R.S.A.No.938 of 2008 (C) - Kerala High Court Regular Second Appeal

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 RSA.No. 938 of 2008(C) ---------------------- AS.94/2006 of DISTRICT COURT, MANJERI OS.86/2000 of SUB COURT, MANJERI .................... ## APPELLANTS/APPELLANTS IN LAC:L.RS OF IST DEFENDANT ---------------------------------------------------------------------- ## 1. T.P.KADEEJA D/O.T.P.AHAMMED @ BAPPU HAJI ## 2. T.P.UMMU SALMA, D/O.DO.....DO.... 3. T.P. PATHUMMA, D/O. DO... ## 4. T.P. MOHAMMED, S/O. DO....DO..... ## 5. T.P. YOOSUF, S/O. DO.... ## 6. T.P. UMMERKUTTY, S/O DO.... ## 7. PARAMBUR PATHUMMAKUTTY, W/O LATE T.P. AHAMMED, BY ADV. SMT.SHAHNA KARTHIKEYAN SRI.V.ARUN ## RESPONDENT(S): RESPONDENTS IN LAC PLFFS & D2 TO D5 IN TRIAL 1. T.P. NAFEESA UMMA W/O.C.T.KUNHIMOHAMMED D/O.T.P.KUNMHIPPU @ UNNIMAMMAD,VALLAPUZHA AMSOM DESOM, OTTAPPALAM TALUK. 2. T.P. KUNHIMMA UMMA, D/O. T.P. KUNHIPPU @ UNNIMAMMAD, EDAPPATTA AMSOM, VELLIYANCHERI DESOM, PERINTHALMANNA TALUK. 2 3. KUNHALAVI ALIAS MANU, S/O. KINATHIYIL MOOSAKUTTY HAJI, PERINTHALMANNA AMSOM, DESOM, PERINTHALMANNA, TALUK, MALAPPURAM DISTRICT. 4. ABDUL JABBAR, S/O. KINATHIYIL MOOSAKUTTY HAJI, DO... 5. MOHAMMED, S/O. KINATHIYIL MOOSAKUTTY HAJI, DO. ## 6. BASHEER AHAMMED, S/O. DO....DO..... ## 7. AHAMMED SHEREEF, S/O. DO...DO..... ## 8. JAMEELA, D/O. DO...DO.... ## 9. MAIMOONA, D/O. DO...DO.... ## 10. SAFIYA, D/O. DO...DO.... ## 11. RAJINA, D/O. DO....DO.... ## 12. T.P. ABOOBACKER, S/O. LATE KUNHIPPU @ UNNIMAMMAD, EDAPPATTA AMSOM, VELIYANCHERRI DESOM, PERINTHALMANNA TALUK, MALAPPURAM DIST. 13. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM. 14. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, 15. THE ASSISTANT EDUCATIONAL OFFICER, MELATTUR. ADV. SRI.K.RAMAKUMAR (SR.) FOR R12 SRI.T.RAMPRASAD UNNI FOR R12 SRI.J.R.PREM NAVAZ FOR R12 SRIC.M.MOHAMMED IQUABAL(CAVEATOR) SRI.T.KRISHNANUNNI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.938 of 2008** **= = = = = = = = = = = = = = Dated this the 21[st] day of October, 2008** ## **JUDGMENT** The legal representatives of the 1[st] defendant in O.S.No.86 of 2000 on the file of the Sub Court, Manjeri are the appellants in this Second Appeal. The said suit instituted by respondents 1 to 11 herein was one for partition and separate possession of the plaintiff's share over one item of property admeasuring 2.14 acres together with an aided upper primary school thereon. The plaintiffs also prayed for framing of a scheme for the proper management of the educational institution. 2. The plaint schedule property originally belonged to Kunhippu @Unnimammad who died in the year 1980. It was the said Unnimammad who constructed the school building in the property and was running the school namely Velliyancheri Aided Upper Primary school. Until his death in the year 1980, Unnimammad was the Manager of the School. Unnimammad had three daughters who were one Aiysha and plaintiffs 1 and **R.S.ANo.938 of 2008** 2 2 and two sons who are defendants 1 and 2. According to the plaintiffs, after the death of Unnimammad the 1[st] defendant was in management of the school to the disadvantage of the plaintiffs and the other co-owners. The plaintiff therefore claimed partition and separate possession of 116/288 shares and conceded that defendants 1 and 2 were each entitled to 86/288 shares. 3. The suit was resisted by the 1[st] defendant contending, inter alia, that plaintiffs had absolutely no right over the property, that after the death of Unnimammad, plaintiffs 1 and 2 and the 2[nd] defendant had released their rights over the school and its properties in favour of the 1[st] defendant who was in exclusive possession and enjoyment of the school, that the educational authorities had also recognised him as the exclusive owner entitled to manage the school, that he was in exclusive, uninterrupted and continuous possession and management with a hostile animus and the rights, if any, of the plaintiffs and the 2[nd] defendant were lost by adverse possession, limitation and ouster. 3 ## **R.S.ANo.938 of 2008** 4. On the basis of the pleadings, the trial court framed 10 issues for trial. On the side of the plaintiffs 2 witnesses were examined as PW1 & PW2 and Exts.A1 to A5 were marked. On the side of the contesting 1[st] defendant, 1[st] defendant was examined as DW1 and Exts.B1 to B14(b) were marked. Reports, plan, building estimate cost, mahazar, seniority list of the staff etc. were marked as Ext.C1 to C9. 5. The learned Sub Judge, Manjeri as per judgment and decree dated 14.8.06 repelled the contentions of the 1[st] defendant and passed a preliminary decree for partition as follows:- - a)Plaint Schedule II property is ordered to be partitioned by metes and bounds into 48 equal shares and the share pertaining to plaintiffs 1 and 2 are quantified as 7/48 shares each and that of plaintiffs 3 to 6 together as 6/48 shares and that of defendants 1 and 2 are as 14/48 shares each. - b) Plaintiffs shall apply for deputation of an Advocate-Commissioner for effecting partition. - c)The plaintiffs and second defendant are entitled to get proportionate share of profits for the past three years and future profits till the actual **R.S.ANo.938 of 2008** 4 period is effected from the first defendant and the quantum of the same will be decided at the stage of final decree. - d)The allotment of the shares in respect of the defendants will be subjected to the remittance of the court fee. - e)First defendant shall pay costs of the suit to the plaintiffs and the same shall come out of the estate. - f) First defendant is allowed to continue as the manager cum correspondent on behalf of the plaintiffs as well as second defendant in respect of the Valliyancheri Aided Upper Primary School until a scheme is constituted. - g)A committee has to be constituted among the plaintiffs and defendants for the management of the Velliyancheri Aided Upper Primary School since their right in the property as co-owners is declared by this Court. - h) The Managing Committee of the School so constituted shall convene its meeting once in two weeks and all decisions with regard to the management of the school shall be taken in the said meeting with the quorum of at least three members. **R.S.ANo.938 of 2008** 5 - i) The management of the school to be done by the first defendant is subject to the decision of the managing committee. - j) The first defendant shall keep proper accounts with regard to the funds and assets of the school and obtain approval from the managing committee. - k)First defendant shall submit the audited accounts before the court and obtain approval. - l) The formation of the scheme is deferred to the stage of final decree since a detailed adjudication is necessary in that regard. - m)This arrangement is purely temporary till a permanent scheme is worked out. - n)Suit is adjourned sine die. 6. Aggrieved by the preliminary decree passed by the trial court the 1[st] defendant filed an appeal before the District Court, Manjeri as A.S.No.94 of 2006. Pending appeal the 1[st] defendant died and his legal representatives were impleaded as additional appellants. Thereafter as per judgment and decree dated 20.9.08, the lower appellate court dismissed the appeal confirming the preliminary decree. Hence this Second Appeal. **R.S.ANo.938 of 2008** 6 7. I heard the learned counsel for the appellants and the respondents who have lodged caveat before this Court. 8. The main submissions made on behalf of the appellants are as follows:- The courts below were wrong in holding that the 1[st] defendant did not obtain exclusive right in the plaint schedule property. On the death of the Unnimammad, all his legal heirs including the plaintiffs and the 2[nd] defendant had agreed for transfer of management of the school involving change of ownership in favour of the 1[st] defendant before the departmental authorities. The 1[st] defendant has been exclusively in possession and management of the property since 1983. Until the year 2000, none of the plaintiffs nor the 2[nd] defendant had made any claim over the property or the right to manage the school. Ext.B14 is the order passed by this Court changing the management involving change of ownership of the school in favour of the 1[st] defendant. So long as that order remains unchallenged, as per the provisions of the Kerala Education Rules, the plaintiffs had no **R.S.ANo.938 of 2008** 7 right to seek partition of the plaint schedule property. The appellants take strong exception to clauses (f) to (m) of the preliminary decree passed by the trial court as confirmed by the lower appellate court. When the properties have been found partiable and when there is no trust created either by operation of law or otherwise, the civil court has no jurisdiction to frame a scheme for management. The prayer in the plaint as well as Clauses (f) to (m) of the preliminary decree are inconsistent to a suit of this nature. When a partition is possible there cannot be any scheme framed by the court unless it is a religious or charitable trust or a debutter property. The aforesaid offending part of the decree cannot be sustained in the light of the decision **Rabindra Nath Mandal and others v. Chandi Charan Mandal and others** (AIR 1932 Calcutta 117), **Bimal Krishna Ghose and others v. Shebaits of Sree Sree Iswar Radha Ballav Jiu and others** (AIR1937 Calcutta 338) and **M.G.Narayanaswami Naidu and another v.M.Balasundaram Naidu and others** (AIR 1953 Madras **R.S.ANo.938 of 2008** 8 750) wherein it has been held that even where a private trust is created but it is not of a purely religious character and the ownership of the property is not vested in the trustee in the legal sense of the word, the court has no jurisdiction to frame a scheme for administration of such private trust. If this is the position regarding a private trust, it applies with more vigour to a property of this nature where there is no trust created either by operation of law or by otherwise. Hence the said part of the decree is liable to be interfered with. 9. The appellants rely on the following substantial questions of law formulated in paragraph 12 of the memorandum of appeal:- - i. When the property is found to be partiable and when there is no trust created by operation of law or otherwise whether the courts below had jurisdiction to direct framing of the scheme for management of the plaint schedule property under the preliminary decree? - ii.When a Muslim dies and the property devolves on his legal heirs whether the possession of one member can be treated as on behalf of the other persons as trustee under Mohammedan law? **R.S.ANo.938 of 2008** 9 - iii.When this Honourable court has held that the management of school can be subject matter of partition and the lower court has found the property with the building is liable to be partitioned, can the court pass the decree denying the right of partition? - iv.When by Ext.P14(A) the change of management involving change of ownership have been effected and when that order remains unchallenged under the KER and Rules whether the suit filed is maintainable. - v. Whether the 1[st] defendant had not perfected is titled by ouster? 10. I am afraid that I cannot fully agree with the above submissions. Admittedly, the property admeasuring 2.14 acres together with the Velliyancheri Aided Upper Primary School belonged to Unnimammad, the father of deceased Aiysha, defendants 1 and 2 and plaintiffs 1 and 2. Plaintiffs 3 to 11 are the legal representatives of Aiysha who is no more. Unnimammad was the approved manager of the school until he died in the year 1980. On his death his rights over the school devolved on his children according to the Muslim Law of Inheritance. It was only by way of a working arrangement 10 ## **R.S.ANo.938 of 2008** that the 1[st] defendant was agreed to be the Manager of the school. That does not in any way direct the plaintiffs or the 2[nd] defendant of their right over the property. The courts below have concurrently held that the 1[st] defendant has failed to substantiate his contention that the right of the plaintiffs and the 2[nd] defendant are barred by adverse possession, limitation and ouster. That is a pure finding of fact which cannot be interfered with in second appeal. 11. What now survives for consideration is the further question as to whether the courts below have erred in framing a scheme for the proper management and administration of the school in question. After the decision of a Division Bench of this Court in **Maroli Balan v.Maroli Dannu and others** (1986 KLT 919), the management of a school can be the subject matter of partition which does not in the eye of law involve a transfer so as to attract the bar under Section 6 of the Kerala Education Act. See also **Jose v. Antony and Ors.** ( 2001(1) KLJ 555). It is true that there is no public charity involved in the running of a school so as to cloth the 11 ## **R.S.ANo.938 of 2008** jurisdiction of the civil court to settle a scheme of administration by having recourse to Section 92 C.P.C or otherwise. But then the court, having found that the property including right to administer this school is partiable, had to ensure that the school is administered in a democratic manner so that there is no room for complaint by any of the co-sharers. That is precisely why the plaintiffs have prayed for the settlement of a scheme for the appropriate management of the school. That is not a prayer in terms of Section 92 C.P.C. Paragraph 4 of the decision of the Division Bench, **Maroli Balan's case (supra)** will show that in an appropriate case the court could even direct an auction of the properties if the same cannot be partitioned by metes and bounds without adversely effecting the running of the school. Hence, I do not find any illegality or impropriety in the preliminary decree starting from Clause (f) to (m). All that the courts below have done was to ensure that the 1[st] defendant continues as the manager cum correspondent of the Aided Upper Primary School without giving any room for 12 ## **R.S.ANo.938 of 2008** complaint from the co-owners who are also entitled to the share of profits etc from the property. But I hasten to add that the said scheme for administration of the school is only until and subject to the final decree to be passed by the trial court which can effectuate the preliminary decree for partition either by actual allotment by metes and bounds or by ordering auction of the property or by such other measure which it may deem fit. The preliminary decree shall stand modified to the extent. If the final decree court is left with no other alternative, the framing of a scheme can also be thought of if it will subserve the interests of all concerned. The court has to ensure that the Manager does not act in such a way as to be detrimental to the interests of the co-sharers. 12. The 1[st] defendant admittedly died when the matter was pending before the lower appellate court. But the lower appellate court simply confirmed the preliminary decree without making any change in Clause (f) of the preliminary decree as per which the 1[st] defendant was allowed to continue as manager cum correspondent on behalf of the plaintiffs as 13 ## **R.S.ANo.938 of 2008** well as the 2[nd] defendant until the scheme was constituted. In view of the supervening event of the death of the 1[st] defendant, the lower appellate court ought to have made a consequential change in clause (f) and subsequent clauses in the preliminary decree. Since both plaintiffs 1 and 2 are females, I am of the view that the 2[nd] defendant who is the only surviving son of Unnimammad should be permitted to function as the Manager cum Correspondent of the school on behalf of the plaintiffs as well as the legal representatives of the 1[st] defendant. The 2[nd] defendant shall function as the manager with the duties and responsibilities mentioned under Clauses (g) to (m) of the preliminary decree until and subject to the final decree to be passed in the case. Plaintiffs or any of the sharers may apply for the passing of a final decree. I.A.No.2200 of 2008 for raising additional ground, that there was implied consent of the co-owners in the 1[st] defendant putting up new buildings in the co-ownership property and therefore the lower court ought to have held that in the event of partition 1[st] defendant is entitled to the 14 ## **R.S.ANo.938 of 2008** value of improvements, cannot be upheld since it cannot be said that the other co-owners had consented to his putting up constructions and expending money to their disadvantage. I, therefore, confirm the findings of the courts below that the 1[st] defendant is not entitled to any equities or reservation on that score. In the result this Second Appeal is disposed of as above. Dated this the 21[st] day of October, 2008. ## **V. RAMKUMAR, JUDGE** sj