Kerala High Court
N.C.Yegneswaran vs The Dist.Collector on 24 October, 2018
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY,THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940
WP(C).No. 22947 of 2011
PETITIONER/S:
N.C.YEGNESWARAN
S/O.N.M. CHANDRASEKHARAN,, AGED 47 YEARS,
SWETHA NIVAS,, ADHIKESAVAPURAM,
KODUNTHIRAPPALLY VILLAGE, PALLAKKAD - 678 004.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT/S:
1 THE DIST.COLLECTOR, PALAKKAD
CIVIL STATION, PALAKKAD - 678 001, EXERCISING THE
POWERS OF APPELLATE TRIBUNAL, UNDER THE MAINTENANCE AND
WELFARE OF PARENTS, AND SENIOR CITIZENS ACT, 2007
2 V. PONNUKUTTAN NAIR
LAKHMI SADANAN, KIZHAKKEGRAMAM, KODUNTHIRAPPULLY,
PALAKKAD - 678 004.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1,
SRI.A.R.GANGADAS FOR R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
(C.R)
ALEXANDER THOMAS, J.
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W.P.(C)No.22947 of 2011
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Dated this the 24th day of October, 2018
JUDGMENT
Pleadings in this case have been amended and the prayers in the amended Writ Petition (Civil) are as follows.
"i. call for the records leading to Exhibit P-1 from the 1 st Respondent and quash Exhibit P2 order passed therein by means of a Writ of Certiorari or such other Writ in the like nature, direction or order. ii. direct the 1st Respondent to pass appropriate orders on Exhibit P-1 as having been filed within time and to pass orders therein after hearing the parties by means of an appropriate Writ direction or order iii. pass such other orders deemed fit and proper in the facts and circumstances of the case and that may be prayed hereafter iv. call for the records leading to Exhibit P-5 passed by the Maintenance Tribunal, and Revenue Divisional officer, Palakkad and quash the same by means of Writ of Certiorari or any other Writ order or Direction of like nature;"
2. Heard Sri.Rajesh Sivaramankutty, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R1 and Sri.A.R.Gangadas, learned counsel appearing for respondent No.2.
3. The 2nd respondent had filed Ext.P-3 application dated 2.7.2010 alleging that the petitioner had forcefully taken the 2 nd respondent's wife, Smt.Soudamini, who was extremely sick and was not in her proper senses, to the office of the Sub Registrar, Palakkad W.P.(C)22947/11 - : 3 :-
and got Ext.P-6 sale deed dated 23.2.2010 executed by her, whereby her property was thus sold to the minor daughter of the petitioner and that Ext.P-6 registered sale deed thus procured by the petitioner, should be cancelled by virtue of the enabling provisions contained in Sec. 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Ext.P-3 application is seen signed only by the 2 nd respondent and and it is claimed to have been filed for and on behalf of his wife, Smt.Soudamini. Thereupon, Ext.P-4 objections was filed on behalf of the petitioner as against the plea made in Ext.P-3 application. According to the petitioner, due to extreme personal inconvenience, he was not in a position to appear before the Tribunal on the designated day and thereupon, the Tribunal had set him ex parte and had rendered the impugned Ext.P-5 order dated 13.08.2010, whereby the plea of the 2 nd respondent in Ext.P-3 application is allowed and thus it was ordered in Ext.P-5 order that Ext.P-6 registered sale deed will stand cancelled under Sec. 23(1) of the above said Act. Aggrieved by Ext.P-5 order dated 13.8.2010, the petitioner had filed Ext.P-1 appeal before the 1 st respondent Appellate Tribunal through counsel under Sec. 16(1) of the above said Act. The said appeal so initially filed was through the counsel for the petitioner and since it was not personally filed by the petitioner, the same was W.P.(C)22947/11 - : 4 :-
returned by the appellate Tribunal. Thereafter, the petitioner had filed Ext.P-1 appeal in the proper form, but the same was dismissed as per Ext.P-2 order on the technical ground that the same is time barred at the time of re-presentation. It is challenging the orders at Exts.P-2 and P-5 that the instant proceedings have been initiated by the petitioner.
4. It is by now well established that the provision for appellate remedy under Sec.16(1) can be availed only by the senior citizen concerned in case he is aggrieved by the order passed by the original Tribunal and in case, the respondent in the application filed before the Tribunal has any grievance as against the order passed by the Tribunal, he is not empowered to avail the appellate remedy in terms of Sec. 16(1). The legal position in this regard has been settled by this Court in judgment in Najeeb Vs. Maintenance Tribunal reported in 2018 (3) KHC 825. So, the ultimate conclusion of the appellate Tribunal in rejecting the appeal filed by the petitioner as against Ext.P-5 order is correct and tenable.
5. The learned counsel appearing for the petitioner essentially challenges the legality and correctness of Ext.P-5 order on the ground that even going by the admitted averments in ExtP-3 application, the same was not maintainable in terms of the provisions W.P.(C)22947/11 - : 5 :-
contained in Sec. 23(1) of the Act. Further it is stated that, for the very same remedy for cancelling Ext.P-6 registered sale deed, the petitioner had filed a civil suit as O.S.No.723/2010 before the Court of the Principal Sub Judge, Palakkad, in which the petitioner herein was arrayed as the defendant, raising the very same averments in the said plaint and that the said suit was dismissed for default as per judgment dated 10.8.2018 of the Principal Sub Court, Palakkad and that to the best knowledge of the petitioner, the 2 nd respondent has not so far filed any application to restore the said suit dismissed for default or filed by appeal as against the said judgment and decree and that the said judgment and decree dismissing OS. No.723/2010 has now become final and conclusive between the parties.
6. As regards the plea made by the petitioner that the application at Ext.P-3 is not maintainable in terms of Sec. 23(1) of the Act, the following aspects are relevant:-
The averments in Ext.P-3 application dated 2.7.2010 filed by the 2nd respondent reads as follows.
"അപ കകയ യ സ ദ മ ന യ ട കകവശത ൽ ഉണ യ ര ന ലക ട ത ല ക ര യ ര വ പല!ജ ൽ 7 ടസന$ സലവ & വ' & (A / 13 വ'ട) നമർ) 18-02-2010 ത'യത ലക ട സബ രജ സ. ർ ഓഫ'സ ൽ, സ1പ2 ധ& ഇല! ടതയ & അസ ഖക ര യ & 2ധ രയ മ യ യ ട6 വണ യ ൽ ടക ണ പ യ എത ർകക യ യ ...... എന രപമഷ, യ നട9 കമനർ ആയ മക6)ട പ ർക അനധ ക;തമ യ , സ ദ മ ന യട ഭർത വ യ എപന & പ= ദ ക ടതയ & അ9 യ ക ടതയ & 1.5 ലക& ര ക ത'9 ധ ര& ന ത യത യ അ9 യ ന .
W.P.(C)22947/11 - : 6 :-
21-02-2010 ന ഞ ൻ ലക ട പക - ആശ .ത യ ൽ . പമഹ പര ഗ = ക തക . പവശ ച). ഭ രD എനട9 ക ട ആശ .ത യ ൽ ആയ ര ന . 43 ദ വസടത = ക തക പശഷ& വ'ട പലക പ യ ഞങട6 എത ർകക വ'ട ൽ ട യ കയ & വ'ട ൽ ഉണ യ ര ന എല! സ ധനങ6)& - ആധ ര&, ട ൻഷൻ 2 ക, സ 2 ക, ട=ക 2 ക എന' എല! പരഖക6)& എത ർകകഷ എ ത ടക ണ പ യ ര ന . 19- 06-2010 ന ഞ ൻ അവ ട ന ന & രകടHട പന ർത പ ല'സ പIഷന ൽ പ യ ര ത നൽക കയ & ട=യത . അപH ഴ ണ . സത ത സല& എത ർകകഷ ഞങട6 ക26 H ച) രജ Iർ ട=യത എ ത വ വര& അ9 യ നത. പ ല'സ നട9 ഇ ട ൽ മ ല& ക 9ച) ക സയ &, ട ൻഷൻ 2 ക, ട=ക 2 ക മ തല യവ ത ര ച) ക ട ടയങ ല & ആധ ര& മറ)& ത ര ച) ക ട യ ട ല! .
പമൽസ ഹ=രDത ൽ ന ര ല&2ര & ന തD പര ഗ ക6)& ആയ ഞങൾക കമനട9നൻസ & ടവൽഫയർ ഓഫ ടരന$സ & സ റ സൺ ആകട 2007, ടസകൻ 23(1) . ക ര& ന കൾ സ1'കര ച) എത ർകക എഴ ത വ ങ ച ത'9 ധ ര& 9ദ ട=യത തരണ& എന വ ന'തമ യ അപ ക ക ന ."
7. A perusal of the averments in Ext.P-3 would reveal that the very case set up by the 2nd respondent therein is that the petitioner had forcefully taken Smt.Soudamini (the wife of the 2 nd respondent) and that even though she was seriously ill and was not in her proper senses the petitioner had got her executed Ext.P-6 sale deed, whereby her property was sold to the minor daughter of the petitioner by showing a consideration of Rs.1.5 lakhs therein in the said deed, etc. The learned counsel for the petitioner would submit that the said allegations raised by the 2 nd respondent in Ext.P-3 are absolutely false and baseless and that Ext.P-6 sale deed was executed by the wife of the 2nd respondent voluntarily and the 2nd respondent herein was an attesting witness to Ext.P-6 registered sale deed as can be seen from page 9 of Ext.P-6 and that the property was so sold in W.P.(C)22947/11 - : 7 :-
favour of the petitioner's minor daughter, for a valid sale consideration of Rs. 1.40 lakhs, etc. Further it is submitted by the petitioner's counsel that even assuming that the averments in Ext.P-3 are correct, still the same will not disclose a cause of action to maintain an application in terms of Sec. 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Section 23(1) of the above said Act reads as follows.
"Sec. 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."...
Sub section 1 of Sec. 23 clearly stipulates that where a senior citizen, after commencement of the above said Act (24.09.2008) had transferred by way of gift or otherwise, his property subject to the condition that the tranferree shall provide the basic amenities and physical needs to the transferor and the said transferree 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. Hence, it can be seen that one of the essential conditions for invocation of the remedy under Sec. 23(1) is W.P.(C)22947/11 - : 8 :-
that senior citizen transferor, after commencement of the said Act, has transferred by way of gift or otherwise, his/her property subject to the condition that the transferree shall provide basic amenities and physical needs to the transferor, etc. and further that the transferree should have refused or failed to provide such amenities and physical needs and in such a scenario, a legal fiction is created by the legislature, whereby the said transfer of property is deemed to have been made by fraud or coercion or undue influence and then the option of transfer be declared void by the Tribunal. In the instant case the transfer that has been effected as per Ext.P6 is admittedly a sale and not by way of gift, settlement, release, etc. Though Sec. 23 does not specifically postulate that the transferee should necessarily be a relative or child of the transferor citizen himself and so the transferree could in appropriate cases be even a third party, it is to be noted that where the impugned transfer is made on the basis of sale and not by way of gift, settlement, release, etc., then it is highly doubtful whether a sale deed could be a subject matter of cancellation under Sec. 23(1) especially when the sale deed is made by the transferor senior citizen in favour of a third party like the minor daughter of the petitioner. Where the transfer is by way of gift, settlement, release, etc., then even if explicit conditions are not W.P.(C)22947/11 - : 9 :-
incorporated in the deed that the transferree is having an obligation to take care of the transferor senior citizen, it has been held by this Court in decisions as in Shafeen Martin v. Muriel & Anr. reported in ILR 2016 (4) Ker. 601 = 2016(5) KHC 603 (D.B), that it is not a legislative requirement or intent that document evidencing such transfer by way of gift or otherwise, shall itself contain an express condition that the transferree shall provide the basic amenities and physical needs of the transferor. But it is highly improper whether such implied obligation to take care of the transferor could be inferred in case, where the transfer is by way of sale, in favour of a transferree, who is a stranger as far as the transferor is concerned and where there is a clear and explicit recital that the sale was for lawful consideration, etc. In the instant case it has to be kept in mind that the transferree is the minor daughter of the petitioner and the attesting witness in the registered sale is none other than R-2 who is the husband of the vendee. But the most important aspect of the matter in the facts of this case is that the very allegation of the 2 nd respondent in Ext.P-3 is that the petitioner had forcefully taken away his wife to the Sub Registrar's Office, when she was suffering from serious ailments and was not in her proper senses and had thus got Ext.P-6 registered sale deed executed for conveyance of the property W.P.(C)22947/11 - : 10 :-
in favour of the petitioner's minor daughter. When the allegations in Ext.P-3 are of the said nature, the plea for cancellation of sale deed would certainly not come within the domain and zone of Sec. 23(1) of the Act and the matter will have to be agitated before the civil court. Incidentally, it is also to be noted that the 2 nd respondent is also seen as the attesting witness to the above said sale transaction as can be seen from page no.9 of Ext.P-6 registered sale deed. In the light of all these cumulative aspects, this Court is of the considered view that the plea made in Ext.P-3 application for cancellation of the registered sale deed is not maintainable in terms of provisions contained Sec. 23(1) of the Act. The remedy of an aggrieved person in such cases is to approach the civil court for redressal of grievances in that regard and to seek setting aside of the deed, etc. In the light of the abovesaid aspects, it is only to be ordered that the Tribunal has egregiously erred in passing order as per Ext.P5 in cancelling Ext.P-6 deed and the Tribunal ought to have dismissed Ext.P-3 application as not maintainable. Moreover, the 1st respondent has already approached the civil court by filing the abovesaid O.S.No. 723/2010, which has been dismissed on 10.8.2018.
8. Sri.A.R.Gangadas, learned counsel appearing for the 2 nd respondent submits that this Court may reserve liberty to the 2 nd W.P.(C)22947/11 - : 11 :-
respondent to seek remedy for restoration of OS.No.723/2010, which was dismissed for default or for any other appropriate remedies in that regard to challenge the judgment and decree in OS.No.723/2010. In the light of the above aspects, it is ordered that the impugned Ext.P-5 order will stand set aside and it is ordered Ext.P-3 application will stand dismissed as not maintainable. However, it is made clear that the 2nd respondent will at liberty to challenge the dismissal of OS.No.723/2010, in the manner known to law and any such appropriate civil proceedings in that regard that may be instituted by the 2nd respondent will have to be decided independently and untramelled and influenced in any manner by the observations and findings in this judgment.
With these observations and directions the above Writ Petition (civil) will stand finally disposed of.
Sd/-
MMG
ALEXANDER THOMAS, JUDGE
W.P.(C)22947/11 - : 12 :-
APPENDIX
PETITIONER'S/S EXHIBITS:
P1 A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
P2 TRUE COPY OF THE ORDER DATED 13-7-2011 IN
J4.2011/21368/9 PASSED BY THE 1ST RESPONDENT P3 COPY OF THE APPLICATION BY R2 DTD.2.7.2010. P4. COPY OF THE COUNTER STATEMENT BY THE WIFE OF THE PETITIONER DTD.3.8.2010.
P5. COPY OF THE ORDER DTD.13.8.2010 IN M.T.NO.13/2010 PASSED BY THE MAINTENANCE TRIBUNAL.
P6. COPY OF THE RGD. SALE DEED DTD.19.2.2010.