Madras High Court

Mrs. Vellaiyammal vs The Revenue Divisional Officer on 1 November, 2021

WP No. 23643 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.11.2021

CORAM

THE HONOURABLE MR. JUSTICE R. MAHADEVAN

W.P. No. 23643 of 2021

Mrs. Vellaiyammal .. Petitioner

Versus

1.The Revenue Divisional Officer,
Office of the Revenue Divisional
Officer, Perambalur Division,
Perambalur District.

2. The Tahsildar
Office of the Tahsildar,
Perambalur Taluk,
Perambalur District

3. The Sub-Registrar,
Office of the Sub-Registrar,
Perambalur

4. Mrs.P.Nellammal .. Respondents

Writ Petition under Article 226 of the Constitution of India praying
for a Writ of Mandamus forbearing the respondents from in any manner
proceeds with the representation of the fourth respondent or any other
person claiming under her that to cancel the settlement deed executed by
the fourth respondent in favour of the petitioner dated 22.01.1990
registered as document No.83 of 1990 on the file of the third respondent

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WP No. 23643 of 2021

by invoking the provisions of Section 23 of the Maintenance and
Welfare of parents and Senior Citizens Act 2007

For Petitioner : Mr. G. Ilamurugu
For Respondents : Mr. G. Krishnaraja
Government Counsel for R1 to R3

ORDER

The petitioner has filed this writ petition praying to issue a Writ of

Mandamus to forbear the respondents 1 to 3 from in any manner

entertaining the representation of the fourth respondent or any other

person claiming under her to cancel the settlement deed executed by the

fourth respondent in her favour on 22.01.1990, which was registered as

document No.83 of 1990 on the file of the third respondent, by invoking

the provisions of Section 23 of the Maintenance and Welfare of parents

and Senior Citizens Act 2007

2. According to the petitioner, her parents were blessed with

two sons and three daughters, including her. The petitioner was given in

marriage and thereafter, the fourth respondent, who is her mother, had

executed a settlement deed dated 22.01.1990 by which the land in Survey

No.62/3 measuring an extent of 1.40 acres out of 3.40 acres in Elambur

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Village Panchayat, Perambalur District was settled in her favour. It is

stated that the petitioner has mutated the revenue records and obtained

patta bearing No. 2493 in her favour. It is also stated that the petitioner

is financially supporting the fourth respondent. In fact, when the

petitioner was facing financial crunch, she had sold a portion of the land

measuring 432 square meters out of 1.40 acres in favour of one Mr.

Thangavel by executing a registered sale deed dated 27.12.2010 and it

was also known to the fourth respondent and her brothers and sisters.

While so, the petitioner came to know that at the instance of her brothers

and sisters, the fourth respondent is attempting to cancel the settlement

deed dated 22.01.1990. It is also stated that the fourth respondent along

with her brothers and sisters attempted to interfere with her possession

and enjoyment of the property settled in her favour and therefore, she has

filed a suit in O.S. No. 146 of 2021 before the learned District Munsif,

Perambalur for bare injunction and it is pending. Thus, apprehending that

the fourth respondent may cancel the settlement deed dated 22.01.1990

executed in her favour by invoking the provisions contained under

Section 23 of The Maintenance and Welfare of Parents and Senior

Citizens Act, 2007, the petitioner has filed this writ petition for the relief

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stated supra.

3. The learned counsel for the petitioner would contend that the

recitals in the settlement deed dated 22.1.1990 clearly establish that it

was executed by the fourth respondent out of love and affection to enable

the petitioner to maintain herself. However, the attempt on the part of

the fourth respondent to cancel the said document after three decades is

unjust and unreasonable. The learned counsel for the petitioner also

placed reliance on the full Bench judgment of Kerala High Court, in the

case of Subhashini Vs. The District Collector and others in

W.A.No.1460 of 2015, dated 22.09.2020, wherein it was held that the

provisions of Section 23 of the Maintenance and Welfare of parents and

Senior Ctiizens Act 2007 is not applicable in the absence of specific

recital as to the maintenance of the executant by the setlee. It is stated

that in the settlement deed dated 22.01.1990, there is no recital to the

effect that the petitioner has to maintain the fourth respondent. Even

otherwise, the petitioner is continuously supporting the fourth respondent

financially, as such, the provisions of Section 23 of the said Act will not

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be applicable to the facts and circumstances of the above case. The

learned counsel for the petitioner also submitted that there is imminent

possibility of dispossession of the petitioner from the property by

cancelling the settlement deed executed by the fourth respondent on

22.01.1990, by invoking the provisions of Section 23 of Maintenance

and Welfare of Parents and Senior Citizens Act, 2007. Therefore, the

learned counsel for the petitioner prayed for allowing this writ petition by

restraining the fourth respondent from cancelling the settlement deed

dated 22.01.1990.

4. Heard the counsel for both sides and perused the materials

available on record.

5. The petitioner has filed this writ petition apprehending that

the fourth respondent may resort to cancel the settlement deed dated

22.01.1990 executed in her favour. On the other hand, it is brought to

the notice of this Court that the fourth respondent has already filed W.P.

No. 20738 of 2021 before this Court praying for issuance of Writ of

Mandamus, directing the respondents therein to consider the

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representation dated 21.09.2021 submitted by her to cancel the

Settlement Deed No.83 of 1990 dated 22.01.1990 executed in favour of

the petitioner herein. The said writ petition was disposed of by this court

on 28.09.2021 by issuing the following directions:-

"Having regard to the limited scope of the prayer that is now sought for in this writ petition before this Court and taking into account the submissions made on either side, without expressing any opinion on the merits of the petitioner-s representation or the case pleaded by the petitioner in the present writ petition, the Writ Petition is disposed of, the 2nd respondent is directed to consider the petitioner-s representation dated 21.09.2021 and pass appropriate orders, on merits and in accordance with law, after affording an opportunity of personal hearing to the petitioner and to conduct de nova enquiry, within a period of twelve weeks from the date of receipt of a copy of this order. No costs.

6. Thus, it is evident that already, the fourth respondent has

given a representation to the respondents 1 and 2 herein on 21.09.2021.

When her representation dated 21.09.2021 was not considered, the fourth

respondent has filed WP No. 20738 of 2021 before this Court in which a

direction was issued to conduct an enquiry after affording opportunity of

hearing to the fourth respondent and other parties concerned. Therefore,

in view of the order dated 28.09.2021 passed by this Court in WP No.

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20738 of 2021, no further order is required to be passed in this writ

petition. It is needless to mention that the petitioner herein will be given

adequate opportunity of hearing while considering the representation of

the fourth respondent for cancellation of the settlement deed dated