Kerala High Court
Maya V.R vs District Collector And Maintenance ... on 7 February, 2025
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WP(C) NO.31862 OF 2019 2025:KER:14803
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
WP(C) NO.31862 OF 2019
PETITIONER:
MAYA V.R,
AGED 42 YEARS, W/O. MANIKANTAN,
KIZHAKETHIL VEEDU, PNRA 42, SREEKRISHNA LANE,
AMBALAMUKKU, KOWDIAR P.O., THIRUVANANTHAPURAM.
BY ADVS.
ANEESH JAMES
JIJO THOMAS
M.D.BEENA
NEHA VIJAY
RESPONDENTS:
1 DISTRICT COLLECTOR AND MAINTENANCE APPELLATE TRIBUNAL,
THIRUVANANTHAPURAM, COLLECTORATE,
KUDAPPANAKKUNNU P.O., THIRUVANANTHAPURAM-695043.
2 REVENUE DIVISIONAL OFFICER AND MAINTENANCE TRIBUNAL,
COLLECTORATE, KUDAPPANAKKUNNU P.O.,
THIRUVANANTHAPURAM-695043.
3 AMBALAMUKKU RESIDENTS' ASSOCIATION,
REPRESENTED BY ITS SECRETARY,
HOUSE NO.M5, MURALI NAGAR, PEROORKADA P.O.,
THIRUVANANTHAPURAM-695005.
4 BEENA M.J.,
W/O.LATE RADHAKRISHNAN NAIR,
PARADISE, TC 5/2063, PNRA-F9, SREEKRISHNA LANE,
KOWDIAR P.O., THIRUVANANTHAPURAM-695003.
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WP(C) NO.31862 OF 2019 2025:KER:14803
5 ABHAY KRISHNAN,
S/O.LATE RADHAKRISHNAN NAIR,
PARADISE, TC 5/2063, PNRA-F9, SREEKRISHNA LANE,
KOWDIAR P.O., THIRUVANANTHAPURAM-695003.
BY ADVS.
REJI GEORGE
BINOY DAVIS
OTHER PRESENT:
R1 AND R2 BY SRI.T.JAYAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C) NO.31862 OF 2019 2025:KER:14803
JUDGMENT
Petitioner has filed the captioned writ petition challenging certain proceedings issued with reference to the provisions of Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act'), by which Ext.P1 gift deed dated 30.07.2016, executed by one Sarasamma in her favour, stood cancelled. The short facts necessary for the disposal of this writ petition are as follows:
Deceased Sarasamma was married to one Ramakrishna Pillai, who was earlier married to another lady. In his first marriage Sri.Ramakrishna Pillai had a son named Radhakrishnan Nair, who was married to the 4th respondent herein. The 5th respondent herein is the son of the deceased Radhakrishnan Nair and the 4th respondent herein. The writ petitioner contends that the deceased Sarasamma was not being looked after by afore 4th and 5th respondents or the deceased 4 WP(C) NO.31862 OF 2019 2025:KER:14803 Radhakrishnan Nair, and the petitioner being the neighbour, was looking after the deceased Sarasamma. It is taking that into account, the petitioner contends, that deceased Sarasamma executed Ext.P1 gift deed. However, the 3rd respondent Residents' Association submitted Ext.P4 complaint dated 09.08.2016 before the 2nd respondent herein, essentially contending that the deceased Sarasamma was not legally competent to execute Ext.P1 gift deed. Upon receipt of the afore complaint, notices were issued to the near relatives -deceased Radhakrishnan Nair. It is on that basis deceased Radhakrishnan Nair and 4th and 5th respondents herein came into the picture. On the basis of the complaint filed as above and also after taking into account the contentions raised by the deceased Radhakrishnan Nair and respondents 4 and 5, Ext.P7 dated 05.10.2016 is issued by the Revenue Divisional Officer (2nd respondent herein) setting aside Ext.P1 gift deed exercising the powers under Section 23(1) of the Act. Though an appeal was preferred by 5 WP(C) NO.31862 OF 2019 2025:KER:14803 the petitioner herein, the appellate authority rejected the same, originally. In such circumstances, the petitioner was before this Court on an earlier occasion, assailing the orders issued by the appellate authority. This Court, by Ext.P11 judgment dated 12.11.2018 judgment, took into consideration the contentions raised by respondents 4 and 5 herein, who were respondents 5 and 6 in that writ petition, and came to the conclusion that unless and until there is any evidence to the effect that respondents 5 and 6 therein, or for that matter, deceased Radhakrishnan Nair was taking care of deceased Sarasamma, the question of their objections being considered does not arise at all. Finding thus, the matter was remitted back to the appellate Tribunal, for fresh consideration.
2. In the second round, the learned Tribunal issued Ext.P14 and upheld the cancellation of the gift deed, as originally ordered in Ext.P7.
3. It is in the afore circumstances that, the captioned 6 WP(C) NO.31862 OF 2019 2025:KER:14803 writ petition is filed by the petitioner herein.
4. I have heard Sri.Aneesh James, learned counsel for the petitioner Sri.T.Jayan, learned Government Pleader, and Sri.Joseph Raju Mathews, the learned counsel for respondents 4 and 5 herein.
5. The short issue arising for consideration in this writ petition is as to whether the findings in Ext.P14 sustaining Ext.P7 can be upheld or not. The original proceedings at Ext.P7 was issued with reference to the provisions of Section 23(1) of the Act. The provisions of Section 23(1) read 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 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 7 WP(C) NO.31862 OF 2019 2025:KER:14803 declared void by the Tribunal."
The afore provision would come into play only in a situation where the git deed, which is sought to be declared as null and void is containing a condition that the transferee was required to provide "basic amenities and basic physical needs to the transferor" and even after there being such a recital in the gift deed, transferee refuses/ fails to provide such amenities.
6. The effect of the afore has been considered by a Full Bench of this Court in Subhashini v. District Collector, Kozhikode and Ors. [2020 (5) KLT 533], finding as under:
"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. 8 WP(C) NO.31862 OF 2019 2025:KER:14803 Rajan Ponnarassery). We find Shabeen Martin v. Muriel [MANU/KE/2026/2016: 2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [ANU/KE/0481/2018: 2018 KHC 4655 : 2013 (3) KLT 1082] to be wrongly decided. We approve Radhamani v. State of Kerala [MANU/KE/ 2493/2015 : 2016 (1) KHC 9] which had a recital in the document akin to that required under Section 23(1)."
In the light of the afore, the question to be considered is as to whether the averments in Ext.P4 complaint were enough for the 2nd respondent to have taken proceedings under the Act. As is already noticed, Ext.P4 has been filed only on the basis of the allegation that, the deceased Sarasamma was not legally competent to execute the gift deed.
7. Apart from this, there is no allegation as was required under Section 23. The 3rd respondent association will also be not in a position to make any such allegation.
8. I have also perused the recitals of Ext.P1 gift deed. It is categoric from a reading of the afore that the deceased Sarasamma, apart from preserving her right to reside in the property during her lifetime, never expected the transferee 9 WP(C) NO.31862 OF 2019 2025:KER:14803 (petitioner) to extend the basic amenities, etc., as required under Section 23. When that be so, I am of the opinion that the 2nd respondent was never having any jurisdiction under the provisions of Section 23(1) of the Statute. Resultantly, the subsequent appellate orders, culminating in Ext.P14 also, have to fall to the ground.
In the result, this writ petition would stand allowed by setting aside Ext.P14 issued by the appellate Tribunal. It is also declared that the provisions of Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, are not attracted to Ext.P1 gift deed in question.
Sd/-
HARISANKAR V. MENON
JUDGE
Skk//21.02.2025
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WP(C) NO.31862 OF 2019 2025:KER:14803
APPENDIX OF WP(C) NO.31862 OF 2019
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF GIFT DEED NO.1815/2016 OF SUB
REGISTRY OFFICE, SASTHAMANGALAM DATED 30.7.2016.
EXHIBIT P2 TRUE COPY OF OUT PATIENT RECORD DATED 4.8.2016 ISSUED BY DISTRICT MODEL HOSPITAL, PEROORKADA.
EXHIBIT P3 TRUE COPY OF THE REGISTRATION CARD OF SMT.SARASAMMA ISSUED BY SANTHAWANA HOSPITAL.
EXHIBIT P4 TRUE COPY OF COMPLAINT FILED BY 3RD RESPONDENT BEFORE DISTRICT COLLECTOR, TVM. DATED 9.8.2016.
EXHIBIT P5 TRUE COPY OF REPRESENTATION FILED BY PETITIONER DATED 18.8.2016 BEFORE THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE STATEMENT OF SRI.RADHAKRISHNAN NAIR BEFORE 2ND RESPONDENT DATED 22.9.2016.
EXHIBIT P7 TRUE COPY OF ORDER NO.J/14237/16 DATED 5.10.2016 OF THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF APPEAL MEMORANDUM NO.A4/103607/16 DATED 8.12.2016 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT. EXHIBIT P9 TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF 1ST RESPONDENT TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE ORDER NO.A/103607/16/L.DIS. DATED 23.6.2017 OF 1ST RESPONDENT.
EXHIBIT P11 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.23868/2017 DATED 12.11.2018. 11
WP(C) NO.31862 OF 2019 2025:KER:14803
EXHIBIT P12 TRUE COPY OF STATEMENT DATED 10.7.2019
FILED BY THE 3RD RESPONDENT ALONG WITH
DOCUMENTS BEFORE 1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF STATEMENT ALONG WITH DOCUMENTS
DATED 17.7.19 FILED BY RESPONDENTS 4 & 5
BEFORE 1ST RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE ORDER OF THE 1ST
RESPONDENT.