B. Bhagwan Das Vs. Allan Khan - 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]. daniels, j.1. this appeal arises out of a suit for sale on mortgage. the mortgage was executed in 1909 by dalpat rai arm his younger son shadi lal. the suit was contested by dalpat rai's elder son, the appellant bhagwan das, on the ground that it was executed without legal necessity.2. it has now been found that the property was joint family property. the plaintiff produced evidence which the learned 'munsif accepted as proving the existence of legal necessity. the learned district judge was unable to rely on this evidence?' because in his opinion it proved nothing more than a representation by the mortgagors of the existence of the necessity. this does not appear to be strictly accurate. the evidence of one of the witnesses as quoted by the learned munsif shows the existence of actual necessity at the time. this witness who was an honorary magistrate gave evidence that the mortgagors at the time of execution of the deed were in straitened circumstances and in need of money for their subsistence and in order to carry on their cultivation.3. the learned district judge goes on to hold, accepting the finding of the learned munsif on this point, that the appellant was working away from home and that his father and brother were left at home and were in charge of the family affairs and property. it appears that the appellant was employed on the railway and had been away at allahabad for a long period leaving the family property in charge of his father and younger brother. the learned judge considered that this state of affairs was sufficient to shift the burden of proof on to the appellant. in my opinion, this view is not inconsistent with the law on the subject. it has been held by the privy council that no invariable rule can be laid down but that the onuses liable to shift on proof of particular circumstances. looking at the matter from a common-sense point of view, it is highly unlikely that the father and the younger brother who were in charge of the property would combine, in the absence of the plaintiff, to alienate it without any necessity in order to defraud him. the concurrence of all the adult members of a family in a transaction has been more than once held sufficient, e.g., balwant santaram v. babaji (1884) 8 bom. 602, to raise a presumption of legal necessity and in the particular circumstances of this case the court below was, in my opinion, justified in holding that the concurrence in the transaction of shadi lal, who was of age and was the only son present at home at the time of the transaction, has the same effect.4. i accordingly dismiss the appeal with costs including in this court fees on the higher scale.