Manki Kunwar Vs. Kundan Kunwar - 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]. - 1. this was a suit of a rather unusual but quite interesting character. in ordinary circumstances that claim was undoubtedly a good one in law, there boing only herself, the plaintiff, and her sister, kundan kunwar, as the survivors of the father at the time of the claim. the defendant set up the plea that the plaintiff was a wealthy woman whilst she, the defendant, was very poor. ' the learned subordinate judge took the view that the action should fail on the ground that the plaintiff was a rich woman; that the defendant was a very poor woman and that the authority of the mitakshara gave to the defendant the right to succeed to the whole of the father's estate. but it has been pointed out to us that in that case the rich daughter had at the time of marriago a valuable estate made over to her and, therefore, she was an enriched daughter in the sense that she had acquired property in her own right as apart from her general expectations of property and generally rich surroundings. 243. there the rich daughter had acquired nothing by will, had acquired nothing by gift or conveyance, but she was in comparison to her sister a woman who had married into a wealthy family. it is sufficient to say that her surroundings are such that she would be regarded as a rich woman.1. this was a suit of a rather unusual but quite interesting character. it wag a suit between two sisters, and the plaintiff claimed that she was entitled to a share to the extent of one-half of the entire property left by her father. in ordinary circumstances that claim was undoubtedly a good one in law, there boing only herself, the plaintiff, and her sister, kundan kunwar, as the survivors of the father at the time of the claim. the defendant set up the plea that the plaintiff was a wealthy woman whilst she, the defendant, was very poor. she thereby invoked the statement of law recorded in the mitakahara to the effect that the sister who is ' unprovoked for,' shall take precedence over the sister who is 'enriched.' the learned subordinate judge took the view that the action should fail on the ground that the plaintiff was a rich woman; that the defendant was a very poor woman and that the authority of the mitakshara gave to the defendant the right to succeed to the whole of the father's estate. this appeal raises two questions, one is a question of fact, the other is a question as whether on the text of the mitakshara the defendant has correctly described her sister as a wealthy one. we have been taken through the evidence of the means of the defendant, and we ate of opinion that she has correctly described herself. compared with the position of the defendant, the position of the plaintiff is rightly described as that of a wealthy woman. it was suggested in argument to us that you must construe the text of the mitakshara and the words 'enriched daughter' as moaning a daughter definitely provided for either by a document, such as a will, or by having been definitely invested with property in her own right by some other method, gift or something in the nature of a settlement. we have been referred to several cases, the first one of which was that of oudh kumari v. chandra dai (1880) 2 all. 561. in that case it was held that the only criterion was the comparative poverty. but it has been pointed out to us that in that case the rich daughter had at the time of marriago a valuable estate made over to her and, therefore, she was an enriched daughter in the sense that she had acquired property in her own right as apart from her general expectations of property and generally rich surroundings. a few years later that was followed by danno v. darbo (1882) 4 all. 243. there the rich daughter had acquired nothing by will, had acquired nothing by gift or conveyance, but she was in comparison to her sister a woman who had married into a wealthy family. in that case the court said, 'the expression' unprovoked for, in contradistinction to the term 'enriched,' must be construed in the sense of 'indigent,' as opposed to 'possessed of moans,' irrespective of the sources of provision or non-provision.' other cases were cited to us, but we need only refer finally to the case of totawa v. basawa (1899) 23 bom. 229. that case is a definite authority, which shows that all that has to be regarded is this. if you find a marked difference in the financial position of these sisters, and one of those sisters in straitened circumstances, that is sufficient to bring into operation the authority of the mitakshara. this case, as all the other ones, has to be looked at from the point of view of comparative poverty of the plaintiff and defendant, and it is not essential that the poor sister should be bound to point some definite acquisition of property by the rich sister. it is sufficient to say that her surroundings are such that she would be regarded as a rich woman. the ordinary case, of course, is that she has married into a family of position and wealth. taking that as a criterion we are of opinion that the claim of the plaintiff was rightly dismissed, and we dismiss this appeal with costs.