Lakshmanan v. District Collector, Palakkad and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ## `WP(C) NO. 15309 OF 2023` ## `PETITIONER:` ``` LAKSHMANAN , AGED 84 YEARS S/O KUNCHELAN, CHOOLPATTE, VENGASSERY, MANNUR POST, AMBALAPPARA , PALAKKAD DISTRICT.678642 BY ADV K.RAVI (PARIYARATH) RESPONDENTS: 1THE DISTRICT COLLECTOR, PALAKKAD, COLLECTORTAE , PALAKKAD TOWN, PALAKKAD, PIN - 678001 2*THE MAINTENANCE TRIBUNAL PALAKKAD/ REVENUE DIVISIONAL OFFICER,PALAKKAD, PALAKKAD TOWN, PALAKKAD-678001 (CORRECTED) *THE MAINTENANCE TRIBUNAL, OTTAPALAM & , SUB DIVISIONAL MAGISTRATE, OTTAPALAM, PALAKKAD DISTRICT, PIN- 679101.(ADDRESS OF R2 CORRECTED AS PER ORDER DATED 10/11/2023 IN IA 1/23 IN 3SHAJIMON, AGED 53 YEARS S/O LAKSHMANAN, CHOOLPATTE, VENGASSERY, MANNUR POST, AMBALAPPARA , PALAKKAD DISTRICT., PIN - 678642 4GEREESHMON, S/O LAKSHMANAN, CHOOLPATTE, VENGASSERY, MANNUR POST AMBALAPPARA , PALAKKAD DISTRICT, PIN - 678642 5NANDAMON , S/O LAKSHMANAN, CHOOLPATTE, VENGASSERY,MANNUR POST AMBALAPPARA , PALAKKAD DISTRICT., PIN - 678642 BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ARUL MURALIDHARAN SRI. P.S.APPU, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 2 ``` ## `JUDGMENT` ``` The petitioner who is a senior citizen within the ambit of the Senior Citizens Act, 2007 (hereinafter referred to as the ‘Act’) impugns Ext.P3 order of the Maintenance Tribunal and Ext.P4 order of the Appellate Tribunal - both constituted under the afore Act – as being ``` ``` illegal and unlawful. ``` ``` – 2.Sri.K.Ravi (Pariyarath) learned counsel for the petitioner, pointed out that the singular plea of his client is that a Gift Deed, executed by him in favour of 3[rd] respondent, be directed to be set aside, as per Section 23 of ``` ``` the ‘Act’ because, the said respondent has ``` ``` refused to provide him the care and protection, as is statutorily required. He asserted that, however, instead of causing a proper enquiry, ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 3 ``` ``` the Maintenance Tribunal only took statements of the parties, and that too, in an Adalat on 18.11.2021, thus incapacitating his client from leading proper evidence. The learned counsel argued that this is relevant and important because, in Sudesh Chhikara v. Ramti Devi [2022 ``` ``` (7) KHC 637], the Hon’ble Supreme Court - while ``` ``` dealing with a similar situation - has made it limpid that, in the case of a transfer document, where there is no particular averment or covenant reflecting the requirements under ``` ``` Section 23 of the Act, it is for the applicant to prove the existence of the statutory conditions, for which, he is entitled to ``` ``` opportunity before the Tribunals. He argued that, since this has been denied to his client, the statements having been taken by the ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 4 ``` ``` Maintenance Tribunal in an Adalat, without giving his client an opportunity to examine or cross examine witnesses, the declarations in Sudesh Chhikara (supra)can only be seen to have been violated. He thus prayed that the impugned orders be set aside and Maintenance Tribunal be directed to reconsider the matter, after affording his client necessary opportunities of establishing this case. ``` ``` 3.Sri.Arun Muraleedharan appearing for the 3[rd] respondent, however, submitted that this writ petition is not maintainable because, the petitioner himself concedes unequivocally that the transfer document, namely Ext.P1, does not have any covenant that it is subject to the condition that his client will provide him basic remedies and physical needs. He submitted that, ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 5 ``` ``` hence, going by the judgment of learned Full Bench of this Court in Subhashini v. District Collector, Kozhikode and others [2020(5) KHC ``` ``` 195], in the absence of a covenant in the transfer document, the provisions under Section 23 of the ‘Act’ cannot be applied. He thus ``` ``` prayed that this writ petition be dismissed. ``` ``` 4.Sri.P.S.Appu – learned Government Pleader, defended Exts.P3 and P4, saying that the evidence available on record, namely the statements of the parties - which were recorded on 18.11.2021, would indubitably show that the disputes between them are civil in nature and that the petitioner, in fact, requires the ``` ``` cancellation of the transfer documents, not because the conditions of Section 23 of the ‘Act’ have been violated, but because he says ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 6 ``` ``` that he was beguiled to execute the same in ``` ``` favour of the 3[rd] respondent. He submitted that, therefore, the Tribunals were without error in having issued the impugned orders granting liberties to the petitioner to invoke his civil remedies. ``` ``` 5.I must say upfront that, certainly, ``` ``` there is some force in the afore submissions of ``` ``` the learned Government Pleader and Sri.Arun ``` ``` Muraleedharan, to the extent that when there is no covenant in the transfer document to the ``` ``` effect that it is being executed subject to the condition that the transferee shall provide the basic amenities and physical needs to the Senior ``` ``` Citizen, his application becomes rather tenuous. ``` ``` 6.However, in Sudesh Chhikara(supra)the Hon’ble Supreme Court, in paragraph 13 thereof, ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 7 ``` ``` has declared the law as under: ``` ``` “When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in sub-section (1) of S.23 are attached to a transfer, existence of such conditions must be established before the Tribunal. “ ``` ``` 7.In the case at hand, the complaint ``` ``` preferred by the petitioner - senior citizen ``` ``` before the Maintenance Tribunal,prima facie, and as conceded, contains no specif covenant that Ext.P1 transfer document was executed subject to the conditions, within the ambit of Section 23 of the ‘Act’. Obviously, therefore, ``` ``` WP(C) NO. 15309 OF 2023 ``` **==> picture [8 x 9] intentionally omitted <==** ``` he must be given an opportunity of proving the existence of such conditions, as has been found by the Hon’ble Supreme Court in Sudesh Chhikara ``` ``` (supra). Solely in the afore perspective, I deem it necessary that the impugned orders be set ``` ``` aside and the Maintenance Tribunal be directed to reconsider the matter, after affording necessary opportunities to the petitioner, as ``` ``` also to the 3[rd] respondent. ``` ``` In the afore circumstances, I allow this ``` ``` writ petition and set aside Exts.P3 and P4; with ``` ``` a consequential direction to the Maintenance Tribunal to reconsider the claim of the ``` ``` petitioner, specifically within the purlieus of Section 23 of the ‘Act’, after affording him all ``` ``` opportunities to prove the existence of the twin conditions in the statutory scheme, adverting to ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 9 ``` ``` the judgment of the Hon’ble Supreme Court in ``` ``` SudeshChhikara(supra).Obviously, ``` ``` opportunities to the respondents shall also be made sure by the Maintenance Tribunal and a final order shall be issued, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ``` SAS ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` WP(C) NO. 15309 OF 2023 ``` ``` 10 ``` ## `APPENDIX OF WP(C) 15309/2023` ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1A TRUE COPY OF THE DOCUMENT WITH NO. 4375/2015, EXECUTED BY THE PETITIONER, IN FAVOUR OF THE 3RD RESPONDENT , REGISTERED BEFORE THE SRO, KADAMPAZHIPURAM, DATED 29.12.15 Exhibit P2A TRUE COPY OF THE APPLICATION PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT , UNDER SECTION 23 OF THE ACT, 2007 DATED 25/08/2021 Exhibit P3A TRUE COPY OF THE ORDER PASSED BY THE 211D RESPONDENT, AS KDIS : H-4057/21, DATED 29.11.21 Exhibit P4A TRUE COPY OF THE ORDER PASSED BY THE 1;T RESPONDENT, AS FILE NO. DCPKD/1217/2021-J4 DATED 17.06.22 ```