P.D James vs District Collector

Kerala High Court

P.D James vs District Collector on 21 May, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                WP(C) NO. 23529 OF 2023
PETITIONER:

         P.D JAMES,
         AGED 90 YEARS, S/O LATE DEVASSIYA,
         PAMBLANI HOUSE, 380/4, 4TH BLOCK, BYPASS ROAD,
         GONIKKUPPA, COORG, KARNATAKA, PIN - 571213.

         BY ADVS.
         NANDAGOPAL S.KURUP
         ABHIRAM T.K.


RESPONDENTS:

    1    DISTRICT COLLECTOR,
         COLLECTORATE, THAVAKKARA,
         KANNUR, PIN - 670002.

    2    REVENUE DIVISIONAL OFFICER,
         COLLECTORATE, THAVAKKARA,
         KANNUR, PIN - 670002.

    3    JOLLY P.J,
         S/O JAMES,
         BEHIND C.I.T COLLEGE, PONNAMPETTA,
         HALLIGATT P.O, COORG
         KARNATAKA, PIN - 571216.

         BY ADVS.
         SRI.CIBI THOMAS
         SMT.REKHA C NAIR, SR. GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP       FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.23529/2023
                                       :2:




                           N. NAGARESH, J.

          `````````````````````````````````````````````````````````````
                      W.P.(C) No.23529 of 2023

          `````````````````````````````````````````````````````````````
                Dated this the 21st day of May, 2024


                            JUDGMENT

~~~~~~~~~ Petitioner, who is a senior citizen, is before this Court aggrieved by Ext.P3 order passed by the Maintenance Tribunal and Ext.P5 order passed by the Appellate Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

2. The petitioner states that he is owner of 0.6070 Hectares of land in Iritty Taluk. The petitioner executed a gift deed No.1892/2015 of Uliyil SRO in favour of the 3 rd respondent-son. According to the petitioner, the recitals in Ext.P1 gift deed stipulated that the donor is entitled to enjoy the income derived from the property and to cut and remove the teak trees standing on the property.

:3:

3. The petitioner states that when he visited the property in June, 2022, he found that all the teak trees valued more than ₹10 lakhs were cut, removed and sold by the 3rd respondent. The petitioner was thus deprived of his right to receive maintenance out of the estate that was gifted to the 3rd respondent. The petitioner therefore filed an application before the Maintenance Tribunal seeking to initiate action under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. In his Ext.P2 application, the petitioner sought maintenance and to declare Ext.P1 gift deed as void in terms of Section 23.

4. By Ext.P3 order, the Tribunal directed the 3 rd respondent and other male children of the petitioner to pay a sum of ₹2,000/- per month to the petitioner. However, the Tribunal failed to adjudicate on the issue of validity of Ext.P1 gift deed. The petitioner therefore preferred Ext.P4 appeal before the Appellate Tribunal. The Appellate Tribunal held that the 3rd respondent and other children have been paying maintenance as ordered by the Maintenance Tribunal and it W.P.(C) No.23529/2023 :4: was not necessary to interfere with Ext.P3 order. The appeal was consequently dismissed as per Ext.P5 order.

5. The counsel for the petitioner argued that the petitioner had reserved life interest and his right to receive maintenance out of the property covered by Ext.P1. The 3 rd respondent, however, cut, removed and sold all the teak trees standing in the property without the consent of the petitioner. The petitioner has been thus deprived of his right to receive maintenance out of the property covered by Ext.P1. In the circumstances, the Maintenance Tribunal and Appellate Tribunal ought to have declared Ext.P1 deed as void. The petitioner seeks to direct the Maintenance Tribunal to reconsider the matter afresh.

6. The 3rd respondent contested the writ petition filing counter affidavit. The 3rd respondent submitted that it is the petitioner who himself who had cut and removed trees from the property in the year 2016. The petitioner had also cut and removed yielding rubber trees from the property. The petitioner has been in absolute control over the income from W.P.(C) No.23529/2023 :5: the property.

7. The 3rd respondent further submitted that Ext.P1 was executed not on the basis of any understanding as contended by the petitioner. There is no such condition in Ext.P1. The only condition in Ext.P1 is that the petitioner is entitled to take income from the property. The petitioner has been taking income from the property. The writ petition is therefore without any merit.

8. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader representing respondents 1 and 2 and the learned counsel for the 3 rd respondent.

9. The application submitted by the petitioner before the Maintenance Tribunal sought to declare Ext.P1 gift deed as void in terms of Section 23. The petitioner in alternative sought to declare his rights to receive maintenance out of the estate covered by Ext.P1 deed. By Ext.P2 order, the Maintenance Tribunal ordered maintenance to be paid by male children of the petitioner at the rate of ₹2,000/- per W.P.(C) No.23529/2023 :6: month. The Tribunal in effect rejected the prayer of the petitioner relating to Ext.P1 settlement deed. The Appellate Tribunal, as per Ext.P5, rejected the appeal filed by the petitioner finding that the children of the petitioner are paying maintenance as ordered by the Maintenance Tribunal.

10. The question arising is whether any interference is called for in Exts.P3 and P5 orders. With regard to setting aside conveyance deeds under Section 23(1) of the Act, a Full Bench of this Court answered the question in the judgment in Subhashini v. District Collector [2020 (5) KLT 533]. This Court 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.

11. Ext.P1 document is a settlement deed wherein there is a reservation of right of usufructs from the property and also over the teak trees standing in the property, in W.P.(C) No.23529/2023 :7: favour of the petitioner. Ext.P1 does not make any provision for basic amenities and basic physical needs to the petitioner expressly or by way of necessary implication. Therefore, the Tribunal rejected the prayer to unsettle Ext.P1 document and awarded maintenance to the petitioner.

I do not find any illegality in Ext.P3 or Ext.P5 orders. The writ petition is therefore dismissed.

Sd/-

N. NAGARESH, JUDGE aks/14.05.2024 W.P.(C) No.23529/2023 :8: APPENDIX OF WP(C) 23529/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE GIFT DEED NUMBERED 1892/2015 DATED 04.07.2015.

Exhibit P2 TRUE COPY OF THE APPLICATION DATED 15.07.2022 PREFERRED BY THE PETITIONER BEFORE THE MAINTENANCE TRIBUNAL- THE SECOND RESPONDENT.

Exhibit P3              TRUE   COPY   OF   THE   ORDER   DATED
                        08.10.2022 PASSED BY THE MAINTENANCE
                        TRIBUNAL-THE SECOND RESPONDENT.
Exhibit P4              TRUE COPY OF THE APPEAL MEMORANDUM
                        DATED 08.11.2022 PREFERRED BY THE
                        PETITIONER     BEFORE     THE    FIRST
                        RESPONDENT.
Exhibit P5              TRUE   COPY   OF   THE   ORDER   DATED
                        02.02.2023 PASSED BY THE APPELLATE
                        TRIBUNAL - THE FIRST RESPONDENT.

ESPONDENT'S EXHIBIT

Exhibit R3(a)           TRUE COPY OF THE AGREEMENT DATED
                        04.03.2020 ENTERED INTO BETWEEN THE
                        PETITIONER AND VARGHESE.