Lakshmikutty Amma v. Aravindan S/o Lakshmikutty Amma, Ravindran S/o Lakshmikutty Amma, Maintenance Tribunal & Sub Collector, Ottapalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939** ## **WP(C).No. 41148 of 2016 (P)** **----------------------------** **PETITIONER(S): -------------** **LAKSHMIKUTTY AMMA** **D/O.NARAYANI, VADASERIKALAM HOUSE, PALLIKURUPPU, MANNARKKAD, PALAKKAD.** **BY ADV. SRI.VINOD KUMAR.C** **RESPONDENT(S):** **--------------** **1. ARAVINDAN S/O.LAKSHMIKUTTY AMMA, VADASERIKALAM HOUSE, PALLIKURUPPU, MANNARKKAD, PALAKKAD, PIN – 678 001.** **2. RAVINDRAN** **S/O.LAKSHMIKUTTY AMMA, NANDANAM, KUMARAMPUTHUR, MANNARKKAD, PALAKKAD,PIN – 678 001.** **3. MAINTENANCE TRIBUNAL & SUB COLLECTOR, OTTAPALAM, PALAKKAD, PIN – 678 001.** **R2 BY ADV. SRI.LIJU. M.P R1 BY ADV. SRI.K.M.SATHYANATHA MENON R1 BY ADV. SMT.KAVERY S THAMPI R3 BY SRI.M.R.DHANIL, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 41148 of 2016 (P)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------P1 : COPY OF THE ORDER DATED 22.2.2014 P2 : COPY OF THE ORDER BY APPELLATE TRIBUNAL DATED 13.3.16** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **R1(a) : COPY OF DOCUMENT NO.1291 OF 2011 OF SUB REGISTRAR'S OFFICE, MANNARKKAD DATED 18.02.2011 EXECUTED BY THE WRIT PETITIONER IN FAVOUR OF 1ST RESPONDENT.** ## **//TRUE COPY//** **PA TO JUDGE.** jg-22/9 ## **ANIL K.NARENDRAN, J.** **.................................................................... WP(C) No.41148 of 2016 .................................................................... Dated this the 18[th] day of August, 2017.** ## **J U D G M E N T** The dispute in this writ petition relates to Ext.R1(a) settlement deed bearing Nos.1291/2011 and 1201/2011 of SRO, Mannarkkad dated 18.02.2011, executed by the petitioner in favour of the first and second respondents respectively. In order to set aside those documents, the petitioner approached the Maintenance Tribunal and Sub Collector, Ottappalam, the third respondent herein, invoking the provisions under the Maintenance of Parents and Senior Citizens Act, 2007. The said complaint, which was numbered as H-6031/13, was disposed of by Ext.P1 order dated 22.2.2014, recording the submission made by the first respondent that he will look after the petitioner mother. The relief sought for in the said complaint to set aside settlement deed bearing Nos.1291/2011 and 1201/2011 was declined. Challenging Ext.P1 order, the petitioner filed an appeal before the Appellate Tribunal and District Collector, Palakkad under Section 16 of the said Act, which ended in dismissal by Ext.P2 WPC41148/16 -2- order dated 13.3.2015. Feeling aggrieved by Exts.P1 and P2 orders, the petitioner is before this Court in this writ petition. 2. The reliefs sought for in this writ petition are opposed by the first respondent by filing a detailed counter affidavit. 3. Heard the learned counsel for the petitioner, the learned counsel for the first respondent, the learned counsel for the second respondent and also the learned Government Pleader representing the third respondent. 4. The sole issue that arises for consideration in this writ petition is as to whether Exts.P1 and P2 orders are legally sustainable. 5. The Maintenance of Parents and Senior Citizens Act, 2007 (for brevity, 'the Act') is enacted to provide for more effective provisions for the maintenance and welfare of parents and senior citizens, guaranteed and recognised under the Constitution of India and for matters connected therewith or incidental thereto. As per sub-section (1) of Section 23, where any senior citizen who, after the commencement of the said Act, WPC41148/16 -3- 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. As per sub-section (2) of Section 23, 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. 6. As discernible from Ext.P2 order passed by the Appellate Tribunal, the appeal filed by the petitioner under Section 16 of the Act stands rejected merely for the reason that settlement deed Nos.1291/2011 and 1201/2011 executed by the WPC41148/16 -4- petitioner in favour of the first and second respondents respectively, do not to stipulate that the respective transferee shall provide the basic amenities and basic physical needs to the transferor. The said reasoning of the Appellate Tribunal cannot be sustained, in view of the law laid down by a Division Bench of this Court in **Radhamani and others v. State of Kerala and others [2016 (1) KHC 9]** , wherein it was held that, the condition referred in Section 23 of the Act has to be understood based on the conduct of the transferee and not with reference to the specific stipulation in the deed of transfer. Thus, it is not necessary that there should be a specific recital or stipulation as a condition in the transfer of deed itself. The condition mentioned in Section 23 is only referable as a conduct of the transferee, prior to and after execution of the deed of transfer. Paragraphs 11 and 12 of the judgment reads thus; “11. It is to be noted that the special scheme in terms of Senior Citizens Act, 2007 could declare certain transfer as void, taking note of the fact that by taking advantage of the emotionally dependent senior citizens, relatives grab WPC41148/16 -5- the property on the pretext of providing emotional support. Therefore, legislature thought such transaction could be declared as void as the conduct leading to transaction was based on malice or fraud. Therefore, condition referred in Section 23 has to be understood based on the conduct of the transferee and not with reference to the specific stipulation in the deed of transfer. Thus, this Court is of the view that it is not necessary that there should be a specific recital or stipulation as a condition in the transfer of deed itself. This condition mentioned in Section 23 is only referable as a conduct of the transferee, prior to and after execution of the deed of transfer. Thus, challenge based on the ground that there is no reference in the recital of deed that transferee will provide basic amenities and physical needs to the transferor is of no consequence. 12. Under Section 17 of the Indian Contract Act, 1872, ' _fraud_ ' includes a promise made without any intention of performing it. Section 92 of the Evidence Act places a restriction on the admissibility of evidence in variance or in contradiction of the term of a registered document in writing. However, under second proviso to Section 92, the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. Under third proviso to Section 92, the existence of any separate oral agreement, constituting a condition precedent to the WPC41148/16 -6- attaching of any obligation under any such contract, grant or disposition of property may be proved. Thus, there is no requirement under law that condition as such should form part of written document. It can be implied from the circumstances of human conduct.” 7. The same view was taken by a Division Bench of this Court in **Shabeen Martin and another v. Muriel and another** **[2016 (5) KHC 603]** , wherein it was held that, it is not the legislative requirement or intent that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs of the transfer. On the other hand, if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document. Paragraph 5 of the said judgment reads thus; “5. Section 23(1) shows that where, after the commencement of the Act, a senior citizen has transferred his property by way of a gift deed or otherwise, subject to WPC41148/16 -7- the condition that the transferee shall provide basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the transfer of such property shall be deemed to have been made by fraud or coercion, or under undue influence. Reading of this provision, itself, would show that it is not the legislative requirement or intent that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs of the transfer. On the other hand, if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document. Such an understanding of the section, according to us, would only advance the object of the Act. On the other hand, if the contention now advanced is accepted, that will defeat the very object and purpose of the Act.” 8. In view of the law laid down in the decisions referred to supra, an application/complaint made under Section 23 of the Act cannot be rejected merely for the reason that settlement deed Nos.1291/2011 and 1201/2011 executed by the petitioner in favour of the first and second respondents respectively, do not WPC41148/16 -8- to stipulate that the respective transferee shall provide the basic amenities and basic physical needs to the transferor. As the condition mentioned in Section 23 of the Act is only referable as a conduct of the transferee, prior to and after execution of the deed of transfer, if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document. 9. In that view of the matter, Ext.P2 order passed by the Appellate Tribunal is set aside and the said Tribunal is directed to reconsider the appeal filed against Ext.P1 order of the Maintenance Tribunal, in the light of the law laid down by this Court in the decisions referred to supra. The Tribunal shall dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment, with notice to both side. 10. It is made clear that this Court has not expressed WPC41148/16 -9- anything on the merits of the rival contentions and all such contentions are left open to be raised before the Appellate Tribunal. This writ petition is disposed of as above. No order as to costs. **(ANIL K.NARENDRAN, JUDGE)** jg