David vs The State Of Kerala
2021 Latest Caselaw 23284 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE SATHISH NINAN
   THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                         WP(C) NO. 15308 OF 2021
PETITIONER:

              DAVID
              AGED 86 YEARS
              S/O PATHROSES,THOPPIL HOUSE,
              KOKKAPPILLI KARA, THIRUVANIYOOR VILLAGE,ERNAKULAM
              DISTRICT.

              BY ADVS.
              GEORGE SEBASTIAN
              ARUN LUCKOSE ABRAHAM



RESPONDENTS:

     1        THE STATE OF KERALA
              REPRESENTED BY THE PRINCIPAL SECRETARY TO THE DEPARTMENT
              OF REVENUE,SECRETARIAT,
              THIRUVANANTHAPURAM-695001.

     2        THE DISTRICT COLLECTOR(APPELLATE TRIBUNAL UNDER THE
              MAINTENANCE AND WELFARE OF SENIOR CITIZENS ACT)
              COLLECTORATE,KAKKANAD,ERNAKULAM,PIN-682030.

     3        THE REVENUE DIVISIONAL OFFICER,
              (MAINTENANCE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE
              OF SENIOR CITIZENS ACT),
              THE REVENUE DIVIISIONAL OFFICE,MUVATTUPUZHA,PIN-686669.

     4        SOLY,
              W/O.LATE LANDOOSE,THOPPIL HOUSE,KOKKAPPILLI
              KARA,THIRUVANIYOOR VILLAGE,
              ERNAKULAM DISTRICT,PIN-682308.

     5        MARIYA LANDOOSE,
              D/O.LATE LANDOOSE,THIRUVANIYOOR VILLAGE,ERNAKULAM
              DISTRICT,PIN-682308.
                                     2
WP(C) NO. 15308 OF 2021



           BY ADVS.
           RAAJESH S.SUBRAHMANIAN
           JOJI GEORGE JACOB
           V.R.RAJESH

           BY SR.GOVT.PLEADER:SMT.SHEEJA.C.S




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                             3
WP(C) NO. 15308 OF 2021




                                 JUDGMENT

The petitioner is a senior citizen. Immovable

properties belonging to him were gifted to his son

Landoose (late) as per Exts.P1 and P2 Gift Deeds of the

year 2007 and 2011 respectively. The gifts were executed

on condition that the petitioner - executant will be

provided with all the basic amenities and needs by his

son. Landoose passed away in the year 2018. Respondents

4 and 5 are the wife and child of Landoose. The

properties covered under Exts.P1 and P2 devolved on

them. They are not providing the amenities nor meeting

the needs of the petitioner, it is alleged. Thereupon,

the petitioner approached the Maintenance Tribunal with

Ext.P3 petition seeking cancellation of the gift deeds

in terms of Section 23 of the Maintenance and Welfare of

Parents and Senior Citizens Act (hereinafter referred to

as 'the Act').

WP(C) NO. 15308 OF 2021

2. The Maintenance Tribunal, as per Ext.P6 order

found that, since the donee under the gift deeds is no

more, an order of revocation of the deeds cannot be

passed against his legal heirs, viz, wife and child. The

Tribunal also referred to the statement of the

petitioner that he doesn't require care from respondents

4 and 5. The Tribunal, as per Ext.P6 order, protected

the residence of the petitioner in the property covered

under Ext.P2 gift deed also recognized his rights to

take income from the property, he having had reserved a

life interest therein.

3. Challenging the order, the petitioner filed

appeal before the Appellate Tribunal. As per Ext.P9

order, the Appellate Tribunal, while maintaining the

order of the Maintenance Tribunal, directed respondents

4 and 5 to provide necessary maintenance to the

petitioner. It is dissatisfied with the said order, the

petitioner has approached this Court.

WP(C) NO. 15308 OF 2021

4. Heard Sri.George Sebastian, the learned counsel

for the petitioner, Sri.Joji George Jacob, the learned

counsel for respondents 4 and 5 and the learned Senior

Government Pleader.

5. The grievance of the petitioner is that, though

the proceedings were initiated seeking for cancellation

of the gift deeds, the same was refused by the Tribunal

and it was not even adverted to by the Appellate

Tribunal.

6. As mentioned in Section 23 of the Act, the

provision applies only to documents executed after the

coming into force of the Act. Ext.P1 gift deed having

been executed in the year 2007, the challenge against

Ext.P1 under the Section, fails. As regards the gift -

Ext.P2, the same contains an express recital that the

donee shall take care of the petitioner. In view of the

express reservation, if there is failure to provide

basic necessities to the Senior Citizen / petitioner, in

terms of Section 23 of the Act the gift deed is liable

WP(C) NO. 15308 OF 2021

to be declared void.

7. The Tribunal has declined to consider the

prayer on the reasoning that, the donee, who is the

predecessor-in-interest of respondents 4 and 5 expired

and that an order under Section 23 can be passed only

against the donee. I am unable to agree with the view

adopted by the Tribunal. On the death of the donee, his

rights and liabilities devolves on his legal heirs. They

are bound by the express recitals in the document. As

legal heirs, they inherit not only the rights but also

the liabilities, no doubt, to the extent of the property

inherited by them. If the legal heirs fail to honour the

recital in the gift deed, the deed is liable to be

declared void in terms of Section 23 of the Act.

8. In the case at hand, a life interest has been

reserved over the property in favour of the petitioner -

donor. Whether the petitioner has sufficient income to

maintain himself, whether he is unable to secure income

and maintain himself, whether there has been a failure

WP(C) NO. 15308 OF 2021

to meet the basic requirements of the petitioner, are

all matters to be considered. Incidentally, I do notice

the statement in the order passed by the Maintenance

Tribunal that the petitioner does not require any

support from respondents 4 and 5 and all that he seeks

for is cancellation of the gift deeds. Be that as it

may, it is for the authorities to consider the above

aspects pass fresh orders.

Accordingly, Exts.P6 and P9 orders are set aside.

The Maintenance Tribunal shall pass fresh orders, after

affording adequate opportunity of hearing to the

petitioner and respondents 4 and 5.

The writ petition is disposed of as above.

Sd/-

SATHISH NINAN

JUDGE

rsr

WP(C) NO. 15308 OF 2021

APPENDIX OF WP(C) 15308/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE DOCUMENT BEARING N0.6321/2007 DATED 28.07.2007 OF PUTHENCRUZ SUB REGISTRY.

Exhibit P2 A TRUE COPY OF THE DOCUMENT BEARING NO.3243/2011 DATED 21.06.2011 OF PUTHENCRUZ SUB REGISTRY.

Exhibit P3 A TRUE COPY OF THE APPLICATION DATED 11.03.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

Exhibit P4 A TRUE COPY OF THE OBJECTION DATED 20.01.2021 FILED BY THE 4TH RESPONDENT IN M.P.NO.47/2020 BEFORE THE 3RD RESPONDENT

Exhibit P5 A TRUE COPY OF THE PETITION DATED 13.1.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT

Exhibit P6 A TRUE COPY OF THE ORDER DATED 25.01.2021 IN M.P.NO.47/2020 OF THE 3RD RESPONDENT.

Exhibit P7 A TRUE COPY OF THE APPEAL DATED 12.02.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED 8.3.2021 IN W.P.(C)NO.5726/2021.

Exhibit P9 A TRUE COPY OF THE ORDER DATED 22.7.2021 PASSED BY THE 2ND RESPONDENT.

Exhibit P10 A TRUE COPY OF THE PARTITION DEED DATED 22.12.2014.

WP(C) NO. 15308 OF 2021