Kerala High Court
Baby.K vs Kuttimalu on 1 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
WP(C) NO. 30129 OF 2023
PETITIONER:
BABY.K
AGED 56 YEARS, KARINKALIMMAL,
UNNIKULAM.P.O, UNNIKULAM VILLAGE,
THAMARASSERY TALUK, KOZHIKODE,
PIN - 673 574.
BY ADVS.
R.SUDHISH
N.ABDUL AZEEZ
M.K.AYYAPPAN
RESPONDENTS:
1 KUTTIMALU
AGED 73 YEARS, KARINKALIMMAL,
UNNIKULAM.P.O., UNNIKULAM VILLAGE,
THAMARASSERY TALUK, KOZHIKODE - 673574,
NOW RESIDING AT C/O GEETHA GANGADHARAN,
PLAKOOTTATHIL VEEDU, KATTIPARA, VIA
THAMARASSERRY, KOZHIKODE, PIN - 673 615.
2 THE REVENUE DIVISIONAL OFFICER/ PRESIDING
OFFICER, MAINTENANCE TRIBUNAL,
CIVIL STATION, KOZHIKODE, PIN - 673 020.
BY ADVS.
LUIZ GODWIN D COUTH
JOSE KURIAKOSE
(VILANGATTIL)(K/000207/1998)
BIJO FRANCIS(K/000207/1994)
S.GOPINATHAN, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.30129 of 2023
:2:
JUDGMENT
Dated this the 1st day of February, 2024
The petitioner is the respondent in a petition filed
by the 1st respondent before the 2nd respondent-Revenue
Divisional Officer, under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007.
2. The petitioner states that he was looking after the
1st respondent, who is his mother and they were living
happily. The petitioner had taken a loan by mortgaging the
property settled in his name by the 1 st respondent to modify
the old house which was in the property.
3. According to the petitioner, due to undue influence
exerted by the daughter of the 1 st respondent, the 1st
respondent approached the 2nd respondent-Revenue
Divisional Officer under the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 and preferred an
application seeking relief of cancelling Ext.P1 deed executed
by the 1st respondent in favour of the petitioner, alleging that
the petitioner is not taking care of the 1 st respondent. The
Tribunal passed Ext.P3 order on 09.03.2022. The Tribunal
did not grant the relief sought for to cancel Ext.P1 Settlement
Deed. Maintenance was also not ordered.
4. Subsequently, the 1st respondent filed yet another
petition before the Tribunal. After hearing the 1st respondent,
the Maintenance Tribunal passed Ext.P4 order on
07.01.2023, by which the petitioner was directed to shift his
residence from the family house before 15.01.2023. It was
further ordered that the 1st respondent should not be
disturbed mentally or physically.
5. The petitioner states that they cannot shift the
residence within eight days as directed. The 1 st respondent
again approached the Tribunal stating that the order of the
Tribunal is not complied with. Then another Ext.P5 order
was passed by the Tribunal on 06.07.2023, whereby the
petitioner was directed to shift the residence before
26.07.2023. It was also stated that the petitioner has to
close the entire loan, which was taken by mortgaging the
property and also held that the property mentioned in the
petition shall be transferred only if it is beneficial for the 1 st
respondent. The Tribunal also directed the petitioner to get
permission from the Tribunal before any alienation of the
property.
6. Counsel for the petitioner contended that the
petitions are filed by the 1st respondent under the influence of
her daughter and the main intention is to expel the petitioner
from the house constructed by him so that the 1 st respondent
can possess the same. Relying on the judgment in
Subhashini v. District Collector, Kozhikode and Others
[2020 (5) KHC 195], the counsel for the petitioner contended
that there should be a specific recital in the Deed executed
that the property is transferred subject to the condition that
the transferee shall provide the basic amenities and physical
needs to the transferor and such transferee refuses or fails to
provide such amenities and physical needs to the executor of
the deed. In this case, there is no such recitals in Ext.P1
Settlement Deed. In Ext.P1 Settlement Deed, the 1 st
respondent has to be given only a life interest. There is no
undertaking by the petitioner for the maintance of the 1 st
respondent.
7. The transfer of property was made subject to the
life interest of the 1st respondent. As per Section 23 (1) of
the Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, the transfer of property can be void only when
there is an undertaking in the recitals of the title deed. In the
present case, there is no recitals in the document.
8. The petitioner submitted that he and his family do
not have any other abode to reside. The petitioner availed a
loan to modify the old house in the property settled in his
favour by the 1st respondent. The petitioner is a coolie and
his wife is employed in Health Department. With their meger
income, it will be difficult for them to shift the residence to a
rented house. They have invested their savings to modify the
house in which they are now residing, contended the counsel
for the petitioner.
9. The 1st respondent filed a counter affidavit and
resisted the writ petition. The 1 st respondent submitted that
she is a widow mother having a son and daughter. The 10
cents of land was transferred in favour of the petitioner, on a
belief that the petitioner, who is her son will take care of the
1st respondent in her old age. After execution of the
Settlement Deed, the behavior of the petitioner has changed
and he and his family are causing physical harassment to
the 1st respondent. The petitioner has cheated his mother by
mortgaging balance 5 cents of property to the Bank without
informing her.
10. The Tribunal has clearly found that the petitioner
and his family is not taking care of the 1 st respondent. The
daughter is really protecting the 1 st respondent. In the facts of
the case, the conclusions of Tribunal are not liable to be
interfere with, contended the counsel for the 1 st respondent.
11. The Government Pleader filed a memo dated
16.01.2024. The memo contained a report given by the
District Social Welfare Officer. The District Welfare Officer
has reported that the 1st respondent has complained that the
petitioner is retaining her ration card and therefore she is not
in a position to get treatment in government hospitals.
12. The 1st respondent further submits that she is now
residing in a dilapidated house, where there is threat to her
life. The 1st respondent further states that there has a
fracture on her arm, for which she blamed the petitioner and
his wife.
13. I have heard the learned Counsel appearing for
the petitioner, the learned Counsel representing the 1 st
respondent and the learned Senior Government Pleader
representing the 2nd respondent.
14. Ext.P1 is a Settlement Deed entered into by the
petitioner and the 1st respondent. Ext.P1 would indicate that
the 1st respondent has retained life interest in respect of the
property. By Ext.P1, 6.0705 Ares of property has been given
to the petitioner. Ext.P2 is the complaint filed by the 1 st
respondent before the Maintenance Tribunal. In Ext.P1, the
1st respondent prayed that she be awarded Rs.10,000/- as
maintenance amount and cancel Ext.P1 Settlement Deed.
15. After hearing the parties, the Tribunal passed
Ext.P3 order. In Ext.P3 order, the Tribunal did not order any
monitory maintenance to the 1st respondent. However, the
Tribunal ordered that the 1 st respondent shall be protected by
the petitioner and the 1st respondent's daughter. The Tribunal
directed the petitioner to give back the title deed in respect of
five cents of land, which is mortgaged by the petitioner, to
the 1st respondent before 10.08.2022. The 1 st respondent
was granted liberty to reside at any place as she decides.
16. It appears that dissatisfied with Ext.P3 order, the
1st respondent approached the Tribunal again alleging that
the petitioner has expelled the 1 st respondent from the
residential building and the 1st respondent was not permitted
to enter her land and that the petitioner prevented the survey
of the land. During this proceeding, the petitioner submitted
before the Tribunal that he is willing to shift from the present
residential building.
17. Taking into consideration the undertaking given by
the petitioner, the Tribunal passed an order directing that the
petitioner and his family shall shift from the family house on
or before 15.01.2023.
18. The Tribunal considered the matter again
subsequently. During this proceedings also, the petitioner
submitted that the petitioner and his family are willing to shift
from the residential house. In view of the afore facts, I do not
find any illegality in Exts.P3 and P4 passed by the 2 nd
respondent.
The writ petition fails and it is accordingly
dismissed.
Sd/-
N. NAGARESH
JUDGE
AMR
APPENDIX OF WP(C) 30129/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED NO.
1637 OF 2015 OF THAMARASSERRY TOWN SUB
REGISTRY, KOZHIKODE DISTRICT, EXECUTED
BY THE 1ST RESPONDENT IN FAVOR OF THE
PETITIONER DATED 19.05.2015.
Exhibit P2 TRUE COPY OF THE APPLICATION PREFERRED
BY THE 1ST RESPONDENT BEFORE THE 2ND
RESPONDENT DATED 07.01.2022.
Exhibit P3 TRUE COPY OF THE ORDER OF THE HON'BLE
MAINTENANCE TRIBUNAL DATED 09.03.2022.
Exhibit P4 TRUE COPY OF THE ORDER OF THE HON'BLE
MAINTENANCE TRIBUNAL DATED 07.01.2023.
Exhibit P5 TRUE COPY OF THE ORDER OF THE HON'BLE
MAINTENANCE TRIBUNAL DATED 06/07/2023.
