Thankamma Kumjamma and Others vs Krishnan Unnithan and Others

John Mathew, J.—These appeals arise from O.S. 18/1982 before the Subordinate Judge''s Court, Mavelikkara. That suit was for declaration of the right of plaintiff and defendants 1 and 2 over two schools scheduled as items 19 and 20 as well as the Educational Agency and for consequential reliefs.

Plaintiff and defendants 1 and 2 are the children of deceased Govinda Pillai Narayana Pillai through his legally, wedded wife Kunju Lekshmi Amma Devaki Amma. The said Narayana Pillai was having illicit connection with the 3rd defendant even during the life time of plaintiff''s mother. In that relationship defendants 4 to 7 were born to the 3rd defendant. Plaintiff''s mother Devaki Amma died on 9th January 1963. Ext. A-3 is her death certificate. The said Narayana Pillai died on 3rd November 1981. The plaintiff''s father had founded a High School as well as a L.P. School in plaint items 1 to 18. Items 1 to 15 were purchased in the name of plaintiff''s father. In 1977 plaintiff''s father appointed him as the permanent Manager of the High School. That appointment was recognised by the Education Department and he was functioning as the Manager of the High School. Plaintiff''s father appointed the 4th defendant as the Manager of the L.P. School. The plaintiff constructed a building in the plaint property with his own funds. The remaining buildings were constructed by plaintiff''s father with the money obtained by him by selling plaintiff''s property. Plaintiff''s father filed a suit O.S. 304/1978 before the Kayamkulam Munisiff Court against himself and the 1st defendant in respect of plaint items 1 to 18 and other items of properties for injunction restraining them from obstructing his possession and enjoyment of the properties. Ext. A-6 is the copy of the plaint and Ext. A-7 to A-12 are the copies of petitions, orders or records in that suit. Later that suit was withdrawn. On 13th February 1979 plaintiff''s father filed a petition before the District Educational Officer for permission to remove the plaintiff from the Managership of the High School and to appoint the 4th defendant as the Manager. The D.E.O. allowed the petition by Ext B-14 order on 23rd October 1980 and that order was confirmed by the Government by Ext. B-15 order, dated 24th October 1981. Plaintiff filed O.P. No. 5822/1981 before this Court challenging that order. During the pendency of that O.P. plaintiff''s father died on 3rd November 1981. His right as the Educational Agency devolved on the plaintiff and defendants 1 and 2. That O.P. was dismissed without prejudice to the plaintiff''s right to work out his remedies in appropriate proceedings. Ext A-13 is the judgment in the O.P., dated 10th November 1981. Even though 4th defendant was appointed Manager of the School, the order of the D.E.O. did not take effect. Plaintiff continued to be the Manager of the High School. The order appointing 4th defendant has become ineffective due to the death of plaintiff''s father. Defendants 3 to 7 claimed right over plaint items 1 to 18 on the basis of a Will, dated 31st August 1978 executed by plaintiff''s father Narayanan Pillai. The Will is produced as Ext. B-21. But the Schools, the right of educational agency and the furniture in the School were not included, in the Will. Thus plaintiff and defendants 1 and 2 have inherited the right over the Schools, furniture and the educational agency. The Will is void and separate suit will be filed to set aside the same. 4th defendant has no right to take the yield from the properties. Plaintiff is in possession of the properties and taking the yield from the trees therein. Therefore, the suit was filed to restrain defendants 3 onwards from trespassing into the plaint items 1 to 18 and taking yield from the properties and from interfering with plaintiff''s right to the management of the schools.

Defendants 3 to 5 in their joint written statement contended as follows. Deceased Narayana Pillai never married plaintiff''s mother. She was the wife of Narayana Pillai''s brother. Narayana Pillai married the 3rd defendant and defendants 4 to 7 are his legitimate children. The appointment of plaintiff in 1977 was not as the permanent Manager of the High School. He was appointed only temporarily. Possession of the properties was not given to the plaintiff. In 1979 plaintiff was removed from the Managership of the High School and 4th defendant was appointed as the Manager. That order was approved by the Education Department. The 4th defendant is functioning as the Manager of the L.P. School. Plaint schedule items 17 and 18 and the School building and the furniture are in her possession. Plaintiff did not make any construction in the property spending his money. All the buildings were put up by their deceased father with his, own money. After the death of Narayana Pillai plaintiff, took forcible possession of certain items of properties. While the defendants were thinking of legal action for recovery, the plaintiff has instituted this suit. The 4th defendant is still in possession of plaint schedule items 17 and 18 and also the L.P. School building and the furniture therein. The Original Petition filed by the plaintiff challenging the order appointing the 4th defendant as Manager of the High School was not admitted by this Court. The right of deceased Narayana Pillai as the educational agency has not devolved on plaintiff and defendants 1 and 2. They are not competent to nominate the plaintiff as the Manager of the School. On 22nd November 1980 Narayana Pillai executed Ext. B-16 gift with respect to the southern 10 cents from item No. 1, items 12 to 15 and the northern 27 cents from item No. 17 in favour of the 4th defendant. Thereafter she was in exclusive possession of those items. On 3rd March 1981 deceased Narayana Pillai executed Ext. B-17 gift in favour of the 4th defendant with respect to 13 cents and the building in item No. 17 and item No. 18 and those properties are in her possession. He also executed Ext. B-21 Will on 31st August 1978, as per which defendants 3 to 7 are entitled to the whole of the estate of deceased Narayana Pillai found at the time of his death. Thus the entire plaint schedule properties and school buildings and furniture and the right of educational agency devolved on defendants 3 to 7. The plaintiff is not entitled to continue as the Manager of the High School. Defendants 3 to 5 have formed a corporate management and framed bye-laws and nominated 4th defendant as the Manager of the schools, 4th defendant alone is entitled to be the Manager of the schools. Even apart from the Will, they are entitled to succeed to those rights as the legal representatives of Narayana Pillai. They are also entitled to take the yield from the properties. Plaintiff has no right to take the yield.

The Court guardian of minor defendants 6 and 7 filed a written statement supporting defendants 3 to 5.

The plaintiff produced Exts. A-l to A-21 and examined P.Ws. 1 and 2. Defendants produced Exts. B-l to B-21 and examined D.Ws. 1 and 2. The lower Court by its judgment under challenge in these appeals, declared that plaintiff and defendants 1 and 2 constitute the educational agency with respect to the High School. Their right over the High School buildings and the furniture was also declared. It was further declared that plaintiff will be entitled to function as the Manager of the High School and will have limited possession over plaint schedule items 1 to 11 and 16 for the purposes of smooth running of the High School. It was also held that defendants 3 to 7 will have the right to take the yield from the trees from those items. The lower Court further declared that the plaintiff and defendants 1 and 2 are not entitled to any declaration in respect of the L.P. School and items 12 to 15, 17 and 18. It was held that 4th defendant was entitled to items 12 to 15, 17 and 18 and the L.P. School and she was allowed to continue as the Manager of the L. P. School. Defendants 3 to 7 have filed A.S. No. 46/1986. A.S. No. 112/1986 is filed by the plaintiff. A.S. No. 348/1988 is filed by defendants 1 and 2. In this judgment the parties are referred to according to their status before the trial Court.

The points that arise for consideration in these, appeals are: (1) On the death of Narayana Pillai on whom did his right as educational agency in respect of the schools described as plaint items 19 and 20 devolve? (2) Is the plaintiff entitled to the declaration and injunction prayed for?

Point Nos. 1 and 2.--As per the averments in the plaint the 4th defendant was functioning as the Manager of the L.P. School and the plaintiff was functioning as the Manager of the High School. According to defendants 3 to 7, deceased Narayana Pillai had executed Ext. B-21 Will by which all his assets including his right as educational agency were bequeathed as per its provisions. However, according to the plaintiff the Will is invalid and in excess of deceased Narayana Pillai''s rights. Therefore plaintiff made an averment in the plaint that he will be taking steps to set aside that Will. The plaintiff has also a case that the Will does not take in the right of educational agency of the School. Therefore, according to the plaintiff, it will devolve on his legal representatives namely, plaintiff and defendants 1 and 2 and not on defendants 3 to 7. Learned Subordinate Judge in paragraph 13 of the judgment observed as follows:

The genuineness of Ext. B-21 Will was not challenged by the plaintiff as well as defendants 1 and 2.

In the memorandum of appeal filed by the plaintiff (A.S. 112/ 1986) ground No. 2 is that this observation is wrong and made without taking note of the averments in para 17 of the plaint. Ground No. 3 in the memorandum of appeal filed by defendants 1 and 2 (A.S. 348/1988) is to the effect that Ext. B-21 Will is not admissible in evidence and it is an invalid document and it was not legally proved. It may be observed that defendants 1 and 2 did not appear before the lower Court. Since there was no specific contention relating to the genuineness or validity of the Will, the lower Court did not raise any issue about the Will The plaintiff only mentioned in the plaint that he will be challenging the Will in other proceedings. In case the plaintiff had urged before the lower Court the contention that the Will was not valid or genuine and such a contention was not considered by the lower Court, he ought to have moved for a review of the judgment. See State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, and Daman Singh and Others Vs. State of Punjab and Others, . The plaintiff is not entitled to contend in this appeal that the Will was challenged in the lower Court According to plaintiff and defendants 1 and 2, the Will was not properly proved as required u/s 68 of the Evidence Act read with Section 63(C) of the Succession Act.

From a reading of the plaint it is clear that the plaintiff knew about the existence of the Will. If he had any valid contentions against the Will, he ought to have raised them in the plaint itself. However, no such grounds were mentioned in the plaint. Even so plaintiff complied with the requirements of Section 68 of the Evidence Act and Section 63(C) of the Succession Act and proved the Will by examining D.W. 2, who was one of the attesting witnesses in the Will. Since no suspicious circumstance is alleged or proved in order to doubt the genuineness of the Will, it is not really necessary to examine whether the Will is unnatural or not. From the evidence it is seen that the relationship between late Narayana Pillai and his children through his first wife was strained. Under those circumstances it is only natural that such a person would not bequeath his assets to them. In this view the ruling reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, relied on by learned Counsel for plaintiff is not applicable to this case.

The main contention raised by learned Counsel for the plaintiff and learned Counsel for defendants 1 and 2 regarding the Will is that the Will does not take in the educational agency and defendants 3 to 7 cannot claim that right by any of the provisions in the Will. Before considering that aspect it is necessary to understand the words ''educational agency''. Section 2(2) of the Kerala Education Act, 1958 is as follows:

2(2). ''educational agency'' means any person or body of persons permitted to establish and maintain any private school under this Act

From this it is clear that both the elements of establishment and maintenance must stand satisfied in relation to the concept of educational agency. See Thankamma v. State of Kerala and Ors. 1979 K.L.N. 158, case No. 89 Establishment means the bringing into being of an institution. See State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., It is fairly clear from the provisions of the Act of the Kerala Education Act and Rules that the educational agency is really an agent of the Government with certain rights provided under the Act and Rules. Section 3 of the Act provides for the establishment and recognition of schools. Under this section the Government may permit any person or body of persons to establish and maintain aided schools subject to the provisions of the Act and the Rules. Thus it is clear that if permission is given to any person to establish and maintain any private school, that person is called educational agency. Disputes as to who is the educational agency or who represents the educational agency is a dispute which has to be settled in a Civil Court since such disputes are totally outside the purview of the functions of the officers of the Education Department.

It is not disputed that plaint items 1 to 20 belonged to late Narayana Pillai. Although it was contended in the written statement of defendants 3 to 7 that the mother of the plaintiff was not the legally married wife of late Narayana Pillai, in the Appeal Memo in A.S. No. 46 of 1986 filed by defendants 3 to 7 the ground taken is that there was no proof that the marriage, if any, between Narayana Pillai and Devaki Amma subsisted in 1955. Ext. A1 which is the copy of the marriage register shows that late Narayana Pillai married the mother of the plaintiff on 7th Meenam 1107 M. E. Ext. A-2 judgment contains a declaration of the status of the plaintiff''s mother as the legal wife of Narayana Pillai. During the examination of the plaintiff as P.W. 1 he admitted that his mother was formerly married by the brother of late Narayana Pillai in 1104 or 1105 M.E. It was after his death that late Narayana Pillai married Devaki Amma. P.W. 2, who is a distant relative of plaintiff''s mother gave evidence that he attended the marriage of Narayana Pillai with plaintiff''s mother. More over in Ext. A-6 plaint Narayana Pillai admitted that the present plaintiff and 1st defendant are his children. From this evidence it has to be held that plaintiff and defendants 1 and 2 are legal heirs of deceased Narayana Pillai.

According to Defendants 3 to 7, late Narayana Pillai married the 3rd defendant and defendants 4 to 7 are his legitimate children. The details of the marriage like date of marriage, place of marriage, etc. were not furnished in the written statement. No evidence was adduced by defendants 3 to 7 to prove that Narayana Pillai and 3rd defendant were legally married. More over the observation in Ext. A-4 gift deed executed by Narayana Pillai on 25th May 1956 in favour of the 3rd defendant and a daughter of the 3rd defendant, who is now no more, that the done therein will have no right over his properties, apart from the properties gifted by Ext. A-4, will indicate that late Narayana Pillai was also aware that 3rd defendant was not his legally wedded wife. No doubt, in Ext. A-4 Narayana Pillai had described the 3rd defendant as his wife and the 2nd donee as his daughter. Under the circumstances noticed above such a recital in the document alone cannot be taken as proof of legal marriage between Narayana Pillai and 3rd defendant. It may also be observed that 3rd defendant was not examined in this case Therefore, it has to be held that the 3rd defendant was not the legally married wife of late Narayana Pillai and defendants 4 to 7 were not his legitimate children.

Plaint schedule properties consist of 20 items. Out of these items, item No. 19 is the High School and item No. 20 is the L.P. School. As per the schedule to the plaint, the High School is situated in plaint items 2, 4, 5, 6, 7 and 8. The L.P. School is situated in items 17 and 18. It, is stated that the other items are lying in a compact block adjacent to the other items. Learned Counsel for defendants 3 to 7 referred to the statement of the Plaintiff as P.W. 1 that the High School and L.P. School are in items 1 to 18. The L.P. School building is situated in items 17 and 18. However, according to P.W. 1, those items were intended for the High School Items 12, 13, 14 and 15 are the items for the L.P. School.

Ext. A-5 is the annual inspection report of the High School for the year 1976-77. The inspection was done by the District Educational Officer, Mavelikkara on 8th February 1977. At page 2 the extent of the land of the school was given as 3 acres and 34 cents. Different survey numbers with their extent are shown in that column. As observed earlier the plaint averments were to the effect that the High School is situated in plaint items Nos. 2, 4, 5, 6, 7 and 8 Item No. 2 is 47 cents in Survey No. 49/1/2. Item No. 4 is 7 cents in Survey No. 49/1/1. Item No. 5 is 7 cents in Survey No. 49/1. Item No. 6 is 11 1/2 cents in Survey No. 49/1. Item No. 7 is 23 1/2 cents in Survey No. 49/1. Thus the total extent in various subdivisions in Survey No. 49/1 comprised in items 2, 4, 5, 6 and 7 of plaint schedule will come to 96 cents. Item No. 1 in the inspection report is 96 cents in Survey No. 49/1. Apparently that item takes in items 2, 4, 5 and 7 of the plaint schedule. Item No. 8 in the plaint schedule is 69 cents in Survey No. 48/21/A. Item No. 8 in the inspection report is 69 cents in Survey No. 48/21. Thus the total extent of the High School property as described in the plaint will come to only 1 acre and 65 cents. However, as P.W. 1, the plaintiff mentioned that the L.P. School is now run in items 17 and 18 and those items are intended for the High School According to him items 12 to 15 are intended for the L.P. School. In cross-examination he stated that the L.P. School buildings are in items 17 and 18 and that there are other properties between High School compound and L.P. School compound. He also stated that item No. 8 which is 69 cents in Survey No. 48/21/A is on the southern side of the road.

L.P. School property, viz. items 17 and 18 are on the west and north of that item. Item No. 17 of the plaint schedule is 40 cents in survey No. 62/31 and item No. 18 is 16 cents in Survey No. 62/32. Item No. 9 in Ext. A-5 inspection report is 40 cents in Survey No. 62/31 and item No. 10 in that report is 21 cents in Survey No. 62/32. There is nothing to show as to which were the properties of late Narayana Pillai set apart for the High School or for the L.P. School, apart from P.W. l''s oral evidence.

Admittedly plaintiff was appointed as Manager of the High School in 1977 February. According to the plaintiff, the appointment was as permanent therein. Plaintiff''s father had also filed Ext. A-10 petition in that suit for appointment of a receiver for the property on 27th January 1979. On receipt of Ext. B-12 letter plaintiff''s father filed Ext- A-11 petition on 7th January 1980 for permission to withdraw the suit. (This is the same as Ext. B-7). The objection filed by the plaintiff herein to that petition is produced as Ext. B-8. The lower Court after considering the matter passed Ext. A-12 order permitting plaintiff''s father to withdraw the suit.

The petition filed by plaintiff''s father before the District Educational Officer was subsequently allowed on 15th October 1980. That order was communicated by Ext. B-14 dated 23rd October 1980. The relevant part of Ext. B-14 order is as follows:

The objection raised by Shri Gopalakrishnan Unnithan that the change of management was approved in his favour on a permanent nature and hence a further change cannot be sanctioned is also examined and found that he has only possession and control of the properties of the school in the capacity of a Manager. But the educational agency has been defined in Section 2(2) that any person or body permitted to establish and maintain any private school in the state. The possession and control are not the same as ownership. In this case, Shri G Narayana Pillai, is the owner and Educational agency of the school whereas Shri Gopalakrishnan Unnithan has the possession and control of the school properties only in the capacity of a Manager.

As the ownership of the school properties and lands has not been transferred in his favour while approving him as Manager of the school, the defence put forth by Shri Gopalakrishnan Unnithan that the management has been transferred in his favour in a permanent nature has no validity. As long as the ownership is vested with Shri C.C. Narayana Pillai, he is the educational agency and owner of H.S. Koippallikarnma and he can appoint any person as Manager from time to time. Smt. Thulasi Bai Kunjamma, the proposed Manager has furnished declaration to the effect that she is solvent, literate and interested in Educational activities etc.

In the circumstances, the change of management of H.S. Koippallikarnma from Shri N. Gopalakrishnan Unnithan, Ambazavelil Thattarethu, Perungala to Smt. T. Thulasi Bai Kunjamma, Kottarathil Veedu, Perungala, as requested for by the Educational Agency Shri G. Narayana Pillai is approved with effect from 1st October 1980 without any change of ownership.

The plaintiff herein filed an appeal against Ext. B-14 order. That appeal was dismissed by the Government by Ext. B-15 order dated 24th October 1981. The plaintiff herein challenged Exts. B-14 and B-15 orders before this Court in O.P. No. 5822 of 1981. That Original Petition was dismissed by this Court by Ext. A-13 order, which may be extracted here:

I see no reason to admit this writ petition. It is brought to my notice by the learned Counsel for the Petitioner that the 4th Respondent died two days back and in view of that his rights devolve on the petitioner. I do not think that I should go into that question now. While dismissing the writ petition I would make it clear that whatever be the rights of the parties on account of the death of the 4th respondent can be worked out in other appropriate proceedings. The decision here or the order of the Educational Officer certainly will not stand in the way of working out the legal rights on account of the death of the 4th respondent.

From this, it is clear that Exts. B-14 and B-15 orders are still in force. However, those orders were not given effect to, since this suit was filed on 4th February 1982 immediately after Ext. A-13 order. This Court by Ext. A-13 order, which was passed on 10th November 1981, did not grant any relief to the plaintiff herein. However, the lower Court has taken the view (see paragraph 18 of the judgment) that Manager is only an agent of the owner Narayana Pillai and so by his death the agency will come to an end. On that basis it was held that the managership of the High School will, therefore, devolve on plaintiff and defendants 1 and 2. Under Rule 3 of Chapter III of the Kerala Education Rules the management of every aided school may be vested by the Education Agency in a person who shall be referred to as the Manager and who shall be responsible to the department for the management of the institution. Rule 4 provides for the approval of the appointment of Managers as well as approval of changes in the personnel of the Managers. Under Rule 5A even a change of management involving change of ownership requires previous permission of the Director. Thus there is no basis in the Kerala Education Act or the Kerala Education Rules to hold that the Manager of a school is only an agent of the Educational Agency or that the managership will stand automatically terminated on the death of the person who owns the Educational Agency. Till the legal representative of the owner of the Educational Agency changes the Manager, he is entitled to continue as Manager. So the finding of the lower Court that on the death of late Narayana Pillai the managership of the High School will devolve on plaintiff and defendants 1 and 2 was not correct. It is hereby set aside. On C.M.P. No. 6295 of 1987 filed in A.S. No. 46 of 1986 for the appointment of a receiver of the High School this Court had directed the plaintiff to keep accounts regarding the income and expenses of the school and to file those accounts before the lower Court once in three months with notice to defendants 3 to 7. Under the circumstances it is only necessary to state that the rights of the 4th defendant who was approved as Manager of the High School by Ext. B-14 order will not be affected by the decree in the suit. Avvu v. Bapputty 1977 KLT 620 where it was held that a civil suit to remove a Manager from management of a school and for injunction is not maintainable, may also be referred to in this connection.

Plaintiff''s father had executed Exts. B-16 and B-17 gifts deeds in favour of the 4th defendant. Under Ext. B-16 gift deed, dated 22nd November 1980 part of item No. 1, item Nos. 12 to 15 and part of item No. 17 together with building therein were gifted to the 4th defendant. Under Ext. B-17 gift dated 3rd March 1981 the remaining part of item No. 17 and item No. 18 were gifted to the 4th defendant. As per the plaint, the L.P. School, is situated in item Nos. 17 and 18. But, as P.W. 1, plaintiff has stated that item Nos. 12 to 15 are the items intended for L.P. School. Admittedly the 4th defendant is the Manager of the L.P. School. The properties of the L.P. School are also gifted to her. Therefore, the finding of the lower Court that with respect to item Nos. 12 to 15 and 17 to 18 plaintiff and defendants 1 and 2 will not have any right or possession was proper. The plaintiff is not entitled to any relief in respect of those items and L.P. School. However, in the decretal portion of the judgment the lower Court has observed as follows:

...The 4th defendant will be entitled to items 12 to 15, 17 and 18 and the L.P. School and she is allowed to continue as the Manager of the L.P. School.

This being a suit for injunction filed by the plaintiff, this sentence has to be treated as only an observation or reason for disallowing the reliefs prayed for by the plaintiff in respect of the L.P. School as well as items mentioned above. The judgment and decree of the lower Court are accordingly clarified.

Learned Counsel for defendants 3 to 7 contended that Section 44 of the Travancore Nair Act safeguards to some extent the rights of illegitimate children. The relevant clause relied on by the counsel is the following:

Nothing in this Regulation shall:

(a) * * * (b) * * * (c) affect the status and rights of children born to parents where the female enters into marriage with the male without notice of and in ignorance of any prior subsisting marriage of the same male owing to mistake, mis-representation or fraud practised on the said female or her guardians as the case may be.

These defendants have not alleged or proved the ingredients specified in this provisions so much so they are not entitled to claim any benefit under this clause.

In Ext. B-l which is the copy of the evidence given by the plaintiff herein in O.S. No. 285 of 1978 of the Munsiff Court, Kayamkulam. he stated that his father re-married. In Ext. B-2, dated 15th November 1976 which is a notice from the Land Board in the ceiling case against plaintiff''s father, the 3rd defendant was shown as his wife. Plaintiff herein filed Ext. B-3 objection to that notice on 24th March 1977. He did not raise any objection about 3rd defendant''s status as the wife of his father Narayana Pillai. So also in Ext. B-11 statement dated 15th November 1976 filed by Narayana Pillai in his ceiling case the 3rd defendant was shown as his wife. In Exts. A-4, B-16 and B-17 gift deeds late Narayana Pillai treated the 3rd defendant as his wife and defendants 4 to 7 as his children. Even so, as far as there is no evidence of legal and valid marriage between late Narayana Pillai and the 3rd defendant it cannot be held that 3rd defendant is his legally wedded wife or defendants 4 to 7 are his legitimate children. It may also be observed that the 3rd defendant did not get herself examined in this suit, even though she has joined the other defendants in filing the written statement. It can only be held that late Narayana Pillai accepted the 3rd defendant as his wife and defendants 4 to 7 as his children. No further legal consequences will flow from this conduct.

Learned Counsel for the plaintiff as well as learned Counsel for defendants 1 and 2 contended that Exts. B-16 and B-17 gift deeds are invalid because plaintiff''s father Narayana Pillai did not get previous permission of the District Educational Officer or other officer as required u/s 6 of the Kerala Education Act. Section 6 of the K.E. Act restricts only sale, mortgage, pledge, charge or transfer of possession in respect of any property of a school. In Section 6 there is no restriction for the transfer of any school. Section 6 restricts alienation of the property of a school because in such a case the working of the school will be adversely affected if the property of the school goes into the hands of the third parties. When a school is transferred as a going school, this difficulty will not arise and hence the restriction cannot apply to such a transfer See John v. Director of Public instruction ILR 1975 Ker 604 and Maroli Balan v. Maroli Dannu and Ors. 1986 KLT 919 This contention is without merit.

Ext. B-21 is the Will executed by late Narayana Pillai. It was dated 31st August 1978 and was registered on 9th October 1978. The Will was proved by P.W. 2 who is one of the attestors of the Will. According to the plaintiff, the Will does not take in the educational agency and so defendants 3 to 7 cannot claim the right of educational agency since they are not the legal heirs of late Narayana Pillai. The relevant portions of the Will are as follows.

In the body of the Will the ownership of the High School is mentioned. But in the schedule the ownership of the High School is not mentioned. The question is whether the ownership of the school or the educational agency was included in the Will or it was excluded. Ownership of the High School and the right of the educational agency can ensure to defendants 3 to 7 only by the Will. 33 items of immovable properties are included in Ext. B-21 Will. It is not disputed that the properties in which the High School buildings are situated are also included in those items. Although there is some little controversy as to the particular items in which the High School building is situated, that controversy is not relevant in view of the fact that all the items are included in the Will. The subject matter of this suit is only the schools and the educational agency. No question of title to immovable property (other than the schools) is involved in this suit.

While dealing with the Bombay Rents, Hotel and Lodging House Rates Control Act, the Supreme Court in K.A. Dhairyawan and Others Vs. J.R. Thakur and Others, held that a building need not necessarily belong to the owner of the land and that there can be two owners, one for the land and Anr. for the building. A building can be separately owned by a person other than the owner of the land. The principle that ''what is affixed to the soil belongs to the soil'' does not apply in India. [See State v. Venkitasubramania Iyer 1953 KLT 599). Mummunhi v. Kunhibi AIR 1961 Kerala 147, Chellappan Nadar v. Krishnan Nair 1963 KLT 750 and T. Kunhammad and Others Vs. M. Narayanan Nambudiri''s Son Narayanan Nambudiri and Others, In George v. South, Indian Bank Ltd. 1959 KLT 120 this Court held that a house being imbedded in the land is immovable property. u/s 8 of the Transfer of Property Act the interests which are transferred on a transfer of property include all things attached to the earth. Even though the Transfer of Property Act is not applicable to Wills, this section provides some guidance in this matter. In D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, the Supreme Court held that a building can be treated as separate from the land for the purpose of taxation. In case the ownership of the school was not intended to be included in the Will there was no necessity to mention that in the Will. It is a well-settled principle of law that in order to construe a Will one should look into the document itself and if it is not clear the intention of the author is to be gathered from the surrounding circumstances. It has also to be remembered that the document should be construed as a whole. The overriding duty of a Court is to construe the language which the testator has used giving due weight to all the words and rejecting none to which a meaning can reasonably be assigned. It is often, stated that the Court is entitled to "put itself into the testator''s armchair". It is also a settled principle that where words are used in the latter part of the Will which had no application to the preceding direction, such words should not be allowed to detract from the force and effect of the earlier part, and that defects, even if any, in expression should not be allowed to prevent the carrying out of the testator''s intention. The following observation of Lord Esher, Master of the Rolls In re Harrison Turner v. Hellard (1959) 30 Ch. D. 390 brings out forcefully the principles to be adopted while interpreting a Will:

...There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce,-that he did not intend to die intestate when he has gone through the form of making a Will. You ought, if possible, to read the Will so as to lead to a testacy, not an intestacy. This is a golden rule.

In this connection see also Nathu and Others Vs. Devi Singh and Another, One of the propositions of law laid down by the Privy Council in the well known case of Tagore v. Tagore Weekly Reports (XVIII) 259 was that the intention, of a testator must be gathered from the words of his Will and the least trace of an intention in the Will will be given effect to.

The description of the items of properties inclusive of ownership of the High School and its furniture and equipments is given immediately before the sentence that the properties included in the document will vest as per the provisions of the Will. Therefore, the intention of the testator was to include the ownership of the school, furniture and equipments and the educational agency also in the Will. The surrounding circumstances at the time of the execution of the Will also support this view. The testator filed Ext. A-6 suit on 20th November 1978 against the plaintiff and the 1st defendant for injunction restraining them from interfering with his possession and enjoyment of item Nos. 1 to 8 in the present suit. Some other items of properties were also the subject matter of that suit. Before this suit plaintiff''s father issued to the plaintiff Ext. B-5 notice dated 21st August 1978 asking him to show cause why he should not be removed from the managership of the High School. Earlier there was Anr. suit, O.S. No. 285 of 1978, filed by the plaintiff''s father against him. That suit was decreed. Ext. B-9 is the judgment of the trial Court in that suit. Ext. B-10 is the appellate judgment confirming the trial Court''s judgment. It may be observed that Ext. B-21 Will was executed on 31st August 1978. This is a strong circumstance in support of the above interpretation that the ownership of the School and the educational agency was also intended to be included in the Will and that he did not intend to die intestate in respect of the ownership of the school and the educational agency. It may also be observed that Exts. B-16 and B-17 gifts were executed by late Narayana Pillai within a few months after these suits which will only show that the differences between late Narayana Pillai and Plaintiff only widened as time passed. By these gift deeds the properties of the L.P. School along with the building were gifted to the 4th Defendant. She was also made the manager of the L.P. School. If the Will is construed as excluding the ownership of the High School and the right of Educational agency, that will definitely be against the intention of the testator, since at the time of execution of the Will he had already removed the Plaintiff from the managership. He had filed Exts. A-6 and B-9 suits against the Plaintiff here in. He had also taken steps for approval of the change of managership of the High School. The reasoning of the lower Court that late Narayana Pillai had consciously excluded the ownership of the Educational Agency from the Will, so that it may devolve on the plaintiff is against all the circumstances referred to above and therefore not correct. Accordingly I hold that Ext. B-21 Will takes in the ownership of the school as well as ownership of the educational agency.

In this connection it may also be observed that the testator Narayana Pillai died on 3rd September 1981. This suit was filed on 4th February 1982. The plaintiff has not yet filed any petition for succession certificate, which is the normal procedure for establishing his right for inheriting the properties of the deceased. This suit seems to be an attempt on the part of the plaintiff who was unsuccessful in defeating his father during his life time to defeat him after his death. It may also be observed that the ownership of the school or the Educational Agency is not included as a separate item in the plaint schedule. Only the buildings and fittings are shown as items 19 and 20. There is also no prayer to declare that the plaintiff has title to or is in possession of any of the plaint schedule items. In the nature of the suit it may be difficult to grant any decree in favour of the plaintiff. In any view of the case the plaintiff has not succeeded in establishing that he is entitled to the declaration and injunction prayed for. I hold that the right of Narayana Pillai over the schools and his right of educational agency in respect of the schools (plaint item Nos. 19 and 20) devolved on defendants 3 to 7. So plaintiff is not entitled to declaration or injunction prayed for.

Accordingly the judgment and decree of the lower Court is modified. The decision of the lower Court that the plaintiff and defendants 1 and 2 are entitled to get a declaration that they have the right of the Educational Agency with respect to the High School in question as well as the High School building and furniture and that the plaintiff is entitled to function as the Manager of the High School is set aside. The right given to the plaintiff in the capacity as Manager of the High School for limited possession over plaint schedule items 1 to 11 and 16 is also set aside. Since the plaintiff has not established any of the rights claimed in the plaint, the suit is dismissed. The receivership of the plaintiff over the High School and its properties and the 4th defendant over the L.P. School and its properties is terminated. Possession by defendants 3 to 7 in future will be as owners. The lower Court will call upon the plaintiff to furnish accounts within one month from the date of receipt of records by that Court. The lower Court will direct the plaintiff to deposit in Court the balance amount if any found due from the plaintiff on a settlement of accounts. Defendants 3 to 7 will be entitled to draw that amount as well as the amounts deposited by the plaintiff in Court towards the value of timber cut by him. The lower Court will also issue any consequential orders taking into account the findings and observations in this judgment.