Kerala High Court
Damodaran Nair vs District Collector & Appellate ... on 20 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
WP(C) NO. 33788 OF 2023
PETITIONER:
DAMODARAN NAIR
AGED 82 YEARS, S/O. PARAMESHWARAN NAIR,
MANNIL PULICKAL (HOUSE), MANNADI.P.O., ADOOR,
PATHNAMTHITTA DISTRICT, PIN - 691530
BY ADVS.
SHAIJAN JOSEPH
SURUMI SHAKEEL
SINI SALVA
SINDHU A.G.
RESPONDENTS:
1 DISTRICT COLLECTOR & APPELLATE TRIBUNAL
(THE MAINTENANCE AND WELFARE OF PARENTS AND
SENIOR CITIZENS ACT, 2007)
PATHNAMTHITTA DISTRICT,
PATHNAMTHITTA, PIN - 689645
2 REVENUE DIVISIONAL OFFICER & THE MAINTENANCE
TRIBUNAL
(THE MAINTENANCE AND WELFARE OF PARENTS AND
SENIOR CITIZENS ACT, 2007)
OFFICE OF THE REVENUE DIVISIONAL OFFICER,
ADOOR, PIN - 691523
3 SANILKUMAR
S/O DAMODARAN NAIR, AGED 44 YEARS
MANNIL PULICKAL (HOUSE), MANNADI.P.O.
ADOOR, PATHNAMTHITTA DISTRICT, PIN - 691530
BY ADV
SRI.DILEEP P V FOR R3
SRI.K.M.FAIZAL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.33788/2023
:2:
N. NAGARESH, J.
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W.P.(C) No.33788 of 2023
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Dated this the 20th day of May, 2024
JUDGMENT
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The petitioner, who is a senior citizen of 82 years
of age, is before this Court seeking to direct respondents 1
and 2 to cancel Ext.P1 settlement deed and to implement
Ext.P5 order.
2. The petitioner states that owing to love and
affection, the petitioner conveyed his properties to the 3 rd
respondent-son as per Ext.P1 settlement deed dated
09.01.2017. After obtaining title to the property, the 3 rd
respondent started to harass the petitioner and his wife. The
petitioner therefore submitted Ext.P2 police complaint on
31.03.2021. When the police failed to take action, the
petitioner filed a petition before the Tribunal constituted
under the Kerala Maintenance and Welfare of Parents and
Senior Citizens Act, 2007.
3. By Ext.P3 order, the Tribunal held that the
petitioner and his wife are entitled to protection. The
petitioner is entitled to live in the house during his life time.
The Tribunal directed the 3 rd respondent to ensure peaceful
life of the petitioner and his wife in the property. The Tribunal
further directed that the petitioner and his wife should not be
harassed in any manner.
4. As the Tribunal failed to set aside the settlement
deed, the petitioner filed Ext.P4 appeal seeking to cancel the
settlement deed. The Appellate Tribunal disposed of the
appeal as per Ext.P5 order upholding the right of the
petitioner and his wife for peaceful residence in the property.
However, the Appellate Authority also did not grant any relief
to the petitioner as regards cancellation of the settlement
deed.
5. The petitioner contended that he was subjected to
cruel treatment after the execution of settlement deed in
favour of the 3rd respondent. Section 23 of the Maintenance
and Welfare of Parents and Senior Citizens Act, 2007
provides for cancellation of any deed executed by the
parents in favour of the children, if the children do not comply
with their bounden duty to protect the parents.
6. The 3rd respondent resisted the writ petition filing a
statement. On behalf of the 3 rd respondent, it is submitted
that he is an Ex-serviceman. The 3rd respondent has not
harassed the petitioner as alleged. He is having a small
shop near the house and he is suffering from several
ailments. The sister of the petitioner was against the
partition of the property and it is at the behest of the sister
that the complaint was filed. The 3 rd respondent is still ready
to look after his parents. There is no merit in the writ petition
and it should be dismissed with cost, urged the 3 rd
respondent.
7. I have heard the learned counsel for the petitioner,
the learned Government Pleader appearing for respondents
1 and 2 and the learned counsel appearing for the 3 rd
respondent.
8. The petitioner had approached the Maintenance
Tribunal seeking protection and cancellation of Ext.P1
settlement deed. By Ext.P1 settlement deed, the petitioner
had conveyed his property to the 3 rd respondent. The recitals
in Ext.P1 show that the petitioner and his wife has retained
life interest in the property.
9. A Full Bench of this Court in the judgment in
Subhashini v. District Collector [2020 (5) KHC 195] has
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.
10. A perusal of Ext.P1 does not indicate that there is
any provision made therein for ensuring basic amenities or
basic physical needs of the petitioner or his wife. There is
only a reservation of right of enjoyment of the property during
the life time of the petitioner. There is no condition as
required under Section 23(1) expressly stated in the
document. The life interest reserved in Ext.P1 cannot lead to
such a conclusion being implied or inferred.
In the circumstances, I find that there is no merit in
the writ petition. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/14.05.2024
APPENDIX OF WP(C) 33788/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED DATED
09-1-2017 OF SRO KADAMBANAD
Exhibit P2 TRUE COPY OF THE PETITION DATED 31-3-
2021 SUBMITTED BY PETITIONER BEFORE
THE CIRCLE INSPECTOR OF POLICE, ENATH
POLICE STATION
Exhibit P3 TRUE COPY OF THE ORDER DATED 3.3.2022
ISSUED BY THE 2ND RESPONDENT
Exhibit P4 TRUE COPY OF THE APPEAL DATED
28.10.2022 SUBMITTED BY THE PETITIONER
BEFORE THE 1ST RESPONDENT
Exhibit P5 TRUE COPY OF THE ORDER DATED 25.7.2023
PASSED BY THE 1ST RESPONDENT
RESPONDENT'S EXHIBITS
EXHIBT-R3(1) THE COPY OF THE SALE DEED NO.
421/2014/I OF THEVALAKKARA S.R.O DATED
13.03.2014
EXHIBT-R3(2) THE TRUE COPY OF ORDER PASSED IN
M.C.NO. 108/2021 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT ADOOR
FILED BY THE WIFE OF THE 3RD
RESPONDENT.
