1. The plaintiff held the office of Karnam, and when he was granted leave the defendant was appointed to act for him. The plaintiff subsequently resigned his post in favour of his minor son, and upon his recommendation the defendant was appointed Karnam gumastha during the minority. As consideration for making that recommendation, the plaintiff obtained from the defendant an agreement for the payment of a sum of Rs. 3 per mensem during the period, 1st May, 1926 to 24th June, 1929. The Small Cause suit out of which this petition arises was to enforce that agreement, and the defence was set up that the consideration was unlawful, being opposed to public policy.The learned Subordinate Judge has decreed the claim, disallowing the objection on the ground that the arrangement only amounted to a division of the emoluments between the deputy and the mirasi-holder, i.e., the minor son. This argument does not convince me of the lawful nature of the agreement. The appointment of the defendant as Karnam was made under Sub-Section (5) of Section 10 of the Madras Hereditary Village Offices Act (III of 1895), which requires that 'the Collector shall register the minor as the heir of the last holder and appoint some other person qualified under Sub-Section (1) to discharge the duties of the office' until the minor attains his majority. The appointment is to a public office, it is made by the Collector, and if the Collector takes into consideration the recommendation or wishes of the outgoing incumbent, whether as such or as guardian of the minor - which under the Act he does not appear bound to do - it must only be upon the understanding that the advice is given in the interests of the office, i.e., of the public and not for the personal profit of the adviser. I can see no essential difference between a case of this kind and any other case in which a recommendation is made to an appointing authority, and it hardly bears discussion that the receipt of a pecuniary consideration for making such a recommendation is opposed to public policy.
2. My attention has been drawn to a somewhat similar case, Nizam Mohaddin v. Mahammed Vufa Sahib 1910 M.W.N. 714 : 9 M.L.T. 159, decided by Sankaran Nair, J., relating to a Khatib, who is a Mahomedan priest officiating on certain occasions in a mosque. The mother of the minor nominated the defendant, and in consideration of such nomination, which was accepted by Government, the defendant executed the suit agreement. The judgment runs as follows:
I do not think that the enforcement of this agreement is against the public policy. The defendant is really a deputy acting for the khatib and not the khatib himself. The petition is dismissed with costs.
3. It may be that the appointment of Khatib in that case was not strictly comparable with the appointment of the defendant as karnam, though the arrangement would seem to savour somewhat strongly of simony. The case in Saminatha Aiyar v. Muthusami Pillai I.L.R. (1907) 30 Mad. 530 : 17 M.L.J. 252 is of more assistance. It related to the succession to a Karnam's office, and Subramania Aiyar, J. said:
It is clear to my mind that the money was promised in consideration of the permanent karnam doing what lay in his power to secure the appointment permanently to the defendant. If this view is correct the agreement, unquestionably, was unlawful as shown by Illustration (f) to Section 23 of the Contract Act.
4. So here, I am clear that the agreement was unlawful for the same reason, and ought not to have been enforced. As the principle involved is a serious one I allow the petition, set aside the decree of the Lower Court and dismiss the suit with costs in both Courts.
5. Note. - Since the above judgment was written, the respondent's learned Advocate has brought to my notice some provisions of Standing Order No. 148 of the Board of Revenue, Paragraph 9 runs as follows:
Minor's family to be consulted. - In selecting the deputy, regard should be had to the wishes of the minor's near relatives, and some one acceptable to them should be appointed if possible; but if the person selected by the minor's family is not qualified or is otherwise unsuitable, another may be appointed. A deputy once appointed should not be dismissed merely because the minor's family expresses a preference for some one else.
6. Paragraph 11 states that 'neither the minor nor his family has any claim on the deputy for maintenance.'
7. I do not think that these instructions make an agreement such as is now in question any the more lawful. The acceptability of the deputy should depend only upon his personal qualities, and not upon his willingness to make a payment to the minor's family. I have no doubt that if the Collector had been aware of the agreement he would have taken exception to it and, at the least, made the petitioner's appointment contingent upon its cancellation.