Sreedevi Amma v. Jayalakshmi — 1997 DIGILAW 425 (KER)

Judgment :- D. Sreedevi, J. S.A. No. 19 is directed against the decree and judgment in A.S. No. 182 of 1986 on the file of the District Court, Thalassery, which was filed against the decree and judgment in O.S. No. 343 of 1981, on the file of the Munsiff's Court, Kannur. 2. The suit O.S. No. 343 of 1981 on the file of the Munsiff's Court, Kannur was in respect of a school building. The plaintiffs case is that her husband late T.V. Narayanan was the Manager and Correspondent of Kannapuram East U.P. School, which was owned, possessed and run by him. As desired by the Education Department, requiring her husband, T.V. Narayanan to furnish the name and address of the person who should succeed him as Manager in the event of his death, the plaintiffs name was nominated, as per communication dated 20.4.68, which was accepted by the Department. Narayanan died on 3.10.1977. Thereafter, the plaintiff became the Manager of the School. One Pallan Kannan Nair filed O.S. No. 291 of 1980 for injunction against the plaintiff and A.E.O. restraining the Assistant Educational Officer from confirming the plaintiff as the Manager of the School. The plaintiff was impleaded therein as the second defendant. The first defendant, along with some others filed O.S. No. 228 of 1980 for a declaration that the nomination of the plaintiff is void. On the allegation that the defendants are attempting to interfere with the running of the School Administration, the plaintiff has filed the suit for a decree of permanent prohibitory injunction from taking any steps to induct strangers into the staff of the school. The defendants filed written statement contending that the School is situate in the property purchased in the name of the first defendant, Gopalan Nambiar, and that the recognition of the school was granted in the name of the President of the Managing Committee. According to them, the school building was constructed by the first defendant along with teachers, Raghavan Nambiar, Govindan Nair, Kavulla Purayil Kelu and late Thekke Veettil Narayanan. Subsequently, Pallan Kannan Nair was also included as one of the co-owners of the property and a Nischayarekha was entered into among them. Under the terms of the Nischayarekha the plaintiffs and Narayanan became joint owners of the School and the property in which the school is situate. Subsequently, Pallan Kannan Nair was also included as one of the co-owners of the property and a Nischayarekha was entered into among them. Under the terms of the Nischayarekha the plaintiffs and Narayanan became joint owners of the School and the property in which the school is situate. Thekke Veettil Narayanan was elected as the Manager and Correspondent of the school, who continued to be the Manager till his death on 3.10.1979. In 1957, one Mullol Veettil Karunakaran Nambiar was also given a share in the school property and the school. Thus, 7 persons have become the co-owners of the property and the school. The management of the school vested with the co.-owners. After the death of the Manager Narayanan the first defendant and others came to know that Narayanan had nominated his wife the plaintiff as the Manager of the School after his death. The said nomination is void. Hence they filed O.S. No. 228 of 1980 for a declaration that the nomination of the plaintiff as Manager made by Narayanan is void. 3. The trial Court tried the above two cases jointly and dismissed O.S. No. 343 of 1981 and decreed O.S. No. 228 of 1980. Aggrieved by the said decree and judgment, the plaintiff in O.S. No. 343 of 1981 filed A.S. No. 182 of 1986 and also A.S.No.183 of 1986 against the decree and judgment in O.S. No. 228 of 1980, before the District Court, Thalassery. The learned District Judge dismissed both the appeals. Aggrieved by the said decree and judgment, the appellant/ plaintiff in O.S. No. 343 of 1981 filed S.A. No. 19 of 1993 against the decree and judgment in A.S. No. 184 of 1986 and against the decree and judgment in A.S. No. 183 of 1986 S. A. No. 20 of 1993 was filed. 4. The main question to be decided in this appeal is whether Kannapuram East U.P. School was established by individual educational agency or corporate educational agency. The respondents claim that the school was established by Corporate educational agency, which is denied by the appellant. Admittedly, on the date when the Kerala Education Act has come into force, Kannapuram East U.P. School was functioning. So as per S.3(4) of the Act it has to be found that the school was established in accordance' with the Act. The respondents rely on Ext. Admittedly, on the date when the Kerala Education Act has come into force, Kannapuram East U.P. School was functioning. So as per S.3(4) of the Act it has to be found that the school was established in accordance' with the Act. The respondents rely on Ext. Al "Nischayarekha" to prove the ownership over the plaint property and the school. It was executed on 8th July 1950. This would go to show that the property wherein the school stands originally belonged to Kauravayil Devaswom and that it was outstanding on kuzhikanom in favour of Appu Nair that Appu Nair orally surrendered the property to 6 persons viz., T.V. Narayanan, Gopalan Nambiar, Raghavan Nambiar, Govindan Nair, Kelu and Kannan Nair. Gopalan Nambiar purchased the property with the joint funds of all the 6 persons. It is mentioned therein that the first named five persons have put up school-sheds and provided necessary equipments, to run the school. By virtue of this deed, T.V., Narayanan is seen nominated as the manager of the school. To prove that the school was jointly managed by all the plaintiffs and T.V. Narayanan, they rely on Ext. A4 account book. This contains some decisions taken by all the 6 persons and also some statement of accounts from 8.5.1962 till 1.9.1977. Entries in the book are not seen entered in the regular course of business. Even if it is admitted that the plaintiffs were the owners of the school, within one month after the commencement' of the Kerala Education Act, as per proviso to S.3(4), the educational agency existing at the commencement of the Act has after giving notice to the Government of its intention to do so opt to run the school as a recognised school. No such intimation has been given by the respondents to the Government in the present case. By Ext. A2 the ownership of school was changed and one more person was admitted by the owner of the property and the school. Under R.5(5) of the Kerala Education Rules, the change of ownership can be made only with the prior permission of the Education Department. To prove this also there is absolutely no evidence. The ownership was changed twice. Ext. Al is not the original document. What happended to the original is not explained. It was not properly proved. So its genuineness stands not proved. 5. To prove this also there is absolutely no evidence. The ownership was changed twice. Ext. Al is not the original document. What happended to the original is not explained. It was not properly proved. So its genuineness stands not proved. 5. According to the appellants, the property was purchased by T.V. Narayanan as per Ext. B7 lease deed dated 3.6.1949. This deed is in favour of T. V. Narayanan. This would go to show that the property originally belonged to Kauravayil Devaswom and as per the kuzhikanom arrangement Appu Nair was in possession, who had assigned the property to Narayanan. It is contended by the appellants that T.V. Narayanan, after getting possession under an oral arrangement applied for establishment of school on 28.4.1949, and thereafter Ext. B7 was obtained, and later on 13.12.1949 Kannapuram East U.P. School was established and Narayanan was recognised as the Manager. Those statements are not denied by the plaintiffs. Ext. Al is a document executed after the establishment of the school. The change of ownership was not intimated to the Department. All these go to show that even though Ext. Al was brought into existence, it was not acted upon. The plaintiffs have filed O.S. No. 291 of 1980 against the present appellant and the same was dismissed as not pressed. 6. The learned counsel for the appellant submitted that the defendants' suit is barred by res judicata by reason of the decision in O.S. No. 291 of 1980. But that was a suit filed for a decree of permanent injunction. This suit is for a declaration that the nomination made by deceased Narayanan is void and therefore, the decree in O.S. No. 291 of 1980 will not operate as res judicata. 7. It is also submitted for the appellant, that Ext. Al is being a copy of the document cannot be presumed to be genuine, as per the provisions of Ss.63 to 65 of the Evidence Act. At the time of marking the document. No objection was raised. Therefore, it cannot be presumed that the document is genuine as it is an ancient document. The secondary evidence is admissible only if the original is lost or is in the custody of the defendants. The appellant had no such case. Therefore, the presumption under S.90 of the Evidence Act is not applicable to Ext. Al. No objection was raised. Therefore, it cannot be presumed that the document is genuine as it is an ancient document. The secondary evidence is admissible only if the original is lost or is in the custody of the defendants. The appellant had no such case. Therefore, the presumption under S.90 of the Evidence Act is not applicable to Ext. Al. There is absolutely nothing to show that the school was established by corporate management. There is also nothing to show that the corporate management was recognised by the Education Department. From the evidence adduced by the respondents, it could be seen that deceased Narayanan was the single educational agency as the school was established as per application made by him prior to the date of Ext. Al. Narayanan being the single educational agency is entitled to nominate his successor. Simply because Narayanan and others entered into a Nischayarekha conferring co.-ownership on the respondents, that will not create any corporate educational agency, unless it is recognised by the Department. Within one month from the date of commencement of the Education Act, if there is any corporate educational agency, a notice had to be given to the Government of its intention to do so or to run the school as a recognised school. In view of my above discussion, I find that Kannapuram East UP. School was established and managed by single educational agency, and deceased Narayanan, being the manager has nominated the plaintiff. Hence the nomination is valid. Therefore, the decree and judgment of the courts below are liable to be set aside. In the result, these second Appeals are allowed, setting aside the decrees and judgments of the Courts below. No costs.