Kerala High Court
P.Rajan Ponnarassery vs Malukutty Ponnarassery on 7 June, 2010
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934
WP(C).No. 31491 of 2011 (J)
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PETITIONER(S):
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P.RAJAN PONNARASSERY, "KRIPA",
BEHIND RAILWAY STATION ROAD, KALLAI, KOZHIKODE.
BY ADVS.SRI.P.P.JACOB
SRI.T.P.GOPAKUMAR
RESPONDENT(S):
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1. MALUKUTTY PONNARASSERY,
OLAVANNA AMSOM, IRINGALLOOR DESOM
P.O.GURUVAYOORAPPAN COLLEGE, KOZHIKODE, PIN-673014.
2. THE MAINTENANCE TRIBUNAL AND REVENUE
DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE
KOZHIKODE, PIN-673020.
3. THE DISTRICT COLLECTOR,
CIVIL STATION, KOZHIKODE/APPELLATE TRIBUNAL
UNDER THE MAINTENANCE AND WELFARE OF PARENTS
AND SENIOR CITIZENS ACT, PIN-673020.
BY ADV. SMT.LEKHA SURESH FOR R1.
BY GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 31491 of 2011 (J)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 TRUE PHOTOCOPY OF THE DOCUMENT NO.2032/2010 DATED
7/6/2010.
EXT.P2 TRUE PHOTOCOPY OF THE ORDER ISSUED BY SECOND RESPONDENT
DATED 24/1/2011.
EXT.P3 TRUE COPY OF THE ORDER ISSUED BY THIRD RESPONDENT DATED
29/10/2011.
EXT.P4 TRUE PHOTOCOPY OF THE NOTICE ISSUED BY SECOND RESPONDENT
DATED 27/8/2011.
EXT.P5 TRUE PHOTOCOPY OF THE DOCUMENT NO.4034/2010 DATED 20-11-2010
OF CHEVAYUR S.R.O.
RESPONDENTS' EXHIBITS: NIL.
/TRUE COPY/
P.A. TO JUDGE
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P.R. RAMACHANDRA MENON, J.
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W.P.(C). No. 31491 of 2011
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Dated this the 18th day of September, 2012
JUDGMENT
The proceedings pursued by the second respondent as per Ext.P2, whereby part of the property conveyed by the first respondent to the petitioner as per Ext.P1, has been caused to be re-transferred for failing to maintain the first respondent; by invoking the power and procedure under Act 56/2007 and confirmation of the said order by the third respondent as per Ext.P3 is under challenge in this writ petition.
2. The case of the petitioner is that, the first respondent is the mother of the petitioner, who has got nine children, including the petitioner. It is stated that the first respondent mother was residing with the petitioner, who was maintaining her without any room for complaint from any corner. While so, Ext.P1 'Gift Deed' was executed on 7.6.2010, whereby an extent of 5 cents of property, out of the total of 28 cents owned by the first respondent, was gifted to the petitioner, who started enjoying the same ever since the execution of the said deed.
W.P.C. No. 31491 of 2011 -2-
3. Subsequently, the mother of the petitioner was made to cross the sword with the petitioner at the instance of other children, particularly, the sisters and the first respondent started residing with one among them. While so, the remaining property was caused to be sold to some strangers as per Ext.P5 dated 20.11.2010, for valuable sale consideration (which has been shown as Rs. 9 lakhs, but allegedly much more) and thereafter as instigated by one of the sisters, a complaint was preferred against the petitioner before the second respondent which led to Ext.P2 order.
4. As per Ext.P2, part of the property to an extent of 2.5 cents has been ordered to be re-conveyed, which according to the petitioner is not in conformity with the statutory prescription. This in turn was challenged by filing an appeal before th 3rd respondent, who however rejected the same as per Ext.P3 order dated 29.10.2011, holding that, appeal is not maintainable, in view of the mandate under Section 16 of the Act 56/2007, holding that, it will be maintainable only if it is preferred by senior citizen/parent and not at the instance of the persons like W.P.C. No. 31491 of 2011 -3- the petitioner. This made the petitioner to approach this Court, challenging the impugned orders raising a specific contention that, the order passed by the second respondent is beyond the power and competence, more so, contrary to the mandate of Section 23.
5. The learned counsel for the petitioner submits that, as per Section 23, so as to invoke the power and procedure, it has to be established that, the conveyance of the property was on the basis of firm understanding to maintain the parent concerned. Reference is also made to the 'preamble' of the Act, to show that the purpose of enactment is only for maintenance. Reliance is also sought to be made on the definition clause under Section 2(b). The learned counsel further submits that, the petitioner was always ready and willing to maintain the 1st respondent as discernible from Ext.P2 order itself, despite which the adverse order came to be passed because of the non willingness expressed from the part of the first respondent to come and reside with the petitioner. This being the position, the order itself is per se wrong and illegal in all respects, submits the learned W.P.C. No. 31491 of 2011 -4- counsel. The learned counsel adds that the ingredients of Section 23 are not attracted and it cannot be invoked even impliedly, for the reason that, there is no recital either in Ext.P1 or in the subsequent deed executed by the 1st respondent vide Ext.P5, whereby the remaining property was transferred to some strangers for a sale consideration of nearly Rs.9 lakhs, that the Gift deed executed in favour of the petitioner was subject to the undertaking to maintain the 1st respondent.
6. The learned counsel for the first respondent submits that the conveyance effected by the 1st respondent in favour of the petitioner as per Ext.P1 was on the basis of firm understanding that the petitioner would maintain the first respondent through out her life. It is further submitted that, the first respondent wanted to divide the property among all the children except the petitioner and the property was accordingly sold to the concerned person vide Ext. P5 and the sale consideration was equally shared among the children except the petitioner, who had already been given the property as per Ext.P1. It appears that the petitioner expected a further share, which was not acceded to, and this W.P.C. No. 31491 of 2011 -5- made the petitioner to ignore the first respondent and the duty to maintain her, despite the conveyance of the property as per Ext.P1. It was after considering the same, that the re-conveyance has been ordered to the limited extent of 2.5 cents of land (out of 5 cents conveyed as per Ext.P1) and as such, it is not liable to be intercepted, submits the learned counsel.
7. After hearing both the sides and also the learned Government Pleader, there cannot be any dispute with regard to the fact that the power under Section 23 can be invoked only for the specific purpose as mentioned therein. The basic question is whether, the property conveyed to the petitioner as per Ext.P1 was on the basis of the undertaking to have maintained the 1st respondent, though the petitioner is all the more obliged in this regard. The contents of Ext.P1 document do not disclose any such instance. Coming to the subsequent document, i.e., Ext.P5, it is seen that a reference is made to Ext.P1 conveyance already effected by the 1st respondent in the name of the petitioner, wherein also, no reference is made to the effect that the property W.P.C. No. 31491 of 2011 -6- conveyed to the petitioner as per Ext.P1 was with an undertaking to have maintained the 1st respondent. This being the position, the conveyance effected to the petitioner as per Ext.P1 Gift deed is absolute and it can only be inferred that this does not attract the mandate contemplated under Section 23 of Act 56/2007.
8. Similarly, this Court finds considerable force in the submission of the learned counsel for the petitioner, that there is no power vested upon the second respondent for causing re-transfer, but for declaring the relevant document as null and void. The course and conduct pursued by the 1st respondent does not inspire confidence of this Court to arrive at a conclusion that there was any failure on the part of the petitioner, more so, when the stand taken by the petitioner is reflected from Ext.P2 order passed by the second respondent, wherein it is stated that, the petitioner was ready and willing to maintain the 1st respondent, if she was ready to come and reside with him, for which, she was not agreeable.
9. In the above facts and circumstances, the impugned orders (Exts. P2 & P3) are not correct or sustainable and they are W.P.C. No. 31491 of 2011 -7- set aside. The submission made by the learned counsel for the petitioner that the petitioner is ready and willing to provide maintenance to the 1st respondent is recorded and it is open for the first respondent to claim the same, in accordance with law.
Writ petition is allowed. No cost.
P.R. RAMACHANDRA MENON, JUDGE.
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