Kerala High Court
Prakash Kumar vs Rajendran Pillai on 22 January, 2021
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
WP(C).No.14469 OF 2020(G)
PETITIONER/S:
PRAKASH KUMAR,
AGED 50 YEARS,
MUTTATHETHU VEEDU, KIOIPALLYKARAZHMA, MURI,
OOLAKETTIYAMBALAM P O , PERINGALA VILLAGE,
MAVELIKARA.
BY ADVS.
SHRI.P.SREEKUMAR
SRI.K.ARJUN VENUGOPAL
SHRI.ASWIN KUMAR M J
SMT.HELAN P.A.
RESPONDENT/S:
1 RAJENDRAN PILLAI,
VENI NIVAS, KOIPALLY KARAZHMA MURI,
OOLAKETTIYAMBALAM P O, PERINGALA VILLAGE,
MAVELIKARA, PIN-690510.
2 OMANA AMMA,
W/O. RAJENDRAN PILLAI,
KIOIPALLY KARAZHMA MURI, OOLAKETTIYAMBALAM P O,
PERINGALA VILLAGE, MAVELIKARA, PIN-690510.
3 THE PRESIDING OFFICER,
MAINTENANCE TRIBUNAL, CHENGANNUR-689121.
R1& R2 BY ADVS. SRI.GEORGE VARGHESE
(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.RAJAN G. GEORGE
SRI.MANU SRINATH
R3 BY SRI JESTIN MATHEW, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.14469 OF 2020(G) 2
JUDGMENT
~~~~~~~~ The respondents 1 and 2 are the parents of the petitioner. They approached the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and preferred a petition contending inter alia that an item of property, wherein they have been residing, was settled in favour of the petitioner by a settlement deed dated 13.01.2012 reserving their life estate and take usufructs. They contended that they were persuaded to execute the settlement deed on the basis of the assurance given by the petitioner that their needs would be taken care of and they will not be turned out.
2. The petitioner, who is an ex-serviceman, put up a new residential building in the property owned by him and situated adjacent to the property settled by the father. Some portions of the property covered under the settlement deed was also utilised for the construction.
3. Later disputes arose between the son and the parents. A suit was instituted by the petitioner and his wife before the Munsiff Court, Kayamkulam to get the boundary fixed in accordance with law. The respondents 1 and 2 complain that they were driven out. WP(C).No.14469 OF 2020(G) 3
4. The Maintenance Tribunal initially passed an order directing the petitioner and his family to vacate the premises to enable the respondents 1 and 2 to spend the rest of their life in the settled property. The petitioner challenged the order and by judgment dated 19.8.2019 in W.P.(C) No.9613 of 2017, this Court directed the Tribunal to reconsider the complaint taking note of the prayer sought for under Section 23 of the Act and pass orders in an expeditious manner.
5. The Tribunal conducted the enquiry as ordered and rendered Exhibit P7 order declaring the sale deed to be void.
6. The above order is under challenge.
7. Sri. P. Sreekumar, the learned counsel appearing for the petitioner, submitted that the order passed by the Tribunal cannot be sustained in view of the law declared by a Full Bench of this Court in Subhashini v. District Collector [2020 (5) KLT 533].
8. Sri A.R. Dileep, the learned counsel appearing for the respondents 1 and 2, on the other hand, submitted that in Exhibit P2 complaint, the 1st respondent had sought for two reliefs. The first prayer was for declaring the settlement deed as void and the alternative prayer was for passing appropriate orders to rehabilitate the 1st respondent and his wife by issuing appropriate directions. It is contended that the respondents 1 and 2 have been driven out of their WP(C).No.14469 OF 2020(G) 4 own home and they are residing in rented premises at the moment.
9. In response, the learned counsel appearing for the petitioner submitted that the 1st respondent had left the house on his own and he was never driven out.
10. I have considered the submissions.
11. In paragraph No 52 of Subhashini (supra), their Lordships of the Full Bench had laid down as follows.
"52 We conclude by answering the reference, that the condition as required under S.23(1) for provision of basic amenities and basic physical needs to a senior citizen 558 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 S.23(1) and proceeding on a summary enquiry. ...........
12. In the settlement deed executed by the 1st respondent in favour of the petitioner, no such conditions as required in Section 23(1) of the Act has been stated. All that is mentioned is that the parents will have life estate and will have the right to enjoy the usufructs. In that view of the matter, the order passed by the Tribunal declaring as void, the settlement deed executed by the 1st respondent cannot be sustained.
13. In the course of proceedings before this Court, the 1st WP(C).No.14469 OF 2020(G) 5 respondent has filed I.A. No 1 of 2021 and have produced Exhibit R1(a) application submitted by the parents before the Maintenance Tribunal. In the application, the respondents 1 and 2 have requested the Tribunal and to take steps for their rehabilitation.
14. The learned counsel appearing for the petitioner submits that in view of the law laid down in Subhashini (supra), if the request made by the respondents 1 and 2 for declaring the sale deed as void cannot be sustained, the Tribunal be directed to consider Exhibit R1(a) which is pending before the said authority and pass orders.
15. Having regard to aforesaid reasons, Exhibit P7 order passed by the Tribunal will stand set aside. The matter is remitted back to the Maintenance Tribunal with a direction to consider the alternative prayer sought for by the respondents 1 and 2 in the light of Exhibit R1(a) and pass fresh orders in accordance with law, expeditiously, at any rate, within a period of eight weeks from today.
This writ petition will stand allowed.
SD/-
RAJA VIJAYARAGHAVAN V JUDGE ps/27.1.2021 WP(C).No.14469 OF 2020(G) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SETTLEMENT DEED NO.134/2012 OF BHARANIKKAVU SUB REGISTRY.
EXHIBIT P2 A TRUE COPY OF THE COMPLAINT DATED 25.10.2016.
EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 28.01.2020.
EXHIBIT P4 A TRUE COPY OF THE PLAINT IN OS NO.20 OF 2020 PENDING BEFORE THE MUNSIFF COURT, KAYAMKULAM.
EXHIBIT P5 A TRUE COPY OF THE ORDER NO.I-5285/16 DATED 2.3.2017 EXHIBIT P6 A TRUE COPY OF JUDGMENT IN WPC NO.9613 OF 2017 BEFORE THE HON'BLE COURT.
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED
09.03.2020 ISSUED BY THE 3RD
RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT-R1(A) A TRUE COPY OF THE COMPLAINT FILED BY
RESPONDENTS 1 & 2 BEFORE THE 3RD
RESPONDENT ON 11.12.2020 WITH RECEIPT.
//TRUE COPY// P.A.TO JUDGE