S KANTHAVADIVELU MUDALIAR Vs. RAMASWAMI MUDALIAR

JUDGEMENT

(1.) These two appeals arise out of suits instituted with reference to the Madras Heriditary Village Offices Act III of 1895. The facts are briefly these. The village relating to the suit office was constituted into a separate village by separation and thereupon under Section 6 of the said Act new village offices were created in respect of the village. The Collector whose duty it is to select persons for the purpose of appointing to those offices is directed by Section 6 as follows: In choosing persons to fill such new offices the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. It appears that the Collector appointed to the village office in question the predecessor in interest of the 1 defendant in the suit. The plaintiff has instituted the suit for a declaration that the appointment by the Collector of the 1st defendant's predecessor was not a proper appointment having regard to the said provisions in Section 6 of the Act. The plaintiff's contention was that the 1st defendant was related to the holder of the office abolished as his father's sister's son, and that he himself the plaintiff was related to him as his father's brother's son, that, according to the proper construction of the expression family in the clause above referred to, he the plaintiff was a member of the family within which choice has been directed to be confined by the statute and that the defendant's predecessor being only the son of the last holder's sister was not such a member of the family.

(2.) The first question that arises for determination is whether the plaintiff has any cause of action to sustain the suit. That depends on the further question whether the appointment by the Collector resulted in any infringment of the right vested in the plaintiff. For the purpose of the consideration of this question we might assume that the plaintiff is or represents his entire family. Then can it be said that the action of the Collector in not choosing a person from the family of the plaintiff resulted in any infringement of the right of the family itself. It has been argued by Mr. T. R. Ramachandra Aiyar, the learned vakil for the appellant, that when the legislature casts an obligation or duty on the Collector to select a person from the family, the family gets a corresponding right as a matter of course. It is impossible to accede to any such contention. It is one thing to cast on a person a duty to do a certain thing and another thing altogether to say that by reason thereof any right in respect of it is created in a third party. If the legislature had intended to create such rights in the families to the office there was no difficulty whatever in using apt language to indicate such intention. That has not been done. On the other hand that the legislature treated the old offices as entirely abolished and provided for the new offices being created would almost seem to indicate that the true intention of the legislature was that in the appointment to the new office so created the officers of Government should not be hampered by any such claims. As it is clear that there might be an obligation cast on an officer to make a selection from a particular group of persons and such obligation need not necessarily include or imply the creation of a corresponding right in such group of persons, it follows that from the mere fact that such obligation has been cast on the Collector we cannot spell out a right in the family. The view that we have taken has also been taken by Mr. Justice Napier in the case of Krishnaswami Naidu V/s. Akulammal (1918) 9 LW 90. Though it was only an expression of opinion by the learned Judge and was not necessary for the decision of the case before the Court, still we may notice that the view taken by that learned Judge was the same that we have arrived at on a consideration of the section. If therefore there is no room for construing that there was any right created in the family itself, it follows that an appointment made by the Collector could not be regarded as having in any manner infringed any such right.

(3.) So far we have considered the question on the assumption that the plaintiff may be regarded as representing the family It must be noticed also that the plaintiff has not chosen to make the other members of the family parties to the suit even though an objection with regard to it appears to have been taken at a very early stage in the suit. In the view we have taken it becomes unnecessary to discuss the other question, namely, whether the 1st defendant who has been appointed by the Collector should be regarded as contended for by Mr. T. R. Ramachandra Aiyar as not being a member of the family. It seems to be a much more difficult question to solve. The expression family undoubtedly has a very vague connotation and used as it has been in an enactment which refers to persons of all nationalities and denominations it necessarily follows that the expression family would have to be construed with special reference to the community with regard to which the question might arise. It is also an expression which has various connotations varying according to the context in which it may come to be used. It is possible that many difficulties may arise if the question should be required to be decided. But as it is unnecessary for the decision of this appeal we prefer not to express any opinion with regard thereto. In the result the second appeals fail and are dismissed with costs.