Dismissed

Sabitha K.V. v. the State of Kerala

Kerala HC16 Dec 2021WA/465/2021

Case brief

AI extract

What is this about?

The High Court dismissed appeals challenging an order refusing to accept an unregistered Will claiming exclusive right to manage educational institutions. The court held that disputed Wills requiring proof of execution must be adjudicated in civil courts, not through writ proceedings, and the institutions must be managed under a scheme.

What did the court decide?

The appeals were dismissed upholding the Single Judge's decision to designate a civil court for the dispute over the Will's validity.

Sabitha K.V. Vs the State of Kerala — Education and Admissions | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

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WA NO. 463 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 24498/2017 OF HIGH COURT OF

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KERALA

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APPELLANT/RESPONDENT NO.6:

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SABITHA K.V. AGED 60 YEARS SREYAS, PADANNAKKAD P.O, KASARAGOD - 671314.

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BY ADVS. MAHESH V RAMAKRISHNAN SRI.N.N.SUGUNAPALAN (SR.)

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RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5:

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1 SATHEESAN K.V. AGED 68 YEARS S/O. K.V. KUNHAMBU, MANAGER, SREE NARAYANA TEACHER TRAINING INSTITUTE (SNTTI),PADANNAKKAD, KASARAGOD - 671415, (CURRENT ADDRESS, VAISHNAV, WEAVERS STREET, P.O, NILESWAR, KASARAGOD - 6 71314.

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2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM – 695001.

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3 DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM - 695014, (NOW DIRECTOR, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM – 695001

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4 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, VIDYA NAGAR,

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W.A.NO.463,464, & 465 of 2021 :: 2 ::

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KASARAGOD – 671123.

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5 THE DISTRICT EDUCATION OFFICER MINI CIVIL STATION, KANHANGAD, KASARAGOD – 671315.

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6 THE ASSISTANT EDUCATIONAL OFFICER HOSDURG, POST KANHANGAD, KASARAGOD – 671315.

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BY ADVS. K.JAJU BABU (SR.) T.K.VIPINDAS K.V.SREE VINAYAKAN K.M.MUHAMMED HUSSAIN BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WA.465/2021 AND 464/2021, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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W.A.NO.463,464, & 465 of 2021 :: 3 ::

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

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WA NO. 465 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 37814/2015 OF HIGH COURT OF

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KERALA

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APPELLANT/PETITIONER:

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SABITHA K.V. AGED 60 YEARS SREYAS, PADANNAKKAD P.O, KASARAGODE - 671314.

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BY ADVS. MAHESH V RAMAKRISHNAN SRI.N.N.SUGUNAPALAN (SR.)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF EDUCATION, THIRUVANANTHAPURAM 695 001.

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2 DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM 695 014. (NOW DIRECTOR, GENERAL EDUCATION DEPARTMENT THIRUVANANTHAPURAM)

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3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KASARAGOD 671 123.

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4 THE DISTRICT EDUCATION OFFICER

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MINI CIVIL STATION, KANHANGAD, KASARAGOD 671 315.

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5 THE ASSISTANT EDUCATIONAL OFFICER HOSDURG, POST KANJANHANGAD, KASARAGOD DISTRICT, 671 315.

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6 SATHEESAN K.V VAISHNAV, WEAVERS STREET, NILESHWAR 671 314.

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BY ADVS. SRI.T.K.VIPINDAS K.V.SREE VINAYAKAN K.M.MUHAMMED HUSSAIN

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BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WA.463/2021 AND 464/2021, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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W.A.NO.463,464, & 465 of 2021 :: 5 ::

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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THURSDAY, THE 16^TH DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943

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WA NO. 464 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 21246/2016 OF HIGH COURT OF

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KERALA

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APPELLANT/RESPONDENT NO.5:

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SABITHA K.V. AGED 60 YEARS SREYAS, PADANNAKKAD P.O, KASARAGOD – 671314.

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BY ADVS. MAHESH V RAMAKRISHNAN SRI.A.RADHAKRISHNAN SRI.N.N.SUGUNAPALAN (SR.)

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RESPONDENT/PETITIONER & RESPONDENTS 1 TO 4:

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1 SATHEESAN K.V. S/O. K.V. KUNHAMBU, MANAGER, SREE NARAYANA TEACHER TRAINING INSTITUTE (SNTTI), PADANNAKKAD, KASARAGOD - 671415, (CURRENT ADDRESS VISHNAV, WEAVERS STREET, P.O, NILESWAR, KASARAGOD – 671314)

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2 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM - 695001.

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3 DIRECTOR OF PUBLIC INSTRUCTION,

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JAGATHY, THIRUVANANTHAPURAM - 695014, (NOW DIRECTOR, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM)

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4 THE DISTRICT EDUCATION OFFICER MINI CIVIL STATION, KANHANGAD, KASARAGOD – 671315.

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5 THE ASSISTANT EDUCATIONAL OFFICER HOSDURG, POST KANHANGAD, KASARAGOD – 671315.

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BY ADVS. SRI.T.K.VIPINDAS K.V.SREE VINAYAKAN K.M.MUHAMMED HUSSAIN

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BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.12.2021, ALONG WITH WA.463/2021 AND 465/2021, THE COURT ON 16.12.2021 DELIVERED THE FOLLOWING:

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W.A.NO.463,464, & 465 of 2021 :: 7 ::

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“C.R.”

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J U D G M E N T

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Mohammed Nias C.P., J

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These appeals arise from the common judgment in WP(C)No.24498 of 2017, 21246 of 2016 and 37814 of 2015, whereby the learned Single Judge relegated the dispute among the legal heirs regarding the right to manage two institutions by name Sree Narayana Teachers Institute, Nileshwar and 'Sree Narayana Aided U.P.School', Padannakad (hereinafter referred to as 'the schools' for short) to the Educational Authority for appropriate decisions regarding the membership in terms of the Kerala Education Act and Rules. The material facts require for deciding the appeals are as follows:-

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Late K.V.Kunhambu established the above institutions and was the Manager till his death on 11.08.1978, after which his wife Sathyabhama became the Manager as per the Will of Kunhambu dated 10.05.1978 and she continued as such till her death on 12.08.2013, following which disputes started among their seven children about the managership. While Sabitha. K.V., the appellant in WA No.463 of 2021 staked her claim on the basis of an unregistered Will allegedly executed by her mother on 27.10.2009 bequeathing her right to manage exclusively, Sri. SatheesanK.V., the

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W.A.NO.463,464, & 465 of 2021 :: 8 ::

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elder son who had the support of all the remaining five siblings claimed managership on that ground.

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On 02.09.2013 Sabitha K.V staked her claim for managership by letter dated 2.9.2013, while Satheesan K.V. with the support of the remaining legal heirs successfully made a claim on 4.10.2013 and was appointed as Manager by Ext.P3 order on 11.10.2013 by the 4^th respondent and which was approved by the DPI by Ext.P4 order on 31.10.2013. Sabitha.K.V. appealed against Exts.P3 and P4 orders, which was disposed of by Ext.P5 holding that the Will set up by her cannot be accepted and that a scheme has to be framed being a corporate educational agency, within a period of six months. Thereafter, there were exchange of letters between both the parties and ultimately by Ext.P13, the Government by order dated 16.10.2015 appointed Satheesan.K.V. as the Manager again with a condition that no appointment shall be made as the byelaw has to be with the junction of all the legal heirs. Consequential order was passed by the DEO on 12.11.2015 by Ext.P14. These orders, Exts.P13 and P14 were challenged by Sabitha.K.V. by filing WP(C)No.37814 of 2015. No interim order was granted in the said writ petition. Satheesan.K.V. on the other hand filed WP(C)No.21246 of 2016 challenging the restrictions placed in Exts.P13 and P14 on him while acting as Manager. Later, by Ext.P23 order dated 17.07.2021 the Government appointed the Deputy Director of Education as the

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W.A.NO.463,464, & 465 of 2021 :: 9 ::

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Manager till the resolution of disputes among the legal heirs. The said order was challenged by Satheesan.K.V. in WP(C)No.24498 of 2017. The learned Single Judge by the common judgment under appeal in the three writ petitions mentioned above directed the Deputy Director of Education, Kasargode, the 4^th respondent herein to call for a meeting of all the members of the corporate educational agency and also to grant an opportunity to Sabitha K.V., the appellant herein to raise objections to the byeleaw framed by Satheesan.K.V and five other siblings, and also to give the appellant an opportunity of producing an independent byelaw of her own and then to take a decision on approving the final byelaw for the management of the schools in terms of the applicable provisions of the Act and the KER. Till such a decision was taken, Ext.P23 order by which the 4^th respondent was appointed a the Manager by the order of the Government was allowed to remain in force.

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Heard Sri.N.Sugunapalan, the learned senior counsel for the appellants, duly instructed by Adv.Mahesh V. Ramakrishnan, Sri.Jaju Babu, the learned Senior counsel, instructed by Adv.T.K.Vipindas appearing for the first respondent and the learned Government Pleader for the official respondents.

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The learned Senior counsel would also rely on the judgment in Somanatha Pillai v. State of Kerala [2017(1) KLT

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W.A.NO.463,464, & 465 of 2021 :: 10 ::

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127] for the proposition that on the death of Sathyabhama, the educational agency becomes a corporate educational agency only if it has not devolved on a particular individual by way of a testamentary disposition or by way of personal law and in the instant case since there is a Will, the educational agency continues to be an individual educational agency. He also relied on the judgments in Iysha Narayanan v. State of Kerala [ILR 1985 (1) Ker 348], A bdul Rahim v. State of Kerala [1984 KLT 773 (DB), Kunhikrishnan Adiyodi v. State of Kerala [2003 (2) KLT 488 (DB), Murugan and others v. Kesava Gounder (AIR 2019 SC 2696=2019 KHC 6223), Kartar Singh and others v. Ranbir Singh and another [AIR 2019 NOC 220 = 2019 KHC 3106] and HK Desappa Setty and others v. KN Thammana Gouda and another (AIR 1984 Karnataka 153), in support of his contention regarding the acceptability of the Will.

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Learned senior counsel contends that the appellant, Sabitha.K.V. had set up a Will dated 27.10.2009 executed by her mother bequeathing the right to manage the schools to her and thus she had to be appointed as Manager in exclusion of the other legal heirs. It is his further submission that the respondents are to challenge the same in case they dispute and in the absence of a challenge before a civil court, the educational authorities had to appoint the Manager in terms of the said Will.

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W.A.NO.463,464, & 465 of 2021 :: 11 ::

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The learned senior counsel for the respondents on the other hand submitted that the alleged Will was created fraudulently and this defence was taken up by all the remaining legal heirs at the earliest point of time, as could be seen even from Ext.P13 order issued on 16.10.2015. There was nothing wrong in Satheesan.K.V., the respondent in the appeals being appointed as Manager in view of the support of all the remaining legal heirs and the direction of the educational authorities to the extent it appointed Satheesan.K.V. calls for no interference is the submission of the learned Senior counsel for the respondents.

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In all cases where a Will is set up, the procedure prescribed under Section 68 of the Indian Evidence Act, 1872, will have to be followed and it is the burden of the propounder of the Will to prove that the Will is duly executed. The propounder also has a legal obligation apart from proving the execution and genuineness of the Will, to explain the suspicious circumstances, if any, surrounding the execution of the Will. Section 68 of the Evidence Act does not contain any distinction between an admitted Will and disputed Will as regards the mode of proof. Due execution of the Will cannot be proved otherwise than by a recourse to Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, 1925. It has to be seen that in the instant case all the other legal heirs except the

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W.A.NO.463,464, & 465 of 2021 :: 12 ::

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propounder disputes the Will as a fraudulently created one. In view of the said position, the arguments of the learned senior counsel for the appellant that the respondents know the existence of a Will, therefore, it must be taken to be valid till it is set aside at the instance of the respondents cannot be countenanced at all. None of the decisions relied on by the appellant in support of this contention holds otherwise. We agree with the submission of the learned senior counsel for the appellant that the educational authorities cannot decide complicated questions of fact or law which requires evidence and the same can be done only through civil court. It was for the appellant, the propounder of the Will and who was staking a claim on that basis to prove the same by filing an appropriate civil suit and to prove the Will in accordance with law. That not having been done, her claim was rightly rejected by the educational authorities and it calls for no interference.

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In such circumstances, we find nothing wrong in the educational authorities declining to accept the recitals in the Will or to confer any benefit on the basis of the said Will. We also cannot construe the terms much less consider the genuineness of a Will in an appeal against a proceedings under Article 226 of the Constitution of India. As rightly found by the learned Single Judge, as it stands now, being a corporate educational agency, the institutions are to be governed in terms of the provisions of the Kerala Education Act and

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W.A.NO.463,464, & 465 of 2021 :: 13 ::

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Rules, which calls for a scheme or byelaw, which determines the mode of selecting the Manager.

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Before parting, we notice that the learned Single Judge had observed that even if the Will is taken to be genuine, it would concede no right to Sabitha K.V. to stake a claim on the basis of a Will as the managership is not a civil right but a statutory right and the same could not have been the subject matter of a bequest. We note that the said observation of the learned Single Judge cannot be taken as a blanket proposition of law applicable to all situations. Since we are not called upon to decide the said issue in these appeals, we are not deciding the same, and therefore, the said question is left open. We are in complete agreement with the directions given in the judgment under appeal.

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In the result, the above appeals are dismissed.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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Sd/-

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MOHAMMED NIAS C.P JUDGE

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dlk/10/12/

Sabitha K.V. v. the State of Kerala

Case brief

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Sabitha K.V. v. the State of Kerala

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