The suit for partition was maintainable as it did not amount to alienation or transfer as contemplated by S.6 of the Kerala Education Act.

1. The first defendant in O.S. No. 95 of 1984, Sub Court, Tellicherry is the appellant. The suit was one for partition of the plaint schedule items A to C, namely 50 cents of land where a school is situate, the moveables therein and the management of the school. The property originally belonged to the father of the plaintiffs and the first defendant. In Ext.Al partition deed dated 12-8-1983, Edakkanam L. P. School and 50 cents of land, where the said school is situated and the moveables therein and also the management of the said school, were kept in common (A Schedule). The first defendant was authorised as the nominee of the proprietors to manage the school, to take the agricultural income from the holding and after meeting the expenses to divide the surplus among the co-owners. The first defendant is the eldest member of the family. He is also a teacher in the same school. Without caring for the other co-owners the first defendant is mismanaging the school and acting in his own self-interest. On these and other grounds, the suit was laid seeking partition and separate allotment of their 4/5 share to the plaintiffs in the suit properties. The second defendant Assistant Educational Officer, Iritty was ex parte. The first defendant raised many contentions. One of the contentions taken was that the suit is not maintainable. It was contended that the suit for partition of the school and its properties is not maintainable in view of S.6 of the Kerala Education Act. This plea was negatived by the court below. The court below held that the suit is maintainable. It further held that the subject matter being a school and the land appurtenant to it, it cannot be partitioned by metes and bounds. It was felt that the proper course is to auction the suit properties, between the plaintiffs and the first defendant and then apportion the sale proceeds in proportion to the shares of the respective sharers. The first defendant has come up in appeal.

2. Counsel for the appellant (1st defendant) contended that the court below was in error in holding that the suit is maintainable. It was also contended that the court below was not justified in ordering auction of the suit properties between the plaintiffs and the first defendant. This may result in the effacement of the school and so the court below should not have ordered the auction of the properties.

3. We heard counsel at length. There is do force in the submissions made by the appellant's counsel. It is conceded that plaint A schedule properties belong to the 4 plaintiffs and the first defendant and they are kept in common. Since the first defendant was the eldest member of the family and he is a teacher in the school, he was nominated to manage properties. Since plaintiffs' right to 4/5 in the suit properties is concerned, the only further question to be examined is whether S.6 of the Kerala Education Act in any way bars the filing of the suit. S.6(1) of the Kerala Education Act is as follows.

"6. Restriction on alienation of property of aided school-(1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will in his opinion, adversely affect the working of the school."

The said section restricts only alienation of the property of the aided school. The alienation may be by way of sale, mortgage, pledge, charge or transfer of possession. In the present case what is sought is only a partition of the property. There is no transfer or alienation as contemplated by S.6 of the K. Education Act. It is settled law that a partition of the family property is not an alie