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2002 DIGILAW 53 (KER)

Mohamedkutty v. State of Kerala

2002-01-22

R.RAJENDRA BABU

body2002
Judgment :- R. Rajendra Babu. J. The Kunhimon Haji Memorial High School (KHMHS) at Alathiyur was established in 1974 by late Hamsa Haji, who died on 16.9.1993. He was the Individual Educational Agency and the Manager of the school. The fifth respondent Sainaba is the wife of late Hamsa Haji. They had nine daughters and two sons. Petitioner Mohammedkutty is the eldest son and the younger son Moideenkutty, later died leaving his widow and three children. The KHMHS belonged to the deceased Hamsa Haji and the school was located in an area of 3.5 acres of land. In 1988 Hamsa Haji proceeded for Haj and during the period of his absence, he authorized the petitioner to be the Manager of school and the DEO approved the petitioner as the temporary Manager as per Ext. P2 proceedings. During May 1993 Hamsa Haji became ill and he authorised as the Manager as authorised by his father. By the death of Hamsa Haji, the right of Management and the right over the school devolved on all the legal representatives of the deceased Hamsa Haji. In addition to the petitioner and the fifth respondent, there were 9 daughters and one son as the legal representatives of deceased Hamsa Haji. Admittedly, the petitioner functioned as the Manager of the school even after the death of Hamsa Haji. According to the fifth respondent the petitioner continued to be the Manager of the school as consented by all the legal representatives of deceased Hamsa Haji. Exhibit R5(b) agreement was executed by all the legal representatives of deceased Hamsa Haji, the first party being the petitioner himself, agreeing for retaining the school and the premises as common and to dispose of the same by sale as and when they get attractive price. They further decided that till it was disposed of, the petitioner should continue as the Manager and he should function as per the majority decision of all the other legal representatives of the deceased. It was specifically stipulated in Exhibit R5(b) that the majority decision shall be binding on all the others. 5, The petitioner admitted the execution of Exhibit R5(b) agreement. But, according to him he was compelled to sign the document due to fraud, threat, coercion and threat and as such the above document was not at all binding on him. It was specifically stipulated in Exhibit R5(b) that the majority decision shall be binding on all the others. 5, The petitioner admitted the execution of Exhibit R5(b) agreement. But, according to him he was compelled to sign the document due to fraud, threat, coercion and threat and as such the above document was not at all binding on him. The learned counsel for the fifth respondent argued that an agreement executed due to threat, coercion, fraud or misrepresentation was voidable at the option of the party whose consent was so obtained and he would be found by the agreement till it was set aside by appropriate civil proceedings. S.19 of the Contract Act stipulates that an agreement executed by threat, coercion, fraud or misrepresentation is a voidable one at the option of party whose consent is so obtained. As such the agreement alleged to have been executed by threat, fraud, coercion or force is not a void agreement and it cannot be ignored by the petitioner. It is settled law that the party challenging the contract on the grounds of fraud, coercion or threat has to get the contract set aside by filing a civil suit and he cannot ignore the document as a void one. If the petitioner was aggrieved by the above agreement, he had to file a suit and get the document set aside. Till it was not set aside by appropriate proceedings before any Civil Court, it shall be a valid document and he shall be bound by the terms of the document and the petitioner cannot ignore the same and raise the contention that the document is not binding on him. As the petitioner did not opt to file any suit challenging Exhibit R5(b), he is bound by the terms of the agreement till the document is set aside by any competent Civil Court. Thus, the petitioner was functioning as the Manager of the school as consented by all the other legal representatives of the deceased. As the document would reveal that the majority decision should be binding on all the legal representatives of the deceased, the subsequent decision to appoint the fifth respondent as the Manager of the school, shall be binding on the petitioner. 6. The DEO passed Exhibit P7 order after hearing the petitioner and the fifth respondent and considering all the documents. As the document would reveal that the majority decision should be binding on all the legal representatives of the deceased, the subsequent decision to appoint the fifth respondent as the Manager of the school, shall be binding on the petitioner. 6. The DEO passed Exhibit P7 order after hearing the petitioner and the fifth respondent and considering all the documents. The majority members, viz., the legal representatives of Hamsa Haji elected and appointed the fifth respondent as the Manager and the DEO approved the same. Such election was in pursuance to Ext. R5(b) agreement and the DEO has to approve the decision of the majority members as the DEO cannot consider the legality or propriety of the above decision of the co-owners who jointly constitute the educational agency. If the petitioner was aggrieved by the election or the appointment of the fifth respondent as the Manager of the school by the majority co-owners on the strength of Exhibit R5(b), that being a civil dispute, his remedy was to challenge the above disputes before a Civil Court. It is settled law that the decision of the Educational Authorities on such civil disputes shall be subject to the decision of the Civil Court. A Division Bench of this Court in Abdul Rahimv. State of Kerala (1984 KLT 773) held: "The decisions of the Educational Authorities are not meant to settle civil rights of the parties to such properties. These decisions are in the nature of summary determination for the sake of expediency, without waiting for the result of a protracted litigation in a civil court. There could be no doubt that the right to agitate on questions of civil rights in a Civil Court would remain unaffected in spite of the decision by the Educational Authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act. It does not, and cannot oust the jurisdiction of the Civil Court in matters touching the civil rights of the parties. The impugned order does not conclude the matter so far as the civil rights of the parties are concerned; and it is open to any of the parties to proceedings to take the matter to the Civil Court for its adjudication. " Thus, the petitioner has the right to agitate all the civil disputes before a Civil Court and the orders of the Act. " Thus, the petitioner has the right to agitate all the civil disputes before a Civil Court and the orders of the Act. Hence the heirs of Sankaran Ezhuthassan in a body now constitute the educational agency. It is that educational agency that has the right to nominate a manager in terms of the Kerala Educational Act and Rules". 9. By the death of Hamsa Haji, the right of Individual Management over the school devolved on all the legal representatives of Hamsa Haji and by Exhibit R5(b) agreement, they decided to continue the right of Management as Individual Educational Agency. Later, they decided to formulate Rules for the management of the school and to make it a Corporate Educational Agency and framed Exhibit R5(g) Constitution. Till Exhibit R5(g) Constitution is approved by the Educational Authorities, it would remain as an Individual Educational Agency. 10. Another argument advanced by the learned counsel for the petitioner was that the fifth respondent was not qualified to be a Manager of the school as she was illiterate. Rule 8(4) of chapter III of KER stipulated that the Manager of an Aided school shall be literate, solvent and interested in educational practice. The learned counsel for the fifth respondent submitted that she was literate and a certificate issued by the village officer also had been produced to establish the same. The learned counsel for the petitioner submitted that a village officer was not competent to issue a certificate regarding literacy and if she was literate a certificate could have been produced from the school where she has studied. A person can be literate even without going to the school. A certificate was produced to show that the fifth respondent was literate. In fact, it was for the Educational Authority to ascertain and to be satisfied, whether the fifth respondent was literate or not. If she was illiterate, there was no chance of her being approved as the Manager of the school and as such it had to be held that she was literate. Hence, the above contention cannot be accepted. 11. It was further argued by the learned counsel for the petitioner that the fifth respondent was a chronic patient and one of her legs had been amputated and she was physically incapable of running the school. Hence, the above contention cannot be accepted. 11. It was further argued by the learned counsel for the petitioner that the fifth respondent was a chronic patient and one of her legs had been amputated and she was physically incapable of running the school. Even if one of her legs has been amputated, she can very well manage the administration of the school if she is mentally capable of managing the affairs of the school. There is no allegation that she is mentally unfit to manage the school. The physical ailment, namely amputation of a leg, is not a matter to disqualify her to be the Manager of the school. Hence, the above argument also cannot be accepted. 12. All the legal heirs of the deceased Hamsa Haji except the petitioner had decided to appoint the fifth respondent as the Manager of the school in accordance with Ext. R5(g) agreement to which the petitioner was also a party and the third respondent had approved the fifth respondent as the Manager of the school. The Appellate Authority as well as the first respondent had considered the above appointment and concurrently found that there was no reasons for interfering with the above appointment. Hence, I find no reasons to interfere with those orders and as such this petition has only to be dismissed. 2. 3. No. 26626/2001 13. Petitioner, who is the President of the Parent Teachers' Association of K. H. M. M. H. School, Alathiyur, filed this Original Petition for issuing a direction to respondents i and 2, the State of Kerala and the DEO, Tirur respectively to take over the Management of the above school and to make alternate arrangement for the Management of the school as there was disputes between respondents 3 and 4 regarding the management of the school. In view of my decision in O. P. No. 32683/99,1 do not think that it is necessary to pass any orders in this Original Petition. I have found that the appointment of the third respondent herein as the Manager of the school was proper and in accordance with law and she will have to continue as the Manager of the school. Moreover, the legal representatives of the deceased Hamsa Haji had already framed a Constitution for conversion of the Management to a Corporate one for the proper administration of the school. Moreover, the legal representatives of the deceased Hamsa Haji had already framed a Constitution for conversion of the Management to a Corporate one for the proper administration of the school. In view of the above circumstances, I do not think that it would be proper to direct respondents 1 and 2 to take over the administration of the school and as such this Original Petition has only to be dismissed. In the result, both these Original Petitions, viz., O. P. Nos. 32683/1999 & 26626/2001, are dismissed.