1. Under Section 15 of the Proprietary Estates Village Service Act, Madras Act II of 1894, the newly created office in this ease is hereditary. Section 9 gives the power of appointment to the new office to the proprietor and the manner in which he shall proceed is declared by Section 15; he has to ascertain the members of the family of the last holder, and then to select from among them the person whom he may consider best qualified.
2. In making the appointment to a new office which is not hereditary, the choice of the proprietor is limited by Section 15(1) to the family of the last holder, but within that limit he may select the person whom the considers to be best qualified under the rules set out in Section 10
3. In the case of a vacancy in an hereditary office, under Section 9 the proprietor also makes an appointment, but under Sub-sections (2) and (3) of Section 10, he is bound to have regard to the rule of primogeniture and his choice is, therefore, limited to a particular individual of the family of the last holder. A vacancy may arise otherwise than by the death of the incumbent and the word succession' is, therefore, not used in the strict sense of the acquisition of an interest upon the death of a person but means the right to be appointed upon a vacancy in an office.'
4. In the case of a newly created office there has been no death and strictly speaking there is no succession' : but there is a vacant office and having regard to the express provision contained in the first sentence of Section 10 that the proprietor shall observe the rules contained in all the Sub-sections, I think that, in this case, the word succession must be held to intoned the right to be appointed to a newly created village office and the word heir to include the member of the family of the last holder who would succeed upon the death of a predecessor in the office.
5. I may also point out that Section 9 applies to any vacancy and, therefore, the word 'succession' must apply to a vacancy caused by the resignation or dismissal of an incumbent of an hereditary office : the meaning of the word heir must in such cases be similarly extended. In the case reported in Krishnaswami Naidu v. Akkulammal 50 Ind. Cas. 185 : (1919) M.W.N. 29 : 24 M.L.T. 489 : 9 L.W. 90 it was held that the word succeed does not apply to a first appointment to a newly created office, but the attention of the Court does not appear to have been drawn to the words ' a vacancy ' in Section 9 and to the extended meaning which must be given to the words succession and heir when the vacancy is occasioned otherwise than by the death of the incumbent, or to the provision in Section 10, read with Section 9, that in making an appointment to a newly created office the proprietor must observe the rule- of succession contained in Sub-sections 2 and 3. With all respect I am unable to follow this decision.
6. Section 13 provides for the case where a person has a right to be appointed but is disqualified under Section 10(1)(6) by reason of his minority, and directs that no appointment shall be made until he has attained his majority and that some other qualified person shall discharge his duties in the meantime. This section is auxiliary to Section 10 (2) and I think that it, therefore, applies in the case of a newly created office.
7. Under Section 13 of the Hereditary Village Offices Act, Madras Act III of 1895, any person may sue before the Collector for a specified village office on the ground that he is entitled under Section 10(2) or (3) of the Act of 1894 to hold such office and by Section 21 a Civil Court is debarred from deciding such a Claim. The plaintiffs' Claim is that me of them is the persona designata by Section 10, Sub-section (2) or (3), and I think that the District Munsif had, therefore, no jurisdiction to entertain the suit. For the same reason I am of opinion that the ruling of Napier, J., in the case already cited does not apply, because the plaintiffs Claim a personal right and not as members of the public. I do not understand that ruling to apply to an appointment outside of the family of the last holder, in which case the member of the family might sue on behalf of himself and all other members of the family, because their joint right to be considered had been infringed. For these reasons I am of opinion that the appeal should be dismissed with two sets of costs.
8. I agree that this second appeal must be dismissed, but as I have come to a different conclusion from my learned brother upon some of the points considered in his judgment, I will state my own opinion although I do so with considerable diffidence.
9. This is a case in which the four plaintiffs sued for a declaration that one of them is entitled to the office of Karnam of Sitharrevi village, which has been created from the division of the old village of Aiyampalayam into two, and also for emoluments pertaining to that office. The question arises under the Proprietary Estates Village Service Act, Madras Act II of 1894. The first question raised by the appellants, i.e., the plaintiffs whose suit was dismissed by the lower Courts, is as to jurisdiction under Section 21 of the Hereditary Village Offices Act , Madras Act III of 189. This question of jurisdiction of the Civil Courts in matters of this sort was dealt with by Sadasiva Iyer, J. in the case of Krishnaswami Naidu v. Akkulammal 50 Ind. Cas. 185 : (1919) M.W.N. 29 : 24 M.L.T. 489 : 9 L.W. 90 That was a case for a declaration that plaintiff was entitled to an hereditary Village office but was the converse of the present case as two villages were then amalgamated. The learned Judge came to the conclusion that so far as the suit related to recover emoluments, it was clearly barred by Section 21 of Act III of 1895, but with regard to the Claim for a declaration, a suit of this kind is not so barred. The learned Judge also decided that the word in Section 21 being 'succeed' cannot include any Claim to be appointed in the first instance to any of the village offices set forth in the Act. lam, therefore, of opinion that this Court has jurisdiction to entertain the appeal in so far as it relates to the declaration.
10. Turning to the merits, Section 9 of Act II of 1894 directs that when a vacancy has occurred 'or the District Collector directs that a village officer shall be appointed to a newly created village office' (which latter is the case here), 'the proprietor shall appoint.' Section 10 (1) contains the rules to be observed by the proprietor in making the appointments under Section 9, one of which is that the person to be appointed is to have attained the age of majority, Section 10 then goes on to say that the succession to all hereditary offices shall devolve according to the rule of primogeniture and that, where the next heir is not qualified, the proprietor shall appoint the person 'next in order of succession'. In Section 8 it is stated that .every vacancy caused by death or resignation is to be reported to the Revenue Officer. Now, it is dear that a vacancy caused by death or resignation is to be filled according to the law of succession, that is, by the heir of the last holder : but I cannot see how the rules as to succession are to be read into the rules which are to guide the first appointment of a person in a new village. Section 15 specifically states that the old offices are to cease and new offices which shall be hereditary, if any of the offices they replace were hereditary, are to be created. In my view under Section 10 the proprietor is to have regard to the rules in Sub-section (1) whether a vacancy' strictly so called has occurred or not, but in the present case, there can be no question of succession to an office which by Section 15 is now created for the first time.
11. The first plaintiff has been appointed Karnam of one of the villages and I do not think he has got any right or Claim to be appointed Karnam of both. His brothers, the other plaintiffs, were minors at the date of the suit and they Claim to be entitled to the benefit of Section 13, which allows a qualified person to be appointed 'when the person who would otherwise be entitled to succeed to an hereditary village office is a minor.' As above already pointed out, there can, in this case, be no question of any title to succeed nor can Section 13, in my opinion, apply to the creation of a new office.
12. No doubt the proprietor has, in fact, selected the brother's daughter's son of the last holder. The plaintiffs except the 1st being minors are, therefore, disqualified under Section 10 (1) as I have already stated and they are not, in my opinion, within the benefits of Section 13. They are, therefore, unqualified persons and cannot Claim even to be eligible for appointment.
13. It seems to me that the suit must fail on another ground, namely, that pointed out by Napier, J., in the case already referred to 'that it is not open to a man who has no right and Claim in himself and does not bring the suit as a member of the public affected by the appointment, to ask for a declaration that the person appointed is not a person qualified to hold the office,' which is what, in effect, the plaintiffs pray for here in paragraphs Nos. 1 and 2 of their prayer in the plaint.
14. This second appeal must fail and be dismissed with costs. Two sets.