Decided on September 15,1953



Govinda Menon - (1.) ONE Pasala Satyanarayana, who was the permanent village headman of the village of Jagannathapuram in Tadepalligudem taluk, died on 11th January 1941 leaving behind him two minor sons. On 7th May 1941 the eldest son was registered as an office-holder under the provisions of the Madras Hereditary Village Offices Act, 1895 (Act III of 1895) and one Subbaraju was appointed as deputy. On 6th June 1944 the minor registered office holder died and it was necessary to make a fresh appointment to the office. In the meanwhile the younger son had also died with the result that the progeny of Satyanarayana had become extinct. Thereafter the widow of Satyanarayana, after getting the authority of Satyanarayana's father, adopted the present petitioner to her husband on 22nd June 1944. In these circumstances, from 22nd June 1844 the present petitioner became a member of the family of the deceased Satyanarayana as his adopted son. The widow, acting as the guardian of her adopted son, applied for the registration of the office of Village headman in the name of the adopted son, the minor petitioner, and for the continuance of the deputy till the petitioner became a major. Two other persons also applied for being appointed to the office of village headman. Both of them claiming to be the nearest heir to the deceased officeholder. The revenue authorities recognised the claim of the petitioner and registered him as the village headman. Subsequent to that, the second respondent filed V. O. S. No. 1 of 1945 on the file of .the Court of the Revenue Divisional Officer, Bhhnavaram, claiming that he was the. person entitled to succeed to the office and that the adoption of the petitioner was neither true nor valid. The Revenue Divisional Officer decreed the suit and on appeal therefrom by the petitioner, the Collector of West Godavari, following in R. S. A. No. 1 of 1947 set aside the order of the Revenue Divisional Officer, following the decision of the Privy Council in -- 'Anant Bhikappa v. Shankar Ramachandra', AIR 1943 PC 196 (A) on the ground that the posthumous adoption of the petitioner related back to the date of the death of the minor registered holder and that, had the effect of divesting every other heir. The result of this was that the petitioner was confirmed as the village headman. The second respondent took up the matter to the Board of Revenue. The Board, by their proceedings dated 17th October 1949, held, that the order of the Collector could not stand. The reason given was that the decision of the Privy Council related to the devolution of properties which can have no application to offices under the Government. Such being the case, at the time the vacancy occurred the present petitioner had not been adopted. On these grounds the order of the Collector was set aside and that of the Revenue Divisional Officer restored. The above application is for the issue of a writ of certiorari to quash the order of the Board of Revenue registering the second respondent as the village headman.
(2.) UNDER Section 10, Sub-section (2) of the Madras Hereditary Village Offices Act, 1895, 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. Therefore the right to succeed to the office should depend upon the custom and rules of primogeniture according to Hindu Law prevalent in Southern India. According to the decision in-- 'Katama Nachiar v. The Rajah of Sivaganga', 9 Moo Ind App 539 (PC) (B) the question of succession to an impartible estate on the death of the owner of the estate depends upon the rule of Hindu Law which governs the succession to partible estate, and therefore what has to be considered is who would be the successor if the estate had been partible instead of being an impartible one. The only difference is that the rule of primogeniture applies. Such being the case, Section 10, Sub-section (2) of Madras Act III of 1895 only lays down the general rule which should govern the selection of a successor to the office of a hereditary Village headman. It is settled law now that once there is a posthumous adoption it relates back to the date of the death of the adoptive father subject to a very few exceptions. The adopted son would succeed to all the rights which a natural born son would have been entitled to in respect of the deceased adoptive father's properties. It is also clear that even if the property had vested in some other heir, the effect of adoption would bo to divest that estate subject to some exceptions and vest the same in the adopted son, Vide the decision of the Privy Council in -- 'AIR 1943 PC 196 (A). Therefore in the present case when the petitioner was adopted on 22nd June 1944, he must be deemed to have been in existence fictionally even on the date of the death of his adoptive father on 11th January 1941. The distinction which the Board seeks to make out in that the Privy Council decision refers only to the devolution of properties and can have no application to offices under the Government "may, to some extent, be correct because a right to succeed to a hereditary office is not property and the relation back of an adopted son's rights is only with regard to property. See --,'M. Venkata Jagannatha v. M. Veerabhadrayya', AIR 1922 PC 96 (C) and --'Purushotham v. Venkatappa', (D). But the Board in this case has overlooked the circumstance that at the time of the registration, the adoption had already taken place and therefore the petitioner was the brother by adoption of the first holder of the office who died on 6th June 1944. What the Collector has to take note of is the state of, things at the time of the registration of the appointment and not at the time of the occurrence of the vacancy. Though therefore the posthumous adoption 6ahnot have the effect of diverting the incumbent of the office, if an appointment had already been made by the Collector, yet if before an order is passed under Section 10 the Act, an adoption takes place, i.e., at the time of the appointment the adoption had already taken place, then the adopted son could claim to be eligible for appointment as the next heir within the meaning of Section 10(2) of the Act. Viewed in that light, the petitioner had become the adopted son when proceedings for the registration took place. The order of the Revenue Board is therefore 'ultra vires' and without jurisdiction and is hereby quashed. The order of the Collector in R.S.A. No. 1 of 1947 is hereby restored with costs. Advocate's fee Rs. 100.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.