Sundaram Chetty, J.
1. C. R. P. No. 839 of 1926 has been filed against the order of the Subordinate Judge of Ramnad in O. P. No. 2 of 1926, setting aside the election held on 5th March 1925, for filling up two vacancies which were about to arise in the membership of the Sivakasi Taluq Board and directing a fresh election to be held. The present 1st respondent is the person who filed O. P. No. 2 of 1926 in the lower Court. The present petitioner was the 1st respondent in the said O. P. As a result of the election held on 5th March 1925, the present petitioner and the 5th respondent were declared to have been duly elected. The sole ground on which the learned Subordinate Judge has set aside the election is the noncompliance with the provisions of Rule 5 (a) of the Revised Rules for the Conduct of Elections of Members of Taluq and Union Boards.
2. The rule is worded thus:
On completion of the scrutiny of nominations and after expiry of the period within which candidatures may be withdrawn under Rule 6 (1) (a), the President shall prepare:a list of persons whose nominations have not been rejected and who have not withdrawn their candidature in Form No. III and publish it on the notice board of his office not later than ten days before the date fixed for election.
3. In this case, the publication of such a list appears to have been made on 22nd February 1925 (vide .Ex. IV-a), and the date fixed for election was 5th March 1925. But in that list the name of the present petitioner was not included as his nomination was rejected by the Election President as invalid on 9th February 1925, (Ex. C-I). Thereupon, he filed O. S. No. 119 of 1925 against the Election President in the District Munsif's Court, Srivilliputhur, and obtained a decree in his favour on 4th March 1925, whereby he was declared to be a duly qualified candidate for election, the rejection of his nomination was held to be improper and illegal, and an injunction Was also issued to the defendant restraining him from holding the election on the appointed date without including the plaintiff's name as a duly nominated candidate in the ballot papers to be used at the said election, and directing the defendant to hold the election with the plaintiff's name as a duly nominated candidate: See paragraph 30 of the judgment, Ex. I.
4. It is contended, on behalf of the petitioner, that the lower Court should have held that the inclusion of his name as a validly nominated candidate by virtue of the said decree related back to the date on which the nominations were published, viz., 22nd February 1925, and therefore it must be deemed that there was no infringement of the rule which requires an interval of ten clear days between the date of publication and the date of election. There is much force in this contention. The principle is that equity takes it as done what ought to have been done. What the Election President should have done, but failed to do, was fulfilled by the legal effect of the declaration and injunction given under the decree of the Court, and as such it should be taken that the name of the present petitioner was in the list of the nominations originally published on 22nd February 1925. Reliance was placed on a dictum in Symmers v. Regem  98 E. R. 1203 which seems to be in favour of the contention pressed by Mr. Rangachariar. Certain voters were disfranchised, and later on a mandamus to restore those voters was issued. A question arose as to the validity of the votes given by them before the order of restoration. Lord Mansfield observes as follows on page 1210:
But upon consideration, I think, that let the restoration come when it will, it relates to the original right. It would be so in the case of a probable ground of disfranchisement. But here there is not a probable ground: there is no colour for a removal; the act of common council was a mere nullity and the restoration makes them in from the beginning--Thus it stands as to their being voters de facto.
5. The decree in O. S. No. 119 of 1925 having such a retrospective effect, it should be taken that the present petitioner was a duly qualified candidate, and his name also was in the list published on 22nd February 1925. In this view there was no non-compliance in the eye of law, with the provisions of Rule 5 (a) referred to above.
6. Assuming that there was non-compliance with the provisions of that rule, the election of the returned candidate would not be void, unless it is proved that the result of the election has been materially affected by non-compliance with the provisions of that rule. This is clear from the plain wording of the Rule 11, Clause (c) of the Rules for the conduct of inquiries and the decision of disputes relating to elections held under the Madras Local Boards Act, 1920. In considering a similar question as regards an election to a Municipal Council, Wallace and Madhavan Nair, JJ., have held that a breach of the election rules will not in itself justify an Election Court holding that the election is invalid and must be set aside, but it must be further proved that breach of the rules materially affected the result of the election: Palaniyappa Chettiar v. Krishnaswami Chettiar A. I. R. 1925 Mad. 877 In the present case, no such proof has been adduced. As observed by the Subordinate Judge in his order, no. evidence was offered on either side beyond the filing of certain documents. Is there any evidence to show that by the non-observance of the rule requiring an interval of ten days between the date of publication of the nominations on the notice board and the date of election, so far as the petitioner was concerned, the result of the election was materially affected? The infringement of this rule must be shown to have directly or indirectly brought about a result in the election such as the defeat of one candidate or the success of another, which could not otherwise have occurred. That would be one way of proving that the result of the election was materially affected by the breach of the rule in question.
7. There is only a vague surmise in paragraph 12 of the order of the learned Subordinate Judge, that it may be that there was no sufficient time for the petitioner (the present 1st respondent) to meet the electors. But it seems to me that this handicap, if any, in the matter of canvassing for votes, should be complained of by the present petitioner, on account of the late inclusion of his name in the list of valid nominations, but not by the 1st respondent whose name was included in the original list itself. It is, however, urged on his behalf that he might have omitted to make vigorous efforts in the matter of canvassing seeing that the 1st respondent's name was not included in the list, and had not the full ten days' time after the inclusion of that name. In the absence of any proof it is not proper to base any conclusion on mere conjectures which can easily be made to serve the purpose of either party. I have no hesitation in holding that the 1st respondent who seeks to set aside the election has signally failed to prove that the result of the election has been materially affected by reason of the non-compliance with the aforesaid rule. The only ground on which the Subordinate Judge set aside the election as void fails.
8. Coming now to the memorandum of objections filed in the said C. R. P. No. 839 of 1926 by the 1st respondent, the main point for determination is whether the petitioner was a duly qualified candidate for the election in question. This question was answered in the affirmative in a well-considered judgment of the District Munsif in the said O. S. No. 119 of 1925 (Ex. I). But it is contended and in my opinion, rightly, that that decision is not binding on the present 1st respondent who was no party to that suit, and cannot operate as res judicata in the present case. It is obviously not a judgment in rem. Treating this question as one open for decision in this case, a consideration of some of the sections in the Madras Local Boards Act (14 of 1920) is necessary. By virtue of Section 55, Clause (2), Sub-clause (v) of the Act, a person shall be disqualified for election as a member of a Local Board if such person is at the date of nomination or election a member of the Local Board whose term of office will not expire before his fresh election can take effect. Section 17 provides for the holding of elections not only in the case of vacancies which have occurred, but also in the case of anticipated vacancies. It says that when the office of a member of a Local Board becomes vacant, or is about to become vacant, a new member shall, in the absence of any direction to the contrary by a competent authority, be elected in the same manner as his predecessor was elected. Section 11 declares that every member of a Local Board shall, save as otherwise expressly provided, hold office for a term of three years from the date of publication of notification under Section 19. This section coupled with Rule 31 of the Revised Rules for the Conduct of Elections, provides for the publication of the name of the duly elected candidate on the notice board of the Office of the Local Board concerned.
9. In this case, it is beyond dispute, that the term of office of the present petitioner as a member of the Sivakasi Taluq Board was to expire on 1st April, 1925 (vide the notification dated 10th January, 1922, and filed as Ex. 4). The vacancy in that office would arise only from 1st April, 1925. But under Section 17 of the Act, an election can be held, though the vacancy has not yet arisen, provided the vacancy is expected to occur in the near future.
10. Such an election was held in this case on 5th March 1925, and the publication of the present petitioner's name as a duly elected member was made on the notice board on 17th March, 1925. It is argued by Mr. K. V. Krishnaswami Aiyar for the 1st respondent that the fresh election of the petitioner should be deemed to have taken effect from 17th March, 1925, as he would be entitled to hold office for 3 years from the date of publication of the notification by virtue of Section 11 of the Act. If such a contention be accepted the result will be so anomalous that it could not be taken to have been ever intended by the Legislature. Suppose, in the election now in question another person and not the petitioner was elected. The petitioner will not vacate his seat, and is entitled to hold office till 31st March, 1925, but, however, his successor will be entitled to hold the same office even from 17th March, 1925, if the above contention should be accepted. Thus two members will be occupying one seat in the Taluq Board for about half a month, and exercising the right of one member. The fallacy of the contention consists in ignoring the clause 'save as otherwise expressly provided' in Section 11 of the Act, and applying that section without that restriction or qualification, which has been thoughtfully inserted in the section. Ss. 11, 17 and 55 should be read together for a proper determination of the question. Section 17, when it authorizes a fresh election to be held, in the expectation of the office of a member falling vacant on a future date, must be taken to 'mean that the fresh election will take effect only from the date of the creation of the vacancy. That being so, the rule in Section 11 cannot be applied to the present ease, which comes under the saving clause in that rule. Therefore, it should be held that despite the notification under Section 19 published on 17th March, 1925, the newly elected member was not entitled to hold the office from 17th March, 1925, for there was no vacancy in that office on that date but only from 1st April, 1925, when the vacancy arose. The fresh election of the present petitioner took effect only from 1st April, 1925, by which date the term of his office as a member of the Taluq Board had expired, and, therefore. his nomina tion for the fresh election is not obnoxious to Section 55, Clause (2), Sub-clause (v) of the Act. In my opinion, the present petitioner was a duly qualified candidate for the election held on 5th March, 1925.
11. It follows from this finding that there were at least three valid nominations received by the Election President on 3rd February, 1925, the date fixed for presenting nomination papers of the candidates seeking for election, viz., the present petitioner, and respondents 1, and 5. The number of expected vacancies in Rajapalayam Circle was only two. As the number of validly nominated candidates exceeded the number of vacancies, there was no scope for declaring all such candidates to have been duly elected as provided for in Rule 7 (1), but an election ought to have been held. The election held on 5th March, 1925, is, therefore, proper, and not liable to be set aside.
12. C. R. P. No. 915 of 1926 has been filed by Kumaraswami Rajah (the 5th respondent in C. R. P. No. 839 of 1926). Now that I have held that the election is not liable to be set aside this Revision Petition has to be allowed. This petitioner has placed his case on the short ground that in any event, the lower Court should not have set aside his election, in the absence of any election petition directed against him, and impeaching the validity of his election. The prayer in 0. P. No. 2 of 1926 was for a declaration that the election of the Respondent No. 1 (who is the petitioner in C. R. P. No. 839 of 1926) is null and void. The Subordinate Judge has, however, ret aside the election as a whole which prejudicially affects this petitioner also. In so doing he has wrongly exercised his jurisdiction
13. In allowing C. R. P. No. 839 and C. R. P. No. 915 of 1926, and dismissing the memorandum of objections, the order of the lower Court is set aside, and O. P. No. 2 of 1926 is dismissed, but the order as to costs made by that Court will stand. The costs of the petitioner in C. R. P. No. 839 of 1926 and in the memorandum of objections will be paid by the 1st respondent. Parties will bear their own costs in C. R. P. No. 915 of 1926.