Kerala High Court
P.D James vs District Collector on 21 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
WP(C) NO. 23529 OF 2023
PETITIONER:
P.D JAMES,
AGED 90 YEARS, S/O LATE DEVASSIYA,
PAMBLANI HOUSE, 380/4, 4TH BLOCK, BYPASS ROAD,
GONIKKUPPA, COORG, KARNATAKA, PIN - 571213.
BY ADVS.
NANDAGOPAL S.KURUP
ABHIRAM T.K.
RESPONDENTS:
1 DISTRICT COLLECTOR,
COLLECTORATE, THAVAKKARA,
KANNUR, PIN - 670002.
2 REVENUE DIVISIONAL OFFICER,
COLLECTORATE, THAVAKKARA,
KANNUR, PIN - 670002.
3 JOLLY P.J,
S/O JAMES,
BEHIND C.I.T COLLEGE, PONNAMPETTA,
HALLIGATT P.O, COORG
KARNATAKA, PIN - 571216.
BY ADVS.
SRI.CIBI THOMAS
SMT.REKHA C NAIR, SR. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.23529/2023
:2:
N. NAGARESH, J.
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W.P.(C) No.23529 of 2023
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Dated this the 21st day of May, 2024
JUDGMENT
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Petitioner, who is a senior citizen, is before this
Court aggrieved by Ext.P3 order passed by the Maintenance
Tribunal and Ext.P5 order passed by the Appellate Tribunal
constituted under the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007.
2. The petitioner states that he is owner of 0.6070
Hectares of land in Iritty Taluk. The petitioner executed a gift
deed No.1892/2015 of Uliyil SRO in favour of the 3 rd
respondent-son. According to the petitioner, the recitals in
Ext.P1 gift deed stipulated that the donor is entitled to enjoy
the income derived from the property and to cut and remove
the teak trees standing on the property.
3. The petitioner states that when he visited the
property in June, 2022, he found that all the teak trees
valued more than ₹10 lakhs were cut, removed and sold by
the 3rd respondent. The petitioner was thus deprived of his
right to receive maintenance out of the estate that was gifted
to the 3rd respondent. The petitioner therefore filed an
application before the Maintenance Tribunal seeking to
initiate action under Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007. In his
Ext.P2 application, the petitioner sought maintenance and to
declare Ext.P1 gift deed as void in terms of Section 23.
4. By Ext.P3 order, the Tribunal directed the 3 rd
respondent and other male children of the petitioner to pay a
sum of ₹2,000/- per month to the petitioner. However, the
Tribunal failed to adjudicate on the issue of validity of Ext.P1
gift deed. The petitioner therefore preferred Ext.P4 appeal
before the Appellate Tribunal. The Appellate Tribunal held
that the 3rd respondent and other children have been paying
maintenance as ordered by the Maintenance Tribunal and it
was not necessary to interfere with Ext.P3 order. The appeal
was consequently dismissed as per Ext.P5 order.
5. The counsel for the petitioner argued that the
petitioner had reserved life interest and his right to receive
maintenance out of the property covered by Ext.P1. The 3 rd
respondent, however, cut, removed and sold all the teak
trees standing in the property without the consent of the
petitioner. The petitioner has been thus deprived of his right
to receive maintenance out of the property covered by
Ext.P1. In the circumstances, the Maintenance Tribunal and
Appellate Tribunal ought to have declared Ext.P1 deed as
void. The petitioner seeks to direct the Maintenance Tribunal
to reconsider the matter afresh.
6. The 3rd respondent contested the writ petition filing
counter affidavit. The 3rd respondent submitted that it is the
petitioner who himself who had cut and removed trees from
the property in the year 2016. The petitioner had also cut
and removed yielding rubber trees from the property. The
petitioner has been in absolute control over the income from
the property.
7. The 3rd respondent further submitted that Ext.P1
was executed not on the basis of any understanding as
contended by the petitioner. There is no such condition in
Ext.P1. The only condition in Ext.P1 is that the petitioner is
entitled to take income from the property. The petitioner has
been taking income from the property. The writ petition is
therefore without any merit.
8. I have heard the learned counsel for the petitioner,
the learned Senior Government Pleader representing
respondents 1 and 2 and the learned counsel for the 3 rd
respondent.
9. The application submitted by the petitioner before
the Maintenance Tribunal sought to declare Ext.P1 gift deed
as void in terms of Section 23. The petitioner in alternative
sought to declare his rights to receive maintenance out of the
estate covered by Ext.P1 deed. By Ext.P2 order, the
Maintenance Tribunal ordered maintenance to be paid by
male children of the petitioner at the rate of ₹2,000/- per
month. The Tribunal in effect rejected the prayer of the
petitioner relating to Ext.P1 settlement deed. The Appellate
Tribunal, as per Ext.P5, rejected the appeal filed by the
petitioner finding that the children of the petitioner are paying
maintenance as ordered by the Maintenance Tribunal.
10. The question arising is whether any interference is
called for in Exts.P3 and P5 orders. With regard to setting
aside conveyance deeds under Section 23(1) of the Act, a
Full Bench of this Court answered the question in the
judgment in Subhashini v. District Collector [2020 (5) KLT
533]. This Court 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.
11. Ext.P1 document is a settlement deed wherein
there is a reservation of right of usufructs from the property
and also over the teak trees standing in the property, in
favour of the petitioner. Ext.P1 does not make any provision
for basic amenities and basic physical needs to the petitioner
expressly or by way of necessary implication. Therefore, the
Tribunal rejected the prayer to unsettle Ext.P1 document and
awarded maintenance to the petitioner.
I do not find any illegality in Ext.P3 or Ext.P5
orders. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/14.05.2024
APPENDIX OF WP(C) 23529/2023
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE GIFT DEED NUMBERED
1892/2015 DATED 04.07.2015.
Exhibit P2 TRUE COPY OF THE APPLICATION DATED
15.07.2022 PREFERRED BY THE PETITIONER
BEFORE THE MAINTENANCE TRIBUNAL- THE
SECOND RESPONDENT.
Exhibit P3 TRUE COPY OF THE ORDER DATED
08.10.2022 PASSED BY THE MAINTENANCE
TRIBUNAL-THE SECOND RESPONDENT.
Exhibit P4 TRUE COPY OF THE APPEAL MEMORANDUM
DATED 08.11.2022 PREFERRED BY THE
PETITIONER BEFORE THE FIRST
RESPONDENT.
Exhibit P5 TRUE COPY OF THE ORDER DATED
02.02.2023 PASSED BY THE APPELLATE
TRIBUNAL - THE FIRST RESPONDENT.
ESPONDENT'S EXHIBIT
Exhibit R3(a) TRUE COPY OF THE AGREEMENT DATED
04.03.2020 ENTERED INTO BETWEEN THE
PETITIONER AND VARGHESE.
