Surendran v. State of Kerala and Others

W.P(C).28734/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942** ## **WP(C).No.28734 OF 2020(N)** ## **PETITIONER:** **SURENDRAN, AGED 51 YEARS, S/O GOPALAN NAIR, PATTIYIL HOUSE, CHELAKOTTU P O, PAZHAYANNUR, THRISSUR DISTRICT-680587. BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,**| ||**REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM DISTRICT-695001.**| |**2**|**THE MAINTENANCE TRIBUNAL**| ||**AND SUB COLLECTOR, OFFICE OF THE SUB COLLECTOR,**| ||**COLLECTORATE,**| ||**CIVIL LANES, AYYANTHOLE P O, THRISSUR DISTRICT-**| ||**680003.**| |**3**|**RAMAKRISHNAN NAIR**| ||**AGED 95 YEARS**| ||**S/O LATE PARUAMMA,**| ||**PATTIYIL HOUSE, CHELAKOTTU P O,**| ||**PAZHAYANNUR, THRISSUR DISTRICT-680587.**| ||**R3 BY ADV. SHRI.PRABHU K.N.**| ||**R3 BY ADV. SHRI.MANUMON A.**| ## **OTHER PRESENT:** **SR.GP K.P HARISH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5- 02-2021, THE COURT ON 12-02-2021 DELIVERED THE FOLLOWING:** W.P(C).28734/2020 2 ## **JUDGMENT** **Dated this the 12th day of February 2021** The 3[rd] respondent herein is the uncle of the writ petitioner. Third respondent owned an item of property having an extent of one acre 8 cents in re survey No.219/5 of chelakodu Village. He, executed Ext.P1 settlement deed No.939 of 2009 of Chelakkara SRO in favour of the petitioner by which, the property was settled in favour of the petitioner, who is his nephew. The extent of the property was one acre 8 cents. Thereafter, it seems that the relationship between the 3[rd] respondent and the petitioner got strained. Third respondent filed an application before the 2[nd] respondent invoking the provision under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. He sought for setting aside the above settlement deed on the ground that the petitioner, who had undertaken to maintain him and also to provide essential amenities for his livelihood, failed to provide that. After issuing notice to the petitioner and after his appearance, the second respondent by Ext.P3 order declared the above document as void. It was held that the petitioner failed to maintain the 3[rd] respondent and thereby he violated the provisions of the Act and hence transfer of the property is liable to be set aside. This order is under W.P(C).28734/2020 3 challenge in the present writ petition. 2. Ext.P3 is challenged by the petitioner on two specific grounds. Learned counsel for the petitioner contended that, the impugned order was passed by the 2[nd] respondent in violation of the statutory provision and the principles of natural justice. It was contended that, though the petitioner was served with a notice and he along with 3[rd] respondent appeared on 5/12/2019,the case was adjourned thereafter. The new posting date was not conveyed. Thereafter, he was served with Ext.P3 order. In the above circumstances, he could not file objections and his contentions were not heard by the learned Tribunal. It was also contended that, it was in violation of the principle of natural justice and the right of the petitioner to be heard before an order adverse to his interest was passed. The next limb of the contention was that, the Tribunal set aside the settlement deed invoking Section 23 of the Act, which provision was not applicable to the facts and circumstances of the case and the nature of transfer herein. Hence, the impugned order was bad and liable to be set aside. 3. The records indicate that, the petitioner was served with Ext.P2 notice. He appeared before the authority on 5/12/2019 as evident from Ext.P3. The 3[rd] respondent has also no case that any objection was filed by the petitioner herein. The 3[rd] respondent has also no case that the case was thereafter posted for hearing. In short, the materials clearly indicate that, there was no posting of the case for objection of the petitioner and for W.P(C).28734/2020 4 enquiry. There is nothing on record to show that the petitioner was given an opportunity to file objection and that the parties were heard on that. 4. The learned counsel for the 3[rd] respondent vehemently contended that, there was no procedural irregularity and that there was no violation of the principles of natural justice. It was contended that the Act, provided that, enquiry by the 2[nd] respondent shall be inquisitorial in nature and not adversorial. Hence, there was no procedural irregularity on the part of the 2[nd] respondent. Evidently, there is no dispute that the proceedings before the 2[nd] respondent is inquisitorial. It only indicates that, the proceeding should be summary in nature rather than a detailed enquiry as contemplated in the civil court. That does not mean that the authority can by-pass the basic principles of natural justice of giving reasonable opportunity of being heard to opposite side. It would have been a different case, had the petitioner been given an opportunity of being heard and he did not avail it. In the above circumstances, evidently the order was passed without giving reasonable opportunity to the petitioner to place his contentions before the authority. 5. The next limb of the argument of the learned counsel for the petitioner was that, in the nature of the document and recitals therein, section 23 of the Act was not applicable. The learned counsel for the petitioner placed reliance on the Full Bench decision of this Court in **Subhashini v. District Collector 2020, 5 KLT 533 ( F.B.)** . In the above W.P(C).28734/2020 5 case, after an elaborate consideration of the scope of section 23 of the Act, the Full Bench held that the Act ,in so far as it defines transfer, has to be reckoned in the background of section 126 of the transfer of Property Act ,1888. It was held that section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007, specifically provides that it can declare the transfer of document as valid at the option of the transferor only if there is an express provision in the statute that the transferee would maintain the transferor in future. After an elaborate discussion on the ambit and scope of Section 23, it was held that that , section 23 (1) insist on there being an express condition written as a part of the recitals in the document, undertaking that the transferee would provide the basic amenities to the senior citizen. The condition required under section 23 (1) of the Act to provide 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. 6. Opposing the above contention, the the learned counsel for the 3[rd] respondent vehemently relied on decision of this court in **Radhamani v. State of Kerala (2016 (1) KLT 185).** It was contended that Radhamani' s case was directly applicable to the facts of this case. It was contended that, in the nature of the transaction, Radhamani's case which was affirmed by the Full Bench, applies to the facts of this case also. W.P(C).28734/2020 6 7.The learned counsel for the petitioner invited my attention to the nature of the document in the light of the Law laid down by the Full Bench. A perusal of Ext.P2 indicates that, it is in the form of a settlement deed. It is also clear from the document that there are no other legal heirs to the 3[rd] respondent herein . Ext.P1 evidently is in the nature of a settlement deed. Love and affection of third respondent towards the petitioner was treated as consideration for the assignment. However page 5 of Ext.P1 clearly indicates that, there is no recital in the above document by which the transferee was under an obligation to provide the basic amenities to the transferor. There is also no indication that the transferor was depending on the transferee. On the other hand, there is a specific recital that the transferee was dependent on the transferor. A detailed perusal of Ext.P1 clearly indicates, that section 23 is not attracted in the case of the present document. 8. The specific contention of the learned counsel for the 3[rd] respondent that , Radhamani's case was affirmed by the Full Bench and it applies to the facts of the case, is not at all sustainable. In fact, after affirming that in the document itself there should be a recital that transferee was under an obligation to maintain the transferor. Full Bench noticed that, In Radhamani's case, there was a specific recital in the document, casting duty on the transferee to maintain transferor, which was the basis for affirming Radhamani's case. In the above circumstances, contention of W.P(C).28734/2020 7 the learned counsel for the 3[rd] respondent is not sustainable. 9.It is seen that though this was not the issue, Supreme Court in **S. Vanitha v. Deputy Commissioner, Bangaluru Urban District and Ors** **(J.T. 2020 (12) SC 208)** had occasion to consider the scope of Section 23 of the said Act. It was indicated that the above clause, as laid down by the Full Bench ,should form part of the document. 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 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 W.P(C).28734/2020 8 be further considered. The impugned order is set aside. In result. the writ petition is allowed. Ext.P3 order is set aside. **Sd/-** **SUNIL THOMAS JUDGE** ## **dpk** W.P(C).28734/2020 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DOCUMENTS BEARING NO 939/09 DATED 8.4.09 CHELAKKARA/CHELAKOTTU SRO. EXHIBIT P2 A TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER DATED 19.11.19. EXHIBIT P3 A TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT DATED 8.9.20.**