## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR.JUSTICE N.NAGARESH
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THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
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WP(C) NO. 30129 OF 2023
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## **`PETITIONER:`**
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BABY.K
AGED 56 YEARS, KARINKALIMMAL,
UNNIKULAM.P.O, UNNIKULAM VILLAGE,
THAMARASSERY TALUK, KOZHIKODE,
PIN – 673 574.
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BY ADVS.
R.SUDHISH
N.ABDUL AZEEZ
M.K.AYYAPPAN
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## **`RESPONDENTS:`**
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1KUTTIMALU
AGED 73 YEARS, KARINKALIMMAL,
UNNIKULAM.P.O., UNNIKULAM VILLAGE,
THAMARASSERY TALUK, KOZHIKODE - 673574,
NOW RESIDING AT C/O GEETHA GANGADHARAN,
PLAKOOTTATHIL VEEDU, KATTIPARA, VIA
THAMARASSERRY, KOZHIKODE, PIN – 673 615.
2THE REVENUE DIVISIONAL OFFICER/ PRESIDING
OFFICER, MAINTENANCE TRIBUNAL,
CIVIL STATION, KOZHIKODE, PIN – 673 020.
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BY ADVS.
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LUIZ GODWIN D COUTH
JOSE KURIAKOSE
(VILANGATTIL)(K/000207/1998)
BIJO FRANCIS(K/000207/1994)
S.GOPINATHAN, SENIOR GOVERNMENT PLEADER
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Dated this the 1[st] day of February, 2024
The petitioner is the respondent in a petition filed by the 1[st] respondent before the 2[nd] respondent-Revenue Divisional Officer, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
2. The petitioner states that he was looking after the 1[st] respondent, who is his mother and they were living happily. The petitioner had taken a loan by mortgaging the property settled in his name by the 1[st] respondent to modify the old house which was in the property.
3. According to the petitioner, due to undue influence exerted by the daughter of the 1[st] respondent, the 1[st] respondent approached the 2[nd] respondent-Revenue Divisional Officer under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and preferred an application seeking relief of cancelling Ext.P1 deed executed by the 1[st] respondent in favour of the petitioner, alleging that
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the petitioner is not taking care of the 1[st] respondent. The Tribunal passed Ext.P3 order on 09.03.2022. The Tribunal did not grant the relief sought for to cancel Ext.P1 Settlement Deed. Maintenance was also not ordered.
4. Subsequently, the 1[st] respondent filed yet another petition before the Tribunal. After hearing the 1st respondent, the Maintenance Tribunal passed Ext.P4 order on 07.01.2023, by which the petitioner was directed to shift his residence from the family house before 15.01.2023. It was further ordered that the 1[st] respondent should not be disturbed mentally or physically.
5. The petitioner states that they cannot shift the residence within eight days as directed. The 1[st] respondent again approached the Tribunal stating that the order of the Tribunal is not complied with. Then another Ext.P5 order was passed by the Tribunal on 06.07.2023, whereby the petitioner was directed to shift the residence before 26.07.2023. It was also stated that the petitioner has to close the entire loan, which was taken by mortgaging the
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property and also held that the property mentioned in the petition shall be transferred only if it is beneficial for the 1[st] respondent. The Tribunal also directed the petitioner to get permission from the Tribunal before any alienation of the property.
6. Counsel for the petitioner contended that the petitions are filed by the 1[st] respondent under the influence of her daughter and the main intention is to expel the petitioner from the house constructed by him so that the 1[st] respondent can possess the same. Relying on the judgment in **Subhashini v. District Collector, Kozhikode and Others** [2020 (5) KHC 195], the counsel for the petitioner contended that there should be a specific recital in the Deed executed that the property is transferred subject to the condition that the transferee shall provide the basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs to the executor of the deed. In this case, there is no such recitals in Ext.P1 Settlement Deed. In Ext.P1 Settlement Deed, the 1[st]
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respondent has to be given only a life interest. There is no undertaking by the petitioner for the maintance of the 1[st] respondent.
7. The transfer of property was made subject to the life interest of the 1[st] respondent. As per Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, the transfer of property can be void only when there is an undertaking in the recitals of the title deed. In the present case, there is no recitals in the document.
8. The petitioner submitted that he and his family do not have any other abode to reside. The petitioner availed a loan to modify the old house in the property settled in his favour by the 1[st] respondent. The petitioner is a coolie and his wife is employed in Health Department. With their meger income, it will be difficult for them to shift the residence to a rented house. They have invested their savings to modify the house in which they are now residing, contended the counsel for the petitioner.
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9. The 1[st] respondent filed a counter affidavit and resisted the writ petition. The 1[st] respondent submitted that she is a widow mother having a son and daughter. The 10 cents of land was transferred in favour of the petitioner, on a belief that the petitioner, who is her son will take care of the 1[st] respondent in her old age. After execution of the Settlement Deed, the behavior of the petitioner has changed and he and his family are causing physical harassment to the 1[st] respondent. The petitioner has cheated his mother by mortgaging balance 5 cents of property to the Bank without informing her.
10. The Tribunal has clearly found that the petitioner and his family is not taking care of the 1[st] respondent. The daughter is really protecting the 1[st] respondent. In the facts of the case, the conclusions of Tribunal are not liable to be interfere with, contended the counsel for the 1[st] respondent.
11. The Government Pleader filed a memo dated 16.01.2024. The memo contained a report given by the District Social Welfare Officer. The District Welfare Officer
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has reported that the 1[st] respondent has complained that the petitioner is retaining her ration card and therefore she is not in a position to get treatment in government hospitals.
12. The 1[st] respondent further submits that she is now residing in a dilapidated house, where there is threat to her life. The 1[st] respondent further states that there has a fracture on her arm, for which she blamed the petitioner and his wife.
13. I have heard the learned Counsel appearing for the petitioner, the learned Counsel representing the 1[st] respondent and the learned Senior Government Pleader representing the 2[nd] respondent.
14. Ext.P1 is a Settlement Deed entered into by the petitioner and the 1[st] respondent. Ext.P1 would indicate that the 1[st] respondent has retained life interest in respect of the property. By Ext.P1, 6.0705 Ares of property has been given to the petitioner. Ext.P2 is the complaint filed by the 1[st] respondent before the Maintenance Tribunal. In Ext.P1, the 1[st] respondent prayed that she be awarded Rs.10,000/- as
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maintenance amount and cancel Ext.P1 Settlement Deed. 15. After hearing the parties, the Tribunal passed Ext.P3 order. In Ext.P3 order, the Tribunal did not order any monitory maintenance to the 1[st] respondent. However, the Tribunal ordered that the 1[st] respondent shall be protected by the petitioner and the 1[st] respondent's daughter. The Tribunal directed the petitioner to give back the title deed in respect of five cents of land, which is mortgaged by the petitioner, to the 1[st] respondent before 10.08.2022. The 1[st] respondent was granted liberty to reside at any place as she decides.
16. It appears that dissatisfied with Ext.P3 order, the 1[st] respondent approached the Tribunal again alleging that the petitioner has expelled the 1[st] respondent from the residential building and the 1[st] respondent was not permitted to enter her land and that the petitioner prevented the survey of the land. During this proceeding, the petitioner submitted before the Tribunal that he is willing to shift from the present residential building.
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17. Taking into consideration the undertaking given by the petitioner, the Tribunal passed an order directing that the petitioner and his family shall shift from the family house on or before 15.01.2023.
18. The Tribunal considered the matter again subsequently. During this proceedings also, the petitioner submitted that the petitioner and his family are willing to shift from the residential house. In view of the afore facts, I do not find any illegality in Exts.P3 and P4 passed by the 2[nd] respondent.
The writ petition fails and it is accordingly dismissed.
Sd/- **N. NAGARESH**
**JUDGE**
AMR
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## **`APPENDIX OF WP(C) 30129/2023`**
## **`PETITIONER’S EXHIBITS`**
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Exhibit P1
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TRUE COPY OF THE SETTLEMENT DEED NO.
1637 OF 2015 OF THAMARASSERRY TOWN SUB
REGISTRY, KOZHIKODE DISTRICT, EXECUTED
BY THE 1ST RESPONDENT IN FAVOR OF THE
PETITIONER DATED 19.05.2015.
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Exhibit P2
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TRUE COPY OF THE APPLICATION PREFERRED
BY THE 1ST RESPONDENT BEFORE THE 2ND
RESPONDENT DATED 07.01.2022.
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Exhibit P3
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- **`TRUE COPY OF THE ORDER OF THE HON'BLE MAINTENANCE TRIBUNAL DATED 09.03.2022.`**
- **`Exhibit P4`**
- **`TRUE COPY OF THE ORDER OF THE HON'BLE MAINTENANCE TRIBUNAL DATED 07.01.2023.`**
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Exhibit P5
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- **`TRUE COPY OF THE ORDER OF THE HON'BLE MAINTENANCE TRIBUNAL DATED 06/07/2023.`**
