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Appeal No. 194 of 1967.
Appeal from the judgment and order dated April 27, 1964 of the Madhya Pradesh High Court in Misc.
(First Appeal No.60 of 1960.
section N. Anand and Kailash Mehta, for the appellant.
section section Khanduja and K. C. Dua, for respondent No. 1.
The Judgment of the Court was delivered by Khanna, J.
This is an appeal on a certificate of fitness granted by the Madhya Pradesh High Court against the judgment of that Court whereby that Court in appeal set aside the order of the Additional District Judge, Jabalpur, dismissed the objections against an award and directed that the award be made a rule of the Court.
Naraindas, appellant is the brother of Vallabhdas and Durga prasad, respondents 1 and 2 and son of Smt.
Sukhrani, respondent No. 3.
There were, some arbitration proceedings in 1932 between the appellant and respondents 1 to 3 on one side and Pannalal and Smt.
Dulari Bahu on the other side.
Those proceedings related to partition of property and a claim for maintenance allowance by Dulari Bahu.
An award was given in those proceedings and was made a rule of the Court on 13 12 1933.
According to the award, Dulari Bahu was to get a maintenance allowance of Rs. 12/ per mensem from the appellant and his brothers .
A charge was created of the maintenance allowance on the house which fell as a result of partition to the 30 share of the appellant and respondents 1 to 3.
It was also provided that if the appellant and his brothers failed to pay the monthly allowance, Dulari Bahu would, be entitled to get the house sold.
Out of the sale proceeds, Rs. 3,000/ were to be deposited in a bank on the condition that the, amount of interest would be paid to Dulari Bahu but she would not be entitled to draw the principal amount.
On Dulari Bahu 's death, Rs. 2,000/ out of Rs. 3,000/ would be paid to the appellant and his brothers and Rs. 1,000/ to Pannalal.
The amount of maintenance payable to Dulari Bahu was increased to Rs. 30/ per mensem in a suit brought by her and decided on 8 10 1949.
As the appellant and his brothers did not pay the maintenance allowance to Dulari Bahu, she, in execution of her claim for maintenance allowance, got their houses situated at Jabalpur sold by Court auction.
The houses were purchased for Rs. 22,000/ by Sitaram and Laxminarain, respondents 4 and 5.
After obtaining the sale certificate, respondents 4 and 5 took proceedings for obtaining possession of the houses but they were resisted by respondent No. 1.
The appellant and his brothers further claimed that they had deposited some amount with respondents 4 and 5.
The appellant and his brothers and mother on one side and respondents 4 and 5 on the other side thereupon appointed four arbitrators, as per agreement dated 8th April, 1955.
According to the agreement, respondents 4 and 5 would have no claim in the houses purchased by them in Court auction and the arbitrators would make award in respect of the amounts to be paid by either of the parties as well as regarding the maintenance allowance payable to Durga Bahu and Sukhrani Bahu.
The arbitrators thereafter gave their award dated 20th October, 1956 wherein they made provision for the amounts payable to different parties.
Regarding the amount of maintenance allowance payable to Dulari Bahu, the award provided that Rs. 3,000/ out of the sale proceeds would be withdrawn from the Court and be deposited with Durgaprasad, respondent.
Durgaprasad was made liable to pay the amount of Rs. 30/ per mensem as maintenance allowance to Dulari Bahu.
The award further provided 'that out of the amount of Rs. 3,000/ , Rs. 1,000/ would be paid, to Pannalal and Rs. 2,000/ to Durgaprasad on the death of Dulari Bahu.
Dulari Bahu was also given a right of residence in a room and maintenance allowance of Rs. 30/ payable to her was made, a charge on the house allotted to Durgaprasad.
After the award had been put in Court, objections were filed against the award.
Learned Additional District Judge set aside the award on the ground that the award affected the, rights of 31 Dulari Bahu and she had not been made a party to the arbitration agreement.
The reference to arbitration as well as the award, according to the Additional District Judge did not amount to an adjustment and were,, therefore, invalid.
It was also held that the award was in excess of the arbitration agreement.
Some other grounds were also given but we are not concerned with them.
On appeal, the High Court reversed the decision of the Additional District Judge and held that there was no infirmity in the arbitration proceedings or the award.
In the result, the award was made a rule of the Court.
Mr. Anand, on behalf of the appellant, has argued that Dulari Bahu was an interested party in the dispute relating to arbitration and as she did not join the arbitration agreement, the reference to arbitration and the subsequent award should be held to be invalid.
There is, in our opinion, no force in this contention.
The dispute which was referred to the arbitrators related to the houses in question which had been sold in Court auction.
The, interest of Dulari Bahu pertained only to the recovery of her maintenance allowance.
According to the earlier award which Dulari Bahu sought to enforce, she was to get the maintenance allowance from an amount of Rs. 3,000/ which was to be kept in deposit.
The rights of Dulari Bahu in this respect remained in tact and were in no way affected by the award dated 20th October, 1956.
The maintenance allowance payable to her was also kept as a charge over the immovable property.
The fact that Dulari Bahu did not sign the arbitration agreement as such would not vitiate the arbitration proceedings.
The present is not a case wherein the arbitration proceedings are sought to be assailed by Dulari Bahu.
On the contrary, it is the admitted case of the parties that Dulari Bahu did not raise any objection to the arbitration proceedings or the subsequent award on the ground that her rights had been prejudicially affected.
This apart, we find that Dulari Bahu, according to the learned counsel, died about three years ago.
In the circumstances, it would be purely academic to dilate upon the question as to whether the rights of Dulari Bahu were prejudicially affected by the award in question.
It is next argued by Mr. Anand that as the reference to arbitrators was made out of Court and as all the parties to the arbitration agreement did not sign the award in token of their acceptance, the same could not be made a rule of the Court.
There is no substance, in our opinion, in the above contention.
It is always open to parties to refer a dispute to arbitration without the intervention of the Court.
In case, a suit is pending in respect of the subject matter of the dispute, there can be no valid reference during the pendency of the suit, to arbitration without 32 the order of the Court.
The underlying reason for that is to avoid conflict of jurisdiction by both the Court and the arbitrator dealing concurrently with the same dispute.
An award given or a reference during the pendency of a suit relating to dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced.
The only exception to this rule is provided by the proviso to section 47 of the (Act 10 of 1940) according to which "an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending".
In such an event, the award is enforced as a compromise or adjsutment of the suit because all the interested parties give their consent to the award.
Where,, however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced.
Any other view would run counter to the entire scheme and object of arbitration for the settlement of disputes according to which, agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award.
The decision of Bachawat, J. (as he then was) in Jugaldas Demodar Modi & Co. vs Pursottam Umedbhai & Co.(1) relied upon by the appel lant has no bearing as the said case dealt with an arbitration reference during the pendency of a suit.
We are also not impressed by the contention raised on behalf of the appellant that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be, the subject matter of arbitration dispute.
A dispute is referred to arbitration because the parties agreed to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of an earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration.
What is referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators.
It is not the case of the appellant before us that the precise dispute which was the subject matter of the award dated 20th October, 1956 had been adjudicated upon earlier in a civil Court.
The appeal consequently fails and is dismissed with costs.
G.C. Appeal dismissed.

Output:
By an arbitration award given in 1933 D was given a maintenance allowance enforceable against property allotted to the appellant and his brothers and mother.
Since the allowance was not paid D secured a decree for the sale of houses belonging to the appellant and his brothers.
The property was purchased by respondents 4 and 5 who after obtaining sale certificate from the court sought to obtain possession of the same.
On, 8th April 1955 the appellant his brothers and mother entered into an arbitration agreement with respondents 4 and 5.
According to, the agreement respondents 4 and 5 gave up their claim to the houses purchased by them in court auction and the arbitrators were to make award in respect of the amounts to be paid by either of the parties as well as the maintenance allowance payable to D and to the appellant 's mother.
The arbitrators by their award dated 20th October 1956 made provision for the amounts payable to different parties.
The also made on for the payment of allowance to D as well as for her residence.
provision the award had been put in court objections were filed against it.
The Additional District Judge, set aside the award inter alia on the ground that the award affected the rights of D and she had not been made a party to the agreement.
The High Court reversed the judgment of the Additional District Judge.
In appeal by certificate the appellant contended; (i) that the award was invalid because D was an interested party in the dispute relating to arbitration and she had not joined the arbitration agreement; (ii) that the reference to arbitrators was made out of court and as all the parties to the arbitration agreement did not sign the award in token of their acceptance, the same could not be made a rule of court; (iii) that because there had been earlier litigation about the house allotted to the appellant and his brothers, the same could not be the subject matter of arbitration dispute, HELD : (i) The rights of D remained intact and were in no way affected by the award dated 20th October 1956.
The maintenance allowance payable to her was also kept as a charge over the immovable property.
The fact that D did not sign the arbitration agreement as such would not vitiate the arbitration proceedings. 'She did not raise any objection to the arbitration proceedings or the subsequent award.
Ac cording to counsel she died three years ago.
In the circumstances the question whether her rights were prejudicially affected by the award was purely academic [31 E] (ii) An award given on a reference during the pendency of a suit relating to a dispute which is the subject matter of reference without obtaining the order of the Court cannot be enforced.
The underlying reason for the same is to avoid conflict of jurisdiction.
However according to section 47 of the , an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration 29 as a compromise or adjustment of a suit by any court before which the suit is pending. ' In such an event, the Award is enforced as a compromise or adjustment of the suit because all the interested parties give their consent to the award.
When however, as in the present case, no suit is pending with respect to the subject matter of dispute and the parties choose to refer a dispute to the arbitrators, it is not essential that the parties should signify their consent to the award before the same can be enforced.
Agreement and consent are imperative only at the stage of referring the dispute to arbitrators but not at the stage of the award.
[31H 32D].
Jagaldas Damodar Modi & Co. vs Pursottam Umedbhai & Co., A.I.R. 1953 690, held in applicable.
(iii) A dispute is referred to arbitration because the parties agree to such a reference and the mere fact that the property which is the subject matter of dispute was also the subject matter of earlier litigation, cannot prevent the parties to refer the dispute about that property to arbitration.
What is.
referred to arbitrators in such a case is the fresh dispute and although the finding of the Court in the previous litigation may have a bearing on the dispute referred to the arbitrators, it would not stand in the way of reference of the fresh dispute to the arbitrators.
[32 F]


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ppeal No.200 of 1955.
Appeal from the judgment and decree dated January 20, 1943, of the Madras High Court in A. section No. 392 of 1943, arising out of the judgment and decree dated March 30, 1943, of the Sub Judge, Tuticorin in O. section No. 34 of 1939.
section V. Venugopalachariar and section K. Aiyangar, for the appellant No. 2.
A. V. Viswanatha Sastri, R. Ganaapathy Iyer and G. Gopalakrishna, for respondent No. 1. 1960.
January 14.
The judgment of the Court was delivered by HIDAYATULLAH J.
This appeal has been filed on leave granted by the High Court of Madras against its judgment and decree dated January 20, 1947, by which the decree of the Subordinate Judge, Tuticorin, dated March 30, 1943, was substantially modified.
93 730 Before the application for leave to appeal to the Judicial Committee could be filed, the first defendant (Ramasami Pillai) died, and the application for leave was filed by his widow, R. Muthammal, who was the fourth defendant in the suit.
R. Muthammal also died soon afterwards and her place was taken by Parameswari Thayammal (her daughter born of Ramasami Pillai), who was the fifth defendant in this case.
Along with these three defendants, the other members of Ramasami Pillai 's family were also joined as defendants.
The suit was filed by Sri Subramaniaswami Devasthanam, Tiruchendur (hereinafter called for brevity, the Devasthanam), and the Devasthanam is the only contesting respondent in this Court.
One Poosa Pichai Pillai had five sons and three daughters, of whom Meenakshisundaram Pillai died on May 21, 1919.
Before his death Meenakshisundaram Pillai executed a registered will on May 20, 1919, and a registered codicil on May 21, 1919.
By these documents, he left his entire property to his only son, M. Picha Pillai, with the condition that should he die without issue, the property was to go to the Devasthanam.
M. Picha Pillai died a bachelor on December 10, 1927.
Three claimants claimed the property after his death.
The first naturally was the Devasthanam claiming under the gift over to it.
The other two were the heirs of M. Picha Pillai, who asserted that the gift over was void, and Meenakshisundaram 's wife 's brother and sister, Arunachala Irungol Pillai and N.S. Muthammal (third defendant), respectively who claimed under an alleged will of M. Picha Pillai.
The heirs of M. Picha Pillai were defendants 7, 8, 10, 13 and 14, the father of defendants 9, and the first defendant.
These claimants denied the claim of the Devasthanam, contended that the will and the codicil above mentioned gave an absolute estate to M. Picha Pillai, and that the gift over to the Devasthanam was, therefore, void.
The Devasthanam filed O.S.No. 57 of 1932 for declaration and possession of the properties covered by the will, together with other reliefs.
During the pendency of the suit, the heirs of M. Picha 731 Pillai and the present defendants 15 and 16 (two of the three sons of Arunachala Irungol Pillai) assigned their interest in favour of the Devasthanam.
The result of the suit, therefore, was that a decree in favour of the Devasthanam was passed in regard to the interest of the assignors, but it was dismissed as regards the interest of N.S. Muthammal (third defendant) and Pothiadia Irungol Pillai (second defendant) who had not entered into the compromise.
It May be mentioned here that by exhibit D 22, a registered agreement dated May 20, 1928, the heirs had already agreed to give to Arunachala Irungol Pillai and N.S. Muthammal one eighth share each respectively in the properties of M. Picha Pillai.
Thus, by this compromise the Devasthanam received 5/6th share of the properties of M. Picha Pillai, the remaining 1/6th, going to Pothiadia Irungol Pillai (1/24th) and N.S. Muthammal (1/8th).
The Devasthanam filed an appeal in the High Court against the dismissal of the suit in respect of this 1/6th share and failed.
An appeal was then taken to the Judicial Committee, which also failed.
The judgment of the Privy Council is reported in Sri Subramaniaswami Temple vs Rama samia Pillai (1).
Without waiting, however, for the result of the appeal in so far as the 1/6th share was concerned, the Devasthanam filed the present suit joining the two sets of claimants for declaration, ejectment and possession by partition of the properties to which it claimed title and for mesne profits.
The properties were shown in various schedules annexed to the plaint; but it is unnecessary to refer to those schedule except were the needs of the judgment so require.
One of the contentions raised by the plaintiff Devasthanam in this suit was that the first defendant,Ramasami Pillai, was not entitled to a share in the properties as an heir of M. Picha Pillai, being a lunatic when succession to these properties opened.
Onbehalf of the first defendant, Ramasami Pillai, who contested the suit through his wife and guardian, R.Muthammal, it was contended that he was not a (1) 732 lunatic (buddhi swadeenam illadavar) but only a person of weak intellect (buddhi deechanya matra), and thus,he was not excluded from inheritance.
This point was the main argument in this appeal, because the two Courts below reached opposite conclusions.
According to the Subordinate Judge of Tuticorin, Ramasam Pillai 's plea was correct and proved.
The High Court, on the other hand, held that the mental defect in Ramasami Pillai amounted to lunacy, and that it disentitled him to a share.
Connected with this above matter is the second contention raised by Ramasami Pillai that he was entitled to a 1/9th share by virtue of an alleged agreement stated on affidavit in exhibit D 7 by Doraiappa Pillai on April 1, 1931.
We shall give the details of this contention hereafter.
The third contention raised in this appeal and also before the High Court was that the properties described in plaint sch.
4 A were the subject matter of a decree dated September 19, 1927, in favour of M. Picha Pillai in O.S.No. 35 of 1924 filed by him against his cousins.
According to Ramasami Pillai (first defendant), the decree was not executed for a period of 12 years and the claim thereto was, therefore, barred under section 48 of the Code of Civil Procedure, and thus the Devasthanam was not entitled in this suit to claim possession of those properties.
We shall begin with the question whether Ramasami Pillai was excluded from inheritance by reason of his mental condition on December 10, 1927.
The argument of the appellant is two fold.
The first is on the fact whether Ramasami Pillai was a lunatic within the Hindu law texts.
The second is a question of law whether this lunacy was not required to be proved to have been congenital to disentitle Ramasami Pillai to succeed to his father.
We shall deal with these two questions separately.
In view of the fact that the two Courts below had reached opposite conclusions on the fact of lunacy, we have looked into the evidence in the case, and have heared arguments for the appellant.
We are satisfied that the opinion of the High Court is correct in all the circumstances of this case.
The argument on behalf 733 of the appellant was that in judging this issue we should see the evidence regarding the mental condition of Ramasami Pillai antecedent and subsequent to December 10, 1927, the conduct of his father, relatives and the other claimants of the property.
It was contended that Ramasami Pillai was attending school.
though nothing was shown to us from which we infer that he had profited by the attempts to educate him.
The appellant, however, set great store by two documents, Exs.
D 1 and D 2, executed by his father, Perumal Pillai, in January and April 1924.
By the first, Perumal Pillai released his claim to certain properties in favour of his four sons, mentioning therein Ramasami Pillai without adverting to the fact that he was a lunatic and without mentioning a guardian.
By the second, which was a will, Perumal Pillai gave equal shares in his properties to his sons including Ramasami Pillai, and once again without a mention of his mental condition.
It was contended that Perumal Pillai was a Sub Registrar who would know the importance of such a fact and also the law that a lunatic was not entitled to succeed.
The fact that the father in these two documents made no mention of the mental condition of his son does not bear upon the present case for two reasons.
The first is that the case of Ramasami Pillai in this suit was that he was quite sane till 1924, and that his mental condition deteriorated only after that year.
The second is that the omission by the father to mention this fact might be grounded on love and affection in which the claim of a mentally defective child might not have been viewed by him in the same manner as the law does.
It was next contended that the other heirs recognised the right of Ramasami Pillai in April 1928 and agreed to give him a 1/9th share, as has been already stated above.
That too would not prove that Ramaswami Pillai was entitled, in law, to a share.
The compromise (which is also contested) might have been out of motives of charity but might not have been due to the fact that Ramasami Pillai 's right to a share was legally entertainable.
The evidence, however, of Ramasami Pillai 's mental incapacity is really voluminous.
Between 734 June 1924 and till his death, numerous suits were filed by different members of the family, including his wife, his cousins, uncle and aunt, in which Ramasami Pillai was always shown as a lunatic requiring the appointment of a next friend or a guardian ad litem.
In one case only where Ramasami Pillai was the second defendant, an appearance was entered on his behalf by a vakil, who contended that Ramasami Pillai was sane and ought to be represented in person.
The Court on that occasion appointed the Head Clerk of the Court as his guardian, and asked him to report about the condition of Ramasami Pillai.
Ramasami Pillai was also asked to appear in Court in person, so that the Court might form its own opinion by questioning him.
The Head Clerk visited Ramasami Pillai and submitted his report, exhibit P 8, in which lie described his observations.
It appears that Ramasami Pillai did not even give his name when questioned, and appeared to be woody and silent.
The relatives felt that he was hungry and fed him; but even after this, Ramasami Pillai did not give any answers to the questions put to him in the presence of his wife and others.
The Head Clerk therefore reported that the appearance of Ramasami Pillai as a gloomy and sickly person with a vacant look and that his inability to answer even the simple question about his name, clearly showed that he was insane, This report was presented to the Court in the presence of the vakil, who had filed the vakalatnama, and on September 20,1924, an order (G. section No. 35 of 1924) was recorded by the Subordinate Judge (exhibit P 9).
It was mentioned therein that the report was not objected to by the vakil for Ramasami Pillai, and that Ramasami Pillai was treated as a lunatic.
Ramasami Pillai himself did not appear.
It was contended that this enquiry as well as the fact that in numerous litigations Ramasami Pillai had a guardian or next friend to look after his interests did not prove that he was insane within the meaning of the Hindu law texts; it only proved that he was a person incapable of looking after his interests and for the purposes of the conduct of the suits a guardian or next friend, as the case might be, was necessary.
In our opinion, the long and continued course of conduct 735 on the part of the various relatives clearly shows that Ramasami Pillai was, in fact, a lunatic, and the report of the Head Clerk given in a case long before the present one was ever contemplated, shows only too clearly that he was, for all intents and purposes, not only a person who was slightly mentally deranged but one who was regarded and found to be a lunatic.
There being this evidence, the distinction now sought to bemade and which appealed to the Subordinate Judge of Tuticorin, is not borne out by the evidence in the case.
Such a long and continuous course of conduct clearlyproves the contention that Ramasami Pillai was, infact, mad.
Further, in exhibit D 22 dated May 20, 1928, Ramaswami Pillai was not considered as a claimant,and his claims could not have been overlooked by all his relatives simply because they were to get an additional share each in the property by reasonof his exclusion.
Some one of his relatives would havefelt the need for asserting the claim on his behalf, ifhe himself did not do so.
In view of the fact that thepreponderance of probabilities is in favour of thedecision of the High Court, we do not think that theappellant has succeeded in establishing the distinction,which was made in the case, between a lunatic and aperson of weak intellect on the evidence, such as it is.
This brings us to the next contention which is oneof law.
It may be pointed out here that before theSubordinate Judge, Ramasami Pillai did not raise thecontention that as a matter of law insanity must becongenital before a person would be excluded from inheritance.
Learned counsel for the appellant explained that it was futile to raise this contention in view of the decision of the Madras High Court in Muthusami vs Meenammal (1), in which it was ruled that insanity need not be congenital to create the disability, and that insanity at the time succession opened was enough.
The point, however, appears to have been raised in the High Court, but it was decided against Ramasami Pillai.
The soundness of this view is questioned in this appeal.
The argument shortly is this: The text of Manu (ix, 201) mentions many causes of exclusion from (1) 736 inheritance, some of which like blindness, muteness,idiocy and lameness, it is settled, must be congenital to exclude a person from inheritance.
It is argued that the collection of the words in the text suggests that insanity like these other disabilities must also be congenital.
No doubt, the word " Unmatha " comes between the words "Jatyandhabadhirau" and " Jadamukascha "; but the rulings have uniformly held that for the madness, the test, that it should be congenital, does not apply.
The argument now raised has the support of the opinion expressed by Dr. Sarvadhikari in his Principles of Hindu Law Inheritance (2nd Edn.) p. 846,where the author expounded the text according to rules of grammar, though he was doubtful if according to medical science, madness as opposed to idiocy is ever congenital.
The translations of the same text by Setlur, Gharpure and Dr. Ghose do not admit this interpretation.
In Muthusami vs Meenammal (1), it was pointed out also that " Unmatha " was not qualified by the word " Jati ".
Seshagiri Ayyar, J. observed that it according to Mimamsa rules of interpretation, an adjective qualifying one clause should not by implication qualify a different clause ".
The counsel on that occasion agreed that this was the correct approach, but relied upon the opinion of Dr. Sarvadhikari which was not accepted.
Learned counsel for the appellant also referred to the opinion of Colebrooke in his Digest, Vol. 11, p. 432.
Colebrooke 's translation is based upon the commentary of Jagannatha Tarkapanchanana, and it is Jagannatha who made no difference between the various disabilities, and opined that madness like blindness or muteness must be also congenital.
No doubt, much weight must be attached to the opinion of Jagannatha who was " one of the most learned pandits that Bengal had ever produced ".
But this translation of Colebrooke has not been universally accepted, and is not borne out by the original texts and commentaries on the Mitakshara.
Dr. Ghose in his Hindu Law, Vol. 1, p. 224 has expressed his doubts.
The texts of Narada XIII, 21, 22, Yajnavalkya 11, 140 141 and others do not show that the defect of madness must also be (1) Mad. 464.
737 congenital.
In Saraswati Vilasa 148, the emphasis of congenital disability is placed on blindness and deafness.
Similarly, in Smriti Chandrika, Chap.
V , 4, persons born blind and deaf are mentioned apart from madmen and idiots.
That idiots must be congenitally so, is ruled by the Courts.
The cases that have come before the Courts have Devasthanam all been uniform, except Murarji Gokuldas vs Parvatibai (1), where the observation is obiter and Sanku vs Puttamma (2), which was dissented from in later cases.
On the other hand, Wooma Pershad Roy vs Grish Chunder Prochundo (3), Deo Kishen vs Budh Prakash (4) and other decisions have clearly held the contrary.
In two cases before the Privy Council it was assumed that madness need not be congenital.
It may also be noted that when the Legislature passed the Hindu Inheritance (Removal of Disabilities) Act XII of 1928 making the change to madness from birth as a ground of exclusion the law was not made retrospective, thus recognising the correctness of the judicial exposition of the original texts.
In this view of the matter, we do not think that we should unsettle the law on the subject; nor has it been made to appear to us that any different view is open.
We accordingly do not accept the contention.
The result is that Ramasami Pillai was not entitled to succeed to M. Picha Pillai.
We now come to the next contention.
It is that even if this be the position, Ramasami Pillai was entitled to 1/9th share on the basis of an alleged arrangement evidenced by exhibit D 7 dated April 1, 1931.
This document is an affidavit which was filed by Doriappa Pillai (Defendant 8) in a suit (O. section No. 25 of 1930) filed by him for possession after partition of his 1/8th share on the basis of exhibit D 22.
In that suit, Ramasami Pillai was the second defendant.
exhibit P 5 is the written statement filed on his behalf in which he repudiated that he was excluded from inheritance by reason of his insanity.
This suit was withdrawn on April 2, 1931, with the leave of the Court, with liberty to bring a fresh suit (exhibit D 6).
In the affidavit which was filed, it was stated as follows : (1) Bom.
(2) Mad.
(3) Cal.
(4) All. 509 (F.B.).
94 738 5.
Excepting Defendant 9, myself and almost all the Defendants agree to give.
to Defendant 2 an equal share with others and thus come to some amicable arrangement between us.
In view of the ninth Defendant 's contentions in the suit and in view of the fact that I have not prayed in this suit for a declaration of my title to the suit properties as against him, I am advised that I should withdraw the present suit for partition with liberty to institute a fresh suit as I may be advised.
It is therefore just and necessary that I may be permitted to withdraw this suit with liberty to bring a fresh suit properly framed." The Subordinate Judge held on this and the evidence of D.W. 2 that this family arrangement was duly proved, and that Defendant 10 who was present in Court when the above statement was made, did not choose to deny it.
The High Court rightly pointed out that the affidavit did not show the compromise as a completed fact, and also did not accept the word of D.W. 2.
The claimants, who are stated to have given a share to Ramasami Pillai, have not been examined.
The High Court also noticed that no application for transfer of the pattas was made.
In view of these circumstances which are all correct, the appellant cannot be said to have successfully established the family arrangement, and we do not consider it necessary to examine the oral evidence in the case.
This brings us to the last point that Ramasami Pillai was entitled to a share in the properties comprised in Sch.
4 A. M. Picha Pillai had filed O.S. No. 35 of 1924 against his cousins for possession of these properties.
The suit was decreed on September 19, 1927.
On October 30, 1927, P. Picha Pillai (Defendant 7) and Serindia Pillai sent a notice, exhibit P 3, informing M. Picha Pillai that he could take possession of the properties covered by, the decree.
This notice was refused and returned to the senders.
M. Picha Pillai died soon afterwards on December 10, 1927.
It is contended that the properties thus remained in possession of the judgment debtors, and the decree not 739 having been executed, the present suit filed on October 18, 1939, is barred in so far as those properties are concerned, and the Devasthanam cannot get possession of them.
Both the Courts below have concurred in holding that M. Picha Pillai must have got possession otherwise than by execution of the decree, because even D.W. 2 not very friendly to the Devasthanam admitted that M. Picha Pillai was at the time of his death in possession of all the suit properties.
The two Courts below also adverted to the fact that for the years, Faslis 1338 and 1339 the 10th defendant paid the taxes, and this would not happen if the heirs of M. Picha, Pillai were not in enjoyment.
The fact that the patta stood in the names of the original judgment debtors would not indicate anything, because mutations some.
times lag behind change of possession.
In view of the fact that the two Courts below have agreed on the finding and there is evidence to support it, we see no reason to interfere.
The question of mesne profits was not pressed,and no other point having been argued, we hold that the appeal has no merits.
It will, accordingly, be dismissed with costs.
Appeal dismissed.

Output:
A Hindu was found to be a lunatic when succession opened.
It was claimed that under the texts lunacy must be congenital to exclude from inheritance.
Held, under the Hindu law lunacy as distinct from idiocy need not be congenital to exclude from inheritance, if it existed when succession opened.
Muthusami vs Meenammal. , Wooma Parshad Roy vs Grish Chunker Prochundo, Cal.
639 and Deo Kishen vs Budh Prakash, All. 509 (F.B.)approved.
Murarji Gokuldas vs Parvatibai, Bom.
177 and Sanku vs Puttamma, Mad. 289, disapproved.


Input:
Appeal Nos.
2914 16 of 1993 etc.
From the Judgment and Order dated 23.3.1993 and 29 3 93 of the Madras High Court in W.P. Nos 15081/91, 8002/92 and 16068/91.
WITH Civil Appeal Nos.
2937/93 3040 40A B/93 3026 27/93 3025/93 990 3015 24/93 3028/93 3084/93 3002/93 3032/93 2993 94/93 3003 04/93 3086 87/93 2995/93 3005 07/93 2987 89/93 3014/93 3008 10/93 3086 87/93 2940 41/93 3011 301 IA/93 2998 3000/93 2986/93 3101 07/93 2992/93 3108/93 2982 82A/93 2983 85/93 3029 31/93 3093 94/93 2943 44/93 991 2955 57/93 2996 97/03 3042 3080/93 3035/93 3039/93 3041/93 3095/93 3033 34/93 3090 92/93 3096 97/93 2981/93 3088 89/93 2979/93 2976 77/93 2960 61/93 2990/93 2968/93 2958 59/93 2971/93 2978/93 2972/93 2942/93 3082 83/93 2969 70/93 2965 67/93 2991/93 992 2973 75/93 3036 38/93 2962 64/93 3085/93 3127 29/93 3012 13/93 3018/93 2938 39/93 2990/93 2945 54/93 WITH Special Leave Petition (CIVIL) Nos. 7375, 8009 11, 8108, 7416, 7560 62 OF 1993.
Shanti Bhushan, K.K. Venugopal, Soli J. Sorabjee, N. Santosh Hegde, Shivasubramaniam.
K. Parasaran, P. Chidambaram, Mrs. Revathy Raghavan, M.A. Krishna Moorthy, Kailash Vasdev, Pawan Kumar, B. Rabu Manohar, Dr. A. Francis Julian (For M/s. Arputham, Aruna and Co.), P. Chandrasekhran, Aruneshwar Gupta, A. Chandrasekar, Pushpendra Singh Bhati, V. Ramajagadesan, V. Balachandran, V. Krishnamurthy, K.V. Vijaya Kumar, Ajit Kumar Sinha, Selvar thenave, Martin, K.V. Mohan, R. Mohan, R. Nedumaran, and P.D. Dinakaran for the Appellants.
P.R. Seetharaman for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH,J.
These bunch appeals are by the Teachers Training Institutes in the State of Tamil Nadu.
They claim to be the minority educational institutions in terms of Article 30(1) of the Constitution of India.
The State Government has declined to recognise these institutes on (lie ground that they have failed to satisfy the conditions for grant of recognition as provided under the Tamil Nadu Minor 993 ity Schools(Recognition and Payment of Grants) Rules, 1977 as amended by the Government Order No. 536 dated May 17, 1989 and Government Order No. 861 dated June 12, 1991.
(Recognition Rules) The appellants challenged, before the Madras High Court by way of writ petitions under Article 226 of the Constitution, the validity of the Recognition Rules.
inter alia, on the ,rounds that the said Rules are violative of Articles 30(1) and 14 of the Constitution of India.
A Division Bench of the High Court consisting of M. Srinivasan and Thangamani, JJ, dismissed the writ petitions.
M. Srinivasan J., who spoke for the Bench, has given a scholarly judgment.
The case law on the subject has been dealt with in detail and the conclusions culled out succinctly.
The High Court judgment has been of utmost assistance to us.
These appeals via special leave are by the Teachers Training Institutes against the judgment of the Division Bench of the High Court.
We announced our conclusions in these matters dismissing the appeals and special leave petitions on May 25, 1993.
Now we proceed to give our reasoned judgment.
The Recognition Rules provide for instructions and teaching practice to be followed, minimum qualifications for teaching and non teaching staff and the following additional Conditions to be satisfied by a teachers training institute to quality for grant of recognition 1.The Teachers Training Institute should have at least 10 acres of suitable land of its own to he used for construction of Building for Institution and Administration and for Hoste l accommodation and staff quarters and also for Play Ground purposes, 2.The Institution Building must consist of suitable rooms to provide for class rooms with roughly 60 sq.
feet of carpet area per inmate one Auditorium cum projection hall with an area of about 2000 Sq.
Laboratory and Special Rooms.
Library Staff rooms separately for Men and Women staff, Principal 's Room, Off ice Room, Store Room for Craft and Physical Education articles.
Toilet facili ties separately for men and women and women 's Common Room; 3.Bath rooms and toilets should be provided.
if the Institution is meant for both sexes separate Such facilities should be provided for 994 men and women teaching staff non teaching staff and men and women candidates.
As far as bath rooms and toilets are concerned arrangements should he made at the rate of one for ten inmates.
4.(a) Adequate furniture and office equipment including furnitures for class rooms, Library, Laboratory and other rooms should be provided to the value of at least a lakh of rupees, (b)Laboratory equipments worth at least a lakh of rupees should be provided for Science, Geography, Home; (c)Teaching appliances.
audio visual aids, charts, maps etc.
worth about Rs. 50,000 should be provided.
(d)Sports/Games/Arts/Music Equipments worth about Rs. should be provided.
(e)Equipment and Material for work experience worth about Rs. 50,000 should be provided.
5.A room with a space of approximately 1000 sq.
with sufficient storage space to keep the equipment furnishing to organise various learning situations, and provision to observe the trainees at work in the laboratory situations.
without being noticed has to be provided.
Sufficient furnitures such as, working tables and almirahs should be provided.
Each Teacher Training Institution should have a good library with at least 10,000 volumes of back and reference books worth at least a lakh of rupees: 7.
Play ground space for sports, gymnastics and other Physical Education activities with an area about 5 acres should be provided.
If the Institute is meant for both sexes, another 3 acres of and should he provided exclusively for women candidates.
The Play ground should he provided adjacent to the main Institution building within the campus and not in a remote place away from the Institution, 995 8.
At least one full fledged recognised Middle School with Standards I to VIII should be functioning under the same management of every Teacher Training Institute seeking recognition, for the purpose of providing teaching practice to the trainess.
This will be a precondition even at the time of sending in applications for recognition of Teachers Training Institutes.
The practical aspects of the Training will be assessed by a competent board to be constituted by the concerned authority.
(a) The need for the opening of the institution in that area will be assessed by a District Committee with a Joint Director nominated by Director of School Education as Chairman with Chief Educational Officer and District Educational Officer/Inspectors of Girls Schools as members as the case may.
This committee will submit a report about satisfaction of norms based on which the competent authority will consider Recognition for the institution, (b) The Authority competent to grant recognition shall take into account the need for granting such recognition to Teacher Training Institutes taking into consideration the trained teachers already available and waiting for appointment and potential to.
absorb the Teachers to be trained in future in the services of Government and Private Schools.
There should he economic strength as prescribed by the education department.
The teachers training institutes should not admit more than forty students in all for the course and should not exceed this limit either in the first or second year.
It was argued before the High Court that as the minorities have a fundamental right under Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the Recognition Rules are wholly arbitrary and have been designed to oust the appellants from the educational fieled and the provisions regarding, having a middle school '.
ten acres of land, play grounds, library with 10,000 books, laboratory, hostel, staff quarters, bathrooms for students etc.
are so onerous that it is difficult rather impossible to comply with the same.
996 While dealing with the argument based on Article 30(1) of the Constitution of India the High Court discussed in detail the judgments of this Court in Kerala Education Bill[1959] SCR 995, Rev,.
Sidhajbhai Sabhai & Ors.
vs State of Bombay and Anr [ ; S Azeez Basha vs Union of India ; , State of kerala etc, vs Very.
Rev. Mother Provincial etc, [ ; , Regina vs St. Aloysius Higher Elementary School and Anr, [19711 Supp.
SCR 6.
The Gandhi Faiz e am College, Shahjahanpur vs University of Agra and Anr.
[ 19751 2 SCC 283, Lilly,.
Kurian vs Sr.
Lewina and Ors, [ 1 979] 1 SCR 820,All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors.
vs The State of Bihar & Ors., ; , A.P. Christians Medical Educational Society vs Government ofAndhra Pradesh and Anr ; , Frank Anthony Public School Employees Association vs Union of India and ors,[1986]4 SCC 707,All Bihar Christion Schools Association andAnr.
vs State of Bihar and Ors [ 1 988] 1 SCC 206; St. Stephen 's College vs The University of DelhiJT [1991]4 SC 548; Unni Krishnan andAnr.
vs State ofAndhra Pradesh and Ors.
Writ Petition (C) No. 607/92 decided on February4,1993 and TheAhmedabad St Xaviers College Society & Anr.
vs State of Gujarat and Anr 1 975 ] 1 SCR 173.
On the analysis of the above judgments the High Court culled out the following principles 1)The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures ', 2)There is no fundamental right under Article 19(1) (g) of the Constitution to establish or administer an educational institution, if recognition is sought therefor; 3) The institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms, 4) There is no fundamental right to recognition and any institution seeking recognition should abide by the regulations,prescribed by the State as conditions therefor; 5)The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; 6) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests of 997 the minority institutions themselves and not based on State necessity or general societal necessities; 7) The regulations should be with a view to promoting excellence of educational standards and ensuring security of the services of teachers and others employees of the institutions and in the true interests of efficiency of institutions, discipline, health, sanitation, morality, public order and the like, 8) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law, Tax measures, Economic Laws, Social Welfare Legislations Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society, No fault can he found with the above quoted legal principles enunciated by the High Court.
Mrs. Kitty Kumar Manglam.
Mr. Shanti Bhushan, Mr. K.K. Venugopal.
Mr. K. Parasaran, Mr. P. Chindambram and other learned counsel appearing for the appellants fairly conceded that the High Court has correctly summed upthe conclusions arising out of the interpretation of Article 30(1) of the Constitution of India.
Before dealing with the Recognition Rules the High Court referred to the Guidelines framed pursuant to the National Educational Policy introduced in the year 1986, the recommendations of the Education Commission (1964 1966), the role of the National Council for Teacher Education under the National Council of Educational Research and Training, the views of various eminent educationists and came to the conclusion that there is a need for drastic change in the basic concept of teachers training in the country.
Comprehensive overhauling of administrative structure of these institutions was urgently needed.
The High Court dealt with in detail the revised syllabus for the diploma in teacher education course and also the curriculum of the institutes of Education Training set up by the Tamil Nadu Government which shows that the State.of Tamil Nadu is in the process of overhauling the methodology of teaching and administration of the teachers training institutes in the State of Tamil Nadu.
The High Court referred to various judgments of this Court wherein the importance of teacher training and need to uplift the standard of such institutions was repeatedly highlighted.
The High Court rightly emphasised the need for maintaining very high standards of Education, Sports, administration and maintenance of the Teachers 998 Training Institutes.
These Institutions are established with the avowed object of training teachers and educationists who have to shoulder the responsibility of moulding the nation.
This Court in N.M. Nageshwaramma vs State of Andhra Pradesh & Anr.
[1986] Supp SCC 166 observed as under: "The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose.
on the innocent and unwary children, teachers who have not received proper and adequate training.
True they will be required to pass the examination but that may not be enough.
Training for a certain minimum period in a properly organised and equipped Training Institute is probably essential before a teacher may be duly launched." Jagannatha Shetty, J. speaking for this Court in Andhra Kesari Education Society vs Director of School Education & Ors. J.T.(1988) 4 S.C. 431 observed as under: "Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education.
The teacher alone could bring out the skills and intellectual capabilities of students.
He is the 'engine ' of the educational system.
He is a principal instrument in awakening the child to cultural values.
He needs to be endowed and energised with needed potential to deliver enlightened service expected of him.
His quality should be such as would inspire and motivate into action the benefitter.
He must keep himself abreast of ever changing conditions.
He is not to perform in a wooden and unimaginative way.
He must eliminate fissipasrous tendencies and attitudes and infuse nobler and national ideas in younger minds.
His involvement in national integration is more important, indeed indispensable.
It is, therefore.
needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency.
It has greater relevance to the needs of the day.
The ill trained or sub standard teachers would be detrimental to our educational system, if not a punishment on our children.
The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.
" In State of Maharashtra vs Vikas.
Sahebrao Roundale & Ors.,.
J.T (1992) 5 999 S.C. 175, K. Ramaswamy, J. speaking for this Court observed as under: "The teacher plays pivotal role in moulding the career,character and moral fibres and aptitude for educational excellence in impressive young children.
The formal education needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook.
A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits.
The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline.
The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role.
In short teachers need to he endowed and energised with needed potential to serve the needs of the society.
The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students.
For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition.
In that behalf compliance of the statutory requirement is insisted upon.
Slackening the standard and judicial fiat to control the mode of education and examining, system are detrimental to the efficient management of the education.
" The teacher education programme has to be redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting, education with a living dynamism.
Education being closely interrelated to life the well trained teacher can instill anesthetic excellence in the life of his pupil.
The traditional, stereotyped.
lifeless and dull pattern of" 'chalk.
talk and teach" method has to be replaced by a more vibrant system with improved methods of teaching.
to achieve qualitative excellence in teacher education.
Keeping in view the National Policy of Education, the Government of Tamil Nadu has published, a revised syllabus for the diploma in teacher education course.
in the Government Gazette of August 15, 1990.
The aims and objectives of the said syallbus and curriculum as given by the State of Tamil Nadu are as under: 1000 .LM15 "A sound Programme of Elementary Teacher Education is inevi table for the qualitative improvement of Education.
Education must become all effective instrument of social change and the part played by the teacher should be suitable and significant for this purpose.
The gap between the Teacher Education curriculum and the school curriculum has to he minimized for enabling the teachers to act as agents of social change which necessitates that the education imparted in schools has relevance to the personal as well as social life of individuals and to "the needs and aspirations of the people.
In order to be a catalyst in the process of developing a citizen who is productive and who believes in social justice and national integration, tile teacher himself needs to become such a citizen through appropriate learning experience.
" The High Court has examined the legality of the impugned Recognition Rules in the above background.
It has discussed in detail the object and utility of laying down the impugned conditions for recognition.
The High Court has found that none of the conditions infract Articles 14 and Article 30(1) of the Constitution of India.
We agree with the reasoning and the conclusions reached by the High Court.
This Court cannot go into the question as to whether a Teachers Training Institute should be set up on a campus consisting of 10 acres or 5 acres.
It is also not for this Court to lay down the sizes of the class rooms.
laboratories, number of ' toilets or the number of books to he kept in the library.
It is entirely for the State Government to lay down tile requirements of a teachers training institute campus.
The learned Advocate General appearing for the State of Tamil Nadu has contended that the Recognition Rules are also applicable to Government run teachers training, institutes and also to the institutes which are Government aided.
According to him the new Recognition Policy of the Government has been designed with the object of closing the "teaching shops" and encouraging the genuine institutions.
According, to him the policy is based on the Guidelines issued by the Central Government from time to time.
He further stated that the condition of having an area of 10 acres for the campus has now been reduced to five acres in case of the institutions which are set up within the area of Municipal Corporation.
He has clarified that the only requirement for setting up the library is that it must have reference books worth at least a lakh of rupees.
According to him the number of toilets.
bathrooms etc.
and other conditions regarding the institute building are in the nature of guidelines and are to he substantially complied with.
On our suggestion the learned Advocate General has agreed to command to the State Government.
not to insist on additional 3 acres of land in case of ' co 1001 educational institutes in case these institutes are having 10 acres/5 acres of area as provided under the Recognition Rules.
Mr. Shanti Bhushan appearing in civil appeals arising out of Special Leave Petitions No. 6762 63/93 has contended that the appellants institutes started functioning in the year 1984.
They were refused recognition and as such they challenged the order by way of a writ petition before the High Court.
The learned counsel has invited our attention to the judgment of the High Court dated November 3, 1987 in the said writ petition wherein it is held as under "Consequently, the orders of the respondents 2 and 3 are set aside a writ of mandamus will issue directing the third respondent to grant recognition to the petitioner institute with effect from 27th September, 1984.
This writ petition is allowed with costs.
" Mr. Shanti Bhushan contended that the impugned Recognition Rules cannot be made applicable to the institutions which have already been established and given recognition by the State Government under directions of the Court.
Relying upon the above quoted judgment of the High Court learned counsel has contended that his clients were given recognition with effect from 1984 under the directions of the High Court and as such the impugned Recognition Rules which came into force in the year 1989 cannot be made applicable to them.
It is not disputed by Mr. Shanti Bhushan, that under the directions of the High Court temporary recognition was given to his clients, though according to him the order of the Government granting temporary recognition was challenged before the High Court and the said petition was also disposed of by the impugned judgment.
We see no force in the contention of the learned counsel.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall to comply with the recognition rules to enable them to earn recognition.
Mr. K.K. Venugopal contended that a distinction has to be made between the institutions which are functioning earlier to the coming into force of the recognition rules and those which have applied for recognition for the first time.
According to him change over period should be given to the existing institutes which are functioning on the basis of temporary recognition.
We do not agree with Mr. Venugopal.
The training institutes which are functioning on the basis of 1002 temporary recognitions are neither properly organised nor fully equipped to train the teachers.
These institutes have done more harm than good to the cause of education.
Mr. Venugopal and Mr. K. Parasaran have further argued that the students who have already taken the examinations, their results be directed to be declared and if successful, certificates be awarded to them.
Mr. Chindambram, appearing for some of the appellants, has argued that there are students who have already taken the examination and their results have also been declared but they have not been given certificates on the ground that the institutes which sponsored them have not been recognised.
It is no doubt correct that temporary recognitions have been granted to some of the institutions either under the orders of the Court or otherwise and the students of such institutions were permitted to write the examinations.
In number of cases under orders of the Court permission to the students to write the examinations have been given.
The High Court also directed in some cases to publish the results of the students who wrote the examination in April 1992.
All these situations were brought to the notice of the High Court in Writ Petition No. 3674 of 1992 and Writ Petition No. 5469 of 1993 which were heard together.
The High Court refused to grant relief to the students who had written the examination or who had passed the examination and were being denied the certificates.
The High Court observed as under "Based on the above orders, learned counsel for the petitioner contends that the students of the petitioner Institution have validly written the examination when the order of recognition was in force and the results of the examination have already been published, pursuant to the orders of this Court.
It is contended that the students of the petitioner are certainly entitled to the consequential relief of issue of certificates.
Another interlocutory application is now filed in WMP No. 5469 of, 1993 on 22.2.93 for a direction to the third respondent to publish the results of the students who wrote the examination held in July 1992.
In similar cases, we have given directions to the authorities to publish the results.
But, we have taken care to observe that such publication of results will not confer any right on the students as the Institutions have not complied with the rules framed in GOMS.
No. 536.
They cannot take advantage of the interim orders passed by this court directing the government to grant temporary recognition Orders of such temporary recognition 1003 are expressly made subject to the result of the main writ petitions.
Now, we have held that GO Ms. No. 536 is valid and the orders of temporary recognition will not confer any other remedies on the students of the petitioner.
So far as these institutions are concerned, they should be treated only as non recognised.
Just because the students have written the examinations and results are published, they are not entitled to any further relief.
The writ petition is dismissed with the above observations".
It has come to the notice of this Court that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution, invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions in question as minority institutions and pending the final disposal of such applica tions, an interim direction is sought to allow the students of such institutions to appear at the examinations concerned.
In connection with such interim prayer, this Court in the case of A. P. Christians Medical Educational Society vs Government of Andhra Pradesh (supra) said: "Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution.
He invited our attention to the circumstance that students of the Medical college established by the Daru Salam Educational Trust were permitted to appear at the examination not with standing the fact that affiliation had not by then been granted by the University.
Shri Venugopal suggested that we might issue appropriate directions Lo the University to protect the interests of the students.
We do not think that we can possibly accede to the request made by shri Venugopal on behalf of the students.
Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University.
We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself.
We cannot imagine anything more destructive of the rule of law that a direction by the court to disobey the laws.
" 1004 In view of the aforesaid pronouncement of this Court, the High Court should not have passed, interim order directing the respondents to allow the teachers of unrecognised institutions to appear at the examinations in question.
Such teachers cannot derive any benefit on basis of such interim orders, when ultimately the main writ applications have been dismissed by the High Court, which order is being affirmed by this Court.
The same view has been expressed by this Court, in connection with the minority unrecognised teachers training institutions in the State of Tamil Nadu itself, in the case of State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another [1991] 3 SCC 87.
As such no equity or legal right can be pleaded on behalf of the Teachers admitted for training by such minority institutions, for publication of their results, because they were allowed to appear at the examinations concerned, during the pendency of the writ applications before the High Court, on basis of interim orders passed by the High Court, which were in conflict with the view expressed by this Court in the aforesaid cases.
We see no ground to differ with the view taken by the High Court.
This court in N.M. Nageshramma 's case (supra) has held that training in a properly organised and equipped training institute is essential before a candidate becomes qualified to receive teachers training certificate.
Simply passing the examination is not enough.
The future teachers of the country must pass through the institutions which have maintained standards of excellence at all levels.
We see so ground to interfere with the impugned judgment of the High Court.
We agree with the views expressed by the High Court on various aspects of teachers training institutes.
We also agree with the reasoning and the conclusions reached by the High Court.
Before we part with this judgment we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned.
In view of ' the series of judgments of this Court, the Courts should not issue fiat to allow the students of unrecognised institutions to appear at the different examinations pending the disposal of the writ applications.
Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the Authorities, who have to comply with such directions of the Court.
It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are justified.
Many of such institutions are not only "masked phantoms" but are 1005 established as business ventures for admitting sub standard students, without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
There is no occasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced.
In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations.
The appeals/special leave petitions are dismissed.
No costs.
R.P. Appeals dismissed.

Output:
The respondent state, in the process of overhauling the methodology of teaching and administration of teachers training institutes in order to achieve qualitative excellence in teacher education , amended the Tamil Nadu Minority Schools (Recognition and Payment of Grant) Rules 1977 by G.O. No.536 dated 17 5 1989 and No. 661 dated 12 6 1991.
The Rules besides providing for instructions teaching practice to be followed and minimum qualification for the staff prescribed certain other conditions regarding land,building, hotel 986 furniture, library, teaching appliances, sports facilities, recognised middle school for providing teaching practice to trainees, etc.
to be satisfies by a teachers training institute to qualify for grant of recognition.
The appellant/petitioners are various Teachers Training Institute in the State of Tamil Nadu.
claiming to be minority educational institutions in terms of Article 30(1) of the Constitution of India The State Government declined to recognise these institutions on the ground that they failed to sutisfy the conditions for grant of recognition as provided under the Recognition Rules.
The appellants/petitioners filed writ petitions before the High Court challenging the validity of the Recognition Rules on the ground that the same were violative of Articles 30(1) and 14 of the Constitution.
It was contended that as the minorities have a fundamental right under r Article 30(1) of the Constitution to establish and administer educational institutions of their choice, the conditions provided under the recognitions Rules were wholly arbitrary and were designed to oust the appellants from the educational field and the the provisions were so onerous that it was difficult rather impossible to comply with the same.
The High Court dismissed the writ petitions.
The appellants/petitioners filed the appeals and the special leave petitions.
It was contended on behalf of the appellants that the Rules could not be made applicable to the institutions already established and given recognition by the State Government under the directions of the Court; and that the successful students of these institutions who had taken examinations be given certificates.
This Court dismissed the appeals and the special leave petitions by its order dated 25 5 1993 indicating that reasons therefor would follow.
Giving reasons for its order dated 25 5 1993, this Court HELD : 1.
The High Court was right in holding that none of the conditions for grant of recognition to teachers training institutes prescribed under the Tamil Nadu Minority Schools (Recognition and Payment of Grants) Rules, 1977, infracted Articles 14 & 30(1) of the Constitution.
It rightly culled out the following principles (i) The fundamental right declared by Article 30(1) of the Constitution is absolute in terms, but subject to regulatory measures; 987 (ii)There is no fundamental right under Article 19(1) (g)of the Constitution to establish or administer an educational institution, if recognition is sought therefore; (iii) The institutions must he educational institutions of the minorities in truth and reality and not mere masked phantoms; (iv) There is no fundamental right to recognition and an% institution seeking recognition should abide by the regulations prescribed by the State as conditions therefor, (v) The minority institutions must be fully equipped with educational excellence to keep in step with other institutions in the State; (vi) The regulations framed by the State cannot abridge the fundamental right of the minorities and they should be in the interests (if the minority institutions themselves and not based on State necessity or general societal necessities .
(vii) The regulations should be, with a view to promoting excellence (of educational standards and ensuring security of the services of teachers and other employees of the institutions and in the true interests of efficiency (if institutions, discipline, health, sanitation, morality public order and the like; (viii) Even unaided institutions are not immune from the operations of general laws of the land such as Contract Law Tax measures, Economic Laws and, Social Welfare legislations, Labour and Industrial Laws and similar other laws which are intended to meet the need of the Society.
Kerala education bill,[1959] SCR 995; Rev. Sidhajbai Sabhai section vs State of Bombay and Anr[1963] 3 SCR 837; section Azeesh Basha vs Union of India ; ; State o Kerala etc.
vs Very Rev. Mother Provincial etc ; ; Regina vs St. Alosius Higher Elementary School and Anr[1971] Supp.
SCR 6; The Ahmedabad St. Xaviers College Society and Anr etc vs State of Gujarat and Anr[1975] 1 SCR 173; The Gandhi Faiz e am College, Shajahanpur
University of Agra and Anr.[1975] 2 SCC 283; Lilly Kurian vs Sr.
Lewina and 988 Ors.[1979] 1 SCR 320; All Saints High School, Hyderabad etc.
vs Government of Andhra Pradesh & Ors.
etc ; ; The Managing Board of the Milli Talimi Mission, Bihar Ranchi & Ors vs The State of Bihar & Ors ; ; A.P. Christians Medical Educational Society vs Government of Andhra Pradesh and Anr.[1986] 2 SCC 667 Frank Anthony Public School Employees Association vs Union of India and Ors [1986]4 SCC 707 All Bihar Christian Schools Association and Anr.
vs State of Bihar and Ors. ; St. Stephon 's College vs The University of Delhi JT(1991) 4 SCC, 548 and Unni Krishnan and Anr.
vs State of Andhra Pradesh and Ors.
cited.
2.1 The teacher education programme has to he redesigned to bring in a system of education which can prepare the student teacher to shoulder the responsibility of imparting educating with a living dynamism and the traditional pattern of "chalk, talk and teach" method has to be replaced by more vibrant system with improved methods of reaching, to achieve qualitative excellence in teacher education.
N.M. Nageshwaramma vs State of Andhra Pradesh & Anr [1986] Supp SCC 166 Andhra Kesari Education Society vs Director of School Education & Ors and State of Maharashtra vs Vikas Sahebrao Roundale & Ors.
J.T.(1992) 5 SC 175, relied on.
2.2 It is entirely for the State Government and not for this Court, to lay down the requirements of a teachers training institute campus.
All those institutes which did not have permanent recognition before the issue of the Recognition Rules, 1977 are bound to comply with the said conditions before they are entitled to permanent recognition.
The High Court was Justified in holding that the institutions which were operating on the basis of temporary recognitions, either under the orders of the Courts or otherwise, shall have to comply with the recognition rules to enable them to earn recognition.
These institutions are neither properly, organised nor fully, equipped to train the teachers.
and have done more harm than good to the cause of education.
3.1 In view of the series of the judgments of this Court the Courts should not issue fiat to allow the students of unrecognised institutions to appear the different examinations pending the disposal of the writ applications.
Such interim orders affect the career of several students and cause unnecessary embarrassment and harassment to the authorities, who have to comply with such directions of the Courts.
989 A.P. Christians Medical Educational Society vs Government of Andhra Pradesh ; , relied on.
3.2 The High Court should not have passed interim orders directing authorities concerned to allow the teachers of unrecognised institutions to appear at the examinations.
It is a matter of common knowledge that many institutions claiming themselves to be minority institutions within the meaning of Article 30(1) of the Constitution invoke the jurisdiction of the High Court under Article 226 or of this Court under Article 32 for a writ of mandamus to recognise the institutions as minority institutions only when the dates for examinations are notified and, as a part of strategy, seek directions to allow, meanwhile, the students to appear at the examinations.
Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting sub standard students without any competitive tests, on basis of considerations which cannot serve even the interest of the minority.
The teachers of such institutions cannot derive any benefit on basis of interim orders when ultimately the main writ applications have been dismissed.
As such no equity or legal right can be pleaded on behalf of the students admitted for traning by such minority institutions for publication of their results or award of certificates.
A.P. Christians Medical Educational Society vs Government of Andhra Pradesh, ; ; and State of Tamil Nadu and others vs St. Joseph Teachers Training Institute and another; , , relied on.


Input:
Appeal No. 369 of 1957.
Appeal from the judgment and decree dated the January 27, 1956, of the Allahabad High Court (Lucknow Bench) at Lucknow in Civil Misc.
Application No. 17 of 1954 (0. J.).
C. B. Agarwala and C. P. Lal, for the appellant.
V. D. Misra, for the respondent.
February 16.
, J. This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted by that court.
The respondent filed a 99 petition under article 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,595/7/ and a penalty of Rs 5/ was against law and could not be realized against him and prayed that the order be quashed.
,, On September 12, 1948, the, respondent executed a wakf by oral recitation of Sigha and then it was written on a stamped paper which was signed by the respondent and attested by, Witness.
On September 15, 1948, it was presented to the Collector for his opinion under section 31 as to the duty chargeable.
As the Collector himself was in doubt, he referred the matter to the Board of Revenue which, after a fairly long time, held that the document was liable to duty in accordance with article 58 of the Stamp Act.
On October 29, 1951, the Collector held that Rs. 85,598/7/ were payable as stamp duty and ordered that it be deposited within fifteen days.
Notice to this effect was served on the respondent on November, 10, 1951.
Thereupon the respondent filed a petition in the High Court under article 226 which was dismissed on November 3, 1952 on the ground that it was premature.
On February 2, 1954, a further notice was served upon the respondent to deposit the amount of the stamp duty plus the penalty of Rs. 5/ within a month otherwise proceedings would be taken against him under section 48 of the Stamp Act.
Thereafter on March 1 1944, the respondent filed a petition under article 226 of the Constitution in the Allahabad High Court challenging the legality of the, imposition of the stamp duty and the penalty and prayed for a writ of certiorari.
A full bench of the High Court quashed the order of the Collector and the State of U.P. has come in appeal to this Court.
The decision of this appeal depends upon the interpretation of ss, 31, 32 and 33 of the Stamp Act.
The relevant portion of section 31 provides: , section 31(1) "When any instrument,, whether executed or not and whether previously stamped or not,, is brought to the Collector and.
the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and 100 not less than eight annas) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable.
" It is admitted that the document in dispute was submitted to the Collector for his opinion under a. 31 and the opinion of the Collector was sought as to what the duty should be.
Under section 32 of the Act when such an instrument is brought to the Collector, under a. 31 and he determines that it was already fully stamped or he determines the duty which is payable on such a document and that duty is paid, the Collector shall certify by endorsement on the instrument presented that full duty with which it is chargeable has been paid and upon such endorsement being made, the instrument shall be deemed to be fully stamped or not chargeable to duty as the case may be ' Under the proviso to section 32, the Collector is not authorised to make the endorsement if an instrument is brought to him a month after the date of its execution.
Then follows section 33 which is as follows: section 33 "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom an instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order t o ascertain whether it is stamped with a stamp of the value and description required by the law in force in British India when such instrument was executed or first executed: Provided that (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding 101 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in case of a doubt, (a) the collecting Government may determine what offices shall be deemed to be public offices; and (b) the collecting Government may determine who shall be deemed to be persons in charge of public offices.
" The decision of this appeal depends upon the interpretation to be put upon the words "before whom any instrument chargeable. . . . is produced or comes in the performance of his functions".
Dealing with these words the High Court held: " With all respect, therefore, we agree that the learned Judges deciding Chuni Lal Burman 's (1) case took a correct view of the words " is produced or comes in the performance of his functions" used in Section 33 of the Act to mean "that production of the instrument concerned in evidence or for the purpose of placing reliance upon it by one party or the other.
" The High Court was also of the opinion that the object of paying the whole stamp duty was to get the instrument admitted into evidence or its being acted upon or registered or authenticated as provided in sections 32(3), 35, 38(1) and 48(1) of the Stamp Act.
Counsel for the State referred to the various sections of the Act; first to the definition section; Section 2(11) which defines what is "duly stamped"; section 2(14) which defines "instrument" and section 9(12) which defines "executed".
He then referred to section 3 which lays down what "chargeable" means and then to section 17 which provides that all instruments chargeable with duty and executed by any person in British India shall be stamped before or at the time of the execution.
Certain other sections i.e. sections 35 and 38(1) were also (1) A.I.R. 1951 All.
851. 102 referred to and so also sections 40(1)(a), 41, 42 and 48 but in our opinion it is not necessary to refer to these sections.
What has to be seen is what is the consequence of a person applying to a Collector for his determination as to the proper duty on an instrument.
The submission on behalf of the State (appellant) was that if an instrument whether 'stamped or not is submitted for the opinion of the Collector before it is executed, i.e., it is signed, then the Collector is required to give his determination of the duty chargeable and return the document to the person seeking his opinion but if the document is scribed on a stamped paper or unstamped paper and is executed then different consequences follow.
In the latter case it was submitted that under section 33 the Collector is required to impound the document if he finds that it is not duly stamped.
On the other hand it was submitted on behalf of the respondent that on his giving his opinion the Collector becomes functus officio and can take no action under section 33.
It is these two rival contentions of the parties that require to be decided in this case.
After an inordinately long delay, the Collector determined the amount of duty payable and impounded the document.
Power to impound is given in section 33 of the Act.
Under that section any Person who is a Judge or is in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions is required to impound the instrument if it appears to him not to be duly stamped.
The question is does this power of impounding arise in the present case?.
The instrument in dispute was not produced as a piece of evidence nor for its being acted upon e.g. registration, nor for endorsement as under section 32 of the Stamp Act but was merely brought before the Collector for seeking his advise as to what the proper duty would be.
The words "every person. . before whom any instrument. . is produced or comes in the performance of his functions" refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any 103 function in regard to those instruments when they come before them e.g. registration.
They do not extend to the determination of the question as to what the duty payable is.
They do not cover the acts which fall within the scope of section 31, because that section is complete by itself and it ends by saying that the Collector shall determine the duty with which, in his judgment, the instrument is chargeable, if it is chargeable at all.
Section 31 does not postulate anything further to be done by the Collector.
It was conceded that if the instrument is unexecuted i.e. not signed, and the opinion of the Collector is sought, he has to give his opinion and return it with his opinion to the person seeking his opinion.
The language in regard to exe cuted and unstamped documents is no different and the powers and duties of the Collector in regard to those instruments are the same, that is, when he is asked to give his opinion, he has to determine the duty with which, in his judgment, the instrument is chargeable and there his duties and powers in regard to that matter end.
Then follows section 32.
Under that section the Collector has to certify by endorsement on the instrument brought to him under section 31 that full duty has been paid, if the instrument is duly stamped, or it is unstamped and the duty is made up, or it is not chargeable to duty.
Under that section the endorsement can be made only if the instrument is presented within a month of its execution.
But what happens when the instrument has been executed more than a month before its being brought before the Collector? Section 31 places no limitation in regard to the time and there is no reason why any time limit should be imposed in regard to seeking of opinion as to the duty payable.
Chapter IV of the Act which deals with instruments not duly stamped and which contains as.
33 to 48, provides for impounding of documents, how the impounded documents are to be dealt with, Collector 's powers to stamp instruments impounded and how the duties and penalties are to be recovered.
It would be an extraordinary position if a person seeking the advice of the Collector and not wanting to rely upon 104 an instrument as evidence of any fact to be proved nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to the penalties which unstamped instruments used as above might involve.
The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument, he approaches him under section 31.
If it is properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purposes of evidence, he is to make up the duty and under section 32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning.
But if he does not want to proceed any further than seeking the determination of the duty payable then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of section 33 have no application.
The provisions of that section are a subsequent stage when something more than mere asking of the opinion of the Collector is to be done.
Our attention was drawn to the observations of Rankin C. J. in Be Cooke and Kelly (1) but those observations are obiter as the High Court held that the reference under section 57 of the Stamp Act was incompetent.
The doctrine of functus officio was applied in several cases: Collector, Ahmednagar vs , Rambhau Tukaram Nirhali (2).
In that case a certificate of sale had been signed but the certificate was not duly stamped which was pointed out when it was sent to the Sub Registrar for registration.
The Sub Registrar informed the Judge about it and the Judge got back the certificate from the purchaser and thinking that he had power to impound the document and to impose a penalty asked for the opinion of the high Court and it was held that after he had signed it he was functus officio and could not act any further and could not impound it.
The same principle was laid down in (1) Cal. 1171.
(2) A.I.R. 1930 Bom.
105 Paiku vs Gaya (1) and in Chunduri Panakala Rao vs Penugonda Kumaraswami (2) and in our opinion as soon as the Collector determined the duty he became functus officio and he, could not impound the instrument under a. 33 and consequential proceedings could not ') therefore, be taken.
The appeal is therefore dismissed with costs.
Appeal dismissed.

Output:
The respondent executed an instrument and presented it to the Collector for his opinion under section 31 Stamp Act as to the duty chargeable.
The Collector,, after a reference to the Board of Revenue, determined the duty payable.
He then impounded the instrument and ordered that the ditty be deposited within 98 fifteen days.
Later, a notice was served upon the respondent to deposit the amount of stamp duty and penalty within one month and threatening that in default proceedings would be taken to recover them as arrears of land revenue.
The respondent challenged the legality of the impounding of the instrument and demand of stamp duty and penalty.
Held, that after determination of the stamp duty the Collector became functus officio and could not impound the instrument or demand duty and penalty.
Under section 31 the Col lector has merely to determine the proper amount of duty.
If the person executing the instrument wants to effectuate the instrument or to use it for purposes of evidence he has to make up the duty and under section 32 the Collector makes the necessary endorsement.
Section 33 empowers every person in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions to impound the instrument if it is not duly stamped.
When an instrument is presented to the Collector under section 31 for determination of duty it cannot be said that it "is produced or comes in the performance of his functions" as contemplated by section 33.
These words refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved, and secondly refer to other officers who have to perform any function in regard to those instruments when they come before them, e.g., registration.
In Re Cooke and Kelly, Cal. 1171, held obiter.
Collector, Ahmednagar vs Rambhau Tukaram Nirhali, A.I.R. , Paiku vs Gaya, I.L.R. and Chunduri Panakala Rao vs Penugonda Kumaraswami, A.1,R. , referred to.