IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 WA.No. 88 of 2011() ------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.27386/2008 Dated 19/11/2010 .................... APPELLANT(S): 4TH RESPONDENT ---------------------------- T.SUDHEER,S/O.LATE SUBRAMANIAN, THAIKOOTTATHIL HOUSE,PULLIPPARAMBA, CHELAMBRA PO,MALAPPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): PETITIONER AND RESPONDENTS 1 TO 3 ------------------------------------------------ 1. M.V.SUSHEELA,W/O.LATE BALAKRISHNAN, 50 YEARS,R/AT THAIKOOTTATHIL HOUSE, PULLIPPARAMBA,CHELAMBRA PO,MALAPPURAM DISTRICT PIN - 673 634. 2. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 3. THE ASST.EDUCATIONAL OFFICER, PARAPPANANGADI, PIN - 676 303. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN - 695 001. MS.T.B.RAMANI, GOVERNMENT PLEADER S.SREEKUMAR, FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2011, ALONG WITH W.A.NO.101/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- WA Nos.88 & 101 of 2011 --------------------------------- Dated, this the 28th day of January, 2011 J U D G M E N T Ramachandran Nair, J. The contesting parties claiming management of a School, are appellants in the connected Writ Appeals filed challenging the very same judgment of the learned Single Judge. 2. We have heard Shri.George Poonthottam, learned counsel appearing for the appellant in W.A.No.88/2011, Shri.S.Sreekumar, learned counsel appearing for the appellant in W.A.No.101/2011, and learned Government Pleader for the State and Educational Agencies. 3. The facts that led to the dispute are the following:- One Shri.Appukutty established a Lower Primary School in the year 1936 and eversince he continued as it's Manager. The School was later upgraded as an Upper Primary School. In the year 1952 Shri.Appukutty executed a gift deed gifting the W.A.Nos.88 & 101/2011 -2- entire properties including the land in which the School buildings are constructed, in favour of his wife and two minor sons. Later wife of Shri.Appukutty executed release deed releasing her rights in favour of two sons. Thereafter in the year 1983 a partition deed was executed between the joint owners of the property, namely the two sons of Shri.Appukutty, whereunder the land and School buildings and improvements thereof were assigned to the share of Shri.Balakrishnan. During the life time of Shri.Appukutty, his elder son, namely Shri.Balakrishnan was made as the Manager of the School and the same was approved by the Educational Authorities vide Ext.P3 dated 20/09/1986. Shri.Balakrishnan continued as the Manager for 20 years without any dispute whatsoever. The dispute on the right of management of the School started after his death, which happened on 09/06/2006. The wife of the deceased Manager, namely the appellant in W.A.No.101/2011, applied before the Educational Authorities, namely the Assistant Educational Officer, to approve her as Manager of the School after the death of her W.A.Nos.88 & 101/2011 -3- husband, who was the Manager for 20 years. Since no orders were passed by the AEO within a reasonable time, she approached this Court by filing WP(C) and this Court, considering the dispute between the parties, directed the Director of Public Instructions to decide the matter. Pursuant to the direction issued by this Court, the DPI issued Ext.P6 order produced in W.A.No.88/2011. Ext.P6 was challenged by the appellant in W.A.No.88/2011, who is the nephew of the deceased previous Manager, in revision before the Government, and the Government by Ext.P8 held that the dispute has to be settled before Civil Court, and until then, based on the Will executed by Shri.Appukutty in the year 1984, the Government handed over the management of the School to Late Shri.Balakrishnan's brother's son, namely the appellant in W.A.No.88/2011. Even though the deceased Manager's wife filed a suit based on the observation of the Government in Ext.P8, she challenged the said order in this Court by filing WP (C), wherein the learned Single Judge modified Ext.P8 by directing the AEO to take over the Management of the School W.A.Nos.88 & 101/2011 -4- until Civil Court decides the dispute between the parties. In other words, Ext.P8 is upheld by the learned Single Judge, but with a change in the interim arrangement of the management of the School. Since both the contesting parties are aggrieved by the interim arrangement made by the learned Single Judge, these Writ Appeals are filed. 4. While learned counsel appearing for the appellant in W.A.No.88/2011 contended that the interim arrangement made by the Government based on the Will executed by Shri.Appukutty is perfectly correct, wife of the deceased Manager contended that the Will is inconsequential because her husband Shri.Balakrishnan became the Manager by transfer of management and not by succession under any Will. 5. After hearing both sides and after going through the documents and the impugned orders, we do not find any justification to uphold Ext.P8, which is what the learned Single Judge has done in the impugned judgment. What was challenged before the Government in revision was Ext.P6 order, wherein the DPI has given a clear cut finding, which is W.A.Nos.88 & 101/2011 -5- not disputed by the parties, that the land and School buildings remained in the name of Shri.Balakrishnan, and his father Shri.Appukutty, who was the Manager of the School from 1936 onwards, permitted transfer of management from himself to his son Shri.Balakrishnan during his life time. In fact, the transfer of management from Shri.Appukutty to Shri.Balakrishnan was approved by the Educational authorities by Ext.P3 dated 20/09/1986. This transfer of management remains uncontested for 20 years i.e. until the death of Shri.Balakrishnan on 09/06/2006. 6. The question to be considered is whether the contesting party, namely, the nephew of Shri.Balakrishnan (brother's son) could claim to be appointed as Manager based on the Will executed by his grandfather, namely Shri.Appukutty. Admittedly, Shri. Appukutty executed two or three Wills, the last one of which was executed in 1984, wherein it is stated that the Management of the School should go to his son Shri.Balakrishnan and thereafter to his other son's son, namely, the appellant in W.A.No.88/2011. Now the W.A.Nos.88 & 101/2011 -6- question to be considered is whether Shri.Balakrishnan became the Manager by virtue of the operation of the Will or whether it is a transfer of management during the life time of the previous Manager that is his father. What is bequeathed in a Will is the property of the testator after his death. Nothing stops the testator from parting with the assets or transfer of any right during his life time, and if any transfer of assets is made during life time of testator, the Will became ineffective and inoperative for so much of the assets or rights transferred. After executing the Will in 1984, Shri.Appukutty continued as the Manager of the School and thereafter he transferred the Management to his elder son Shri.Balakrishnan, which was approved on 20/09/1986 by the Educational Authority by Ext.P3. In fact, Shri.Appukutty died on 18/06/1987 and his son Shri.Balakrishnan continued as manager until his death. 7. The question now to be considered is whether there is any significance or relevance in the wish of Shri.Appukutty expressed in the Will that after the death of Shri.Balakrishnan, W.A.Nos.88 & 101/2011 -7- his other son's son, the appellant in W.A.No.88/2011, should become the Manager. We are of the view that once there is a transfer of Management approved by the Educational Authorities in terms of Rule 5 or Rule 5A of Chapter III of KER, then the previous Manager retains no right to be bequeathed. So much so, the Will executed in 1984 during the life of Shri.Appukutty, and that the provision made in the Will regarding succession of management of the School is ineffective and inoperative, as the Management has already been transferred to his son during his life time that too with his approval. So much so, the direction issued by the Government to the appellant in W.A.No.101/2011, namely, the widow of Shri.Balakrishnan, to file Civil Suit to get her claim settled, is misconceived. 8. We find from Ext.P6 issued by the DPI that he has taken note of the fact that the land and school buildings were properties of Shri.Balakrishnan when he was made as Manager. Even though learned counsel for the appellant in W.A.No.88/2011 contended that the transfer of management W.A.Nos.88 & 101/2011 -8- approved in favour of Shri.Balakrishnan was without change in ownership and therefore the transfer approved in 1983 is not under Rule 5A, we are unable to accept this contention because in the first place the appellant cannot be allowed to contest the transfer of Management approved in 1986. Even though transfer of the land and school buildings was not contemporaneous to the change of management, Shri.Balakrishnan had already become the owner of the land and the school buildings under the partition deed on 1983, and the other party in the partition deed is the father of the appellant herein. In other words, after acquiring the title on the land and school buildings, Shri.Balakrishnan became the Manager of the School with the approval of the previous Manager, namely, his father. Consequent upon the approval of his appointment as Manager by Ext.P3 dated 20/09/1986, he continued both as owner of the land and building of the School and as Manager for 20 years. We feel the only question therefore to be considered is the succession to the Management of the School and since his wife and children are W.A.Nos.88 & 101/2011 -9- alive, brother's son of the deceased cannot claim to be legal heir, and the appellant in W.A.No.88/2011 also has no such claim. 9. In view of the above findings, the judgment of the learned Single Judge and Ext.P8 order issued by the Government will stand vacated and Ext.P6 issued by the DPI will stand restored. The appellant in W.A.No.101/2011 can withdraw the Civil Suit filed pursuant to the direction issued by the Government in Ext.P8, which now stands vacated by us. The AEO will issue formal orders approving the appellant in W.A.No.101/2011 as the Manager of the School. In the result, W.A.No.88/2011 is dismissed and W.A.No.101/2011 is allowed. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg