Meethale Veettil Subi v. Meethale Veettil Lakshmi and The Maintenance Appellate Tribunal & District Collector, Kannur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 25TH DAY OF OCTOBER 2017/3RD KARTHIKA, 1939 WP(C).No. 20353 of 2015 (T) ---------------------------- PETITIONER(S): ------------- MEETHALE VEETTIL SUBI D/O. PACHA BALAKRISHNAN, RESIDING AT PACHA HOUSE, ADUTHILA EAST, NERUVAMPRAM, PAYANGADI P.O., KANNUR DISTRICT. BY ADVS.SRI.V.R.KESAVA KAIMAL SMT.C.DEVIKA RANI KAIMAL RESPONDENT(S): -------------- 1. MEETHALE VEETTIL LAKSHMI W/O. LATE PUTHENPURAYIL KUNHAMBU, TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670 141. 2. THE MAINTENANCE APPELLATE TRIBUNAL & DISTRICT COLLECTOR COLLECTORATE, KANNUR-670 001. R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN R2 BY SR.GOVERNMENT PLEADER SRI.P.M.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20353 of 2015 (T) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------P1 : COPY OF THE GIFT DEED NO.67/2012 DTD.3.1.2012 OF SRO, TALIPARAMBA. P2 : COPY OF THE PETITION DTD.21.11.2013 FILED BY THE FIRST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL, THALASSERY. P3 : COPY OF THE OBJECTIONS DTD.15.1.2014 FILED BY THE PETITIONER TO EXT.P2. P4 : COPY OF THE ADDITIONAL COUNTER STATEMENT DTD.15.2.2014 FILED BY THE PETITIONER TO EXT.P2. P5 : COPY OF THE AFFIDAVIT DTD.24.6.2014 FILED BY THE PETITIONER BEFORE THE MAINTENANCE TRIBUNAL, THALASSERY. P6 : COPY OF THE ORDER DTD.12.2.2015 PASSED BY THE PRESIDING OFFICER OF THE MAINTENANCE TRIBUNAL, THALASSERY. P7 : COPY OF THE ORDER DTD.23.6.2015 IN APPEAL BEARING NO.M5-2015/14931/13 PASSED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS -----------------------: EXHIBIT R1(a): PHOTOGRAPHS OF 1ST RESPONDENT'S RIGHT LEG. EXHIBIT R1(b): PHOTOGRAPHS OF THE CUT AND DOWN COCONUT TREES FROM EXHIBIT P1 PROPERTY. EXHIBIT R1(c): COPY OF PRESCRIPTION DATED 2.1.2015 ISSUED BY ASSOCIATE PROFESSOR, GOVERNMENT AYURVEDA COLLEGE, KANNUR TO THE 1ST RESPONDENT. /TRUE COPY/ PS TO JUDGE ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 20353 of 2015 ----------------------------------------------Dated this the 25[th] day of October, 2017** ## **JUDGMENT** This writ petition is filed challenging Exhibit P7 order of the Maintenance Appellate Tribunal and District Collector, Kannur in M5-2015/14931/13. The 1[st] respondent in this writ petition, who is the grandmother of the petitioner, had filed Exhibit P2 application before the maintenance Tribunal, Thallassery seeking to set aside Exhibit P1 gift deed dated 3.1.2012 by which 9 cents of property had been settled in favour of the petitioner. The petitioner filed Exhibit P3 objection before the Tribunal. It was contended in Exhibit P3 that the petitioner and her mother were willing to look after the 1[st] respondent. It is stated that the petitioner is a temporary teacher and she has no other property except the property settled on her by the 1[st] respondent by Exhibit P1 deed. It is stated that the 1[st] respondent is staying with her daughter Dhanalaxshmy and that the petitioner and her mother had been providing all necessary assistance and medical help to the 1[st] respondent. It is stated that the 1[st] respondent had settled other items of property on her other children and Exhibit P1 _**WP(C).20353/15**_ 2 settlement deed was executed by the 1[st] respondent on her own free will for the purpose of construction of a residential house for the petitioner. It is stated that two non yielding coconut trees and two papaya trees had to be cut down for starting construction in the property. It is stated that the petitioner intended to complete the construction of the house immediately and to take the 1[st] respondent to stay with her in the new house. It was also stated that the petition was as a result of some undue influence exerted on the 1[st] respondent. 2. Exhibit P4 additional counter statement was filed stating that no conditions to provide basic physical amenities and needs were incorporated in the gift deed and that the 1[st] respondent is getting substantial income as interest from fixed deposit and does not require any help from the petitioner. It is stated that Exhibit P5 affidavit was also filed by the petitioner before the Tribunal stating that there was a family arrangement by which the petitioner's mother Suseela had settled 2½ cents of property belonging to her in favour of her sister Dhanalakshmi in return for the 1[st] respondent executing Exhibit P1 settlement deed. It is stated that the this writ petition is filed as a result of a dispute regarding partition of the property and therefore is not maintainable. 3 _**WP(C).20353/15**_ 3. By Exhibit P6 order dated 12.2.2015, the Maintenance Tribunal considered the contentions of the parties and the materials produced before it and found that the 1[st] respondent was unable to establish that Exhibit P1 document was vitiated by any misrepresentation of fraud. Relying on the affidavit filed by the petitioner to the effect that the 1[st] respondent had an amount of Rs.40 lakhs in fixed deposit, it was held that this allegation could not be disproved by the 1[st] respondent. Taking note of the fact that the petitioner had offered to meet the expenses for maintenance of the 1[st] respondent, the prayer for cancellation of Exhibit P1 document was rejected. 4. The 1[st] respondent preferred an appeal before the Appellate Tribunal. It was the specific case of the 1[st] respondent that the petitioner had never looked after her or provided the basic needs or maintenance required by her. The Appellate Tribunal heard the 1[st] respondent and the petitioner on 22.4.2015. The case was adjourned for further evidence to 10.6.2015. Pursuant to the hearings conducted, Exhibit P7 order was passed by the Tribunal on 23.6.2015. Considering the contentions raised and the materials on record, the appellate authority came to the conclusion that the finding of the Maintenance Tribunal that the petitioner had an amount of 4 _**WP(C).20353/15**_ Rs.40 lakhs in fixed deposit and was meeting her expenses with the interest derived from the fixed deposit was a completely unsubstantiated statement. It was further found that the petitioner had never looked after her grandmother after getting 9 cents of property settled in her favour. It was found that non inclusion of the condition that the petitioner should look after the 1[st] respondent throughout her life was only due to an oversight or lack of education. In the above circumstances, on the finding that after Exhibit P1 settlement deed was executed, the petitioner had made no attempt whatsoever to look after the 1[st] respondent or to provide her needs physically or otherwise in any manner, the Appellate Tribunal granted the relief sought for in Exhibit P2, that is, the cancellation of the gift deed executed. The petitioner being aggrieved by the order, has preferred this writ petition on the ground that there was no recital in Exhibit P1 to the effect that the petitioner would look after the 1[st] respondent during her residual life time. 5. I have heard learned counsel for the petitioner and the learned counsel appearing for the 1[st] respondent. It is submitted by the parties that efforts to settle the matter out of court have not yielded results. 5 _**WP(C).20353/15**_ 6. Though the ground raised in the writ petition is that there was no recital for maintenance of the 1[st] respondent, this argument was practically been given up at the time of hearing in view of the binding decisions of this Court in _**Radhamani v. State of Kerala**_ [2016(1) KLT 185] and _**Shabeen Martin and Another v. Muriel and Another**_ [2016(5) KHC 603 (SC)]. It has been held by a single Bench and a Division Bench of this Court respectively that such a recital in the settlement deed is not required for an order under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, 'the Act'). However, learned counsel for the petitioner contended that the Maintenance Tribunal had taken evidence in the matter and had heard the parties and come to a conclusion that there was no necessity for issuance an order under Section 23 of the Act. The petitioner was always ready and willing to look after her grandmother. It is further contended that the property settled on the petitioner included an extent of property to which her mother was also entitled to as her share in her father's property. In the above circumstances, it is contended that the 1[st] respondent would be incompetent to cancel Exhibit P1 deed in its entirety, since the share of the petitioner's mother had been released to one of _**WP(C).20353/15**_ 6 her siblings in consideration of the settlement of the property on the petitioner. It is contended that the 1[st] respondent is living with another daughter and there is absolutely no factual basis behind the contention that she is unable to maintain herself. The learned counsel contends that going by the provisions of the first proviso to Section 16(1) of the Act, an appeal is provided only from an order of the Maintenance Tribunal directing payment of maintenance and no appeal would lie against an order rejecting a request for cancellation of a settlement deed in terms of Section 23 of the Act. 7. The learned counsel appearing for the 1[st] respondent contended that in view of the clear provision of Section 23 of the Act, all that needs to be proved is that the person, to whom property has been transferred by way of gift or otherwise, refuses or fails to provide the amenities and physical needs of the transferor. This Court having clearly held that the condition as to the providing of the basic needs and amenities is to be inferred in documents created with only love and affection as consideration, it is no longer open for the petitioner to contend that since the grandmother did not require any financial or other assistance, she was not obliged to provide the same. 7 _**WP(C).20353/15**_ 8. A counter affidavit has been filed by the 1[st] respondent contending that Exhibit P1 had been executed by her without knowing its contents and that the petitioner had never made any effort to maintain her. It is stated that the 1[st] respondent is old and ailing, but no help had ever been rendered by the petitioner after getting the property transferred in her favour. 9. I have considered the contentions advanced. It is clear from Exhibits P2 to P4 pleadings and affidavits filed before the Maintenance Tribunal by the petitioner that she had no case that she had paid any amount for the maintenance of the 1[st] respondent. It was her case that she intended to take her grandmother to stay along with her after her house construction was complete in the property covered by Exhibit P1. It is apparent that the petitioner had never attempted to stay with the 1[st] respondent or to look after her basic physical needs in any manner. It is also clear from Exhibit P1 that the right to take the usufructs from the 9 cents of property settled in the petitioner's name was also reserved in favour of the 1[st] respondent during her life time. However, it is admitted in Exhibit P2 that two coconut trees and two papaya trees had been cut down by the petitioner evidently without the consent of the 1[st] respondent. It is therefore clear that the _**WP(C).20353/15**_ 8 unwholesome behaviour of the petitioner had resulted in the unhappy situation she finds herself in. The question which arises for consideration is whether the Appellate Tribunal was justified in passing an order in the nature of Exhibit P7. Section 16 of the Act provides for an appeal from any order of the Maintenance Tribunal. Section 16 of the Act reads as follows: _“_ _**16. Appeals.-** (1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal:_ _Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal:_ _Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time._ _(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent._ _(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred._ _(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or_ 9 _**WP(C).20353/15**_ _reject the appeal._ _(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final: Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorized representative._ _(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal._ _(7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.”_ 10. A plain reading of Section 16 of the Act would make it clear that the argument raised to the effect that only orders of maintenance are amenable to appeal under Section 16 cannot be an acceptable interpretation. 11. The Appellate Authority had proceeded to consider the appeal, issued notice to the parties taken evidence and then proceeded to pass the order under Section 23 of the Act. A reading of Section 16 of the Act would make it clear that the Appellate Authority is empowered to either allow or reject the appeal preferred before it. The application before the Maintenance Tribunal was evidently one filed for relief in terms _**WP(C).20353/15**_ 10 of Section 23 of the Act. This relief was not granted by the Maintenance Tribunal. In appeal, the Appellate Authority, in terms of Section 16 of the Act, was fully empowered to allow the appeal and proceeded to grant an order in terms of Section 23. I find that the order issued by the Appellate Tribunal was well within jurisdiction. 12. As regards the facts aspects also, Section 23 of the Act does not require any finding to the effect that the deed in question was one executed based on fraud or coercion. The only requirement for an order setting aside a gift deed or settlement deed under Section 23 of the Act is that the transferee of the property should have refused or failed to provide the basic needs of the transferor. In the instant case, it is borne out from the pleading of the petitioner herself that she never provided any maintenance to the 1[st] respondent apart from contending that she was ready to do so. The rights of the petitioner's mother in the property inherited from her father are not in issue in this writ petition because the recitals in Exhibit P1 would show that the 1[st] respondent had settled 9 cents of property out of the property to which she was entitled in her own right on the petitioner. Any dispute as to the property of the petitioner's mother will have to be decided separately and 11 _**WP(C).20353/15**_ between appropriate parties in properly instituted civil proceedings. It is also clear that the conditions in the gift deed with regard to the taking of usufructs by the 1[st] respondent had also been rendered impossible by the petitioner by the acts of cutting down trees. In the above circumstances, I find no material to interfere with Exhibit P7 order issued by the Appellate Tribunal which was one rendered after hearing the parties and after considering all the materials on records. I find that no grounds have been made for interference with Exhibit P7. The writ petition fails and is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_