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Andhra Pradesh High Court
Judges : P.CHANDRA REDDY, SRINIVASA CHARI
Chandru Chowdary being minor by guardian father Ramamurthy - Appellant
Versus
Board of Revenue represented by Secretary, State of Madras now A.P., Hyderabad - Respondent
Decided On : 10-10-58
VILLAGE MUNSIF OFFICE - HEREDITARY OFFICE - ADOPTION - POSTHUMOUS ADOPTION - RIGHT TO OFFICE - BOARDS STANDING ORDER 148 - SECTION 10(2) OF THE MADRAS HEREDITARY VILLAGES OFFICES ACT, 1895 - INTERPRETATION - VALIDITY - LEGAL STATUS - PROPERTY - SUCCESSION - RULE OF PRIMOGENITURE - HINDU LAW - RATIO DECIDENDI - ADOPTED SON'S RIGHT TO OFFICE - RELATION BACK - STATUTORY FORCE OF BOARDS STANDING ORDERS - DISTINCTION BETWEEN PROPERTY AND OFFICE - EFFECT OF ADOPTION ON OFFICE - VALIDITY OF MADRAS ACT XVIII OF 1939 - ARTICLE 19(1)(F) OF THE CONSTITUTION OF INDIA.
Fact of the Case:
Petitioner, the nephew of the deceased village Munsif, was registered as a minor under Section 10 of the Madras Hereditary Villages Offices Act, 1895. Subsequently, the respondent, the adopted son of the deceased Munsif, instituted a suit to register his name as the next heir to the office, claiming a superior title based on his adoption. The suit was decreed by the Sub-Collector and confirmed by the Collector. The petitioner challenged the order of the Board of Revenue upholding the respondent's claim through a writ petition.
Finding of the Court:
The court held that the posthumous adoption of the respondent divested the petitioner's right to the office of village Munsif. The court interpreted Section 10(2) of the Act as mandating the selection of the heir according to the general custom and rule of primogeniture governing succession to importable zamindaries in Southern India, which includes the recognition of an adopted son's right to the office if the adoption occurred before the filling up of the post.
Issues: 1. Whether a posthumous adoption can divest the right of a person registered as the heir to a village Munsif office under Section 10 of the Madras Hereditary Villages Offices Act, 1895? 2. Whether Boards Standing Order 148, which provides that posthumous adoption will not divest a person already appointed to the office, is consistent with Section 10(2) of the Act? 3. Whether Boards Standing Orders have statutory force and can override the provisions of the Act? 4. Whether the office of village Munsif is property subject to the rule of relation back in the case of posthumous adoption?
Ratio Decidendi: 1. The court held that the posthumous adoption of the respondent related back to the date of the death of the last male-holder, and therefore, he was deemed to be in existence at the time of the death of the last male-holder. As a result, the court found no distinction between an adoption that occurred prior to the registry and a posthumously made adoption. 2. The court held that Boards Standing Order 148 was not consistent with Section 10(2) of the Act because it deprived the right of a son adopted subsequent to the registry. The court found that the Standing Order did not have statutory force as it was not framed under any power conferred by the Act on the Government or any other agency. 3. The court held that Boards Standing Orders, including Order 148, did not have statutory force unless they were framed by the Government or the Board of Revenue with the approval of the Government in exercise of the powers conferred by the Act. The court classified the Standing Orders into three categories: (i) rules framed by the Government or the Board under statutory power, (ii) orders issued by the Government, and (iii) orders issued by the Board with the approval of the Government. Only the first category had statutory force. 4. The court held that the office of village Munsif was property, considering the emoluments and lands appurtenant to the office. Therefore, the rule of relation back in the case of posthumous adoption applied to the office, and the respondent's adoption divested the petitioner's right to the office.
Final Decision: The petition was dismissed with costs, and the respondent's claim to the office of village Munsif was upheld.
( 1 ) THIS is a petition for the issue of a writ of certiorari calling for records from the Board of Revenue in L. Dis. No. 5422-52 dated 6-12-1952 and to quash the proceedings of the Board or for the issue of a writ of mandamus to the Board of Revenue to hear the parties and dispose of the case according to law.
( 2 ) THE office of the village Munsif of Macha varam, East Godavari District, was last held by one Venkanna. He died on 30-5-1948. The petitioner, who is the nephew of the said Venkanna, was registered as a minor under Section 10 of the Madras Hereditary Villages Offices Act (III of 1895) (hereinafter referred to as the Act) on 11-12-1948. Shortly thereafter, i. e. , on 3-3-1949, the widow of Venkanna adopted the respondent. The respondent, as the adopted son of Venkanna, instituted a suit under Section 13 of the Act for registering his name as the next heir to the office after setting aside the registry already made in favour of the petitioner on the ground that his title to the cilice was superior to that of the petitioner. The suit was decreed by the Sub-Collector, Rajamundry, which was confirmed by the Collector, East Godavari District. The matter was taken in second appeal to the Board of Revenue, but unsuccessfully. It is to quash the order of the Board of Revenue that the petitioner invokes the jurisdiction of this court under Article 226 of the Constitution of India.
( 3 ) THE point urged in support of this petition is that when once the petitioner was registered under Section 10 of the Act, the subsequent adoption cannot have the effect of divesting him of the office. To substantiate this, reliance is placed on the Boards Standing Order 148 and also certain observations made by Govinda Menon J. , in Rama Rao v. Board of Revenue, 1953 Mad WN 795: (AIR 1954 Mad 483 ). On the other hand, the stand taken by the respondent is that by reason of the adoption, though posthumous the respondent has acquired a right superior to that of the registered holder and is, therefore, entitled to be registered in preference to the petitioner.
( 4 ) TO appreciate the relative contentions of the parties, it is necessary to notice the relevant Boards Standing Order as also the statutory provi-sions contained in the Act. The material section of Boards Standing Order 148 is in these words: Standing Order: 4 (iv) : ". . . . . Posthumous adoption will not have the effect of divesting a person, who had been already appointed by the Collector of his office. But if before an order is actually passed, an adoption takes place, the adopted son will be eligible for appointment as the next heir. " Section 10 of the Act, omitting the portions which are not relevant for this enquiry, runs as follows: "section 10 (2): When a vacancy occurs in any of the village-offices forming class (a) in Section 3, the Collector shall fill up the vacancy in accordance with the provisions of the following sub-sections: xxxx "the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to importable zamindaries in Southern India. " It is seen that the Section clearly lays down that selection should be governed by the same rule as applies to succession to importable zamindaries in Southern India. It is the principles of Hindu law relating to succession that apply to the selection with this difference that the rule of primogeniture comes into operation in regard to it as in the case of importable estates. Whether the office is regarded as property or not about which we shall deal presently, it is an office that devolves on a single heir in accordance with the genera! custom and the rules of Hindu law of succession with the difference indicated above. It is incontrovertible that an aurasa son is selected to the office, irrespective of whether it is property or not if not otherwise ineligible. The same is the case with an adopted son, if the adoption had taken place before the filling
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