1. Plaintiff sues to declare that he is the properly appointed Karnam of Vinjamur under the Madras Proprietary Estates Village Service Act, Act II of 1894, and that the appointment of the 1st defendant to that office is ultra vires and invalid.
2. This is a case to which Section 15 of Act II of 1894 applies. Plaintiff was appointed by the Deputy Collector of Atmakur acting under Clause (3) of that Section. Unless that appointment can be held to be a valid one, plaintiff's suit must fail, and, it will be unnecessary to consider whether the order of the District Collector setting aside that appointment and appointing the 1st defendant instead which was confirmed by the Revenue Board, was ultra vires or not. The burden is on the plaintiff to establish the validity of his appointment in this case.
3. The Deputy Collector could act and make his own nomination under Clause (3) only if the proprietor failed to submit his nomination to his office within a period of six weeks from the creation of the new office if Clause (1) applied or from the date of the Collector's notice under Clause (2) if that clause applied.
4. It is contended for the 1st defendant appellant that there was a proper submission of his name within time, made by the proprietors and that it was therefore not open to the Deputy Collector to appoint his own nominee.
5. The procedure for the creation of a new office is laid down in Section 6 of the Act. After the necessary preliminary steps are taken and the Board's sanction is obtained the section directs that a notification about the grouping of the Villages in connection with the creation of the new office shall be published in the District Gazette as well as in the Village in question and a copy of it given to the proprietor. We are of opinion that in the case of the creation of a new office under Section 15 Clause (1) the starting point for the six weeks will be the day on which all the requisite steps have been completed under Section 6 or in other words the day on which the last step was completed.
6. Having decided the starting point generally, we must see whether there was in this case a valid submission, within the requisite period of a name for the office by the proprietors. The 1st defendant relies on Ex. X as the proper submission for the purpose. It is dated 9--10--14 and it recites that notice was given to the proprietors on 15--9--14, that is, within six weeks prior to its date. It is not signed by the proprietors but it purports to have been made by them and is signed by a person as their 'agent and power of attorney holder'. The 1st defendant is nominated in it for the office of the Karnam of Vinjamur.
7. Several objections have been taken to its validity which we have to consider. To understand them fully, it is necessary further to mention that the notice recited in Ex. X was sent to the proprietors by the Tahsildar of Udayagiri apparently under the orders of the Deputy Collector. The District Collector sent again to the proprietors what is described as 'a formal notice' on 7-11-14; these notices are not now produced. After the receipt of the 2nd notice the proprietors sent another nomination Ex. XI signed by one of them wherein they again nominated the 1st defendant and in doing so referred to their previous nomination of him which their agent had submitted under their orders given to him by telegram Ex. V and letter Ex. IV.
8. Ex, X was treated as 'of no value' by the Deputy Collector as, according to him, ''the proprietors' agent had no power to send such nominations or this office to give such notice of the changes in the village offices' and he refers to Section 1 of Act IV of 1900 and Section 15(2) of Act 11 of 1894 as his authority. It may at once be observed that Section 1 of Act IV of 1900 was in effect repealed by Section 2 of the Madras Limited Proprietors Act, Act IV of 1911, Even otherwise Section 1 would have had no bearing on the present case. Evidence makes it quite clear in this case that the choice in favour of the 1st defendant was really exercised by the proprietors and not by the agent. See Ex. IV and V and the recital in Ex. XI. It is a general principle of law that what can be done by a person can be done for him by a duly authorised agent unless there is an express or implied prohibition against it. As the power of the choice of the new officer is given to the proprietor under Section 15 of Act II of 1894 and he has to exercise his own choice there is an implied prohibition against his delegating that power. But we have not been referred to any section or rule or any other consideration preventing an agent from acting for the proprietors in formally embodying their nomination in the form prescribed for it and signing it for them and submitting it. If the Deputy Collector had any doubt of the agent's power to act on the principal's behalf, he should have called for proof; but we think he was not right in rejecting Ex. X on the ground that it was not signed by the proprietors. It was further argued that as the proprietors themselves had treated Ex. X as invalid and submitted a fresh nomination by Ex. XI, the former cannot be relied upon any more. But in Ex. XI the proprietors refer to Ex. X and confirm their first nomination and only purport to send Ex. XI because they were made to understand that Ex. X was not properly signed. If Ex. X were otherwise valid we think Ex. XI cannot be taken as affecting its validity.
9.The next objection to Ex. X is that it was sent in reply to an invalid notice, as it is argued that the notice sent in September was not a valid one because it was sent by the Tahsildar and not by the Deputy Collector. The notice issued by the Tahsildar is not before us; and we are not satisfied that it was an improper notice, which presumably it was not, being an official Act. But even if it was an unauthorised notice we do not think it will materially affect the case. Taking the notice of the Collector of the 7th November as the proper notice, it would merely follow that the nomination under Ex. X was submitted a little too soon. So far as we see there is nothing to prevent a proprietor submitting his nomination in advance in anticipation of a new office being created; such a submission if received and kept on the file and not rejected by the authorities would take effect when the office is created and the time for appointment comes. Section 15(3) provides for the latest date by which the submission should be made. It may be open to the proprietors to withdraw a nomination made prematurely and substitute a new nominee but they did not do so in the present case, Such a power to withdraw may exist even with reference to a nomination made after the creation of the office till the nominee is accepted and appointed by the Divisional Officer. The power to withdraw therefore does not in any way affect the validity of a nomination made. The argument that Ex. X was premature is thus of no force. It is not suggested that there was any starting point for the six weeks earlier than the Tahsildar's notice.
10. We think therefore that Ex. X was a proper nomination of the 1st defendant, and is sufficient compliance with the law and was within the time and it should have been accepted and acted upon by the Deputy Collector in the circumstances of this case. His nomination of the plaintiff to the Karnam office was therefore ultra vires and plaintiff's suit based on it must fail.
11. Second Appeal is therefore allowed and the decrees of the lower courts reversed and the plaintiff's suit dismissed with costs throughout.