Shanitha T K vs State Of Kerala on 7 October, 2025

[Cites 17, Cited by 0]

Kerala High Court

Shanitha T K vs State Of Kerala on 7 October, 2025

The petitioner in W.P.(C) No.23166 of 2024 filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 13.05.2025 passed by the learned Single Judge in that writ petition.

2. Going by the averments in the writ petition, Thandparakkal Muhammed, the father of the appellant, founded Kunhamutty Memorial High School ('K.M.High School' in short), Karulai, an Aided High School in Wandoor educational district in the year 1968, and he was the individual educational agency and the Manager of the said school till his death on 14.02.2023. He constituted a public charitable trust by name Kottarakkad Charitable Trust as per Ext.P1 trust deed dated 05.02.2013. The ownership of the school and the right to transfer the management of the school have not been transferred or entrusted to the trust by Muhammed, till his death. The appellant contends that much after the constitution of the trust, the preamble of the deed of trust was amended by three out of four trustees incorporating the 4 WA No.1117 of 2025 2025:KER:73190 notary attested amendment deed that it is desirous of entrusting the management of K.M. High School and Higher Secondary School along with all its building, accessories and assets to the trust for the purpose of conducting the school under the management of the trust, without involving any change of landed property and managership of the school.

2.1. According to the appellant, this amendment to the trust deed is invalid. Even after the said amendment, Thandparakkal Muhammed continued as the Manager of the school till his death. After the death of Muhammed, the 5 th respondent was wrongly appointed as the Manager of K.M. High School, even without any authority of law, and it was approved by the District Educational Officer, violating Rule 4 of Chapter III of Kerala Education Rules ('KER' in short). Therefore, the Additional Director General of Education (General) set aside the order of the District Educational Officer and temporarily entrusted the management of the school to the District Educational Officer. The 5 th respondent then challenged this decision by filing a revision petition under sub-rule 4 of Rule 4 of Chapter III of KER. The Government passed an order 5 WA No.1117 of 2025 2025:KER:73190 quashing the order of the Director General of Education and confirmed the order of the District Educational Officer. The amendment effected to the trust is alleged to involve the transfer of possession of the trust's accessories and assets. Such a transfer, since executed without the previous permission of the District Educational Officer, is prohibited by Section 6 of the Kerala Education Act. The Kottarakkad Charitable Trust is neither an educational agency nor a proprietary body, and it does not have any proprietary rights over the property and management of the school. Even after the alleged amendment to the trust, it does not qualify as an educational agency as the amendment lacks legal standing. As per Ext.P1 trust deed, Muhammed had no intention to transfer K.M. High School, Karulai, to the trust. Though Clause 21 of Ext.P2 trust deed states that the Chairman shall be the Manager or Director of all educational or other institutions of the trust, the said clause relates to educational or other institutions which the trust may establish or maintain in terms of Ext.P1. There is no indication in Ext.P1 that K.M. High School, Karulai, had ever been intended to be an educational institution under the trust. As 6 WA No.1117 of 2025 2025:KER:73190 such, the individual educational agency continued to be Mr. Muhammed in spite of the formation of the trust, and after his death, his legal heirs became the corporate educational agency of the school. Therefore, as per the provisions of the Kerala Education Act and Rules, only the legal heirs of Muhammed could have appointed the Manager of the school, that too after the constitution of bye-laws in terms of Rule 2 of Chapter III of KER.

2.2. The appellant states that she did not attend the meeting convened by the trust members on 11.03.2023, after issuing a notice to her through WhatsApp. The notice of the meeting dated 20.04.2023 had not been served on her. The revision filed by the 5th respondent before the Government was allowed by Ext.P8 order dated 09.05.2024 by setting aside Ext.P6 order dated 19.10.2023 of the Director General of Education. Hence, the appellant filed the writ petition under Article 226 of the Constitution of India seeking the following reliefs:

"(i) call for the records relating to Ext.P8 order and set aside the original of the same by the issue of a writ of certiorari or other appropriate writ or order.

(ii) Declare that the appointment, selection and approval of 7 WA No.1117 of 2025 2025:KER:73190 the 5th respondent as the Manager of the school (KM HSS, Karulai) is invalid and illegal.

(iii) Declare that the Ext.P6 order of the 2 nd respondent is valid and legal.

(iv) Declare that the Ext.P2 amendment to the trust deed is null and void.

(v) Declare that the Ext.P1 trust deed is void ab initio.

(vi) Declare that the approval of Ext.P3, Ext.P4 bye-law is invalid and illegal".

3. Respondents 5 to 7 filed a counter affidavit dated 26.08.2024 in the writ petition opposing the reliefs sought for and producing therewith Exts.R5(a) to R5(h) documents. The respondents 5 to 7 contended in the counter affidavit that the writ petition filed under Article 226 of the Constitution of India is not maintainable as far as the reliefs sought therein, and also for the reason that it lacks pleadings in support of a writ of certiorari. It is further contended by the respondents that Section 6 of the Kerala Education Act has no application to the facts of the case. Moreover, if the appellant relies on Section 6, she has to avail an alternative remedy available to her under Section 6(2) of the Kerala Education Act. Paragraphs 5 to 14 of that counter affidavit read thus:

WA No.1117 of 2025 2025:KER:73190 "5. Even so on the facts as well the petitioner has no case to make out. The petitioner admittedly is one of the beneficiaries of the Trust' She is the sister of this respondent. She is one of the signatories in the minutes of the meeting of the Trust held on the 25th of May, 2013 in which the Chairman declared that he is ready to hand over the school to the Trust. Accordingly, it was decided to implement the said resolution. A true copy of the minutes of the meeting of the Trust held on the 25 th day of May, 2013, in which the petitioner is the 4 th signatory, is producedherewith and marked as Ext.R5(a). She subsequently participated in the Trust meeting on the 15 th of August, 2013 in which again it was decided to introduce an amendment. A true copy of the minutes of the meeting of the Trust held on the 15th of August, 2013 in which the petitioner is the 5th signatory, is produced herewith and marked as Ext.R5(b). Thereafter another meeting was held on 21.09.2013 in which it was unanimously decided to entrust the management of the school to the Trust. A true copy of the minutes dated 21.09.2023, in which the petitioner is the 4th signatory, is produced herewith and marked as Ext.R5(c). Thus the petitioner is very much a party to the decision to hand over the school to the Trust.

6. It is submitted that in another meeting of the Trust held on 02.12.2013, all the members including the petitioner expressed their 'thanks' to the Chairman for entrusting the school to the Trust. A true copy of the minutes of the 9 WA No.1117 of 2025 2025:KER:73190 meeting of the Trust held on 02.12.2013 in which also the petitioner is the 4th signatory, is produced herewith and marked as Ext.R5(d). On 26.02.2014 another meeting was held to explain the status and progress of the proceedings for entrusting the school to the Trust, in which also the petitioner participated and signed the minutes and satisfaction was recorded by all the members regarding the decision of the Chairman to hand over the school to the Trust. A true copy of the minutes of the meeting held on 26.02.2014 in which the petitioner is the third signatory, is produced herewith and marked as Ext.R5(e). There were further meeting on 16.04.2014, 11.07.2014, 10.11.2014 and subsequent dates, in all of which the decision of the Chairman was not only affirmed but approved with 'thanks'. The petitioner had participated in all the meetings and did not raise any objection at any time regarding the unanimous resolution passed by the Trust. It is unnecessary to produce the minutes of all those meetings as it is not disputed and the part of the minutes if needed, will be produced before this Hon'ble Court. Pursuant to the aforesaid decisions, to which the petitioner was also a party, the Trust was running satisfactorily for nearly 8 years. While so at a belated stage on 27.03.2023, the petitioner appears to have submitted a petition before the District Educational Officer, Wandoor.

7. It is submitted that in the meantime on 11.03.2023 the majority members of the Trust had decided to approve this respondent as Manager. Though the holding of meeting on 10 WA No.1117 of 2025 2025:KER:73190 11.03.2023 was duly communicated to the petitioner in time, she did not participate in the meeting raising an objection that she was not aware of the meeting. Accordingly, on the 20th of April, 2023 another meeting of Trust was held in which excepting the petitioner, all the three trustees participated and it was decided to appoint this respondent as the Chairman and Managing Trustee and also to appoint this respondent as Manager. A true copy of the minutes of the meeting held on 20 th of April, 2023 is produced herewith and marked as Ext.R5(f). The petitioner was communicated both by WhatsApp and by registered post the holding of meeting on 20.04.2023, which she refused to accept. A true copy of the notice dated 10.04.2023 sent by this respondent to all the members of the Trust by registered post, a true copy of which along with postal receipt and acknowledgement card signed by the petitioner, is produced herewith and marked as Ext. R5(g). Accordingly the District Educational Officer was requested to grant approval to the appointment of the 5 th respondent as Manager, at which time it appears the petitioner submitted the aforesaid petition before the District Educational Officer, a copy of which was not communicated to this respondent or others at all, but the District Educational Officer held a hearing and passed Ext.P5 order rejecting the petition of the petitioner. Against that order, the petitioner submitted an appeal before the Director of Public Instruction, who however, declared the election of this respondent as 11 WA No.1117 of 2025 2025:KER:73190 Manager illegal holding the view that the transfer of ownership of the properties of the Trust is not in accordance with law, as the Trust itself has not become vested with the ownership. Accordingly he passed Ext.P6 order. Against the same this respondent submitted a revision before the Principal Secretary to Government, General Education Department, which has now been allowed by the said authority by order evidenced by Ext.P8. It is that order that is under challenge now.

8. It is submitted that the challenge against that order is totally unsustainable both in law and facts. The contention that the Trust cannot appoint a Manager is incorrect. It may be pointed out here that from the year 2013 the father of these respondents and the petitioner was functioning as Manager pursuant to the resolution of the Trust. While so the amendment made by the Trust on various dates to the byelaws including the administration of the school was approved by the Government as early as on 19.06.2014, a true copy of which is produced herewith and marked as Ext.R5(h). Clause 12 of the bye-laws specifically says that the Chairman of the Trust shall be the Manager of the school till his death. After his death as per the decision of the Trust this respondent was appointed as Manager, which was duly approved by the District Educational Officer.

9. The petitioner has not challenged the approval of the Government granted to the byelaws of which the Trust can appoint the Manager. She cannot now contend before this 12 WA No.1117 of 2025 2025:KER:73190 Hon'ble Court that the Trust has no authority to appoint a Manager having conceded the same from the year 20l4 without demur and accepting the decision that the Trust can appoint the Manager. The Trust therefore, has been appointed as educational agency empowered and entitled to appoint the Manager also.

10. The contention that it is not an educational agency is therefore, altogether untenable, the petitioner having conceded the factual and legal position from the year 2014 without challenging the same.

11. The contention that the order of the Government does not contain details, is altogether untenable since the Government have very clearly stated how the Trust is the educational agency and the decision of the Trust to appoint the Manager is perfectly justifiable. The question of ownership cannot be decided by educational authorities but only by a civil court. The question of ownership is altogether irrelevant. The petitioner has deliberately suppressed from the notice of this Hon'ble Court that the Government have approved the bye-law and the constitution of the Trust and managership to the Trust. She therefore, has suppressed material information from the notice of this Hon'ble Court disentitling the petitioner to any discretionary reliefs. The contention that the appointment of this respondent as Manager is wrong, is totally untenable in the light of the above admitted facts.

12. The petitioner, it is respectfully submitted that, cannot 13 WA No.1117 of 2025 2025:KER:73190 challenge the amendment made to the Trust in a petition under Article 226 of the Constitution of India. Her remedy to challenge the same is elsewhere and not before this Hon'ble Court. The Trust and amendment have already been approved by the department, which is within the knowledge of the petitioner and unchallenged by her till the filing of the petition before the District Educational Officer. The petitioner therefore, is disentitled to any discretionary reliefs from this Hon'ble Court. The petitioner cannot challenge Ext.P2 amendment to the Trust now in late 2024. Admittedly the amendment of the Trust was approved by the department evidenced by Ext.P4. That also has not been challenged by the petitioner till date. The contention that the amendment to the Trust is not by a registered instrument, cannot be raised in a writ petition as the petitioner herself was a party to the amendment and the department had long back approved the amendment. What the petitioner is challenging is the Trust deed and the amendment in a petition under Article 226 of the Constitution of India, which it is submitted, is patently unsustainable in law particularly because the amendment has been acted upon by the departmental authorities who have granted approval to the continuance of the Trustee as Manager and later on his death this respondent as Manager.

13. The order of the Government taking due note of all the circumstances, does not warrant any interference particularly under Article 226 of the Constitution of India. 14

WA No.1117 of 2025 2025:KER:73190 None of the grounds raised is tenable. There is no violation of principles of natural justice or Article 14 of the Constitution of India as preposterously contended in Ground-A. The petitioner was afforded all opportunities to advance arguments she wanted before the Government, which considered the arguments of both parties and on examination of relevant matters the Government has come to the conclusion that it is this respondent, who is eligible to become the Manager. The challenge to Ext.P2 now in Ground

-C therefore, is patently unsustainable and cannot be maintained at all. The contention placed on the Indian Trust Act also cannot be considered in a petition under Article 226 of the Constitution of India as long the petitioner has not chosen to challenge it till now but has conceded to it. There is no transfer of property as wrongly contended by the petitioner.

14. The further contention that the legal heirs of an individual manager has not taken steps to form a corporate educational agency is wholly unsustainable both in law and facts. There is no requirement to constitute a corporate educational agency as wrongly contended by the petitioner. The contentions based on Rule 3 of Chapter III of the Kerala Education Rules are also wholly misplaced and inapplicable. The administrative authority concerned namely the Government have acted in good faith and have considered all relevant aspects with due application of mind and has passed Ext.P8 order. The repeated averments that an 15 WA No.1117 of 2025 2025:KER:73190 educational agency should have been constituted, reiterated several times in the writ petition are totally unsustainable and irrelevant for the proper adjudication of the issues involved in the writ petition. The appointment of this respondent as Manager is perfectly in order and does not warrant any interference particularly in the discretionary jurisdiction of this Hon'ble Court in view of the admitted conduct of the petitioner in participating in a meeting and becoming a party to the very amendment."

4. The 3rd respondent filed a counter affidavit dated 24.10.2024 in the writ petition opposing the reliefs sought for in the writ petition.

5. By the impugned judgment dated 13.05.2025, the learned Single Judge dismissed the writ petition. Paragraphs 13 to 17 and the last paragraph of that judgment read thus:

"13. Thandaparakkal Muhammed founded the School in the year 1968. He was the individual educational agency and Manager of the School then. Ext.P1 public Charitable Trust was constituted on 05.02.2013. Ext.P2 amendment was made to the Trust Deed on 05.11.2013. The amendment provided that it is desirous of entrusting the management of the School along with its building, accessories and assets to the Trust for the purpose of conducting the School under the management of the Trust, without involving any change of landed property and managership of the School. The 16 WA No.1117 of 2025 2025:KER:73190 petitioner challenges Ext.P2 amendment. Constitution of a Trust or amendment to a Trust Deed, cannot be challenged in writ proceedings.

14. Ext.P8 order dated 09.05.2023 would indicate that the Government has considered all the facts exhaustively while taking Ext.P5 decision. It is the majority decision of the Trust to appoint the 5th respondent as Manager. The petitioner also was given notice of the Trust meeting by registered post. The Government did not find any illegality in appointing the 5th respondent as Manager.

15. The petitioner also is a member of the Trust. The petitioner has been attending the Trust meetings regularly earlier. The petitioner is a signatory in the minutes of the meeting of the Trust held on 25.05.2013 in which the Chairman declared that he is ready to handover the School to the Trust. In the meeting of the Trust held on 15.08.2013, it was decided to introduce an amendment. The petitioner attended the said Trust meeting also. Thereafter, another meeting was held on 21.09.2013 in which the Trust unanimously decided to entrust the management of the School to the Trust as per Ext.R5(c). The petitioner was party to the said meeting also.

16. The petitioner has come up with an objection to the appointment of the 5th respondent as Manager after about ten years, on 27.03.2023. The petitioner would contend that Ext.P2 amendment is illegal and the amendment does not provide for change of ownership or management of the 17 WA No.1117 of 2025 2025:KER:73190 School to the Trust.

17. It is evident that basically, the petitioner is challenging the Trust Deed and its amendment and seeks an interpretation of Exts.P1 and P2 in her favour. Such an exercise cannot be done under Article 226 of the Constitution of India. Disputes relating to property, status or right have to be adjudicated upon in a properly instituted civil suit. It would be an abuse of process for the writ petitioner to approach the High Court under Article 226 of the Constitution of India seeking resolution of civil disputes. The writ petition is therefore without any merit and it is hence dismissed".

6. On 02.06.2025, when this Writ appeal came up for admission, we admitted the same, and the learned Senior Government Pleader took notice for respondents 1 to 4, and the learned counsel entered appearance for respondents 5 to 7. After hearing both sides, an interim stay was granted to the effect that the 5th respondent can continue as the Manager of the school; however, he shall not make any appointments without obtaining orders of this Court.

7. Heard the Senior Counsel for the appellant, the learned Senior Counsel for the 5th respondent and the learned Senior Government pleader.

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8. The learned Senior counsel for the appellant would submit that Sri.T. Muhammed was the Manager and educational agency of K.M. High School, till his death. By way of amendment effected to Ext.P1 trust deed, he wanted to transfer the managership alone to the trust, retaining the educational agency. He died in the year 2023. The four trustees excluding the appellant appointed the 5th respondent as the Manager of the school and it was approved by the District Educational Officer. On the death of the founder, the educational agency got transferred into a corporate agency consisting of the legal heirs of the founder, and thereafter, the Manager can be appointed only by the corporate educational agency consisting of the legal heirs, following the provisions of the Kerala Education Act and Rules thereunder. Therefore, the approval of Exts.P3 and P4 is invalid. Ext.P6 order considered all the relevant facts and has the right conclusion. The Government is not justified in interfering with the said well- considered order. Section 6 of the Kerala Education Act specifically bars the transfer of the properties of an aided school without the previous permission of the authorities. Hence, the alleged transfer 19 WA No.1117 of 2025 2025:KER:73190 contended by the respondents is improper and illegal. As far as the maintainability of the reliefs sought in the writ petition is concerned, the learned Senior Counsel submitted that relief Nos.1 and 3 are perfectly maintainable under Article 226 of the Constitution of India.

9. On the other hand, the learned Senior Counsel appearing for the 5th respondent would submit that the writ petition is not maintainable for several reasons. Primarily, the trust is not made a party to the writ petition. The appellant participated in the meetings of the trust, including the meeting in which amendments were carried out to the trust deed. Now the appellant cannot turn around and disown the decision to amend the trust deed. The learned Senior Counsel relied on the judgment of the Apex Court on Gosain v. Yashpal Dhir [(1992) 4 SCC 683] in support of his argument that the appellant cannot approbate and reprobate. The learned Senior Counsel would further submit that from Ext.P8 order, it is clear that the Government has considered the contentions of the parties in detail and reached to a conclusion that it is as per the bye-law of the trust, the 5 th respondent was 20 WA No.1117 of 2025 2025:KER:73190 selected as Manager of the school. The appellant did not dispute the trust bye-laws and the management of the school till the death of Sri. Muhammed. It was as per the bye-laws of the trust that the meeting was convened by the trustees. The appellant was also given notice of that meeting. By relying on the judgment of Apex Court in Union of India v. N. Murugesan [ (2022) 2 SCC 25] the learned Senior Counsel argued that the appellant, who acquiesced the amendment to the bye-laws and the actions taken based on the same, cannot challenge the appointment of the 5 th respondent by the trustees based on the bye-laws of the trust. As far as the maintainability of the writ petition under Article 226 of the Constitution of India is concerned, the learned Senior Counsel relied on the judgment of the Apex Court in Additional Secretary to the Government of India v. Alka Subhash Gadia [(1992) Supp 1 SCC 496], Tata Cellular v. Union of India [ (1994) 6 SCC 651]. Similarly, by relying on the judgment of the Apex Court in Airports Authority of India v. Pradip Kumar Banerjee [(2025) 4 SCC 111], the learned Senior Counsel argued that an intra-court appeal is not maintainable against the 21 WA No.1117 of 2025 2025:KER:73190 judgment of the learned Single Judge.

10. The learned Senior Government Pleader argued that in Ext.P8 order, the Government has taken into consideration the fact that Ext.P2 trust deed was approved by the District Educational Officer. The said order is not challenged in the writ petition. As per Clause 12 of Ext.P4 bye-laws of the school approved by the District Educational Officer, the chairman of the trust shall be the Manager of the school. Accordingly, T.Muhammed was the Manager of the school till his death in his capacity as the Chairman of the trust. By relying on the judgment of this Court in Iysha Narayanan v. State of Kerala [1984 KLT SN 110] the learned Senior Government Pleader argued that since the controversy involved in the writ petition is pertaining to the appointment of Manager of an educational institution, the remedy of the appellant is to approach the civil court.

11. The father of the appellant, Thandparakkal Muhammed is the founder of K.M.High School, Karulai, an Aided High School in Wandoor educational district. He was the individual educational agency. He formed a public charitable trust as per Ext.P1 trust 22 WA No.1117 of 2025 2025:KER:73190 deed dated 05.02.2013. The main objectives of the trust, as per clause 6(a) of Ext.P1 trust deed is to establish, maintain and support all kinds of Educational Institutions, such as schools, Colleges, Vocational and other Training Centres, including Teacher Training Centres. As per Clause 16 of the deed, the quorum for the meeting of the Board shall be three-fourth of the total number of members in the Board, and that of the office bearers shall be two-third. All decisions of the Board shall be taken or resolutions passed with the support of three-fourth majority of the total members available in the Board, unless otherwise stated in the deed. The members of the trust, including the appellant, after repeated meetings, amended the preamble of the deed of trust by adding the words 'and is desirous of entrusting the management of the Kunhamutty Memorial High School and Higher Secondary School, Karulayi, along with all its buildings, accessories and assets to the trust for the purpose of conducting the school under the management of the trust, without involving any change of landed property and managership of the school'. The appellant did not challenge this amendment till a decision was taken by the trust 23 WA No.1117 of 2025 2025:KER:73190 after the death of Muhammed in the year 2023 to appoint the 5 th respondent as the Manager of the school.

12. In Gosain [(1992) 4 SCC 683] the Apex Court held thus:

"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [1921 (2) KB 608, at p. 612 Scrutton, L.J.]. According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside" (para 1508).

11. In Thacker Hariram Motiram v. Balkrishan Chatrabhu Thacker [(1989) Supp 2 SCC 655], this Court was dealing with a similar situation. The High Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year's time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time.

WA No.1117 of 2025 2025:KER:73190 The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by December 31, 1985, i.e. to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court". It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Art.136 of the Constitution and he should abide by the terms of the undertaking, and it was observed :

"This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. We do not wish to encourage this kind of practice for obtaining time from the Court on one plea of filing the undertaking and taking the different stand, in applications under Art.136 of the Constitution." (P. 655)

12. Similarly in Vidhi Shahker v. Heera Lal [(1987) Supp SCC 200] and Ramchandra Jai Ram Randive v. Chandanmal Rupchand [(1987) Supp SCC 254], this Court declined to exercise its discretion under Art.136 of the Constitution in cases where the petitioner had given an undertaking in the High Court and had obtained time to vacate the premises on the basis of such undertaking".

(underline supplied)

13. In N. Murugesan [(2022) 2 SCC 25], the Apex Court held thus:

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      "24. ACQUIESCENCE:

We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter proceeding further, acquiescence does take place.

26. APPROBATE AND REPROBATE:

These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or 26 WA No.1117 of 2025 2025:KER:73190 disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally".

(Underline supplied)

14. From the principles laid down in the aforesaid judgments, we notice that the appellant herein, who participated in the meetings of the trust for amending Ext.P1 trust deed, cannot at a later point of time disown the same. Moreover, she cannot challenge Ext.P2 amendment made to the trust deed by filing a writ petition under Article 226 of the Constitution of India.

15. In Alka Subhash Gadia [(1992) Supp (1) SCC 496] the Apex Court held thus:

"12. This is not to say that the jurisdiction of the High Court and the Supreme Court under Articles 226 and 32 respectively has no role to play once the detention -- punitive or preventive -- is shown to have been made under the law so made for the purpose. This is to point out the 27 WA No.1117 of 2025 2025:KER:73190 limitations which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well known, and are self imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decisions have evolved them over a period of years taking into consideration the nature of the right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdiction is invoked, the nature of relief sought etc. To illustrate these limitations: (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as courts of appeal or revision, correct mere errors of law or of facts; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ jurisdiction, permit the machinery created by the statute to be by - passed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of 28 WA No.1117 of 2025 2025:KER:73190 evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is mala fide or is prompted by extraneous considerations or is made in contravention of the principles of natural justice or any constitutional provision;

(v) the Court may also intervene where (a) the authority acting under the concerned law does not have the requisite authority or the order which is purported to have been passed under the law is not warranted or is in breach of the provisions of the concerned law or the person against whom the action is taken is not the person against whom the order is directed; or (b) where the authority has exceeded its powers or jurisdiction or has failed or refused to exercise jurisdiction vested in it; or (c) where the authority has not applied its mind at all or has exercised its power dishonestly or for an improper purpose; (vi) where the Court cannot grant a final relief, the Court does not entertain petition only for giving interim relief. If the Court is of opinion that there is no other convenient or efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits and if the Court finds that there is an infringement of the petitioner's legal rights, it will grant final relief but will not dispose of the petition only by granting interim relief; (vii) 29 WA No.1117 of 2025 2025:KER:73190 where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the Court interferes with the resultant order; (vii) In proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded".

16. In Tata cellular [(1994) 6 SCC 651] the Apex Court held thus:

"113. The principles deducible from the above are :

(1) The modern trend points to judicial restraint in administrative action.

(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to 30 WA No.1117 of 2025 2025:KER:73190 judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the construct is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere.

However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure".

17. In Pradip Kumar Banerjee [(2025) 4 SCC 111] the Apex Court held thus:

"36. The law relating to the exercise of intra - Court jurisdiction is crystallised by this Court in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company, [(2016) 3 SCC 340], wherein it was held as under:

"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not 31 WA No.1117 of 2025 2025:KER:73190 functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra - court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief." (emphasis supplied)

18. In Iysha Narayanan [1984 KLT SN 110] a Division Bench of this Court consisting of the Acting Chief Justice held thus:

"3. The real controversy is about the ownership of the school, because ordinarily, the right to manage goes with ownership. The proper forum to settle disputes about ownership is the civil court. Ext. P-11 judgment of the Division Bench did not go to the extent of suggesting that this jurisdiction of the civil courts stood ousted by the revisions of the Kerala Education Act and the Rules. All that the judgment indicated was that the possibility of a civil litigation could not relieve the Educational Authorities of their duties under the Act, for the purposes of the Act. It is 32 WA No.1117 of 2025 2025:KER:73190 indisputable that the statutory authorities are bound to exercise their functions, and the availability of another forum for finally settling civil rights, will be no excuse for them to abdicate their functions. We do not understand Ext. P-11 judgment to lay down the proposition that the decision of the authorities under the Act would be final and conclusive in respect of title to property and civil rights, except for the limited purposes of the Act.

4. When a similar question recently arose before this court in Abdul Rahim v. State of Kerala [1984 KLT 773] and the correctness of the view taken in judgments like Ext. P-11 was canvassed, one of us (Bhaskaran, Ag. C. J.) said:-

"We understand the Division Bench ruling as one laying down that it is for the statutory authorities constituted under the Kerala Education Act and the Rules framed thereunder, to the best of their resources and ability, to decide the question of the right of management of the school. We do not, however, understand it as one laying down a proposition that such decisions taken by the Educational Authorities would conclude the civil rights of the parties to the properties involved. The decisions of the Educational Authorities are not meant to settle civil rights of the parties to such properties. These decisions are in the nature of summary determination for the sake of expediency, without waiting for the result of a protracted litigation in a civil court. There could be no doubt that the right to agitate on questions of civil rights in a civil court 33 WA No.1117 of 2025 2025:KER:73190 would remain unaffected in spite of the decision by the Educational Authorities for the limited purpose of carrying on the functions and fulfilling the obligations under the Act. It does not, and cannot oust the jurisdiction of the civil court in matters touching the civil rights of the parties."

5. When the right to the ownership of a school is seriously in dispute, a proper decision thereon can be rendered only by examining a large volume of evidence, oral and documentary, which the parties will be interested in adducing. The Educational Officers and the Secretary to Government would be unequal to the task of adjudicating such a dispute. Exts. P-7 and P-12 are illustrative of the accidents' involved in entrusting the final decision to them. Of course, if the statute provides that they, and they alone, could decide the matter, that policy will have to be given effect to. But as we said, the statute in this case does not confer any such exclusive jurisdiction on them, except for the purposes of administering the Act. The civil courts' power remains untouched".

(underline supplied)

19. The dispute involved in this case is based on several factual issues. Admittedly, the appellant is a signatory in the minutes of a meeting held by the trust on various dates in the year 2013, during which the trust deed was amended. She came up with the objection to the appointment of the 5 th respondent as 34 WA No.1117 of 2025 2025:KER:73190 the Manager only in the year 2023, contending that the amendment effected to the trust deed is void. By Ext.R5(c) decision taken in the meeting held on 21.09.2023, the trustees unanimously decided to entrust the management of the school to the trust. While considering the entire facts and circumstances in the light of the principles laid down in the judgments referred supra, we concur with the finding of the learned Single Judge that the dispute raised by the appellant can be adjudicated only in a properly instituted civil suit. Hence, we find no ground to interfere with the impugned judgment.

In the result, the writ appeal stands dismissed.

Sd/-

ANIL K.NARENDRAN, JUDGE Sd/-

sks                              MURALEE KRISHNA S., JUDGE
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WA No.1117 of 2025                                   2025:KER:73190



                      APPENDIX OF WA 1117/2025

PETITIONER EXHIBITS

Exhibit P3            LEGIBLE COPY OF EXT.P3 IN W.P. (C) 23166 OF
                      2024 AND LEGIBLE COPY OF 1ST PAGE
Exhibit P5            LEGIBLE COPY OF EXT P5 FILED IN W.P. (C) 23166
                      OF 2024
Exhibit P6            LEGIBLE COPY OF EXT.P6 FILED IN W.P. (C)
                      23166 OF 2024
Exhibit P8            LEGIBLE COPY OF EXT.P9 FILED IN W.P. (C)
                      NO.23166 OF 2024

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