1. The first respondent instituted a suit in the Court of the District Munsiff of Gudur for a declaration that he is the rightful holder of the office of headman either of the village of Gudur East or of Gudur West and that he is entitled to be appointed to one of these offices. These villages originally formed one village; but were converted into two in 1918. Before the division took place Gudur consisted of Gudur proper and five hamlets, namely, Vemulapalem, Veerareddi-pallee, Purittipalkm, Puthipallam and Divipalem. The headman of Gudur had jurisdiction over Gudur itself and the hamlets of Vemulapalem and Veerareddipallee, but there was an assistant headman appointed in respect of Purittipallam, Puthipallam and Divipalem. In 1908, the first respondent's father was appointed headman of Gudur, Vemulapalem and Veerareddipallee, and held this office until 1912, when he resigned. The first respondent's name was then registered with the Collector with a view to the first respondent being appointed in his father's place on coming of age and the appellant's father was appointed to discharge the duties of the office in the meantime. In 1905, the second respondent's father was appointed headman with jurisdiction over Puthipallam, Purittipallam, and Divipalem. This was the position in 1918 when Gudur and the adjoining hamlets were formed into two villages and called Gudur East and Gudur West respectively. When this happened the second respondent's father was appointed headman of Gudur East and the appellant's father headman of Gudur West. The second respondent was the headman of Gudur East and the appellant was the headman of Gudur West at the time of the suit. The District Munsiff held that the first respondent had the right to hold the office of headman of Gudur West and therefore was entitled to be recognised in the place of the appellant. A declaration to this effect was accordingly granted. On appeal to the District Court of Nellore it was held that the declaration should merely be that the appointment of the appellant is illegal and that the first respondent's family has a right to claim that the selection should be from the family.
2. The appellant contends that the first respondent is not entitled to any declaration and that the suit should be dismissed for the following reasons: - (1) the failure of the Revenue authorities to appoint the first respondent headman of one of the two villages did not give rise to a cause of action; (2) if the failure did constitute a cause of action, the Civil Court had no jurisdiction in the matter; and (3) the first respondent was rightly passed over.
3. Before discussing the questions involved in the appeal it is necessary to examine the relevant sections in the Madras Hereditary Village Offices Act, 1895. Section 6 gives the Board of Revenue power to group or divide villages and provides that when this takes place the existing offices 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 best qualified from among the families of the last holders of the offices which have been abolished. By the Madras Village Offices Amendment Act of 1930, Sub-section 3 was added. This sub-section reads as follows:
Notwithstanding anything contained in Sub-section (1) or Sub-section (2), no person shall be deemed to be ineligible for selection under Sub-section (1) or retention under Sub-section (2) by reason only of his being a minor. If a minor is selected under Sub-section (1) or retained under Sub-section (2), he shall be registered as the holder of the office and thereafter the procedure laid down in Sub-section (S) of Section 10 shall be adopted.
4. The addition of this sub-section was made long after the appellant and the second respondent had received their orders of appointment.
5. Section 10 states the rules to be observed by the Collector when filling a vacancy in any village office. Sub-section (1) provides:
No person shall be eligible for appointment who-
(a) is not of the male sex;
(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 under Section 20;
(e) has been convicted by a Criminal Court of an offence which, in the opinion of the Collector, disqualifies him for holding the office.
6. Sub-section (2) declares that the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaries in Southern India. Sub-section (3) states that 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). Sub-section (4) says that where an office has become vacant by the dismissal or suspension of the last holder the Collector may direct that until the death or return to duty of such last holder the duties of the office shall be performed by some person who is not an undivided member of the family of the dismissed or suspended officer. Sub-section (5) states the procedure to be adopted where the heir of the last holder is a minor. He is required to register the heir and to appoint a person to discharge the duties of the office until the heir comes of age. This procedure was followed when the first respondent's father resigned in 1912. Sub-section (6) provides that 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 the section as if it had been caused by the death of the holder of the office.
7. It is common ground that in making appointments under Section 6 the Revenue authorities have always regarded Sub-section (1) of Section 10 as being applicable, and they are right in so doing. Section 10 deals with filling up of vacancies, but the word vacancy does not necessarily imply that there has been a previous incumbent in the office. On the amalgamation or division of villages new offices are automatically created and until they are filled up they are vacant. It is also common ground that the Revenue authorities have never regarded Sub-section (5) as applying in such cases and here again the practice is in accordance with the wording of the sub-section. In Sub-section (5) the governing word is 'succeed' and there can be no succession to an office until it has once been filled.
8. Section 13 states that any person may sue before the Collector for any of the village offices specified in Section 3 or for the recovery of the emoluments of any such office on the ground that he is entitled under Sub-section (2) or (3) of Section 10 of the Madras Proprietary Estates Village Service Act, 1894, or under Sub-section (2) or (3) of Section 10 or Sub-section (2) or (3) of Section 11 or Section 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 13 stops here and therefore only deals with certain suits. The only other section dealing with jurisdiction, apart from Section 23 which has reference to appeals against orders and decrees of the Collector, is Section 21 which reads as follows:
No Civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office or except as provided in proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office.
9. It will be observed that the effect of this section is to take away the jurisdiction of the Civil Court in certain cases only. I will return to the effect of this section later and will now refer to certain of the cases quoted in argument.
10. In Krishnaswami Naidu v. Akkulammal (1918) 9 L.W. 90, Napier, J., was of the opinion that no right of suit exists in a case of this nature. The reasoning was this. What the plaintiff seeks to do is to have it declared that he is the person eligible under the Act and therefore the appointment of any person who is not eligible under the Act is bad. The fact that a man is eligible does not confer upon him the right of appointment. This was a case for a declaration that the appointment of the defendant as a headman where two villages had been amalgamated under the Madras Proprietary Estates Village Service Act, 1894, was illegal. That Act so far as the present appeal is concerned is on all fours with the Madras Hereditary Village Offices Act, 1895. The plaintiff there also sued for the recovery of emoluments of the office. Sadasiva Aiyar, J., who with Napier, J., formed the Bench which heard the appeal, did not decide whether a suit would lie to enforce a claim based on Section 6(1). Both the learned Judges were of the opinion that the third defendant in the suit had been properly appointed. In Alagiasundaram Pillai v. The Midnapore Zamindari Co., Ltd. (1919) 12 L.W. 767, Odgers, J., agreed with the opinion of Napier, J., as did Srinivasa Aiyangar and Jackson, JJ., in Kanthavadivelu v. Ratnaswami (1927) 54 M.L.J. 357. We consider that there is here a failure to give full weight to the words in Section 6(1):
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.
11. This direction is mandatory. The Collector shall select the person best qualified from among the members of the family and if there is a person in the family who does not suffer from any of the disqualifications referred to in Section 10(1), he is bound to select that person. If there are several persons he is bound to choose the one he considers most suitable. The office of village headman has always been regarded as a hereditary office and one of the objects of the Act is to preserve the hereditary character of such office. Therefore when the legislature says that when an old office is abolised and a new one is created in its place the new office shall be filled from the family connected with the old office, it is difficult to understand the reasoning which says there is no enforcible right. Of course there must be a me*nber of the family possessing the necessary qualifications.
12. Great stress has been laid by the learned advocate for the appellant on Venkata Jagannadha v. Veerabhadrayya (1921) 41 M.L.J. 1 : L.R. 48 I.A. 244 : I.L.R. 44 Mad. 643 (P.C.),a. decision of the Privy Council. In that appeal the Judicial Committee was concerned with the question whether village lands which had been allocated to the karnam became his family property. At page 650 of the report, their Lordships observe:
It is accordingly clear that since that time in Madras (passing of the Acts of 1894 and 189S) 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 would accordingly appear, apart from the authorities, that lands held as appurtenant to the office so enjoyed should continue to go with that office and should accordingly be impartible.
13. At page 655 appears this passage:
A hereditary right in a karnam or his family can only, at the utmost, be said to constitute a certain spes among persons within the area of selection of those eligible for the office. But it is not, as has already been observed, even so limited. The power of selection rests with the administrative officials, who alone are judges of the eligibility of the karnam for the time being, and it is the settled law of Madras that the emoluments in the shape of lands follow the office, ex necessitate.
14. Their Lordships were far from considering the question whether on the creation of a new office under Section 6(1) the members of the family of the last holder of the abolished office had the right to compel the Collector to carry out the duty cast upon him by the section and consequently we are unable to regard Venkata Jagannadha v. Veerabhadrayya (1921) 41 M.L.J. 1 : L.R. 48 I.A. 244 : I.L.R. 44 Mad. 643 (P.C.), as confirming the opinion of Napier, J.
15. In Ramakrishnayya v. Venkataranga Rao (1932) 63 M.L.J. 577 : I.L.R. 56 Mad. 134, Reilly and Ananthakrishna Aiyar, JJ. held that Section 6(1) does create a legal right in the family. The facts of that case were shortly these. In 1901 a village was made into two villages and in 1912 the two villages were converted into three villages. When the three villages were created in 1912, each of the two then incumbents received appointments, but as regards the third village the Collector selected a person who belonged to another family. Ananthakrishna Aiyar, J., expressly held that Section 6 (1) was of a mandatory character and in the course of his judgment observed:
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; (6) 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.
16. With these remarks we are in entire agreement and consequently hold that Section 6(1) does create a right in the family which can be enforced by suit.
17. This brings me to the question whether Sections 13 and 21 close the doors of the Civil Court. I have already referred to the wording of these sections. It is quite clear that Section 13 merely says that certain suits may be instituted in the Collector's Court and the suit out of which this appeal arises is not in the categories mentioned in that section. In Section 21 the important word is 'succeed'. This is not a case of succession. It is true that in Alagiasundaram Pillai v. The Midnapore Zamindari Co., Ltd. (1919) 12 L.W. 767, Bakewell, J., expressed the opinion that the word 'succeed' in Section 21 is not used in the strict sense, but means a right to be appointed upon a vacancy in an office. We do not agree with this view. The word 'succeed' is used in Section 10(5) which admittedly does not apply to the filling of new posts under Section 6(1). Here the word 'succeed' is given its ordinary meaning. The word must be given the same meaning throughout and we can only give it its ordinary meaning in Section 21. Giving it its ordinary meaning this section does not debar the present suit and this was the opinion of Ayling and Coutts-Trotter, JJ., in Kothandaramayya v. Ramalingayya (1920) 12 L.W. 663.
18. The learned advocate for the appellant has here again relied on Venkata Jagannadha v. Veerabhadrayya (1921) 41 M.L.J. 1 : L.R. 48 I.A. 244 : I.L.R. 44 Mad. 643 (P.C.), because of this passage at page 649:
Although in point of fact there might be even a long continuance of the office in a particular family, the right of the Government and the decision of the revenue authorities to remove a karnam from office and to appoint another, were not open to question in Courts of law.
19. The remarks applied to the other passages quoted from this judgment apply here. Their Lordships were not considering whether the effect of Sections 13 and 21 was to exclude Civil Courts entertaining suits of this nature. For the reasons indicated we consider that such suits are not excluded and that the District Munsiff's Court and the District Courts had jurisdiction in the matter.
20. But the learned advocate for the appellant is on a firmer ground when dealing with his third point. His argument here is that in as much as Section 10(5) does not apply to appointments under Section 6(1) and as Sub-section (3) to Section 6 was not inserted in the statute till 1930, the Collector was right in appointing the appellant as the headman of Gudur West. It appears that at the time the appointment was made the first respondent's father was an invalid and the first respondent who was the eldest son was still a minor and therefore was not eligible for appointment by reason of Section 10(1). The fact that his name had been registered under Section 10(5) carried with it no right. It was the duty of the Collector to select a person from the family of the first respondent's father, who was qualified to hold the office, if there was such a person. There was no person qualified and the Collector had to go outside the family. In doing so, he committed no breach of duty; in fact it was the only course open to him. Therefore the appointment of the appellant was properly made and the lower Courts had no power to interfere with it. Consequently the suit should have been dismissed.
21. In conclusion I desire to state that, if the Act under discussion had been drafted better, there would have been a great saving of money and judicial time, not only in this case but in others. The Courts in India have frequently had occasion to draw attention to faulty drafting in statutes. The principles which the legislature had in mind may be apparent; but the Courts can only interpret statutes as they find them and cannot read into them provisions which have been omitted by faulty drafting. In this case it has been suggested that the Act of 1930 which inserted Section 6(3) in the Madras Hereditary Village Offices Act, 1895, was a declaratory Act passed to clear up doubts and that the main Act should be read as if the sub-section had always been there. The answer is that the preamble does not govern plain provisions in the body of the Act, and where it is clear that the amending Act is more than declaratory it cannot be given retrospective effect.
22. The appeal will be allowed and the suit dismissed with costs in this Court and in the Courts below. These costs will be payable by the first respondent.