S. Kaliappa Pillai vs The Board of Revenue and Another

S. Ramachandra Ayyar, C.J.—This is an appeal against the judgment of Veeraswami, J., and it raises a question u/s 10 of the Madras

Village Officers'' Act, 1895 (to be hereinafter referred to as the Act). The appointment of village officers for the village of O. Karisalkulam in the

Ramanathapuram district was governed by the Act which prescribed a preference in the matter of such appointment on the basis of hereditary

succession to the last holder of the office. In Gazula Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, , the Supreme Court has

held that Section 6(1) of the Act, which declared that in choosing the persons to fill the new office the Collector shall select the person whom he

may consider best qualified from among the families of the last holders of the offices, is discriminatory and void as infringing the fundamental rights

guaranteed under Articles 14 and 16 of the Constitution. That decision will not affect appointments made before the Constitution came into force,

as indeed it was done in the instant case.

One Sivanadia Pillai, who was the karnam of the village of O. Karisalkulam, was removed from service on 23rd July 1939, for misconduct. He

had then no issue. The Collector decided to make the appointment u/s 10(6) of the Act. He found that amongst the applicants, the Appellant, who

was the paternal uncle''s great-grandson of the last holder, was the nearest presumptive heir of the latter. The Appellant was then a minor. By his

order, dated 4th September 1940, the Collector recognized and registered him as the karnam, and appointed a deputy to carry out the duties of

the office. On attaining the age of majority, the Appellant took charge of his office from the deputy. In the meantime, on 8th February 1941, a son

(the second Respondent to this appeal) was born to Sivanadia Pillai, the previous office-holder. This, as it will be seen, was 157 days after the

appointment of the Appellant to the office. The second Respondent, after attaining the age of 18 years, filed a suit on 5th June 1960, u/s 13 of the

Act to set aside the order registering the Appellant''s name for the post of karnam for the village in question. The estate manager held--a view

which was affirmed on appeal by the Collector and, on further appeal, by the Board of Revenue--that as the second Respondent, a nearer heir,

was in his mother''s womb on the date of the appointment of the Appellant, the appointment of the latter was invalid; he accordingly set it aside.

This order of the revenue authorities was challenged before Veeraswami, J., by means of an application under Article 226 of the Constitution. The

learned Judge rejected the application. That was because of his view that the first Respondent had a right under the Act to get appointed to the

office by virtue of mere descent, the necessity for an appointment thereto by the Collector being only a statutory formality. Following that, the

learned Judge held that the first Respondent, who was en ventre sa mere at the date of the Appellant''s appointment, should be deemed to be in

existence and, therefore, a nearer heir with a right to the office in respect of which the Appellant, the appointee, must give way. We are, with great

respect to the learned Judge, unable to share his view on either of the two points, namely, that it is pre-existing right and not the appointment that

confers the right to the village officers post and that a child in the womb would have the same right as a person in existence in all circumstances.

The first question appears to us to be concluded by authority.

In Venkata Jagannadha v. Veerabhadrayya I.L.R (1921). 44 Mad. 643 the Privy Council had held that the appointment to an office under the

Act is one personal to the nominee to be made after taking into account his qualifications for it and the person so appointed does not hold his office

by hereditary or family right. In delivering judgment, Lord Shaw observes at page 650:

It is accordingly clear that since that time in Madras the karnam of the village occupies his office not by hereditary or family right, but as personal

appointee though in certain cases that appointment is primarily exercised in favour of a suitable person who is a member of a particular family.

It will be seen from the various provisions in the Act that the office is not treated as the property of the holder descendible on his death on his

heirs. That it cannot be so regarded has also been laid down in Ramachanduruni Purushotham Vs. Ramachanduruni Venkatappa and Another,

where it has been held that the karnam''s office could not be deemed to be property as contemplated by Article 19(2)(f) of the Constitution of

India, 1950. The fact that lands had been granted as emoluments to the office and attached to that office cannot make any difference in the matter,

as such lands should be regarded only appurtenant to the office and not property granted to the family of the holder of the office. In Gazula

Dasaratha Rama Rao Vs. The State of Andhra Pradesh and Others, , the Supreme Court has pointed out that the office of a village karnam under

the Act is a public office under the State, and not referable to any pre-existing right of property.

There cannot, therefore, be any right to it as if it were property. Such right as might exist, is only by virtue of the statute which regulates

appointment. The statute makes it clear that the right to the office is by virtue of the appointment by the Collector. The appointment has no doubt

to be made by having regard to rules of succession, but that cannot make it the subject of hereditary succession.

The question then is how far an unborn son''s right can be recognized in the matter of appointment to it. From what we have stated above

regarding the nature of the office, viz., that it is not property, a nearer heir to the last holder, who was only in his mother''s womb at the time when

the appointment was made, would acquire no right to it by birth, as the fiction as to an unborn son''s existence applies only where his property

rights are concerned. Recently a Bench of this Court to which one of us was a party had to consider the scope and applicability of the fiction in

Srinivasm v. Commissioner of income tax, Madras ILR (1962) Mad. 244. There a question arose as to whether the existence of a son in his

mother''s womb would affect the assessment of his father to income tax as an individual or whether such assessment should be made as on a Hindu

undivided family, the unborn son being regarded as a member thereof. It was held that the legal existence of a child yet to be born but in the

mother''s womb was a fiction of law created for the benefit of the child born subsequently, that is, for the purpose of protecting his rights to

property, and that the fiction could not be regarded as an universal rule of law. It will be useful in this connection to refer to the following passage in

Salmond''s Jurisprudence (eleventh edition), page 354:

A child in its mother''s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam

nato habetur. In the words of Coke: ''the law in many cases hath consideration of him in respect of the apparent expectation of his birth''. Thus, in

the law of property, there is a fiction that a child en ventre sa mere is a person in being for the purposes of the acquisition of property by the child

itself, or being a life chosen to form part of the period in the rule against perpetuities.

To what extent an unborn person can possess personal as well as proprietory rights is a somewhat unsettled question. It has been held that a

posthumous child is entitled to compensation under Lord Campbell''s act for the death of his father. Wilful or negligent injury inflicted on a child in

the womb by reason of which it dies after having been born alive amounts to murder or manslaughter. A pregnant woman condemned to death is

respited as of right until she has been delivered of her child. On the other hand, in a case in which a claim was made by a female infant against a

railway company for injuries indicted upon her while in her mother''s womb through a collision due to the Defendant''s negligence, it was held by an

Irish Court that no cause of action was disclosed.

From the foregoing, it is clear that the fiction has not been wholly recognized in the matter of personal claims of a child yet to be born, with

respect to matters that took place before he or she was actually born. A village officer''s post, not being held by virtue of any proprietory right but

purely on account of an appointment made under the Act, there would be ordinarily no scope for the application of the fiction.

But if the statute provides for or incorporates such a principle, the matter will have to be considered in the light of the provisions thereof. Let us,

therefore, examine the relevant provisions of the Act.

Section 10 which provides for appointment to a village office governed by the Act, says:

When a vacancy occurs in any of the village officers forming Clause (1) in Section 3, the Collector shall fill up the vacancy in accordance with the

provisions of the following Sub-sections:

(1) No person shall be eligible for appointment--

(i) to any of the offices forming Sub-sections (i), (ii) and (iii) of Clause (1) in Section 3, if such person has petitioned to be adjudged an insolvent

and the petition is pending disposal, or if he, having been adjudged an insolvent, has not obtained an order of discharge; or

(ii) to any of the office forming Clause (1) in Section 3, if such person

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(b) has not attained the age of majority;

(c) is not physically and mentally capable of discharging the duties of the office;

(d) has not qualified according to the educational test prescribed for the office in question by the Board of Revenue by rules made u/s 20;

(e) has been convicted by a Criminal Court of any offence which, in the opinion of the Collector, disqualifies him for holding the office;

(f) has been dismissed from any post under the Government on any ground which the Collector considers sufficient to disqualify him for holding the

office.

(2) The succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible

zamindaris in Southern India.

(3) Where the next heir is not qualified under Sub-section (1), the Collector shall appoint the person next in order of succession who is so

qualified, and, in the absence of any such person in the line of succession, may appoint any person duly qualified under Sub-section (1).

(4) Where the office has become vacant by the dismissal, removal or suspension of the last holder, the Collector may direct that, until the death,

reappointment or return to duty of such last holder, the duties of the office shall be performed by some person duly qualified under Sub-section (1)

who is not an undivided member of the family of the dismissed, removed or suspended officer; provided that, when the officer who has been

dismissed, or removed dies or if the officer who has been suspended dies while under suspension, the vacancy caused by such death shall be filled

up in accordance with the provisions of Sub-sections (2) and (3).

(5) When the person who would otherwise be entitled to succeed to an office is a minor, the Collector shall register the minor as the heir of the last

holder and appoint some other person qualified under Sub-section (i) to discharge the duties of the office until the person registered as heir, on

attaining majority or within three years thereafter (five years after the termination of any war service rendered by him), is qualified under Sub-

section (i) to discharge the duties of the office himself, when he shall be appointed thereto. If the person registered as heir under this Sub-section

remains disqualified under Sub-section (i) for three years after attaining majority (five years after the termination of any war service rendered by

him), he shall be deemed to have forfeited his right to the office. On such forfeiture or on his death the vacancy shall be filled up in accordance with

the provisions of the section as if he was the last holder of the office.

(6) If a vacancy is caused by the resignation, dismissal, removal or suspension of the holder of an office, and the Collector does not give the

direction referred to in Sub-section (4), he shall fill up the vacancy in accordance with the provisions of this section as if it had been caused by the

death of the said holder; provided that, upon the expiry of the period of suspension of an officer who has been suspended, or if, for any reason, an

officer who has been dismissed, removed or suspended, is permitted to resume the office from which he has been dismissed, removed or

suspended the person appointed to fill the vacancy caused by the said suspension, dismissal or removal shall cease to hold office.

Section 13 confers inter alia a right to any person to file a suit before the Collector for any of the village offices specified in Section 3, if he

were entitled to the same u/s 10(2) or (3).

Sub-Section 2 to Section 10, which confers a preferential right among heirs of the last holder incorporates the rule of primogeniture in

accordance with custom. As according to the law (or custom) of succession to property, a child in his mother''s womb at the time when succession

opens is regarded as one in existence, we can take it, that the Act recognizes an unborn son''s claim to the office, if he were in existence on the

date when the vacancy arises. There will not be much difficulty or detriment to public interests in the application of this principle, if the vacancy

arises by reason of the death of the last holder, for any child of his must be born normally within a period of about 280 days. But the application of

this rule to the case of filling up of vacancies in the event of removal from office of the last holder is fraught with difficulty. For a dismissed village

officer might live for several years after his dismissal, and there will always be a chance of his begetting a son till he lives. To recognise any right in

his future son might be detrimental to the public interests even and might even lead to inconvenient results.

The statute makes a different provision for that case. Sub-clauses 4 and 6 of Section 10 provide for filling up of the vacancy in cases of

dismissal of the previous holder. Under the former provision, the Collector can defer permanent appointment to the post till the death of the former

office-holder and make a temporary appointment for the post. But where the Collector does not decide to defer the permanent appointment, he

may by proceeding under Sub-Section 6 make such appointment as if the vacancy had been caused by the death of the holder. Under the latter

Sub-section, an appointment made by the Collector to the vacancy can be set aside when the officer who had been removed or dismissed is

permitted to resume the office. Except in that contingency, there is no provision for setting aside an appointment made under Sub-rule 6. Interests

of public administration require that whenever a permanent appointment is made, there should be a security of service in the appointee. Therefore,

if an appointment is to be made u/s 10(6) , the utmost that can be assumed is to treat the vacancy as one occasioned by the death of the village

officer, i.e., as if it occurs on the date of dismissal. The rule of recognition of an unborn child''s existence will, therefore, have to be applied with

reference to that date. So much can be taken as recognized by the Act.

In the present case the first Respondent was not in his mother''s womb on the date when vacancy arose, but he was so when the actual

appointment was made to the office on 4th September 1940. It is contended on his behalf that his right to the office should be determined with

reference to the date of the appointment and not with reference to any earlier date, namely, the date when the vacancy actually arose. Reliance is

placed in this connection on the decision of Govinda Menon, J., in Pasala Rama Rao, being minor by guardian and adopted mother Kanthamma

Vs. Board of Revenue and Another, . Learned Counsel for the Appellant has challenged the correctness of this decision by placing reliance on the

decision in Ramakrishna Rao v. Sattemma (1960) 1 A.W.R. 433. Those cases related to things that actually existed on the relevant date and no

question of the application of a fictional existence of a state of things arose for consideration. It is, therefore, unnecessary for the purpose of this

case to consider which of the two views is correct. But in addition to the statutory provisions referred to above there are rules made for the

appointment to such offices. If any appointment is in contravention of such rules, occasion may arise for the determination as the validity of

appointment. The Board''s Standing Orders provide for the appointment to a village officer''s post. Order 148(iv) states:

Heirship and qualification will be determined with reference to the state of things existing at the time when the appointment is actually made.

Posthumous adoption will not have the effect of divesting a person, who had been already appointed by the Collector of his office. But if before an

order is actually passed, an adoption takes place, the adopted son will be eligible for appointment as the next heir. Nearer heirs who qualify

themselves between the date of the vacancy and the date of appointment will be preferred to more distant heirs who were fully qualified on or

before the date of the vacancy.

It is not necessary for the purpose of this case to consider whether the rule will be valid after the Constitution, as the appointment was made long

before it. Mr. Kesava Ayyangar, appearing for the Appellant, has challenged the vires of the rule only on the ground of its being opposed to the

provisions patent to make rules to regulate the appointment of its servants; with the Act. We do not see how the Government was incompetent to

make rules to regulate the appointment of its servants, e.g., village officers. A direction of the kind given above in regard to making of such

appointments can in no sense be regarded as ultra vires.

The standing order states that heirship and qualification will be determined with reference to the state of things existing at the time when the

appointments is actually made, which means that regard should be had to the state of things actually existing at the time when the appointment is

made. There is then no scope for the application of any legal fiction as to the existence of an unborn person. The order itself specifically

discountenances the application of the fiction under the principle of relation back of a son posthumously adopted. The provision will, therefore,

apply only if the nearer heir actually exists at that time of the appointment.

Further, in the instant case, it is not even stated that the Collector when he appointed the Appellant to the post was aware that a son was to be

born to Sivanandia Pillai or was in existence in his mother''s womb. But if, at the time of making the appointment, the Collector was made aware

that the dismissed officer was expecting a child, it would have been open to him not to make a permanent appointment but make a temporary one

till such time as he thinks fit. When in such a case, the son is born by the time the permanent appointment is made, his claims will have to be

recognised under standing Order 148, But the adoption of such a course was not obligatory on the Collector, it being open to him to proceed

under Sub-rule 6. Once he decides to exercise his power under Sub-rule 6, as he did in the instant case, the only question will be whether the last

office-holder had no nearer heir under the rules in actual existence at the time of making the appointment. In the present case, the second

Respondent was not in such existence at the time the Collector appointed the Appellant and, therefore, the appointment of the Appellant could not

be set aside.

The appeal is allowed, but there will be no order as to costs either here or before the learned Judge.