Kulachithra Thresiamma v. Sub Collector/Maintenance Tribunal, Thalassery and Jaison K.G @ Kulachithra Jaison

W.A. No. 1334/2020 : 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 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942 ## WA.No.1334 OF 2020 AGAINST THE JUDGMENT DATED 17.08.2017 IN WP(C) 4635/2018(D) OF HIGH COURT OF KERALA ## APPELLANT/PETITIONER: KULACHITHRA THRESIAMMA, AGED 72 YEARS W/O. LATE GEORGE, KULACHITHRA HOUSE, KANICHAR P.O, KELAKAM, KANICHAR AMSOM, KANICHAR DESOM, IRITTY TALUK, KANNUR DISTRICT 672 674 BY ADV. SRI.CIBI THOMAS ## RESPONDENTS/RESPONDENTS: 1 THE SUB COLLECTOR/MAINTENANCE TRIBUNAL, THALASERY(TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIR CITIZENS ACT, 2007) OFFICE OF THE SUB COLLECTOR, THALASSERY, KANNUR DISTRICT 672 101 2 JAISON K.G @ KULACHITHRA JAISON, AGED 40 YEARS S/O. LATE GEORGE, KULACHITHRA HOUSE, KANICHAR P.O, KELAKAM, KANICHAR AMSOM, KANICHAR DESOM, IRITTY TALUK, KANNUR DISTRICT 672 674. R2 BY ADV. SRI.JACKSON JOHNY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING **:** W.A. No. 1334/2020 : 2 : ## **Dated this the 27[th] day of October, 2020.** ## **JUDGMENT** ## **SHAJI P. CHALY,J.** The writ petitioner has come up in appeal against the judgment dated 12.03.2020 of the learned single Judge in W.P.(C) No.4635 of 2018, whereby the learned single Judge has approved the order of the Tribunal passed under the provisions of the Maintenance and Welfare of Parents and Senior Citizens, Act, 2007 ('the Act, 2007' for short) declining to cancel the settlement deed executed by the appellant in favour of the 2nd respondent, and dismissed the writ petition. It is thus challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred. 2. Brief material facts for the disposal of the appeal are as follows: The appellant is the mother of the second respondent. As per settlement deed dated 03.05.2014 of the office of the Sub Registrar, Peravoor, appellant gifted her only property having an extent of 1 acre to the second respondent, which according to her, was done on the basis of a specific assurance that he will look after and protect her. According to the appellant, later the attitude of the second respondent changed and he did W.A. No. 1334/2020 : 3 : not provide any assistance to the appellant for her maintenance and livelihood. It is the case of the appellant that since the only property with income was gifted to the second respondent, the appellant found it difficult to carry on her day-to-day activities. It was, accordingly, that a petition was filed before the Tribunal under the provisions of the Act, 2007 seeking to cancel Ext.P1 settlement deed in terms of Section 23 of Act, 2007. The Sub Collector, functioning as Maintenance Tribunal under Act 2007 passed Ext.P4 order dated 17.08.2017 declining to cancel Ext.P1 settlement deed; however, it directed the second respondent to provide an amount of Rs.10,000/- per month to the appellant by way of maintenance. Aggrieved by the same, the appellant preferred the instant writ petition in question. 3. In fact, the second respondent has filed W.P.(C) No. 40193 of 2017 challenging the very same order awarding maintenance as said above. The learned single Judge, after taking into account the facts and circumstances, dismissed both the writ petitions holding that the impugned order of the Tribunal manifests a balancing of the rival interest of the appellant on the one hand and the second respondent on the other and is one that does not lead to an incongruous or arbitrary result. Accordingly, directed the second respondent to ensure that the maintenance amount awarded by the Tribunal is paid to the appellant every month and that the arrears of maintenance amounts, if any, remaining unpaid from the date of the impugned order i.e., 17.08.2017, is paid in six equal monthly successive instalments with effect W.A. No. 1334/2020 : 4 : from 1[st] April, 2020 along with regular payment of monthly maintenance payable pursuant to the judgment of the learned single Judge. 4. At the outset, it is made clear that the appeal filed by the second respondent is pending consideration as W.A. No. 1251 of 2020 and therefore, the issues raised in this appeal memorandum alone are considered and the judgment rendered would not stand in the way of consideration of the issues raised by the second respondent. 5. We have heard Sri. Cibi Thomas, learned counsel for the appellant, learned Senior Government Pleader Sri. Tek Chand and Adv. Johnson Johny appeared for the second respondent and perused the pleadings and materials on record. 6. The paramount contention advanced by the learned counsel for the appellant is that the learned single Judge has failed to note that the Tribunal has not considered the question with respect to the cancellation of Ext.P1 settlement deed and therefore, the judgment of the learned single Judge requires interference. It is also the contention that while Ext.P1 settlement deed was executed, there was a specific and tacit understanding that the second respondent will look after and protect the appellant. It is true, the gift was given unconditionally for the reason that the second respondent insisted to convey the property without any riders, so as to enable him to apply for a loan from the bank. In order to support the aforesaid contention, W.A. No. 1334/2020 : 5 : the learned counsel has placed reliance in the judgment rendered by a learned single judge of this Court in _**Radhamony v. State of Kerala**_ (2016 (1) KLT 185), wherein it was held that an express recital in the deed in contemplation of Section 23(1) of the Act, 2007 is not required to attract the conditions contained under Section 23 of the Act. It is also contended that the second respondent has been taking income from the property and he is enjoying his life in a palatial building, which even according to the second respondent, is worth Rs.35 lakhs. However, the worth of the building, according to the appellant, is Rs.1 crore. That apart, it is specified that the appellant finds it difficult to maintain herself and therefore, if the settlement deed is not cancelled and put her in possession of the properties, it will cause serious prejudice to the appellant. 7. On the other hand, learned counsel appearing for the second respondent submitted that the issue raised by the appellant in the writ petition no more survives and the judgment in _**Radhamony**_ (supra) would not enure to the benefit of the appellant, in view of the Full Bench decision of this Court in _**Subhashini v. District Collector, Kozhikode and others**_ [2020 (5) KHC 195], wherein it was held that in order to maintain an application under Section 23 of Act, 2007, 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 W.A. No. 1334/2020 : 6 : amenities and physical needs to the executor of the deed. 8. We have evaluated the rival submissions made across the Bar. The question revolves around Section 23 of the Act, 2007, which read thus: ## — “23 **Transfer of property to be void in certain circumstances.** (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-Sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.” 9. On a bare analysis of the said provision, it is clear that where any senior citizen transfers by way of gift or otherwise, any property, after the commencement of Act, 2007, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property by a legal fiction is deemed to have been done by fraud or coercion or under undue influence and shall, at the option W.A. No. 1334/2020 : 7 : of the transferor, be declared void by the Tribunal. According to the learned counsel for the appellant, going by the dictum laid down in _**Radhamony**_ (supra), a specific recital in the deed is not at all required as the Tribunal was at liberty to conduct due enquiries and ascertain whether such a tacit understanding was remaining by and between the appellant and the second respondent while executing a settlement deed. It is also the specific contention of the appellant that, though the deed was executed after the introduction of Act, 2007 in the year 2014 in view of the implied understanding as said above, there was no inhibition for the Tribunal to cancel the settlement deed as is contemplated under Section 23 of Act, 2007. 10. In our view, there is no much force for the contentions put forth by the appellant, in view of the judgment of the Full Bench in _**Subhashini**_ (supra). The judgment in _**Subhashini**_ was rendered on the basis of a reference made by a Division Bench seeking resolution of conflicting views in the Division Bench judgment in _**Malukutty Ponnassery v. P. Rajan, Ponnarassery**_ (W.A. No. 2012 of 2012 dated 28.11.2012), wherein it was held that the absence of an express recital of an undertaking by the transferee, to make provision of basic necessities and amenities to the transferor would divest the Tribunal of the authority to declare void a transfer effected by a senior citizen, and the contrary view in the decision in _**Shabeen Martin v. Muriel**_ [2016 (5) KHC 603] and _**Sundhari v. Revenue**_ W.A. No. 1334/2020 : 8 : ## _**Divisional Officer**_ [2016(1) KHC 9]. 11. After elaborately considering the judgments rendered by various High Courts and this Court, the learned Full Bench has arrived at the following conclusions at paragraphs 48, 51 and 52: 48. These are instances, where a Court of law and also of equity would exercise its jurisdiction to bring out a resolution of the disputes raised; which, however, the Tribunal constituted under Section 7 of the Act of 2007 cannot do. The Tribunal constituted under the Act of 2007, under Section 23(1) can only declare void the transfer, at the option of the transferor. As we noticed earlier, it cannot even order recovery of possession of the subject property, for which again the transferor will have to approach the Civil Court. On the aspect of option, a disturbing issue arises from sub-section (3) of Section 23, which we extracted herein above. Any organisation referred to in the Explanation to subsection (1) of Section 5 is entitled to approach the Tribunal under sub-section (1) of Section 23. Section 5 has been made specifically for the purposes of maintenance. When it stands extended to Section 23(1), there arises the question as to who would exercise the option for cancellation especially if the senior citizen is not in a position to express such will by reason of old age or otherwise. 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 W.A. No. 1334/2020 : 9 : 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 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).” 12. Analysing the facts and circumstances of the case at hand, and since we find that the recital as is required under Section 23 of Act, 2007 enabling the Tribunal to exercise the power of cancellation of deed is not contained in Ext.P1 settlement deed, we are bound by the findings rendered by the Full Bench in _**Subhashini**_ (supra). Therefore, we do not find any reason to interfere with the judgment of the learned single Judge W.A. No. 1334/2020 : 10 : In that view of the matter, the writ appeal has no legal sustenance and accordingly it is dismissed, subject to the observation made above in respect of the appeal filed by the second respondent. **S. MANIKUMAR, CHIEF JUSTICE.** **SHAJI P. CHALY, JUDGE.** _Rv_