Damodaran Nair vs District Collector & Appellate ...

Kerala High Court

Damodaran Nair vs District Collector & Appellate ... on 20 May, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                WP(C) NO. 33788 OF 2023
PETITIONER:

         DAMODARAN NAIR
         AGED 82 YEARS, S/O. PARAMESHWARAN NAIR,
         MANNIL PULICKAL (HOUSE), MANNADI.P.O., ADOOR,
         PATHNAMTHITTA DISTRICT, PIN - 691530

         BY ADVS.
         SHAIJAN JOSEPH
         SURUMI SHAKEEL
         SINI SALVA
         SINDHU A.G.
RESPONDENTS:

    1    DISTRICT COLLECTOR & APPELLATE TRIBUNAL
         (THE MAINTENANCE AND WELFARE OF PARENTS AND
         SENIOR CITIZENS ACT, 2007)
         PATHNAMTHITTA DISTRICT,
         PATHNAMTHITTA, PIN - 689645
    2    REVENUE DIVISIONAL OFFICER & THE MAINTENANCE
         TRIBUNAL
         (THE MAINTENANCE AND WELFARE OF PARENTS AND
         SENIOR CITIZENS ACT, 2007)
         OFFICE OF THE REVENUE DIVISIONAL OFFICER,
         ADOOR, PIN - 691523
    3    SANILKUMAR
         S/O DAMODARAN NAIR, AGED 44 YEARS
         MANNIL PULICKAL (HOUSE), MANNADI.P.O.
         ADOOR, PATHNAMTHITTA DISTRICT, PIN - 691530

         BY ADV
         SRI.DILEEP P V FOR R3
         SRI.K.M.FAIZAL, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.33788/2023
                                       :2:




                           N. NAGARESH, J.

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                       W.P.(C) No.33788 of 2023

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                Dated this the 20th day of May, 2024


                            JUDGMENT

~~~~~~~~~ The petitioner, who is a senior citizen of 82 years of age, is before this Court seeking to direct respondents 1 and 2 to cancel Ext.P1 settlement deed and to implement Ext.P5 order.

2. The petitioner states that owing to love and affection, the petitioner conveyed his properties to the 3 rd respondent-son as per Ext.P1 settlement deed dated 09.01.2017. After obtaining title to the property, the 3 rd respondent started to harass the petitioner and his wife. The petitioner therefore submitted Ext.P2 police complaint on 31.03.2021. When the police failed to take action, the petitioner filed a petition before the Tribunal constituted W.P.(C) No.33788/2023 :3: under the Kerala Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

3. By Ext.P3 order, the Tribunal held that the petitioner and his wife are entitled to protection. The petitioner is entitled to live in the house during his life time. The Tribunal directed the 3 rd respondent to ensure peaceful life of the petitioner and his wife in the property. The Tribunal further directed that the petitioner and his wife should not be harassed in any manner.

4. As the Tribunal failed to set aside the settlement deed, the petitioner filed Ext.P4 appeal seeking to cancel the settlement deed. The Appellate Tribunal disposed of the appeal as per Ext.P5 order upholding the right of the petitioner and his wife for peaceful residence in the property. However, the Appellate Authority also did not grant any relief to the petitioner as regards cancellation of the settlement deed.

5. The petitioner contended that he was subjected to cruel treatment after the execution of settlement deed in W.P.(C) No.33788/2023 :4: favour of the 3rd respondent. Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 provides for cancellation of any deed executed by the parents in favour of the children, if the children do not comply with their bounden duty to protect the parents.

6. The 3rd respondent resisted the writ petition filing a statement. On behalf of the 3 rd respondent, it is submitted that he is an Ex-serviceman. The 3rd respondent has not harassed the petitioner as alleged. He is having a small shop near the house and he is suffering from several ailments. The sister of the petitioner was against the partition of the property and it is at the behest of the sister that the complaint was filed. The 3 rd respondent is still ready to look after his parents. There is no merit in the writ petition and it should be dismissed with cost, urged the 3 rd respondent.

7. I have heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the 3 rd W.P.(C) No.33788/2023 :5: respondent.

8. The petitioner had approached the Maintenance Tribunal seeking protection and cancellation of Ext.P1 settlement deed. By Ext.P1 settlement deed, the petitioner had conveyed his property to the 3 rd respondent. The recitals in Ext.P1 show that the petitioner and his wife has retained life interest in the property.

9. A Full Bench of this Court in the judgment in Subhashini v. District Collector [2020 (5) KHC 195] has held 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.

10. A perusal of Ext.P1 does not indicate that there is any provision made therein for ensuring basic amenities or basic physical needs of the petitioner or his wife. There is only a reservation of right of enjoyment of the property during W.P.(C) No.33788/2023 :6: the life time of the petitioner. There is no condition as required under Section 23(1) expressly stated in the document. The life interest reserved in Ext.P1 cannot lead to such a conclusion being implied or inferred.

In the circumstances, I find that there is no merit in the writ petition. The writ petition is therefore dismissed.

Sd/-

N. NAGARESH, JUDGE aks/14.05.2024 W.P.(C) No.33788/2023 :7: APPENDIX OF WP(C) 33788/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED DATED 09-1-2017 OF SRO KADAMBANAD Exhibit P2 TRUE COPY OF THE PETITION DATED 31-3- 2021 SUBMITTED BY PETITIONER BEFORE THE CIRCLE INSPECTOR OF POLICE, ENATH POLICE STATION Exhibit P3 TRUE COPY OF THE ORDER DATED 3.3.2022 ISSUED BY THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE APPEAL DATED 28.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P5 TRUE COPY OF THE ORDER DATED 25.7.2023 PASSED BY THE 1ST RESPONDENT RESPONDENT'S EXHIBITS EXHIBT-R3(1) THE COPY OF THE SALE DEED NO.

421/2014/I OF THEVALAKKARA S.R.O DATED 13.03.2014 EXHIBT-R3(2) THE TRUE COPY OF ORDER PASSED IN M.C.NO. 108/2021 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT ADOOR FILED BY THE WIFE OF THE 3RD RESPONDENT.