Sarraju Venkataraghaviah vs Sarraju Chenchu Subbiah

Madhavan Nair, J.—The defendant is the appellant. This second appeal arises out of a suit instituted by the plaintiff for a declaration that the

order of the Revenue Divisional Officer of Kavali dated 18th May 1925, appointing the defendant as karnam of Somavarappadu, is ultra vires and

does not bind him.

On a vacancy arising in the office of karnam in the proprietary village of Somavarappadu, the proprietor appointed the plaintiff to the office by

his order dated 9th December 1924 and sent notice of the appointment as required by the Act (Act 2 of 1894) to the revenue divisional officer,

Kavali. On the ground that he is a nearer heir the defendant, a minor by his guardian, applied to the revenue ""divisional officer praying that he

should be appointed as the karnam. On 18th May 1925 the revenue divisional officer disallowed the appointment of the plaintiff as karnam holding

that the defendant was the next heir to the office and directed the registration of his name as heir to the last holder of the office.

The plaintiff''s case is that the order of the revenue divisional officer is illegal and ultra vires, and he prays for its cancellation.

The defendant''s case is : (1) that the civil Court has no jurisdiction to entertain this suit by reason of the provisions of Section 21, Madras

Hereditary Village Offices Act, Act 3 of 1895, and the Madras Proprietary Village Service Act, Act 2 of 1894; (2) that a suit of this nature is

barred by Section 42, Specific Relief Act; (3) that even according to the pedigree sent by the proprietor to the revenue divisional officer he, the

defendant, is the next heir to the office in question and not the plaintiff; and that the revenue divisional officer has on this ground jurisdiction to set

aside the proprietor''s order appointing the plaintiff who is not the next heir to the office; and (4) that the plaintiff''s only right is to prefer an appeal

u/s 11 (3), Act 2 of 1894 against the order of the revenue divisional officer.

The Madras Act of 1894 admittedly applies to the office of the karnam in question and the provisions of the Madras Act 3 of 1895 also apply

to it by reason of Section 3 (1) of that Act. Section 21, Act 3 of 1895 provides that

no civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in section...

The office in question being an office specified in Section 3, the question is whether the Court has no jurisdiction to entertain the suit. Section 13

(1) of the same Act provides that

any person may sue before the Collector for any of the village offices specified in Section 3...

on the ground that he is entitled under Sub-section 2 or Sub-section 3, Section 10, Madras Proprietary Estates Village Service Act, Act 2 of

1894, to hold such office subject to certain provisions. Section 10, Madras Proprietary Estates Village Service Act, Act 2 of 1894, lays down

certain rules to be observed by the proprietor in making the appointment. It'' contains three subsections; Sub-section 1 sets out the qualifications to

be possessed by the person to be appointed; Sub-section 2, the rule of succession to be followed; and Sub-section 3, the rule to be followed in

case the next heir is sot qualified, or in case there is no heir at all. It has been held in a series of decisions in this Court: Krishnaswami Naidu v.

Akkulammal [1919] 50 I.C. 185, Muvvula Seetharam Naidu v. Doddi Rami Naidu [1910] 33 Mad. 208 and Kodandaramayya v. Ramalingayya

[1920] 60 I.C. 650, that Section 21, Act 3 of 1895, takes away the jurisdiction of the civil Court only in cases in which the jurisdiction is

conferred on the revenue Courts by Section 13 of the Act. The correctness of this proposition of law is not challenged by the learned advocate for

the appellant. What he argues is that the plaintiff''s present suit, though the plaint is cleverly worded to take it out of the scope of Section 13, is

substantially a suit for the village office specified in Section 3 on the ground that he is entitled to it under Sub-section 2, Section 10, Madras

Proprietary Estates Village Service Act, and so the civil Court has no jurisdiction to determine it. I have read the plaint carefully, and I cannot

agree with this contention. The plaintiff does not bring his suit for the office on the ground that he is entitled under Sub-section 2 or sub Section 3,

Section 10 of Act 2 of 1894 to the office in question. His case is that he has been validly appointed as karnam by the proprietor, at he is holding

the office and discharging its duties, and that the appointment of the defendant by the Revenue Divisional Officer in cancellation of his own

appointment is null and void. He does not ask for a declaration that he is the heir to the office in question or for restoration to his appointment as

karnaui. ""His position apparently is,"" as pointed out by the learned District Munsif

that if the order of the Revenue Divisional Officer is held to be illegal and ultra vires and set aside, his appointment as karnam by the proprietor will

stand good.

In my opinion a suit of this nature does not obviously fall within Section 13, Act 3 of 1895 and therefore it appears to me that Section 21 of that

Act is not a bar to the maintainability of the suit.

The second question is whether a suit for a declaration that the order of the Revenue Divisional Officer is ultra vires and does not bind the

plaintiff, is barrel by Section 42, Specific Relief Act. It is argued that, as according to the genealogical tree furnished by the proprietor himself the

defendant and not the plaintiff is the next heir to the last holder of the office of karnam, the plaintiff is not entitled to the office under Sub-section 2,

Section 10 and therefore the plaintiff has no legal character sufficient to sustain the action and the suit for the declaration therefore should have

been dismissed by both the lower Courts. The argument was not put in this form in the lower Courts. What was argued there was that a suit of this

nature for a declaration that the order of the Revenue Divisional Officer appointing the defendant karnam is ultra vires, is not maintainable and the

lower Courts rightly overruled the objection pointing out that according to the decision of the Privy Council in Robert Fischer v. Secretary of State

[1899] 22 Mad. 270 the suit is :

in substance one to have the true construction of a statute declared and to have an act done in contravention of a statute rightly understood

pronounced void and of no effect.

It was not argued in the lower Courts that he has no title to maintain the suit. It is now argued that the decision in Rohert Fischer v. Secretary of

State is inapplicable as the plaintiff in that case had obviously title to institute the suit which the plaintiff in this case does not have. Whether the

plaintiff is the next heir in the order of succession or not, it is clear that he is now in possession of the office and is discharging its duties. This by

itself will give him sufficient title to sustain the action. But apart from it, if the Revenue Divisional Officer had no jurisdiction to pass the order

cancelling the plaintiff''s appointment then his present title to the office, as nominee of the proprietor, cannot be questioned. The substantial question

is therefore whether the order of the Revenue Divisional Officer which is called into question is ultra vires and not binding on the plaintiff and this is

the third point for decision.

When the office of karnam falls vacant in a village in a proprietary estate, Section 9, Act 2 of 1891, makes it obligatory on the proprietor of the

village to appoint a person to the vacant office and send notice of the appointment in writing to the Divisional Officer in charge of the division.

Section 10, as I have already pointed out, lays down certain rules to be observed by the proprietor in making appointments. Sub-section 1 of that

section enumerates the several disqualifications to the office. It states that

(1) no person shall be eligible for appointment to any village office who: (a) is not of the male sex; (b) has not attained the age of majority; (c) is not

physically and not 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 32 and (e) has been convicted by a criminal Court of any offence which, in the

opinion of the Revenue Officer in charge of the division or of the District Collector, disqualifies him for holding the office.

Sub-section 2 says:

The succession to all hereditary village offices shall devolve on a single heir according to the general custom and rule of primogeniture governing

succession to impartible zamindaris in Southern India.

In the present case it will be remembered that the Revenue Divisional Officer set aside the appointment of the plaintiff by the proprietor on the

ground that the appointment contravened the rule of succession mentioned in Sub-section 2, Section 10. This was done u/s 11. Sub-section 1,

Section 11 confers powers on the Revenue Divisional Officer to record his objections to; the appointment made by the proprietor and call on him

to appoint another person. This subsection is as follows:

If the Revenue Officer to whom notice of appointment is seat u/s 9 considers the per-son appointed to be qualified under Sub-section 1 of the

preceding section, he may, at any time within three months from the date of the receipt by him of the Said notice of appointment, and, in cases

falling under Clauses (c) and (e) in Sub-section 1, Section 10, after giving notice to the parties concerned and making enquiry, record his

objections and call upon the proprietor to appoint another person, and the proprietor shall thereupon do so and send notice of such new

appointment to the said Revenue Officer within six weeks after such requisition....

(It may be observed in passing that the word ""qualified"" appearing in Sub-section 1, Section 11 in the Government publication of the Act is

apparently a mistake for the word ""disqualified."") Sub Section 2 states in certain oases the Divisional Officer may himself make the appointment.

Stated generally, this subjection confers powers on the Divisional Officer to appoint another individual to the office in cases where a proprietor

who has the right to appoint omits to do so within the statutory period or, if the person again appointed by the proprietor is also disqualified under

Sub-section 1, Section 10. Where action is taken by the Revenue Officer under Sub-section 1, Section 11, it appears that the right of appointment

is conferred on the Revenue Divisional Officer only in respect of cases where the nominee of the proprietor is disqualified under Sub-section 1,

Section 10, but does not extend to cases where the nominee is not in fact the nearer heir to the last holder of the office, that is the oases where the

proprietor''s appointment contravenes the provisions of Sub-section 2, Section 10. This appears to be clear from the language of the subsection. It

is admitted on all heads of disqualifications referred to in Sub-section 1, Section 10. In my opinion the Divisional Officer therefore had no

jurisdiction to set aside the order of the proprietor and his order is not warranted by the powers conferred on him by the statute. The observations

of Sadasiva Ayyar, J., in Krishnaswami Naidu v. Akkulammal, lend support to this view of the jurisdiction of the Divisional Officer to set aside the

appointment by a proprietor in a case like the present one.

The last question is whether the plaintiff is precluded from instituting the suit as he is given the right under Sub-section 3, Section 11, of appeal

to the District Collector against the Divisional Officer''s order. This subsection runs as follows:

Whenever an appointment is disallowed under this section, an appeal shall lie to the District Collector within one month, or, if the officer

disallowing the appointment is the District Collector, an appeal shall lie to the Board of Revenue within three months.

Where the Divisional Officer makes an appointment after taking action under Sub-section 1, Section 11, I think this subsection should be

understood as confining the right of appeal to oases where the proprietor''s appointment is disallowed by the Revenue Divisional Officer on the

ground that the proprietor has contravened the provisions of Sub-section 1, Section 10. If so understood, it is clear that the plaintiff has no right of

appeal in the present case. Even if the subsection is to be understood as giving the plaintiff a right of appeal in all cases against the Divisional

Officer''s order it does not say that the aggrieved party has no right of suit.

For the above reasons this second appeal fails and is dismissal with costs.