Sreedharan v. Thambayi Amma V. & Others (WP(C) Nos. 7627/2021 & 20269/2020)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944`** ## **`WP(C) NO. 7627 OF 2021`** ## **`PETITIONER:`** ``` 1SAROJINI V AGED 55 YEARS D/O. GOVINDAN NAMBIAR, BALIKADAKOL HOUSE, DARKHAS, MALOTH, KASARGOD DISTRICT-671 314. 2RADHA V. AGED 51 YEARS W/O. CHANDRAN, KURUVATTA HOUSE, VADAKKUMPADU, KOVVAL, CHERUVATHUR VILLAGE, CHERUVATHUR P.O., HOSDURG, KASARGOD DISTRICT-671 313. 3BALAMANI V. AGED 47 YEARS W/O. K.BABURAJ, SOPANAM, PANNITHADAM, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671 533. ``` ``` BY ADVS. M.S.MOHAMMED ANSARY SRI.SOHAIL MOHAMMED ANSARY SMT.KEERTHANA S RAGH ``` ## **`RESPONDENTS:`** ``` 1THE MAINTENANCE TRIBUNAL (CONSTITUTED UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007), KANHANGAD P.O., KASARAGOD DISTRICT-671 315. ``` ``` 2THAMBAYI AMMA V. W/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILALGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671 314. ``` ``` 3APPU V. S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314. 4BHASKARAN V. ``` ``` 2 ``` ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314. ``` - `5 PAVITHRAN V. S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314.` - `6 KRISHNAN V. S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314.` - `7 BABU V. S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314.` - `8 SUMESH V. S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671314.` - `9 SREEDHARAN V. AGED 44 YEARS S/O. GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, NEAR ARCH ANGEL SCHOOL, CHERUPUZHA, KANNUR DISTRICT-670 511.` ``` BY ADVS. DEEPU THANKAN T.MADHU C.R.SARADAMANI UMMUL FIDA LAKSHMI SREEDHAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, ALONG WITH WP(C).20269/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 3 ``` # **`WP(C)NOs.7627/2021 & 20269/2020`** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 /10TH AGRAHAYANA, 1944 ``` ## **`WP(C) NO. 20269 OF 2020`** ## **`PETITIONER:`** ``` SREEDHARAN V. AGED 44 YEARS S/O.GOVINDAN NAMBIAR, RESIDING AT VALLIYOTTU HOUSE, NEAR ARCH ANGEL SCHOOL, CHERUPUZHA, KANNUR DISTRICT-670511. ``` ``` BY ADVS. T.MADHU SMT.C.R.SARADAMANI SRI.SHAHID AZEEZ SMT.CHANDRALEKHA SANU ``` ## **`RESPONDENTS:`** ``` 1THE MAINTENANCE TRIBUNAL, KANHANGAD CONSTITUTED UNDER THE PROVISIONS OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007, KANHANGAD P.O., KASARAGOD DISTRICT-671315. ``` ``` 2THAMBAYI AMMA V., W/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. 3APPU V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. ``` ``` WP(C)NOs.7627/2021 & 20269/2020 ``` ``` 4 ``` ``` 4BHASKARAN V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. ``` ``` 5PAVITHAN V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. 6KRISHNAN V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. ``` ``` 7BABU V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. ``` ``` 8SUMESH V., S/O.GOVINDAN NAMBIAR, VALLIYOTTU HOUSE, ELERITHATTU, WEST ELERI VILLAGE, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671314. ``` ``` 9SAROJINI V., AGED 55 YEARS D/O.GOVINDAN NAMBIAR, BALIKADAKOL HOUSE, DARKHAS, MALOTH, KASARAGOD DISTRICT-671314. ``` ``` 10RADHA V., AGED 51 YEARS W/O.CHANDRAN, KURUVATTA HOUSE, VADAKKUMPADU, KOVVAL, CHERUVATHUR VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT-671313. ``` ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` 5 ``` ``` 11BALAMANI V., AGED 47 YEARS W/O. K.BABURAJ, SOPANAM, PANNITHADAM, VELLARIKUNDU POST, VELLARIKUNDU TALUK, KASARAGOD DISTRICT-671533. ``` ``` BY ADVS. SRI.DEEPU THANKAN SMT.CHITRA JOHNSON SRI.SOHAIL MOHAMMED ANSARY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, ALONG WITH WP(C).7627/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 6 ``` ## **`WP(C)NOs.7627/2021 & 20269/2020`** ## **JUDGMENT** [WP(C) Nos.7627/2021, 20269/2020] This order of mine shall dispose of two writ petitions, W.P. (C)No.20269 of 2020 (first writ petition) preferred by the son of senior citizen Thambayi Amma and W.P.(C)No.7627 of 2021 (second writ petition) preferred by three daughters against the order of the Maintenance Tribunal setting aside three gift deeds dated 08.04.2008 executed in favour of three daughters in proceedings initiated under Maintenance and Welfare of Parents and Senior Citizens Act, ‘the Act’ for short. 2. Out of the wedlock of respondent No.2 and her late husband, ten children were born ie., seven sons and three daughters. During the life time, the husband divided his property among seven sons and registered the same in their favour. Sreedharan, petitioner in the first writ petition alleged to have approached the senior citizen for ten cents of land required for constructing the house which was gifted. Acceding to the request, the 2[nd] respondent transferred 10 cents of land to Sreedharan, 90 cents of land to Sarojini, 85 cents with a residential building to ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` 7 ``` Radha and 113 cents of land to Balamani through settlement deeds referred above. Sreedharan sold out 70 cents of land given to him by the husband of respondent No.2 and 10 cents by respondent No.2 and shifted to Cherupuzha in District Kannur. In 2018, returned back and requested the 2[nd] respondent that he intended to come back. In this regard, 2[nd] respondent approached three daughters ie., petitioners in the second writ petition and other sons. Daughters along with the respondent No.2 executed two gift deeds on 07.07.2018 along with Radha and Sarojini Exts.P6 and P8. 3. Learned counsel appearing on behalf of the three petitioners-daughters and Sreedharan-son submitted that the leaned Tribunal did not have the jurisdiction to set aside the gift deeds executed by respondent No.2 in favour of three daughters ie., Balamani, Radha and Sarojini vide Exts.P3, P4 and P5 dated 08.04.2008 collectively as third party rights were created in the year 1918 vide two gift deeds dated 07/07/2018 executed by respondent No.2 along with Radha and Sarojini in favour of Sreedharan. ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` 8 ``` 4. There is no provision in the Act to set aside the sale deed as a remedy lies before the civil court in case of any fraud or misrepresentation. 5. Section 23 of the Act empowers the Tribunal to set aside the document when the condition of bequeath like settlement or gift deed of maintaining the senior citizen is breached. There was no such condition in the gift deed. In support of the contention, relied upon the Full Bench judgment of this Court in _**Subhashini**_ v. _**District Collector and Others**_ [2020 (5) KLT 533]. 6. On the other hand, Sri.Deepu Thankan on behalf of respondent No.2, supported the order of Tribunal by reading the contents of the gift deed wherein respondent No.2 had protected her right to usufructs. It was contended that, that requirement was sufficient for the Maintenance Tribunal to pass an order as per the provisions of Section 23 of the Act. Respondent No.2 is very old and is not in a position to challenge the same before the civil court and is now living with her other sons. Daughters are estopped to challenge the order of the Tribunal as they failed to ## **`WP(C)NOs.7627/2021 & 20269/2020`** ## **`9`** appear before the Tribunal. Petitioners have an obligation to maintain the 2[nd] respondent, even if, there is no clause of maintenance in the gift deed. Exts.P4 to P6 gift deeds were executed to discharge the financial obligation of the daughters and the son. 7. I have heard the learned counsel for the parties and appraised the paper books. 8. Section 23 of the Act reads as under: ## **“23. Transfer of property to be void in certain circumstances** 1. Where any senior citizen who, after the commencement of this Act, has 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 ofthe transferor be declared void by the Tribunal. 2. 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 ## **`WP(C)NOs.7627/2021 & 20269/2020`** ## **`10`** consideration and without notice of right. 3. If any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.” 9. The controversy with regard to the powers of the Tribunal to entertain and try the complaints preferred under the provisions of the Act for setting aside the gift deed and settlement has been pondered extensively by the Full Bench of this Court in _**Subhashini**_ (supra). Paragraph 28 and 52 of the same reads thus: “28. Section 23 does not create or negate any substantive rights; except the one mentioned above and merely provides a procedure for speedy recovery, to ensure which a deeming fiction is created with respect to certain categories of transfer of property, made subject to a condition. The fiction created; on a breach of the specified condition, deems the transfer itself to be vitiated by reason of fraud, coercion or exercise of undue influence. The transfer of property as spoken of in the provision has to concede to the various transfers spoken of in the T.P Act. The vitiating factors are those available under common law and defined under the Indian Contract Act. Normally the transferor will have to approach the civil courts to enforce his claim to get the transfer set aside. When a remedy is sought ``` WP(C)NOs.7627/2021 & 20269/2020 ``` ``` 11 ``` before the Civil Court, the normal rules of evidence applies and the adjudication is carried on by a judicial officer. 52. We conclude by answering the reference, that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry. We answer the reference agreeing with the decision in W.A.No.2012 of 2012 dated 28.11.2012 [Malukutty Ponnarassery v. P.Rajan Ponnarassery]. We find Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [2018 KHC 4655 = 2013 (3) KLT 1082] to be wrongly decided. We approve Radhamani v. State of Kerala [2016 (1) KHC 9] which had a recital in the document akin to that required under Section 23(1).” ## 10. The clause relied upon by the respondent extracted hereinbelow do not fall within the parameters of Section 23 of the ## Act: “I have on my own accord and out of the love and motherly affection that I have towards you decided to part with the property mentioned in the schedule herein and have transfer the same onto you, my daughter and dependent, on this day vide this settlement deed for your sustenance, retaining with ``` WP(C)NOs.7627/2021 & 20269/2020 ``` ## **`12`** me the right to usufruct in the scheduled property until my death.” 11. The remedy for the respondent No.2 is to file a suit for declaration by pleading fraud/misrepresentation but not in the manner and mode. The order of the Tribunal is set aside with aforementioned directions. Writ petitions are allowed. Since respondent No.2 is a senior citizen while exercising power under Article 226 of Constitution of India direct all the siblings to take care of respondent No.2 and provide basic amenities, ie., food, clothing, shelter, medical expenses etc. and also direct the concerned Maintenance Officer to visit the premises of all siblings where respondent No.2 is residing and find out whether the order of this Court is being complied with and if otherwise, submit a report to the District Magistrate for compliance of the same. **Sd/AMIT RAWAL JUDGE** nak ## **`WP(C)NOs.7627/2021 & 20269/2020`** ## **`13`** ## **`APPENDIX OF WP(C) 20269/2020`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1THE TRUE COPY OF THE PETITION DATED 8.11.2019 FILED BY THE SECOND RESPONDENT HEREIN BEFORE THE MAINTENANCE TRIBUNAL, KANHANGAD. EXHIBIT P2THE TRUE COPY OF THE OBJECTION DATED 18.12.2019 FILED BY THE PETITIONER HEREIN BEFORE THE MAINTENANCE TRIBUNAL, KANHANGAD IN EXHIBIT P1 PETITION WHICH WAS TAKEN ON FILE BY THE MAINTENANCE TRIBUNAL, KANHANGAD AS FILE NO.D.4058/2019. EXHIBIT P3THE TRUE COPY OF THE DOCUMENT NO.1148/2008 DATED 8.4.2008 OF BALAL SRO. EXHIBIT P4THE TRUE COPY OF THE DOCUMENT NO.1150/2008 DATED 8.4.2008 OF BALAL SRO. EXHIBIT P5THE TRUE COPY OF THE DOCUMENT NO.1151/2008 DATED 8.4.2008 OF BALAL SRO. EXHIBIT P6THE TRUE COPY OF THE DOCUMENT NO.1496/2018 DATED 7.7.2018 OF BALAL SRO. EXHIBIT P7THE TRUE COPY OF THE DOCUMENT NO.1498/2018 DATED 7.7.2018 OF BALAL SRO. EXHIBIT P8THE TRUE COPY OF THE DOCUMENT NO.1497/2018 DATED 7.7.2018 OF BALAL SRO. EXHIBIT P9THE TRUE COPY OF THE STATEMENT DATED 26.2.2020 OF THE PETITIONER HEREIN RECORDED BY THE MAINTENANCE TRIBUNAL, KANHANGAD. ``` ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` 14 ``` ``` EXHIBIT P10THE TRUE COPY OF THE AGREEMENT DATED 22.1.2020 REACHED BETWEEN THE SECOND RESPONDENT ON THE ONE HAND AND THE RESPONDENTS 3,5 AND 9 TO 11 ON THE OTHER HAND. ``` ``` EXHIBIT P11THE TRUE COPY OF THE ORDER DATED 3.7.2020 OF THE MAINTENANCE TRIBUNAL, KANHANGAD. ``` ## **`WP(C)NOs.7627/2021 & 20269/2020`** ## **`15`** ## **`APPENDIX OF WP(C) 7627/2021`** ``` PETITIONER EXHIBITS ``` |`Exhibit P10`|`TRANSLATION OF EXHIBIT P1`| |---|---| |`Exhibit P11`|`TRANSLATION OF EXHIBIT P2`| |`Exhibit P12`|`TRANSLATION OF EXHIBIT P3`| |`Exhibit P13`|`TRANSLATION OF EXHIBIT P4`| |`Exhibit P14`|`TRANSLATION OF EXHIBIT P5`| |`Exhibit P15`|`TRANSLATION OF EXHIBIT P6`| |`Exhibit P16`|`TRANSLATION OF EXHIBIT P7`| |`Exhibit P17`|`TRANSLATION OF EXHIBIT P8`| |`Exhibit P18`|`TRANSLATION OF EXHIBIT P9`| |`EXHIBIT P3`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1151/2008 OF BALAL SRO DATED 8.4.2008.`| |`EXHIBIT P2`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1150/2008 OF BALAL SRO DATED 8.4.2008.`| |`EXHIBIT P1`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1148/2008 OF BALAL SRO DATED 8.4.2008.`| |`EXHIBIT P4`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1497/2018 OF BALAL SRO DATED 7.7.2018.`| |`EXHIBIT P5`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1498/2018 OF BALAL SRO DATED 7.7.2018.`| |`EXHIBIT P6`|`TRUE COPY OF THE SETTLEMENT DEED`| ||`NO.1496/2018 OF BALAL SRO DATED 7.7.2018`| ## **`WP(C)NOs.7627/2021 & 20269/2020`** ``` 16 ``` ``` EXHIBIT P7TRUE COPY OF THE APPLICATION DATED 8.11.2019 MADE BY THE 2ND RESPONDENT BEFORE THE IST RESPONDENT. EXHIBIT P8TRUE COPY OF THE SETTLEMENT AGREEMENT DATED 22.1.2020. EXHIBIT P9TRUE COPY OF THE ORDER OF THE IST RESPONDENT DATED 3.7.2020. ```