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2002 Supreme(Ker) 51
Judges : R.RAJENDRA BABU
Mohamedkutty - Appellant
Versus
State of Kerala - Respondent
Case No : O. P. No. 32683 of 1999
Decided On : 01/22/2002
Advocates Appeared :
N. Haridas & C.S. Manu For Petitioners Government Pleader (M.J. Rajasree) & (T. Krishnanunni) For Respondents
Headnote:
Kerala Education Rules – Chapter III Rule 1 2 8 – Contract Act – S. 19 – Managership of School – The petitioner filed this Original Petition for quashing Exhibit P7 order passed by the District Educational Officer, (DEO) approving the appointment of the fifth respondent, the mother of the petitioner, as the Manager of the Kunhimon Haji Memorial High School (KHMHS) at, Ext. P11 order of the Director of Public Instructions (DPI) confirming Exhibit P7 order and dismissing the revision filed by the petitioner challenging Exhibit P7 and Exhibit P16 order passed by the Government upholding Exhibit P11 and dismissing Exhibit P12 representation made by the petitioner before the Government – The main argument advanced by the learned counsel for the petitioner was that deceased was the Individual Educational Agency and by the death, the status of Individual Educational Agency would cease and all the legal representatives would jointly constitute a Corporate Educational Agency and till a bye law had been framed for the administration of the Corporate Management and it was approved by the Educational Authority, the petitioner cannot be removed from the Managership – Held, Corporate Management is a creation by agreement between the parties or a creation by a law, but not a creation by operation by law. By the death of Deceased(father of petitioner) the character of Individual Educational Agency did not cease, but it would continue and it would be open for all the legal representatives of deceased to treat the school and the Management as common and to nominate or appoint one of the legal heirs as the Manager – Here, all the legal representatives had decided to treat the school as common by Exhibit R. 5 (b) agreement and later all of them, except the petitioner, decided to convert the Management to a Corporate one by Exhibit R5 (g) Constitution – Till Exhibit R5 (g) document is approved by the competent authorities and treated it as a Corporate Educational Agency, the Management shall be deemed to be an Individual Educational Agency and the Management of the school shall be subject to the majority decision of the legal representatives as stipulated in Exhibit R5(b) agreement – It is for the legal representatives to decide whether the Management of the school should be continued as an Individual Educational Agency or be converted into a Corporate Educational Agency by agreement among them – Hence, the argument advanced by the learned counsel for the petitioner that by the death of deceased, the Corporate Management would be constituted by operation of law cannot be accepted –All the legal heirs of the deceased 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, Court find no reasons to interfere with those orders and as such this petition has only to be dismissed
O.P. No. 26626/2001
In view of decision in O.P. No. 32683/99, Court do not think that it is necessary to pass any orders in this Original Petition – In the result, both these Original Petitions, viz., O.P. Nos. 32683/1999 & 26626/2001, are dismissed– Petitions Dismissed
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. 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 sch
