V. Chitambaresh, J.—We are disposing of the appeal suit nineteen years after its preferment by this judgment which is shorn off the unnecessary details and may hence appear to be unconventional in form.
2. Only two contentions are urged by the appellants/defendants 1 to 3 in the appeal suit against the preliminary decree for partition of the property belonging to a ''kovilakam''. The first contention is that no decree could have been passed to partition the school including its management in view of Section 6 of the Kerala Education Act, 1958. The second contention is that Ext. B1 adoption deed should be construed as a settlement deed in which case the property is not available for partition at all. There is however no dispute as regards the identity of property or the quantum of shares in case the property is partible as has been found by the court below.
3. We heard Mr. T. Krishnanunni, Senior Advocate on behalf of the appellants and Mr. N. Subramaniam, Advocate on behalf of the contesting respondents.
4. The plaint schedule property is land of extent 5 acres with a building thereon which houses the Kottayam Raja''s Secondary School functioning under the Kerala Education Act, 1958. Section 6 thereof only prohibits sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school except with permission. Previous permission should be obtained in writing from an officer not below the rank of a District Educational Officer authorised by the Government. A partition is only a division of the pre-existing rights of the sharers and does not amount to sale, mortgage, lease, pledge, charge or transfer of possession. Only the joint possession is severed and the rights of sharers already in existence divided by metes and bounds in a partition of property. Even the management of a school can be the subject matter of partition and the statutory bar is only against transferring the property of the school and not the school itself as a whole. The decisions in Maroli Balan v. Maroli Dannu and others [1986 KLT 919 (DB)] and Jose v. Antony and others [2001(1) KLJ 555] on the scope of Section 6 of the Kerala Education Act, 1958 are eloquent. The property if found partible can be put to auction amongst the parties or for public sale and only a physical division of the school should be averted. It is for the alottee or the auction purchasers to have a Manager appointed in terms of Chapter III of the Kerala Education Rules, 1959. We reject the contention that the decree for partition of the property wherein the school is situated is hit by Section 6 of the Kerala Education Act, 1958.
5. The ''kovilakam'' was about to become extint at one point of time by reason of the fact that the only female then alive was issueless and had passed the child bearing age. It was then that the members of the ''Kovilakam'' governed by the Madras Marumakkathayam Act hit upon the idea of adopting the first defendant as a member of the ''Kovilakam''. Ext. B1 adoption deed dated 09.09.1948 was accordingly executed wherein the then members of the ''Kovilakam'' were executant Nos. 1 to 3 and the adoptee - executant No. 4. It is recited therein that executant No. 4 and her children would have the rights of junior members till the demise of executant Nos. 1 to 3. There is a further recital in Ext. B1 adoption deed that the property would devolve on executant No. 4 and her children on the death of executant Nos. 1 to 3. An adoption need not be to a particular person - man or woman - and there can be an adoption to the family under the Marumakkathayam law as noticed in Ext. A5 judgment. The said judgment in appeal stems out of yet another suit for partition in the same family wherein copious reference is made to authoritative texts on the subject.
6. It may incidentlly be stated that Ext. B1 adoption deed was the subject matter of interpretation in O.S. No. 75/1965 on the file of the court of the Subordinate Judge of Tellicherry. The suit was for partition of some other property belonging to the ''Kovilakam'' to which the appellants and other members were very much a party. Appeals therefrom as A.S. Nos. 131/1969 and 166/1969 were disposed of by a common judgment dated 25.07.1973 by this court which was called for from the record section. It was categorically found therein that Ext. B1 deed cannot be construed as a testamentary disposition and can be considered as ''nothing other than an adoption deed''. Moreover there was no scope for any undivided member to bequeath any property by testamentary disposition when the Hindu Succession Act, 1956 was not even in the contemplation of the parties.
7. The present contention that Ext. B1 deed should be construed as a family settlement or arrangement is equally untenable going by the conspectus of events. A family settlement is normally entered into in lieu of partition to sink the disputes and bring harmony among the parties for the benefit of the family as a whole. The decisions in Kale v. Director of Consolidation [(1976)3 SCC 119] and Maturi Pullaiah v. Maturi Narasimhan [AIR 1966 SC 1836] are apposite to the context. There was no pre-existing right for executant No. 4 in the property and she was adopted into the family of the ''Kovilakam'' only by Ext. B1 deed dated 19.09.1948. The plaint schedule property including the school building was purchased by the karanavan of the ''Kovilakam'' ten years after by sale deed dated 27.02.1958. The very concept of family settlement is to give quietus to bona fide disputes and rival claims by a fair and equitable division or allotment of the property. Nobody has any case of lingering disputes in the family and the recital in Ext. B1 deed as regards the vesting of the property is customary to reinforce adoption. It cannot therefore by any stretch of imagination be held that Ext. B1 deed depicts a family settlement in respect of the plaint schedule property as is contended.
8. The plea of family settlement was not raised in O.S. No. 75/1965 wherein Ext. B1 deed was projected as a ''will'' only and the present exercise is clearly an afterthought. We are not considering the question as to whether the appellants could aprobate and reprobate since it can technically be contended that the suits relate to different property. The appellants who are executant No. 4 and her children cannot deny the share claimed by the legal heirs of executant No. 3 of Ext. B1 deed. The court below has not erred in passing a preliminary decree for partition of the plaint schedule property and this appeal is bereft of merit in the circumstances.
9. The Appeal Suit is dismissed. No costs.
