Pasala Rama Rao, being minor by guardian and adopted mother Kanthamma vs Board of Revenue and Another

Govinda Menon, J.—One Pasala Satyanarayana, who was the permanent village headman of the village of Jagannathapuram in

Tadepalligudem taluk, died on 11th January 1941 leaving behind him two minor sons. On 7th May 1941 the eldest son was registered as an

office-holder under the provisions of the Madras Hereditary Village Offices Act, 1895 (Act III of 1895) and one Subbaraju was appointed as

deputy. On 6th June 1944 the minor registered office holder died and it was necessary to make a fresh appointment to the office. In the meanwhile

the younger son had also died with the result that the progeny of Satyanarayana had become extinct.

Thereafter the widow of Satyanarayana, after getting the authority of Satyanarayana''s father, adopted the present petitioner to her husband on

22nd June 1944. In these circumstances, from 22nd June 1844 the present petitioner became a member of the family of the deceased

Satyanarayana as his adopted son. The widow, acting as the guardian of her adopted son, applied for the registration of the office of Village

headman in the name of the adopted son, the minor petitioner, and for the continuance of the deputy till the petitioner became a major. Two other

persons also applied for being appointed to the office of village headman. Both of them claiming to be the nearest heir to the deceased office-

holder. The revenue authorities recognised the claim of the petitioner and registered him as the village headman.

Subsequent to that, the second respondent filed V. O. S. No. 1 of 1945 on the file of .the Court of the Revenue Divisional Officer, Bhhnavaram,

claiming that he was the. person entitled to succeed to the office and that the adoption of the petitioner was neither true nor valid. The Revenue

Divisional Officer decreed the suit and on appeal therefrom by the petitioner, the Collector of West Godavari, following in R. S. A. No. 1 of 1947

set aside the order of the Revenue Divisional Officer, following the decision of the Privy Council in -- AIR 1943 196 (Privy Council) on the ground

that the posthumous adoption of the petitioner related back to the date of the death of the minor registered holder and that, had the effect of

divesting every other heir. The result of this was that the petitioner was confirmed as the village headman.

The second respondent took up the matter to the Board of Revenue. The Board, by their proceedings dated 17th October 1949, held, that the

order of the Collector could not stand. The reason given was that the decision of the Privy Council related to the devolution of properties which

can have no application to offices under the Government. Such being the case, at the time the vacancy occurred the present petitioner had not been

adopted. On these grounds the order of the Collector was set aside and that of the Revenue Divisional Officer restored. The above application is

for the issue of a writ of certiorari to quash the order of the Board of Revenue registering the second respondent as the village headman.

u/s 10, Sub-section (2) of the Madras Hereditary Village Offices Act, 1895, the succession shall devolve on a single heir according to the

general custom and rule of primogeniture governing succession to impartible zamindaries in Southern India. Therefore the right to succeed to the

office should depend upon the custom and rules of primogeniture according to Hindu Law prevalent in Southern India. According to the decision

in-- ''Katama Nachiar v. The Rajah of Sivaganga'', 9 Moo Ind App 539 (PC) (B) the question of succession to an impartible estate on the death

of the owner of the estate depends upon the rule of Hindu Law which governs the succession to partible estate, and therefore what has to be

considered is who would be the successor if the estate had been partible instead of being an impartible one. The only difference is that the rule of

primogeniture applies. Such being the case, Section 10, Sub-section (2) of Madras Act III of 1895 only lays down the general rule which should

govern the selection of a successor to the office of a hereditary Village headman. It is settled law now that once there is a posthumous adoption it

relates back to the date of the death of the adoptive father subject to a very few exceptions. The adopted son would succeed to all the rights which

a natural born son would have been entitled to in respect of the deceased adoptive father''s properties.

It is also clear that even if the property had vested in some other heir, the effect of adoption would bo to divest that estate subject to some

exceptions and vest the same in the adopted son, Vide the decision of the Privy Council in AIR 1943 196 (Privy Council) Therefore in the present

case when the petitioner was adopted on 22nd June 1944, he must be deemed to have been in existence fictionally even on the date of the death

of his adoptive father on 11th January 1941. The distinction which the Board seeks to make out in that the Privy Council decision refers only to the

devolution of properties and can have no application to offices under the Government ""may, to some extent, be correct because a right to succeed

to a hereditary office is not property and the relation back of an adopted son''s rights is only with regard to property. See -- ,''M. Venkata

Jagannatha v. M. Veerabhadrayya'', AIR 1922 PC 96 (C) and -- Ramachanduruni Purushotham Vs. Ramachanduruni Venkatappa and Another, .

But the Board in this case has overlooked the circumstance that at the time of the registration, the adoption had already taken place and therefore

the petitioner was the brother by adoption of the first holder of the office who died on 6th June 1944. What the Collector has to take note of is the

state of, things at the time of the registration of the appointment and not at the time of the occurrence of the vacancy. Though therefore the

posthumous adoption 6ahnot have the effect of diverting the incumbent of the office, if an appointment had already been made by the Collector, yet

if before an order is passed u/s 10 the Act, an adoption takes place, i.e., at the time of the appointment the adoption had already taken place, then

the adopted son could claim to be eligible for appointment as the next heir within the meaning of Section 10(2) of the Act.

Viewed in that light, the petitioner had become the adopted son when proceedings for the registration took place. The order of the Revenue Board

is therefore ''ultra vires'' and without jurisdiction and is hereby quashed. The order of the Collector in R.S.A. No. 1 of 1947 is hereby restored

with costs. Advocate''s fee Rs. 100.