Sibi Muhammed v. Muhammed Kunju

``` INTHEHIGHCOURTOFKERALAATERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` TUESDAY,THE10[TH]DAYOFOCTOBER2023/18THASWINA,1945 ``` ## **`WP(C) NO. 1185 OF 2014`** ``` PETITIONER: ``` ``` 1SIBIMUHAMMED AGED32YEARS S/O.MOHAMMEDKUNJU,SUBHABHAVAN PATHANAPURAM,MANJALLOORMURI KOLLAMDISTRICT BYADVS. SRI.V.PHILIPMATHEW SRI.GIBI.C.GEORGE ``` ``` RESPONDENTS: ``` ``` 1MUHAMMEDKUNJU S/O.LATEAHAMMEDKUNJU SUBHABHAVAN,MANJALLOORMURI PATHANAPURAM,KOLLAMDISTRICT NOWRESIDINGAT9/2,SUBHABHAVAN SIVASAILAMROAD,ANWARKURICHI KANDAYAMVILLAGE,THIRUNELVELIDISTRICT TAMILNADU-627412 2MAINTENANCETRIBUNALSUBDIVISIONALMAGISTRATE OFFICEOFTHESUBDIVISIONALMAGISTRATE,KOLLAM 3V.JAYAPRAKASH SUBDIVISIONALMAGISTRATE,KOLLAM BYADVS.SRI.B.MOHANLALGOVERNMENTPLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 10.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.1185OF2014 ``` ``` 2 ``` ## **JUDGMENT** The petitioner herein is the younger son of the first respondent. An application was filed by the 1st respondent before the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, with a prayer to set aside Settlement Deed No 1236/2013 dated 16/07/2013 and Settlement Deed vide No. 1237/2013 dated 16.7.2013 executed by the 1st respondent in favor of the petitioner. The contention of the 1st respondent before the Tribunal was that the 1st respondent was persuaded to execute the deeds to his son by inducing him to believe that he shall diligently take care of the 1st respondent during his old age. However, after the execution of the deed, the petitioner is stated to have gone back on his word and refused to attend the needs of his father. 2. The Tribunal, after evaluating the facts and circumstances and the evidence that was let in, allowed the application and cancelled the settlement deeds executed by the 1st respondent. 3. The above order is under challenge in this petition. 4. The contention of the petitioner herein is that the order passed by the Tribunal cannot be sustained in view of the law laid down by ``` WP(C)NO.1185OF2014 ``` ``` 3 ``` the Full Bench of this Court in **Subhashini v. District Collector[1]** , wherein it was held that unless the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen is expressly stated in the document of transfer, the Tribunal will have no jurisdiction to cancel the document by invoking powers under Section 23 of the Act. The Apex Court in **Sudesh Chhikara v. Ramti Devi and another[2]** had also taken the same view. 5. It appears that while the petition was pending consideration before this Court, the petitioner and the 1st respondent came to a settlement, and a settlement agreement duly signed by the parties and their counsel was produced before this Court. The settlement agreement has been produced before this Court, and the terms read as under: 1. Petitioner (Sibi Muhammed) and the first respondent(Muhammed Kunju) in the writ petition agree that Exhibit P8 order dated 31.12.13 passed by the second respondent (Maintenance Tribunal and Sub Divisional Magistrate, Kallam) can be set aside. 2. The first respondent (Muhammed Kunju) does not intend to proceed against the Petitioner (Sibi Muhammed) based on Exhibit P6 petition or other proceedings. 3. The first respondent(Muhammed Kunju) accepts and acknowledges Exhibits P4 and P5 settlement deeds and further accepts the petitioner - 1 [2020 (5) KLT 533] - 2 [2022(7) KHC 637] ``` WP(C)NO.1185OF2014 ``` ``` 4 ``` (Sibi Muhammed) and his children as owners of the Properties mentioned therein. 4. Petitioner (Sibi Muhammed) and his wife Saumy Muhammed unconditionally agree to maintain the first respondent (Muhammed Kunju) till his death. They also agreed to take care of Subaida. K, present wife of the first respondent (Mohammed kunju) till death of Mohammed Kunju. 5. Petitioner (Sibi Mohammed) agrees to pay a sum of Rs.30,000/(Rupees Thirty thousand only) per month to the first respondent (Muhammed Kunju) and his wife, Subaida.K, till the death of Mohammed Kunju. 6. On the death of the first respondent (Muhammed Kunju), the petitioner (Sibi Mohammed) and his wife Saumy would maintain Subaida. K till her death. If they fail or refuse or neglect to do so, they shall pay a sum of Rs.7,20,000/- (Rupees Seven Lakhs Twenty thousand only) as a lump sum payment as full and final settlement of all claims of Subaida. 7. If the petitioner (Sibi Mohammed) and his wife Saumy violate any of the terms mentioned above, the first respondent (Muhammed Kunju) would be free to file appropriate applications to execute or revive Exhibit P8. 8. The first respondent (Mohammed Kunju) will be free to reside in the house situated in the property covered by Exhibits P4 and P5 settlement deed along with his wife. ``` WP(C)NO.1185OF2014 ``` ``` 5 ``` 9. Petitioner (Sibi Muhammed) would not create any document of conveyance, sale, or lease in respect of the properties covered by Exhibits P4 and P5 settlement deeds without the knowledge and consent of the first respondent(Mohammed Kunju). 10. The first respondent (Mohammed Kunju) withdraws all his contentions against the petitioner (Sibi Muhammed). 6. Though the agreement was produced before this Court, the father and son fell apart. 7. The 1st respondent was of the view that the terms of the agreement were not beneficial to him. 8. In the said circumstances, the petition was posted for a final hearing. Directions were issued to the parties to appear before this Court so that their grievances could be taken note of and a settlement could be arrived at. 9. When the matter was taken up for consideration on 27.09.2023, both the petitioner herein and his wife, as well as the first respondent and his wife, were present. 10. This Court interacted with the petitioner as well as the first respondent. The 1st respondent submitted that the sum of Rs 30,000/ordered to be paid every month is on the lower side. 11. I have heard Sri. Philip Mathews, the learned counsel ``` WP(C)NO.1185OF2014 ``` ``` 6 ``` appearing for the petitioner, and Sri. V. Mohanlal, the learned counsel appearing for the first respondent. 12. After deliberations, the parties were directed to reconsider the matter and come to an understanding. The matter was then posted on 10.10.2023. 13. The first respondent stated before this Court that if clause No.(5) of the agreement is modified and the amount payable per mensem is enhanced to Rs 40,000/-, he is prepared to accede to close the matter in terms of the agreement. He further submitted that after if he pre-deceases his wife, the petitioner be directed to pay the lump sum amount as fixed in clause (6) of the agreement. His additional request is that the petitioner shall not create any document in respect of the property till the end of his life. His last demand is that the petitioner shall permit the 1st respondent and his wife to stay in the house situated in the property till his death. 14. When the demands of the first respondent were put to the son, he stated that he is agreeable to pay Rs.40,000/- to the first respondent. He also submitted that he has no objection to complying with clause (6) of the agreement by which the petitioner and his wife Saumy agreed to maintain the present wife of the first respondent till her death. He also agreed on his failure to do so, he shall pay a lumpsum amount of Rs.7,20,000/- as full and final settlement towards Subaida.K. Insofar as the ``` WP(C)NO.1185OF2014 ``` ``` 7 ``` non-execution of documents is concerned, the said condition will go against clause (3) of the agreement. Finally, he submitted that he has no objection to his father staying in the family house covered under the documents. 15. In that view of the matter, after having considered the submissions advanced and after having heard the learned counsel appearing for the petitioner and personal interaction with the parties, I am of the view that clauses 5 and 6 can be modified as under- A. Condition No.5 of the agreement will stand modified, and in substitution, the petitioner shall pay a sum of Rs.40,000/- per month to the first respondent. B. In the event of the 1st respondent leaving for his heavenly abode before his wife Subaida, the petitioner shall maintain Subaida till her death, or if Subaida so demands by issuing an appropriate notice, he shall pay a consolidated amount of Rs.7,20,000/- to Subaida. C. Except for the above modification, the agreement shall stand as such. D. The agreement dated 24.11.2021, subject to the above modifications, shall form part of this judgment. E. The petitioner shall scrupulously abide by the terms of the agreement as modified by this Court. ``` WP(C)NO.1185OF2014 ``` ``` 8 ``` F. If the petitioner fails to abide by the conditions above, it will be open for the first respondent to file an appropriate application before the Maintenance Tribunal, which authority shall initiate expeditious measures to implement the directions by invoking powers under Section 11 of the Act. The writ petition is disposed of accordingly. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` SKP ``` ``` WP(C)NO.1185OF2014 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 1185/2014`** ``` PETITIONER’SEXHIBITS: ``` - `EXHIBIT P1 COPY OF THE AGREEMENT DATED 12-10-2012 AS PRODUCED BY THE FIRST RESPONDENT AND SERVED ON THE PETITIONER IN WPC NO 31647/12` - `EXHIBIT P2 COPY OF THE JUDGMENT DATED 05-06-2013 PASSED BY THIS HON'BLE COURT IN WPC NO 31647/2012` - `EXHIBIT P3 COPY OF SALE DEED NO 1236/2013 DATED 16-07-2013` - `EXHIBIT P4 COPY OF SALE DEED NO 1237/2013 DATED 16-07-2013` - `EXHIBIT P5 COPY OF SSALE DEED NO 1266/2013 DATED 16-07-2013` - `EXHIBIT P6 COPY OF PETITION NO C 10513/2013 FILED BY THE FIRST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL (REVENUE DIVISIONAL OFFICER) KOLLAM` - `EXHIBIT P7 COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE MAINTENANCE TRIBUNAL (REVENUE DIVISIONAL OFFICER) KOLLAM` - `EXHIBIT P8 COPY OF THE RODER DATED 31-12-2013 PASSED BY THE 2ND RESPONDENT`