Ramakrishnan Nair vs Surendra

Shaji P. Chaly, J

The 3rd respondent in W. P. (C) No. 28734 of 2020 has preferred this appeal challenging the judgment of the learned Single Judge dated

12.02.2021, whereby the learned Single Judge allowed the writ petition filed by the 1st respondent in the appeal, after setting aside Ext. P3 order

passed by the Sub Collector and Maintenance Tribunal, Thrissur, constituted as per the provisions of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 (hereinafter called as 'Act 2007').

The paramount contention advanced by the writ petitioner was that the appellant has executed a settlement deed in favour of the 1st respondent,

who is none other than the nephew of the appellant, without any reservations and conditions in the document and therefore the cancellation of the

deed made by the tribunal cannot be sustained under law.

On the other hand the appellant contended before the learned Single Judge that the issue is squarely covered by a judgment of a learned Single

Judge of this Court in Radhamani v. State of Kerala [2016 (1) KLT 185] which was approved by a Full Bench of this Court in Subhashini v. District

Collector [2020 (5) KLT 533 (F.B.)].

Anyhow the learned Single Judge after taking into account the rival submissions was of the clear opinion that the appellant is not entitled to get

benefit of the judgment in Radhamani (supra) and has clearly held that in order to secure advantage of the provisions of Section 23 of Act 2007, there

should be a recital that transferee was under an obligation to maintain the transferor and it was found specifically in Radhamani's case that there was

a specific recital in the document casting duty on the transferee to maintain the transferor which was the basis for affirming the judgment in

Radhamani (supra) in Subhashini (supra).

The relevant paragraph of the judgment is extracted for the purpose of clear appreciation of the questions raised in the appeal:-

“10. On an evaluation of the entire facts, in the light of the Full Bench decision of this Court in Subhashini's case as well as in S.Vanitha's case, it is evident that in

the absence of a specific recital in the document that the transferee was obliged or has undertaken or was bound to provide for basic amenities to the transferor,

section 23 of the Act cannot be invoked to set aside a document of transfer. In the light of the above, the order of the 2nd respondent setting aside Ext.P1 on the

ground that the petitioner had failed to take care of the third respondent is not legally sustainable. Evidently, there are some materials to indicate that the third

respondent is residing away from the petitioner. However, since the prayer in the application was confined to setting aside the document and that was the only relief

sought and agitated before this court also, the only option available to this court is to set aside the impugned order as not legally sustainable. In the light of this

finding, the first contention of the learned counsel for petitioner that the order passed by the court below was in breach of principle of natural justice need not be

further considered. The impugned order is set aside.â€​

The paramount contention raised by the appellant is that it is very specifically stated in the settlement deed that the appellant is residing with the 1st

respondent and the consideration for the same is love and affection, however the 1st respondent is not providing basic amenities and taking care of the

physical needs of the appellant, and therefore it must be presumed that the appellant expected continuation of care and love from the 1st respondent

even after execution of the deed in the same manner he was taken care prior to execution of the deed. But since the 1st respondent failed to

discharge the obligations and duties which was the consideration for executing the settlement deed in his favour, the appellant was entitled as of right

to move the tribunal and the tribunal was justified and correct in canceling the deed in question.

It was also submitted that the learned Single Judge failed to appreciate the findings of the learned Single Judge and the proposition of law laid down

in the judgment in Radhamani (supra) and the findings rendered by the Full Bench in that regard in Subhashini (supra), in the correct perspective.

We have heard, Sri. Prabhu K. N., learned counsel appeared for the appellant and Sri. G. Sreekumar (Chelur), learned counsel appeared for the 1st

respondent and the learned Government Pleader appeared for the State and perused the pleadings and materials on record.

The sole question to be considered is whether the findings rendered by the learned Single Judge in the judgment in the light of the proposition of law

laid down in Radhamani (supra) affirmed by the Full Bench in Subhashini (supra) is legally correct or not.

On an analysis of the judgment of the learned Single Judge in Radhamani (supra), it is clear that there was a specific recital in the document that it

was on the basis of the services rendered by the beneficiary therein the document was executed in favour and on failure on the beneficiary to

discharge the duties and obligations, it was found that the findings rendered by the tribunal and the order of cancellation made invoking the powers

conferred under Section 23 was in accordance with law.

This was exactly the circumstances which persuaded the Full Bench in Subhashini (supra) to affirm the judgment of the learned Single Judge in

Radhamani (supra). According to us, the issue can be sorted out if the recitals contained in Ext. P1 document is appreciated appropriately. Therefore

we proceed to do so.

After tracing the title of the property in question, the reason for executing the settlement deed in favour of the 1st respondent is recited in the deed,

which reads thus:-

“I am unmarried and I am not having any successors. I am residing with my sister Saradha Amma's son namely Mr. Surendran who is my nephew. As I am desirous

to do something for the welfare of Mr. Surendran who is depending upon me, I do hereby execute this settlement deed in his favour for which my love and affection

towards Mr. Surendran is taken as the consideration. The below scheduled property having a tiled roofed small house and land and all my rights and possession

therein is having a market price of 2,70,000/- (Two lakhs and seventy thousand only). The below scheduled property having the above price is here by settled to you,

being my nephew, and actual possession is hereby handed over to you.

You are hereby absolutely entitled to effect the mutation of the property, pay land tax, enjoy, alienate, encumber on the strength of this document and I hereby made

to believe you that there are no encumbrances, other rights, attachments, prohibitory court orders, alienations, tax dues etc. over the below scheduled property...â€​

On a deeper analysis of the contents of the documents in question, it is clear that the settlement deed was executed since the appellant had no

legal successors and the appellant was desirous to do something for the welfare of the 1st respondent, who is depending upon the appellant and the

appellant executed the settlement deed in his favour, taking into consideration the love and affection towards the 1st respondent.

Therefore appreciating the circumstances, we are of the view that the proposition of law laid down in Radhamani (supra), on the basis of the

peculiar circumstances involved in the said case, would not enure to the benefit of the appellant.

Accordingly, we do not find any jurisdictional error or other legal infirmities on the part of the learned Single Judge for interfering with the order of the

tribunal and allowing the writ petition, exercising powers conferred under Section 5 of the Kerala High Court Act, 1958.

Needless to say, writ appeal fails. Accordingly it is dismissed.