Sundhari v. Lakshmi Amma and others (W.P.(C) No. 20500 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 21ST DAY OF DECEMBER 2017/30TH AGRAHAYANA, 1939** ## **WP(C).No. 20500 of 2016 (J)** **----------------------------** **PETITIONER(S): -----------------------** **SUNDHARI, D/O.LAKSHMI AMMA, AGED 52 YEARS, LAKSHMI NIVAS, CHATHANNUR PO, CHALISSERY, PALAKKAD DISTRICT, PIN 679 536.** **BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER** ## **RESPONDENT(S):** **------------------------** **1. THE REVENUE DIVISIONAL OFFICER, (MAINTENANCE TRIBUNAL UNDER MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007) OTTAPALAM 679 101.** **2. THE SUB INSPECTOR OF POLICE,** - **CHALISSERY POLICE STATION, CHATHANNUR PO, CHALISSERY, PALAKKAD DISTRICT- 679 536.** **3. LAKSHMI AMMA,** - **W/O.LATE NARAYANAN NAIR, AGED 72 YEARS, LAKSHMI NIVAS, CHATHANNUR PO, CHALISSERY, PALAKKAD DISTRICT, PIN 679 536.** **R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.S.GOPINATHAN R3 BY ADVS. SRI.SANTHEEP ANKARATH SRI.Y.JAFAR KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 20500 of 2016 (J)** **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** **P1 TRUE COPY OF PETITION FILED BY 3RD RESPONDENT BEFORE 1ST RESPONDENT.** **P2 TRUE COPY OF COUNTER FILED BY PETITIONER .** **P3 TRUE COPY OF ORDER DATED 5.6.2016 OF 1ST RESPONDENT.** **P4 TRUE COPY OF NOTICE DATED 14.6.2016 OF 2ND RESPONDENT.** **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT R3(A):- TRUE COPY OF FIRST INFORMATION REPORT DATED `13.5.2017 IN CRIME NO.172/2017 OF CHALISSERY POLICE STATION.** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **A.MUHAMED MUSTAQUE, J. -----------------------------------------W.P.(C) No.20500 of 2016 ------------------------------------------Dated this the 21[st] day of December, 2017** ## **JUDGMENT** The petitioner is the daughter of third respondent. The third respondent along with her late husband Narayanan Nair executed a gift deed in the year 2012 in respect of property having 80 cents of land along with a residential building. It appears that the petitioner had carried out some renovation to the building. Petitioner says that she had expended more than Rs.6 lakh. Her husband is a retired officer from Research And Analysis Wing (Unit of Central Government). The mother, the third respondent approached Maintenance Tribunal to revoke the gift deed executed by her. The Tribunal revoked the gift deed. It is challenging this order, the petitioner approached this Court. 2. Petitioner would submit that since her father and mother had jointly executed the gift deed, the Tribunal WPC No.20500/2016 - : 2 :- could not have revoked the entire gift deed based on the option exercised by the mother. Admittedly, father of the petitioner is no more. It is appropriate to refer Section 23 of the Senior Citizens Act. Section 23 of the Act reads as follows: _“_ _**23. Transfer of property to be void in certain circumstances: -** (1) Where any senior citizen who, after the commencement of this Act, 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._ _(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 consideration and without notice of right._ WPC No.20500/2016 - : 3 :- _(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 organizations referred to in Explanation to subsection (1) of section 5.”_ _“_ 3. As seen from the above provision, revocation is based on the option of the transferor. That be so, if the mother had alone exercised the option, the Tribunal could not have declared the entire gift deed as void covering the gift executed by the father of the petitioner as well. In that regard, the petitioner is right in submitting that the Tribunal went wrong in declaring entire gift deed as void. Therefore, this Court is of the view that, the Tribunal had jurisdiction only to declare the share of the mother in the gift deed as void. Thus, that extent the impugned order is liable to be interfered. 4. The question is whether the gift deed is liable to be revoked or not at the option of the mother. The gift itself implied that it was executed based on the love and affection of mother to her daughter, the petitioner herein. The love is enduring. The moment it is found that the very basis of execution of gift deed is not reflected from WPC No.20500/2016 - : 4 :- the conduct of the transferee after transfer, it can be presumed that the gift was obtained by the transferee with intention to deceive by pretending love and affection. This Court in fact considered these aspect in detail in the judgment of _**Radhamani v. State of Kerala [(2016) (1) KLT 185]**_ wherein para 10 it was observed that any donor in a gift deed before execution of the deed would expect in a natural course of human conduct that donee continues to behave in same manner as behaved before execution of the deed. The love and affection that influenced for execution of the deed certainly must be enduring and without any barrier. It was further observed that the human conduct in relation to a particular relation is presumed to exist in all set of circumstances for governing relationship of those individuals and therefore, transferee cannot disown his own action of love and affection after the transfer comes into effect. 5. That be of the matter, if the transferor exercise option to declare the gift deed as void, the Tribunal has to look around the circumstances under which such option is exercised. As seen from the impugned order, the Tribunal detailed the circumstances in which the mother WPC No.20500/2016 - : 5 :- exercised the option. It was found that she was ill treated and manhandled by the petitioner mentally and physically. It is also to be noted that a case was registered against the petitioner for offences under Sections 323, 229 and 294 (b) and 506 r/w Section 34 IPC by the Challissery Police. This was registered on 11.5.2017, after the order of the Tribunal. The FIR is produced as Ext.R3(a). All the circumstances would go to show that the petitioner had ill treated her. In such circumstances, the very basis of gift transferring the right of mother is lost. 6. The question is whether the petitioner can claim any right of residence. The welfare of the senior citizen is most important consideration in the matter. In the light of the fact that a criminal case has been registered against the petitioner at the instance of the mother, this Court cannot permit the petitioner to live along with her mother in the residential house. The claim of the petitioner is that she is having half right over the property. But that does not mean that she can be allowed to reside along with the mother when they are in inimical terms. The Tribunal as well as the Court will have to WPC No.20500/2016 - : 6 :- consider the welfare of the parents and senior citizen to secure the residence and secure the welfare of the senior citizen, to secure that a person having rightful ownership of the property will also have to be evicted from such residence of senior citizen, if such a person poses a threat to the senior citizen. The petitioner is having sufficient means. Her husband is retired from the RAW. It is submitted at the Bar by the learned counsel for the respondent that the petitioner is having a residence at Thrissur. Anyhow, it is for the petitioner to make her necessary arrangement for her stay. Therefore this Court is of the view that during the lifetime of her mother, the petitioner shall not claim any right of residence along with her mother in the house unless the mother permits otherwise. Thus the writ petition is disposed of with the following orders. (i) The impugned order is set aside to the extent revoking the gift deed executed by the father of the petitioner. (ii) The impugned order is affirmed as far the option exercised by the mother of the petitioner. (iii) The mother of the petitioner is given exclusive WPC No.20500/2016 - : 7 :- right to reside in the property covered by the gift deed which is the subject matter of the order of the Tribunal. (iv) The petitioner shall not disturb possession and enjoyment of the residential house by the mother during her life time. The writ petition is disposed of as above. There is no order as to costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** al/- True Copy P.S to Judge