K.M. Varkey v. A.V. Abraham and others

W.A.NO.1635 OF 2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 WA NO. 1635 OF 2015** **AGAINST THE JUDGMENT IN WPC 17161/2012 OF HIGH COURT OF KERALA, ERNAKULAM** ## **APPELLANT:** **1 K.M.VARKEY AGED 82 YEARS S/O.LATE ABRAHAM, AREETHADATHIL HOUSE, MANNATHOOR KARA, THIRUMARADY VILLAGE, PIN-686 723. A2 MARY AGED 60 YEARS W/O.JOSE, AREETHADATHIL HOUSE, MANNATHOOR KARA, THIRUMARADY VILLAGE, PIN - 686 723. A3 VALSA AGED 50 YEARS W/O.JAMES, CHUNDAKARAYIL HOUSE, MANNATHOOR PO., THIRUMARADY VILLAGE, PIN - 686 723. ADDITIONAL A2 & A3 ARE IMPLEADED AS PER ORDER DATED 23.2.2018 IN I.A.NO.181/18. BY ADVS. SRI.ABRAHAM VAKKANAL (SR.) SRI.DIJO SEBASTIAN SRI.PAUL ABRAHAM VAKKANAL SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENTS:** **1 A.V.ABRAHAM AGED 54 YEARS S/O.K.M.VARKEY, JOJI NIVAS, POROTTUKONAM.P.O., NEAR** W.A.NO.1635 OF 2014 2 **MAR EVANIOSE COLLEGE, NALAMCHIRA, THIRUVANANTHAPURAM, NOW RESIDING AT MRC 37, CHELLAM LINE, PANAM VILLA, VALAMCHIRA-695 015.** - **2 MAINTENANCE TRIBUNAL/REVENUE DIVISIONAL OFFICER VAZHAPPILLY, MUVATTUPUZHA, PIN-686 661.** - **3 APPELLATE TRIBUNAL DISTRICT COLLECTOR, CIVIL STATION, THRIKKAKARA, KOCHI, PIN-682 021.** **BY ADV SRI.REJI GEORGE FOR R1** **SRI.TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R2 & R3** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.NO.1635 OF 2014 3 ## **JUDGMENT** ## **Dated this the 3[rd] day of August, 2021** ## **S. MANIKUMAR,CJ.** Being aggrieved by the judgment in W.P.(C) No.17161/2012 dated 24.6.2015, setting aside the order of the appellate authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the instant writ appeal is filed. 2. Short facts leading to the appeal are as follows; writ petitioner/1[st] respondent is the son of appellant. The matter arises under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. At the time of filing of the instant appeal i.e., on 23[rd] July, 2015, appellant was aged 82 years. According to him, he is a patient and unable to move about. He is a freedom fighter and getting Rs.7150/-per month as pension but, it is insufficient to meet his medical expenses, incidental expenses etc., with the amount. He had 2.77 acres of land, with rubber plantation and that was the main source of income. Appellant has three children, two daughters and one son. A.V.Abraham - 1[st] respondent, is the son, who is employed as Senior Superintendent in the Fire Fighting Department of Airport Authority of India, Thiruvananthapuram drawing more than Rs.50,000/per month and settled at Thiruvananthapuram. Appellant is residing in his ancestral house at Mannathur, near Muvattupuzha. According to the appellant, W.A.NO.1635 OF 2014 4 in the year 1986, appellant executed a sale deed No.1847/86 of Koothattukulam S.R.O., transferring 37 cents out of 2.77 acres including the ancestral house, in his son's favour on the belief that it was necessary to avail a loan to reconstruct the house. However, the repayment of loan availed for the construction had to be made by appellant's daughter, as 1[st] respondent defaulted to remit the loan installments. Later, in December 2009, 1[st] respondent wanted a Will to be executed in his name as regards balance property of 2.40 acres, on a condition to maintain parents. According to the appellant, the sale deed was executed fraudulently stating consideration for it as “amount paid previously”. Thereafter about 6 months, 1[st] respondent prevented the appellant from taking income from the property stating that he is the owner. Thereupon, appellant filed a complaint in Police Station stating about the fraud and 1[st] respondent agreed to give Rs. 5000/- to the mother for maintenance. 3. As there was no other alternative to maintain themselves, the appellant and his wife filed M.P No.34/2010 before the Maintenance Tribunal and Revenue Divisional Officer, Muvattupuza under the Maintenance and Welfare of Parents & Senior Citizens Act, 2007, for maintenance and to declare that the sale deed, obtained by the 1[st] respondent was by practising fraud and undue influence. The Maintenance Tribunal, after considering evidence, finding that the document No.1766/2009 was executed based on the condition of giving proper W.A.NO.1635 OF 2014 5 maintenance, basic amenities and basic physical needs to the appellant., declared that sale deed is void under Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, Tribunal also found that the 1[st] respondent did not allow the appellant to take income from the property and pension received by the appellant was not sufficient for his monthly maintenance. The Tribunal held that, the transfer of the property in Sale deed No.1766/2009 of Koothattukulam S.R.O. comes within Section 23 of the Act and it was declared that the same was deemed to have been made by fraud, coercion and undue influence. Accordingly, the Maintenance Tribunal allowed M.P.No.34/2010. Being aggrieved, 1[st] respondent filed the writ petition. 4. It is also the submission of the appellant that the writ court found that since the condition to maintain the father was not specifically incorporated in the deed, the Tribunal had no jurisdiction and the order declaring the deed as void, is not sustainable. Writ court also observed that if there is no consideration paid for sale, it is a matter for the civil court to decide. 5. Therefore, the issue relates to the interpretation of Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to him, the question arises for consideration is whether the written stipulation agreeing to maintain the transferor is necessary in the deed itself to invoke the W.A.NO.1635 OF 2014 6 legal fiction that if the transferee refuses to maintain the transferor, the deed would be void or is it enough, if evidence on such a condition and refusal is established by evidence before the Tribunal, as in the case on hand. Besides, the alleged consideration shown in the deed as “amount previously paid” and the amount of consideration shows as Rs.5.80 lakhs for 2.40 Acres, when the prevalent value of the land was Rs.1.20 Crores. Therefore, according to the appellant, looking at the object and purpose of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, a liberal interpretation favourable to the parents/aged people ought to have been taken. Further it was submitted that the observation of the writ court that the appellant can go to the civil court to establish the non-payment of consideration, is also illegal, as the provisions made in the new Act for a speedy remedy, to overcome the delay caused in proceeding under Civil Procedure Code or Criminal Procedure Code. Therefore, in the estimation of the appellant, writ court has failed to consider all these aspects and hence, the judgment of the learned Single Judge is per se illegal and rendered against the objective and purpose of the new enactment to provide speedy remedy for the redressal of grievances of the aged and disabled parents like appellant. Hence the instant writ appeal is filed. 6. Though the judgment in W.P.(C) No.17161/2012 is assailed on various grounds, in our considered view the matter is squarely covered against the W.A.NO.1635 OF 2014 7 appellant by a Full Bench decision of this Court in **Subhashini v. District Collector** [2020(5)KLT 533(F.B)], which in effect was fairly agreed to by the learned Senior Counsel Sri Abraham Vakkanal who appeared for the appellant. Matters being so, adjudication of the issues raised in the appeal placing reliance on Section 23 of Act 2007 is not required, but in order to co-relate the legal aspects involved in the appeal vis-a-vis the Full Bench Judgment, we propose to extract the relevant portions of the Judgment. After analysing a catena of cases, the Hon'ble Full Bench concluded thus: **“51.** Very pertinent is the fact that Section 23(1) is prospective and applies only to agreements executed after the enactment came into force. Section 23 applies only to transfers after the commencement of the Act. This further fortifies our interpretation that the provision insists on there being an express condition, written as part of the recitals, in the deed. If it were otherwise and the circumstances which led to the execution or a reservation clause could be relied on to infer or imply such a condition having regulated the execution, it would have been made applicable to deeds of all times, executed by senior citizens of a like nature. The measures of publicity as spoken of in Section 21, under Chapter 5 is also intended at informing every senior citizen about the speedy remedy provided for maintenance as also revocation of a gratuitous transfer and to alert them of the condition to be specified; which has to be a part of the recitals of the document. **52.** We conclude by answering the reference, that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a W.A.NO.1635 OF 2014 8 similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry. We answer the reference agreeing with the decision in W.A.No.2012 of 2012 dated 28.11.2012 [Malukutty Ponnarassery v. P.Rajan Ponnarassery]. We find Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [2018 KHC 4655 = 2013 (3) KLT 1082] to be wrongly decided. We approve Radhamani v. State of Kerala [2016 (1) KHC 9] which had a recital in the document akin to that required under Section 23(1).” 7. Mr. Abraham Vakkanal, learned Senior Counsel for the appellant, requested that time spent in litigating before this Court may be excluded so as to enable the appellant to pursue his remedy before a competent civil court by filing a suit. There the question is , can it be done by this court ? In this context it is profitable to extract Section 14 of the Limitation Act, 1963, which reads thus: ## **“Section 14. Exclusion of time of proceeding bona fide in court without** **jurisdiction. -** (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such W.A.NO.1635 OF 2014 9 proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court of other cause of a like nature. **Explanation** - For the purpose of this section, - (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.” 8. Therefore, it is explicit that exclusion of time spent litigating in a properly constituted judicial proceeding is a matter for consideration of the competent civil court, in an application filed for condonation of delay, as is discernible from the provision extracted above, and accordingly it is always open to the appellant to prefer an application for exclusion of time before the civil court, if the appellant chooses to file any suit challenging the validity of the sale deed W.A.NO.1635 OF 2014 10 No.1766/99 of Koothattukulam S.R.O. It is also clear from Section 14 of the Limitation Act, 1963 that in order to exclude the time so spent, various aspects specified therein would have to be taken into account, by the Civil Court which may not be possible to be undertaken by a writ court, discharging its functions in a summary manner exercising the powers conferred under Article 226 of the Constitution of India, and especially in view of the distinct scheme of the provisions extracted above . With the above observations, the writ appeal is disposed of. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** smv **Sd/SHAJI P.CHALY JUDGE** W.A.NO.1635 OF 2014 11 ## **APPENDIX** ## **APPELLANT'S ANNEXURES:** **ANNEXURE A1: TRUE COPY OF MEDICAL CERTIFICATE** **ANNEXURE A2: TRUE COPY OF MEDICAL CERTIFICATE**