Basheer K.U vs Amina Ummer
2021 Latest Caselaw 17637 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE SUNIL THOMAS
        FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                         WP(C) NO. 2192 OF 2021
PETITIONERS:

    1       BASHEER K.U.
            AGED 69 YEARS
            S/O.UMMER, KILIYANAL HOUSE, KIZHAKKEKARA, MUVATTUPUZHA
            P.O.

    2       JAMAL K.U.
            AGED 55 YEARS
            S/O.UMMER, KILIYANAL HOUSE, MUTHALAKODAM P.O.,
            THODUPUZHA.

            BY ADV T.M.ABDUL LATHEEF



RESPONDENT/S:

    1       AMINA UMMER
            KILIYANAL HOUSE, PARAPPUZHA, KODIKULAM VILLAGE,
            THODUPUZHA, IDUKKI, PIN - 685 582.

    2       ZAKEER
            KILIYANAL HOUSE, PARAPPUZHA, THODUPUZHA, IDUKKI, PIN -
            685 582.

    3       REVENUE DIVISIONAL OFFICER
            IDUKKI, PIN - 685 603.

            BY ADVS.
            SRI.GEORGE POONTHOTTAM (SR.)
            SMT.NISHA GEORGE



OTHER PRESENT:

            SR.GP BIMAL K NATH




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
2.08.2021, THE COURT ON 27/8/2021 DELIVERED THE FOLLOWING:
 WPC No.2192/2021                           2




                                    JUDGMENT

The petitioners herein are the children of the first respondent Amina Ummer.

She has three sons and five daughters born in her matrimonial relationship with one

Ummer. She is aged 87 years and is a widow. She had obtained property

comprised in C schedule in document No.210/1985 of Karikode SRO in old survey

No.902/2 -6 having an extent of 32.37 ares and 49.37 ares in Sy.No.902/2-4. While

so, first respondent granted permission to one Haridas by a licence deed

No.1549/2018 dated 22/5/2018, to extract granite for a period of 15 years. While

so, an extent of 81 ares and 74 sq.meters of land was settled by her in favour of

her three sons including the petitioners herein. Right of life interest was retained in

the above document.

2. By Ext.R1(a)complaint submitted before the RDO, Muvattupuzha, the first

respondent alleged that her two sons who are the petitioners herein had got the

above settlement deed executed by threat, coercion and on an undertaking that

they would maintain her. However, they refused to maintain her and had been

harassing her physically and mentally. It was stated that, they interfered in the

performance of the lease with Haridas by virtue of document No. 1549/2018, so

that the terms of the agreement could not be performed. It was contended by her

that, since the documents were got executed by threat and coercion and that the

petitioners herein failed to maintain her, the above document may be declared as

null and void by invoking section 23 of the Maintenance and Welfare of Parents

and Senior Citizens Act 2007 (hereinafter referred to as the Senior Citizens Act.)

3. The Tribunal, before whom the matter was placed, who is the third

respondent herein, after giving notice to both sides and after giving a reasonable

opportunity of being heard, by Ext.P4 order held that the document No.2836/2018

was got executed by the writ petitioners with threat and coercion and that after

getting the property assigned in their favour, violated the terms of the agreement

and thereby violated section 23 of the Senior Citizens Act. Accordingly, the

document was declared as null and void invoking section 23 of the Senior Citizens

Act. This order is under challenge in the proceedings.

4. Heard the learned counsel for the petitioners and the learned senior

counsel for respondents No.1.

5. Essential facts are not in dispute. It is an admitted fact that in a portion of

land one Haridas was given the permission to conduct quarry, The disputed

settlement deed is produced as Ext.P1. The above settlement deed is dated

5/11/2018, admittedly executed after the Senior Citizens Act was brought into force.

There is a specific reference in the document that the above property was obtained

by her by virtue of document No.210/1985 referred to as C schedule and out of it,

the scheduled property in the settlement deed was settled in favour of sons having

regard to love and affection towards them and that also for their maintenance.

There was a specific recital that she will be entitled to take usufructs from the

property during her life time and thus evidently a life interest is created in favour of

her. There is also no dispute that by Ext.P2 document dated 22/5/2018 executed

by Amina, right to extract granite was given to one Haridas, in a portion of the land

having an extent of 59.78 ares. There is a specific recital that the rent would be

paid to Amina. It is also stated therein that on completion of the period of lease,

possession would be handedover to Amina.

6. Records produced by both sides and the stand taken by the writ petitioners

clearly show that the relationship between the parties is strained. It is also clear

that regarding the running of quarry, there were several disputes and complaints

were laid by both sides. There is also nothing to show that petitioners have

maintained the mother.

7. On the basis of the inputs placed before the Maintenance Tribunal, it was

found that after the execution of the Deed, the writ petitioners herein had interfered

and obstructed in the running of quarry. It was also found that they interfered in

the enjoyment of the property by the mother thereby the terms of the settlement

deed was violated. In the statement recorded by the authority, the mother had

given statement that she was not being maintained by the children. She had also

asserted that the property was got executed by the two sons under threat and

coercion. She had also asserted that she was not maintained by the son and that

they had thereby violated the terms of the settlement. Consequently, the

settlement deed was canceled by Ext.P4 order.

8. The essential question that arises in the above case is whether invoking

section 23 , the Tribunal could have cancelled and declared the document as null

and void. Section 23 provides that when the property is transferred subject to the

condition that the transferee shall provide the basic amenities and basic physical

needs to the transferor and transferee refuses or fails to provide such amenities

and physical needs, the transfer of property shall be deemed to have been made by

fraud or coercion or under undue influence and can be declared as null and void.

Section 23 (2) provides that where the senior citizen has a right to receive

maintenance out of an estate, and such an estate or part thereof is transferred,

the right to receive maintenance may be enforced against a transferee with a

transferee has notice of the right or if the transfer is gratuitous, but not against a

transferee for consideration and without notice of the right.

9. This court in Shabeen Martin & another v. Muriel & another (2016 (5)

KHC 603) had held that if there are evidence to the satisfaction of the authorities

under the Act that requirement of section 23 are satisfied in a case, it is always

open to the authorities to invoke that power under section 23 of the Act and

invalidate the document. The grounds on which the transfer deed can be set aside

was discussed by this court in Radhamani & others v. State of Kerala (2016 (1)

KHC 9). The court in that case went to the extent of holding that it was not

necessary that there should be a specific recital or stipulation that the transferee

will provide basic amenities and physical need of the transferor. Thus even in the

absence of such a recital, if the transferee fails to provide basic amenities and

physical needs, the deed of transfer can be set aside.

10. Section 23 clearly indicates that it can be considered in two parts. The

first part is wherein the property is transferred by way of gift or otherwise, subject

to the condition that the transferee shall provide basic amenities and physical

needs to the transferor and such transferee refuses or fails to provide, a

presumption can be arrived at that the document was obtained by fraud, coercion

or undue influence and thus can be declared as void. The first part of the Act is a

case wherein he refuses to satisfy the basic amenities. and physical needs, or

fails to provide such amenities. A Full Bench of this court in Subasini v. District

Collector ( WA No.1460/2015) held that there must be a specific recital in the

transfer deed or one which may be explicit from the terms of the document

impliedly. It overruled the decision in Radhamani and others' case.

11. A perusal of the above documents clearly shows that, there is no specific

recital in the settlement deed that the petitioners are under an obligation to maintain

the mother. It is to be noted that though the Division Bench has specifically stated

that there should be a specific recital, that appears to be in relation to the clause

subject to which property is transferred. However, there are specific indications in

the present deed that the settlor had reserved the right of life interest in the

property, thereby indicating that, the settler proposed to depend on the income

from the property for her sustenance. Though settlement deed was executed and

possession purportedly created, a portion was in the physical possession of the

licensee. It was also provided that after lease period was over, the land shall be

surrendered to the first respondent. There are sufficient indications in the Act to

establish that in such a case also, the scope of section 23 can be extended. This is

clear from the co-reading of section 23(1) as well as section 23 (2). The statute in

its wisdom has used the terms "such transferee refuses or fails to provide such

amenities and physical needs" clearly indicates that two specific situation are

visualised. First one is a case wherein there is a specific recital in the document,

thereby a positive direction is imposed on the beneficiaries to maintain them. The

second is a situation wherein the settler retains the right of life interest or the right

to collect income from the property for a specified period. Then it has to be

reckoned that it was meant for sustenance and maintenance. The beneficiaries

under the settlement deed are bound to ensure that there is no obstruction to the

enjoyment of such right. In the present case, there is a clear indication in the

settlement deed that the settlement was subject to the right of life interest. Any

interference with that or any obstruction by the beneficiaries, definitely bring within

a case where the beneficiaries fail to provide such amenities and thus falls within

clause 23 (1) of the statute. This gets its statutory support from clause 23(2), which

provides that where a senior citizen has a right to receive maintenance out of an

estate and such estate or part thereof is transferred, the right of maintenance may

be enforced against the transferee, if such transferee has the notice of the right.

This gives an additional option to the settler to enforce the right to receive

maintenance against the transferee, if he has notice of such rights. Thereby clearly

two options are available to a person who settles the property by virtue of a life

interest. One is to get the document annulled under section 23 (1) and the second

one to enforce the right to receive the maintenance as against the beneficiaries

under the settlement.

12. In the light of the above observations, it is clear that the writ petitioners

herein have obstructed the enjoyment of the property by obstructing the life

interest which strikes at the essential clause of the settlement deed. Thus, the

presumption that the document was obtained by fraud or coercion or undue

influence as contemplated under section 23 can be canvassed and the document

is liable to be set aside.

In the light of the above reasonings, I find that that conclusion arrived at by

the authority by virtue of Ext.P4 declaring the document as null and void is liable

to be sustained. The original petition is without any merits and is accordingly

dismissed.

Sd/-

SUNIL THOMAS

Judge

dpk

APPENDIX OF WP(C) 2192/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED DATED 5/11/2018.

EXHIBIT P2              TRUE COPY OF THE LEASE AGREEMENT DATED
                        22/5/2018.

EXHIBIT P3              TRUE COPY OF THE PHOTOGRAPH.

EXHIBIT P4              TRUE COPY OF THE ORDER DATED 31/12/2020.

EXT.P5: COPY OF THE REPORT DATED 25/1/2021 ALONG WITH THE MEMO SUBMITTED BY DISTRICT GEOLOGIST IN W.P.(C) NO.1283/2021 DATED 1-2-2021

EXT.P6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD RESPONDENT IN W.P. (C) NO.1283/2021 DATED 8/2/2021 8/2/2021

EXT.P7: COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT WHICH IS PRODUCED ALONG WITH HER COUNTER AFFIDAVIT IN W.P.(C) NO.1283/2021.

EXT.P8: COPY OF THE PHOTOGRAPH

EXT.P9: COPY FO THE INTIMATION DATED 19/2/2021

EXT.P10: COPY FO THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SECRETARY KERALA STATE REVENUE DEPARTMENT DATED 23/12/2020

EXT.P11: COPY OF THE LETTER RECEIVED FROM THE PRINCIPAL SECRETARY TO GOVERNMETN DATED 17/12/2020.

RESPONDENTS EXHIBITS:

EXT.R1(A): COPY OF THE COMPLAINT SUBMITTED BY THE 1ST RESPONDENT BEFORE THE RDO, IDUKKI.

EXT.R1(B): COPY OF THE APPLICATION SUBMITTED BY THE 1ST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL DATED NIL

EXT.R1(C): COPY OF THE NOTICE NO. B3-457/2020 ISSUED BY THE MAINTENANCE TRIBUNAL DATED 30/6/2020

EXT.R1(D): COPY OF THE HAJAR SHEET DATED 3/7/2020

EXT.R1(E): COPY OF THE NOTICE NO.B3-457/2020 ISSUED BY THE MAINTENANCE TRIBUNAL DATED 19/8/2020

EXT.R1(F): COPY OF THE HAJAR SHEET DATED 24/8/2020

EXT.R1(G): COPY OF THE NOTICE NO. B3-457/2020 ISSUED BY THE MAINTENANCE TRIBUNAL DATED 14/12/2020

EXT.R1(H): COY OF THE JAJAR SHEET DATED 17/12/2020

EXT.R1(I) COPY OF THE STATEMENT GIVEN BY THE 1ST RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL DATED 17/12/2020

EXT.R1(J): COPY OF THE SAEMENT GIVEN BY THE 2ND RESPONDENT BEFORE THE MAINTENANCE TRIBUNAL DATED 17/12/2020

EXT.R1(K): COPY OF THE PROCEEDINGS RECORDED BY THE PRESIDING OFFICER, DATED 17/12/2020

EXT.R1(I) : COPY OF THE NOTE FILE OF THE MAINTENANCE TRIBUNAL WITH REGARD TO THE COMPLAINT OF THE 1ST RESPONDENT.