Ramakrishnan Nair v. Surendan, The State of Kerala, Maintenance Tribunal and Sub Collector

W. A. No. 789 of 2021 -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 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** **WA NO. 789 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 28734/2020 OF HIGH COURT OF** **KERALA, ERNAKULAM** **APPELLANT/S:** **RAMAKRISHNAN NAIR, AGED 95 YEARS S/O.LATE PARUMMA, PATTIYIL HOUSE, CHELAKOTTU P.O., PAZHAYANNUR, THRISSUR DISTRICT-680 587, PRESENTLY RESIDING AT C/O.S.MUGNTHAN, 56, THIMMYAN PUDUR, RANGASAMUDRAM P.O., SATHYAMANGALAM, ERODE DISTRICT, TAMIL NADU, PIN-638 402. BY ADVS. PRABHU K.N. MANUMON A. MANEESH.R** ## **RESPONDENT/S:** **1 SURENDRAN, AGED 51 YEARS S/O.GOPALAN NAIR, PATTIYIL HOUSE, CHELAKOTTU P.O., PAZHAYANNUR, THRISSUR DISTRICT-680 587. 2 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT-695 001. 3 THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR, COLLECTORATE, CIVIL LANES, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN-680 003.** **BY ADV G.SREEKUMAR (CHELUR) FOR R1 ADV. TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R2** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 789 of 2021 -2- ## **J U D G M E N T** Shaji P. Chaly, J. The 3[rd] respondent in W. P. (C) No. 28734 of 2020 has preferred this appeal challenging the judgment of the learned Single Judge dated 12.02.2021, whereby the learned Single Judge allowed the writ petition filed by the 1[st] respondent in the appeal, after setting aside Ext. P3 order passed by the Sub Collector and Maintenance Tribunal, Thrissur, constituted as per the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter called as 'Act 2007'). 2. The paramount contention advanced by the writ petitioner was that the appellant has executed a settlement deed in favour of the 1[st] respondent, who is none other than the nephew of the appellant, without any reservations and conditions in the document and therefore the cancellation of the deed made by the tribunal cannot be sustained under law. 3. On the other hand the appellant contended before the learned W. A. No. 789 of 2021 -3- Single Judge that the issue is squarely covered by a judgment of a learned Single Judge of this Court in **Radhamani v. State of Kerala [2016 (1) KLT 185]** which was approved by a Full Bench of this Court in **Subhashini v. District Collector [2020 (5) KLT 533 (F.B.)]** . 4. Anyhow the learned Single Judge after taking into account the rival submissions was of the clear opinion that the appellant is not entitled to get benefit of the judgment in Radhamani (supra) and has clearly held that in order to secure advantage of the provisions of Section 23 of Act 2007, there should be a recital that transferee was under an obligation to maintain the transferor and it was found specifically in Radhamani's case that there was a specific recital in the document casting duty on the transferee to maintain the transferor which was the basis for affirming the judgment in Radhamani (supra) in Subhashini (supra). 5. The relevant paragraph of the judgment is extracted for the purpose of clear appreciation of the questions raised in the appeal:- “10. On an evaluation of the entire facts, in the light of the Full Bench decision of this Court in Subhashini's case as well as in S.Vanitha's case, it is evident that in the absence of a specific recital in the document that the transferee was obliged or W. A. No. 789 of 2021 -4- has undertaken or was bound to provide for basic amenities to the transferor, section 23 of the Act cannot be invoked to set aside a document of transfer. In the light of the above, the order of the 2[nd] respondent setting aside Ext.P1 on the ground that the petitioner had failed to take care of the third respondent is not legally sustainable. Evidently, there are some materials to indicate that the third respondent is residing away from the petitioner. However, since the prayer in the application was confined to setting aside the document and that was the only relief sought and agitated before this court also, the only option available to this court is to set aside the impugned order as not legally sustainable. In the light of this finding, the first contention of the learned counsel for petitioner that the order passed by the court below was in breach of principle of natural justice need not be further considered. The impugned order is set aside.” 6. The paramount contention raised by the appellant is that it is very specifically stated in the settlement deed that the appellant is residing with the 1[st] respondent and the consideration for the same is love and affection, however the 1[st] respondent is not providing basic amenities and taking care of the physical needs of the appellant, and therefore it must be presumed that the appellant expected continuation of care and love from the 1[st] respondent even after execution of the deed in the same manner he was taken care prior to execution of the deed. But since the 1[st] respondent failed to discharge the obligations W. A. No. 789 of 2021 -5- and duties which was the consideration for executing the settlement deed in his favour, the appellant was entitled as of right to move the tribunal and the tribunal was justified and correct in canceling the deed in question. 7. It was also submitted that the learned Single Judge failed to appreciate the findings of the learned Single Judge and the proposition of law laid down in the judgment in Radhamani (supra) and the findings rendered by the Full Bench in that regard in Subhashini (supra), in the correct perspective. 8. We have heard, Sri. Prabhu K. N., learned counsel appeared for the appellant and Sri. G. Sreekumar (Chelur), learned counsel appeared for the 1[st] respondent and the learned Government Pleader appeared for the State and perused the pleadings and materials on record. 9. The sole question to be considered is whether the findings rendered by the learned Single Judge in the judgment in the light of the proposition of law laid down in Radhamani (supra) affirmed by the Full Bench in Subhashini (supra) is legally correct or not. 10. On an analysis of the judgment of the learned Single Judge W. A. No. 789 of 2021 -6- in Radhamani (supra), it is clear that there was a specific recital in the document that it was on the basis of the services rendered by the beneficiary therein the document was executed in favour and on failure on the beneficiary to discharge the duties and obligations, it was found that the findings rendered by the tribunal and the order of cancellation made invoking the powers conferred under Section 23 was in accordance with law. 11. This was exactly the circumstances which persuaded the Full Bench in Subhashini (supra) to affirm the judgment of the learned Single Judge in Radhamani (supra). According to us, the issue can be sorted out if the recitals contained in Ext. P1 document is appreciated appropriately. Therefore we proceed to do so. 12. After tracing the title of the property in question, the reason for executing the settlement deed in favour of the 1[st] respondent is recited in the deed, which reads thus:- “I am unmarried and I am not having any successors. I am residing with my sister Saradha Amma's son namely Mr. Surendran who is my nephew. As I am desirous to do something for the welfare of Mr. Surendran who is depending upon me, I do hereby execute this settlement deed in his favour for which my W. A. No. 789 of 2021 -7- love and affection towards Mr. Surendran is taken as the consideration. The below scheduled property having a tiled roofed small house and land and all my rights and possession therein is having a market price of 2,70,000/- (Two lakhs and seventy thousand only). The below scheduled property having the above price is here by settled to you, being my nephew, and actual possession is hereby handed over to you. You are hereby absolutely entitled to effect the mutation of the property, pay land tax, enjoy, alienate, encumber on the strength of this document and I hereby made to believe you that there are no encumbrances, other rights, attachments, prohibitory court orders, alienations, tax dues etc. over the below scheduled property...” 13. On a deeper analysis of the contents of the documents in question, it is clear that the settlement deed was executed since the appellant had no legal successors and the appellant was desirous to do something for the welfare of the 1[st] respondent, who is depending upon the appellant and the appellant executed the settlement deed in his favour, taking into consideration the love and affection towards the 1[st] respondent. 14. Therefore appreciating the circumstances, we are of the view that the proposition of law laid down in Radhamani (supra), on the basis of the peculiar circumstances involved in the said case, would W. A. No. 789 of 2021 -8- not enure to the benefit of the appellant. Accordingly, we do not find any jurisdictional error or other legal infirmities on the part of the learned Single Judge for interfering with the order of the tribunal and allowing the writ petition, exercising powers conferred under Section 5 of the Kerala High Court Act, 1958. Needless to say, writ appeal fails. Accordingly it is dismissed. **Sd/-** **S.MANIKUMAR** **CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY** **JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE