Bechu Pande Vs. Mt. Dulhma and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 6. the cases on both sides are given in a foot note to the 9th edition' of mayne's hindu law at page 956. in this case, however, we have to see whether the plaintiff had a good cause, of action on the date when he instituted his suit.1. the question in this appeal is whether the plaintiff is entitled to a declaration that a deed of gift executed by mt. dulhma in favour of her daughter musammat maharaji is invalid as against the right of the reversioners. the pedigree of the family to which the parties belong is given in the judgment of the court below. musammat dulhma's husband, ram adhin, was the last survivor of the joint family to which he belonged and on his death musammat dulhma succeeded to a widow's interest in the property. she has three daughters who are all alive and are defendants to the; suit, and at the time of the institution of the suit there was also a daughter's son, bachcha, who was defendant no. 5. this child has since died.2. the gift was in favour of one only of musammat dulhma's three daughters. the courts below have held that it was valid as an acceleration of the widow's life interest. this finding is erroneous. it was held by the privy council in. rangasami gounden v. nachiappa gounden a.i.r. 1918 p.c. 196 that a surrender to be valid must be in favour of the nearest reversioner if there be only one, or all the reversioners i nearest in degree if there be more than, lone. this decision has been followed i in this court in the recent case of prag narain v. mathura parsad a.i.r. 1924 all. 740 and by the bombay high court in dodbasappa ramalingappa v. basawaneppa shivlingappa [1918] 42 bom. 719.3. the next question is whether the plaintiff as a remote reversioner had any right to institute the suit. the general rule on the subject was laid down by their lordships of the privy council in rani anada kunwar v. the court of wards [1881] 6 cal. 764.4. the rule is that a suit of this nature must ordinarily be brought by the reversioner nearest in succession at the time. the cases in which a remote reversioner may be entitled to sue are thus stated:if the nearest reversionary heir refuses, without sufficient cause, to institute proceedings, or if he has precluded himself by his own act or conduct from suing, or has colluded with the widow or concurred in the act alleged to be wrongful the next presumable reversioner would be entitled to sue.5. in this case the next reversioners entitled to sue are mt. maharaji's two sisters, musammat chandra and musammat badra. there was an allegation in the plaint that they were in collusion with the widow, but no issue was framed on the point, and no circumstance has been pointed out to us from which an inference of collusion could be drawn. the only fact relied upon by the appellant is that they refrained from suing for a period of some ten years after the gift. there is a conflict of authority on the question whether the fact that the nearest reversioner is a female holding a life interest is in itself sufficient to give the remote reversioner a right to sue.6. the cases on both sides are given in a foot note to the 9th edition' of mayne's hindu law at page 956. in this case, however, we have to see whether the plaintiff had a good cause, of action on the date when he instituted his suit. if he had no cause of action on that date his suit cannot succeed because one or more deaths have taken place during the pendency of the litigation. on the date when the suit was brought there was admittedly a daughter's son of musammat dulhma in existence, so that the plaintiff was hot even the next reversioner after the death of the daughter's son. in gumanan v. jahangira 40 all. 518 it was held by this court that in the presence of daughters and a 'daughter's son, even if the daughter's son be a minor a remoter reversioner is not entitled to sue.7. we accordingly dismiss the appeal with costs, but as we are deciding the case on a different ground from that on which it was decided by the court below and overruling its decision on that ground, we think the costs should not include fees on the higher scale, and we direct accordingly.