditary offices shall be created for the new villages formed

as the result of grouping, amalgamation or division. The Sub-section then lays down that in filling the new offices so created the Collector shall

select the persons whom he may consider best qualified, from among the families of the last holders of the offices which have been abolished. It will

be seen that the Sub-section provides for very serious matters, - the abolition of hereditary offices and the creation of new hereditary offices in

their stead. Between the old and the new offices a link is maintained; the Collector must fill the new offices with the persons whom he considers

best qualified from among the families of the last holders of the old offices. It is a very serious thing indeed for the Legislature to destroy a private

right, and still more a hereditary right; and we must be very sure before we attribute that meaning to a provision in a statute. It is a serious and

unusual thing for the Legislature to create new hereditary offices. Here we find a provision for the abolition in the public interest of highly prized

hereditary offices, and in the very same Sub-section of the Act we find provision for the creation of new hereditary offices in their stead. Then in

the same Sub-section words are introduced showing that it is the intention of the Legislature that the new offices shall be filled by men selected

from the families which held the abolished offices. Surely that provision explains why the new offices are made hereditary and shows that, although

the old offices are abolished, it is not the intention of the Legislature entirely to destroy the old hereditary rights but rather to preserve them so far

as possible in the new offices. That is certainly a possible way of interpreting the intention of the Legislature in making the Sub-section, and,

remembering that very clear words are required entirely to destroy a private right, if we approach the Sub-section in the right way in my opinion, it

is clear that that is the proper interpretation. With great respect I am unable to agree with Kanthavadivelu Mudaliar v. Ramaswami Mudaliar

(1927) 54 M.L.J. 357 in which the fact that the abolition of the old offices need not carry with it, and is apparently not intended to carry with it the

entire abolition of the old hereditary rights appears to have been overlooked. I agree with my learned brother that Sub-sec. 6(1) of the Act

preserves certain legal rights in the families of the last holders of the abolished offices.

That view is confirmed by the language of the Sub-section regarding the Collector''s duty in the matter. It lays down that the Collector shall

select persons from among the families of the last holders of the abolished offices. I cannot agree with the contention for the defendant that those

words are merely directory not mandatory. That is against the plain meaning of the words themselves, which fits in with the apparent intention of

the Sub-section There is no suggestion that the Collector shall choose persons from those families, if he thinks fit; there is a plain order that he shall

do so. And, as my learned brother has pointed out, if a mere direction was to be issued to the Collector how he was to use his discretion, Section

6 is not the place where such a direction would naturally appear.

If there is a right preserved in the families of the last holders of the abolished offices, by what remedy is that right to be vindicated when

infringed? For the defendant it is contended that a new remedy of appeal is provided by Section 23 of the Act and that that is the only remedy. But

here we have not a new right and a remedy created simultaneously by statute, in which case the ordinary interpretation will be that the remedy

created is the only remedy available. Here we have an old right preserved and a new remedy created; but no old remedy is explicitly taken away.

In those circumstances the new remedy of appeal is not exclusive; it must be regarded as additional to and not as substituted for existing legal

remedies. On general principles, if the hereditary right preserved by Section 6(1) of the Act is infringed, the persons for whom it is preserved have

still a right to sue for its vindication by a declaratory decree.

It is contended for the defendant that at any rate the jurisdiction of the ordinary Civil Courts is excluded by the Act. The excluding, provision is

in Section 21; but that must be strictly construed, as must all provisions shutting out the jurisdiction of the ordinary Courts, and no reasonable

interpretation of it will go so far as to shut out from the jurisdiction of the ordinary Courts such a matter as is the subject of this suit - Muvvula

Seetham Naidu v. Doddi Rami Naiduf and Kodandaramayya v. Ramalingayya (1920) 12 L.W. 663. I agree that the ordinary Civil Court has

jurisdiction in this case.

On the question who was the last holder of the office of Village Munsif of Dhulipudy within the meaning of Section 6(1) of the Act I agree that

Exhibit C is conclusive.

In my opinion the plaintiffs are entitled to a declaration that the appointment of the defendant as permanent Village Munsif of Dhulipudy is

illegal. But I do not understand how the findings of fact that Myneni Bhishiah was the last holder of the office or that the plaintiffs are the only

surviving members of the last holder''s family, from whom a selection should be made, can properly be made parts of the declaratory decree in

their favour. I would modify the declaration made by the learned Judge by striking out all except the declaration that the appointment of the

defendant is illegal.