Kerala High Court

Ramakrishnan Nair vs Surendran on 6 July, 2021

W. A. No. 789 of 2021             -1-



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                    &
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                          WA NO. 789 OF 2021
    AGAINST THE JUDGMENT IN WP(C) 28734/2020 OF HIGH COURT OF
                           KERALA, ERNAKULAM
APPELLANT/S:

             RAMAKRISHNAN NAIR, AGED 95 YEARS
             S/O.LATE PARUMMA, PATTIYIL HOUSE, CHELAKOTTU P.O.,
             PAZHAYANNUR, THRISSUR DISTRICT-680 587, PRESENTLY
             RESIDING AT C/O.S.MUGNTHAN, 56, THIMMYAN PUDUR,
             RANGASAMUDRAM P.O., SATHYAMANGALAM, ERODE DISTRICT,
             TAMIL NADU, PIN-638 402.
             BY ADVS.
             PRABHU K.N.
             MANUMON A.
             MANEESH.R


RESPONDENT/S:

     1       SURENDRAN,
             AGED 51 YEARS
             S/O.GOPALAN NAIR, PATTIYIL HOUSE, CHELAKOTTU P.O.,
             PAZHAYANNUR, THRISSUR DISTRICT-680 587.
     2       THE STATE OF KERALA,
             REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
             REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM DISTRICT-695 001.
     3       THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR,
             OFFICE OF THE SUB COLLECTOR, COLLECTORATE, CIVIL
             LANES, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN-680
             003.
             BY ADV G.SREEKUMAR (CHELUR) FOR R1
             ADV. TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R2



      THIS     WRIT   APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W. A. No. 789 of 2021            -2-




                         JUDGMENT

Shaji P. Chaly, J.

The 3rd respondent in W. P. (C) No. 28734 of 2020 has preferred

this appeal challenging the judgment of the learned Single Judge dated

12.02.2021, whereby the learned Single Judge allowed the writ

petition filed by the 1st respondent in the appeal, after setting aside

Ext. P3 order passed by the Sub Collector and Maintenance Tribunal,

Thrissur, constituted as per the provisions of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (hereinafter called as

'Act 2007').

2. The paramount contention advanced by the writ petitioner

was that the appellant has executed a settlement deed in favour of the

1st respondent, who is none other than the nephew of the appellant,

without any reservations and conditions in the document and therefore

the cancellation of the deed made by the tribunal cannot be sustained

under law.

3. On the other hand the appellant contended before the learned

Single Judge that the issue is squarely covered by a judgment of a

learned Single Judge of this Court in Radhamani v. State of Kerala

[2016 (1) KLT 185] which was approved by a Full Bench of this

Court in Subhashini v. District Collector [2020 (5) KLT 533 (F.B.)].

4. Anyhow the learned Single Judge after taking into account

the rival submissions was of the clear opinion that the appellant is not

entitled to get benefit of the judgment in Radhamani (supra) and has

clearly held that in order to secure advantage of the provisions of

Section 23 of Act 2007, there should be a recital that transferee was

under an obligation to maintain the transferor and it was found

specifically in Radhamani's case that there was a specific recital in the

document casting duty on the transferee to maintain the transferor

which was the basis for affirming the judgment in Radhamani (supra)

in Subhashini (supra).

5. The relevant paragraph of the judgment is extracted for the

purpose of clear appreciation of the questions raised in the appeal:-

"10. On an evaluation of the entire facts, in the light of the Full Bench decision of this Court in Subhashini's case as well as in S.Vanitha's case, it is evident that in the absence of a specific recital in the document that the transferee was obliged or

has undertaken or was bound to provide for basic amenities to the transferor, section 23 of the Act cannot be invoked to set aside a document of transfer. In the light of the above, the order of the 2nd respondent setting aside Ext.P1 on the ground that the petitioner had failed to take care of the third respondent is not legally sustainable. Evidently, there are some materials to indicate that the third respondent is residing away from the petitioner. However, since the prayer in the application was confined to setting aside the document and that was the only relief sought and agitated before this court also, the only option available to this court is to set aside the impugned order as not legally sustainable. In the light of this finding, the first contention of the learned counsel for petitioner that the order passed by the court below was in breach of principle of natural justice need not be further considered. The impugned order is set aside."

6. The paramount contention raised by the appellant is that it is

very specifically stated in the settlement deed that the appellant is

residing with the 1st respondent and the consideration for the same is

love and affection, however the 1st respondent is not providing basic

amenities and taking care of the physical needs of the appellant, and

therefore it must be presumed that the appellant expected continuation

of care and love from the 1st respondent even after execution of the

deed in the same manner he was taken care prior to execution of the

deed. But since the 1st respondent failed to discharge the obligations

and duties which was the consideration for executing the settlement

deed in his favour, the appellant was entitled as of right to move the

tribunal and the tribunal was justified and correct in canceling the

deed in question.

7. It was also submitted that the learned Single Judge failed to

appreciate the findings of the learned Single Judge and the proposition

of law laid down in the judgment in Radhamani (supra) and the

findings rendered by the Full Bench in that regard in Subhashini

(supra), in the correct perspective.

8. We have heard, Sri. Prabhu K. N., learned counsel appeared

for the appellant and Sri. G. Sreekumar (Chelur), learned counsel

appeared for the 1st respondent and the learned Government Pleader

appeared for the State and perused the pleadings and materials on

record.

9. The sole question to be considered is whether the findings

rendered by the learned Single Judge in the judgment in the light of

the proposition of law laid down in Radhamani (supra) affirmed by the

Full Bench in Subhashini (supra) is legally correct or not.

10. On an analysis of the judgment of the learned Single Judge

in Radhamani (supra), it is clear that there was a specific recital in the

document that it was on the basis of the services rendered by the

beneficiary therein the document was executed in favour and on

failure on the beneficiary to discharge the duties and obligations, it

was found that the findings rendered by the tribunal and the order of

cancellation made invoking the powers conferred under Section 23

was in accordance with law.

11. This was exactly the circumstances which persuaded the Full

Bench in Subhashini (supra) to affirm the judgment of the learned

Single Judge in Radhamani (supra). According to us, the issue can be

sorted out if the recitals contained in Ext. P1 document is appreciated

appropriately. Therefore we proceed to do so.

12. After tracing the title of the property in question, the reason

for executing the settlement deed in favour of the 1 st respondent is

recited in the deed, which reads thus:-

"I am unmarried and I am not having any successors. I am residing with my sister Saradha Amma's son namely Mr. Surendran who is my nephew. As I am desirous to do something for the welfare of Mr. Surendran who is depending upon me, I do hereby execute this settlement deed in his favour for which my

love and affection towards Mr. Surendran is taken as the consideration. The below scheduled property having a tiled roofed small house and land and all my rights and possession therein is having a market price of 2,70,000/- (Two lakhs and seventy thousand only). The below scheduled property having the above price is here by settled to you, being my nephew, and actual possession is hereby handed over to you.

You are hereby absolutely entitled to effect the mutation of the property, pay land tax, enjoy, alienate, encumber on the strength of this document and I hereby made to believe you that there are no encumbrances, other rights, attachments, prohibitory court orders, alienations, tax dues etc. over the below scheduled property..."

13. On a deeper analysis of the contents of the documents in

question, it is clear that the settlement deed was executed since the

appellant had no legal successors and the appellant was desirous to do

something for the welfare of the 1st respondent, who is depending

upon the appellant and the appellant executed the settlement deed in

his favour, taking into consideration the love and affection towards the

1st respondent.

14. Therefore appreciating the circumstances, we are of the view

that the proposition of law laid down in Radhamani (supra), on the

basis of the peculiar circumstances involved in the said case, would

not enure to the benefit of the appellant.

Accordingly, we do not find any jurisdictional error or other