Allowed

Sundhari v. the Revenue Divisional Officer

Kerala HC2 Mar 2018WA/375/2018

Case brief

AI extract

What is this about?

The High Court quashed the Tribunal's declaration that a jointly executed gift deed was entirely void. It held that only the complaining donor's share could be revoked, but due to domestic violence and failure to provide basic amenities, the daughter is barred from residing with the mother pending a partition suit.

What did the court decide?

Set aside the Tribunal's order cancelling the entire gift deed; Observance that the appellant must live separately from the mother and may seek partition to claim exclusive possession.

Sundhari Vs the Revenue Divisional Officer — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939

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WA.No. 375 of 2018 IN WPC. 20500/2016

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APPELLANT(S)/WRIT PETITIONER

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SUNDHARI AGED 54 YEARS, D/O. LAKSHMI AMMA, LAKSHMI NIVAS, CHATHANNUR P.O, CHALISSERY, PALAKKAD DISTRICT, PIN - 679 536.

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BY ADV.SRI.SUNIL NAIR PALAKKAT

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RESPONDENT(S)/RESPONDENTS:

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THE REVENUE DIVISIONAL OFFICER

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(MAINTENANCE TRIBUNAL UNDER MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007), OTTAPALAM, PALAKKAD DISTRICT, PIN - 679 101.

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SUB INSPECTOR OF POLICE CHALISSERY POLICE STATION, CHATHANNUR P.O, CHALISSERY, PALAKKAD DISTRICT, PIN - 679 536.

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LAKSHMI AMMA AGED 74 YEARS, W/O. LATE NARAYANAN NAIR, LAKSHMI NIVAS, CHATHANNUR P.O, CHALISSERY, PALAKKAD DISTRICT, PIN - 679 536.

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R1 & 2 BY GOVERNMENT PLEADER SRI V TEK CHAND R3 BY SRI.SANTHEEP ANKARATH

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THIS WRIT APPEAL HAVING RESERVED FOR JUDGMENT ON 15.02.2018, THE COURT ON 02.03.2018 DELIVERED THE FOLLOWING:

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CSS/

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Antony Dominic, C.J. & Dama Seshadri Naidu, J.

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W.A.No.375 of 2018

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Dated this the 02^nd day of March 2018

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JUDGMENT

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Dama Seshadri Naidu, J.

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Lakshmi Amma, 72 years, is the mother; Sundhari 52 years

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the daughter. They both live under one roof. But they both have a very strained relationship, so strained that Lakshmi Amma accused Sundhari that she had beaten her brutally, forcing her to be admitted to hospital.

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Besides, on 11.05.2017 Lakshmi Amma also registered a crime against her daughter for the offences under Sections 323, 229, 294(b) and 506 read with Section 34 IPC. The allegations read distressing: Sundhari allegedly deprived food to her mother, kept her outside the house even at night for about four days, and kicked her in the stomach.

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All these allegations have led Lakshmi Amma to invoke

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the Maintenance and Welfare of Parents and Senior Citizens Act,

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2007 (“the Act”). To lay the foundation for her complaint before the primary authority under the Act, Lakshmi Amma pleaded that in the past when the familial relations were fine, she and her husband, since deceased, executed a gift deed in April 2012. They settled on Sundhari, their daughter, eight cents of land, including a residential building. The recital in the gift deed expressly reserves the right of residence till their life time to both the donors, the parents.

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The father dead, only the mother, Lakshmi Amma, sued Sundhari before the Tribunal. She in fact prayed the Tribunal to declare the gift deed void under Section 23 of the Act.

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After entering an appearance, Sundhari, first, pleaded

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that two donors jointly gifted the property and that only one cannot nullify it. She has, next, contended that she spent huge amounts to renovate the house and to develop the property. In the alternative, Sundhari has also pleaded that her brother, Lakshmi Amma's only son settled in Dubai since 1993, has never

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looked after their mother. It is she who has been taking care of her mother. So she urged the Tribunal to dismiss the petition.

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As seen from the Ext.P3 order, dated 5.6.2016, the Tribunal allowed Lakshmi Amma's application; it set aside the gift deed and ordered Sundhari's eviction from the property. Aggrieved, Sundhari filed WPC No.20500 of 2016.

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A learned Single Judge through judgment dated 21.12.2017 partly allowed the writ petition. To be specific, the judgment dated 21.12.2017 declares that cancellation of gift deed in its entirety by the Tribunal cannot be sustained. Then, it has held that Lakshmi Amma could revoke the gift only to the extent of her share. At any rate, the judgment also mandates that though Sundhari has a half share in the residential property, given her violent behaviour and threat to Lakshmi Amma’s life and limb, she must live separately.

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Aggrieved again, Sundhari is before us with this intracourt appeal.

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Sri Sunil Nair Palakat, the learned counsel for the appellant, has strenuously contended that the impugned judgment travels beyond the Act, especially Section 23. To elaborate, the learned counsel strenuously contends that even Sundhari has no other means than what has been gifted to her. Though Lakshmi Amma has been looked after well, she quarreled with Sundhari and sought to cancel the gift deed on unjustifiable, unsustainable grounds. He denies physical violence, too.

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Placing reliance on Janardhanan v the Maintenance Tribunal, the Appellate Authority¹ Sri Sunil Nair has submitted that the Tribunal has no power to cancel the gift deed unless it is conditional. He has also submitted that no provision in the Act, including Section 23, empowers, as declared in Janardhanan, any Tribunal to order eviction in the maintenance proceedings.

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In the end, Sri Sunil Nair has submitted that Sundhari

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is willing to maintain Lakshmi Amma, her mother, and that even

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1 2017(5) KHC 1

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W.A.No.375 of 2018 5

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she will be rendered homeless if the impugned judgment is sustained—if the finding of eviction remains untouched. Therefore, he urges us to allow the writ appeal.

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The learned Government Pleader and the learned counsel for Lakshmi Amma, on their part, contend that it is Lakshmi Amma that has been aggrieved, for she could have her title restored only to half property. Lakshmi Amma’s counsel, especially, contends that the mother had been brutally ill-treated and that the findings call for no interference.

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Heard Sri Sunil Nair Palakat, the learned counsel appearing for the appellant, Sri Tek Chand, the learned Government Pleader and Sri Sandeep Ankarath, the learned counsel appearing for the third respondent besides perusing the record.

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Indeed, between the mother and the daughter, the differences run deep. And the fight is bitter, bloody. Though in summary proceedings, such as these, we cannot insist on

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conclusive proof on the allegations, Lakshmi Amma's allegations are serious and carry, at least, prima facie weight.

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To begin with, we agree with the learned Single Judge that the Tribunal has erred in cancelling the entire deed of gift, though it was executed jointly by Lakshmi Amma and her husband, who is no more. Her husband's donated share remaining intact, Lakshmi Amma could recover only half the property, leaving the rest to her co-owner: Sundhari. Even otherwise, Lakshmi Amma seemed to have no complaint; she has not questioned the findings.

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The pleadings and the recitals in the gift deed examined, we find that the donor-parents reserved their right to residence in the property until their life time. And the whole dispute concerns Lakshmi Amma’s right to cancel the entire deed.

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Since much turns upon Section 23 of the Act, it serves well to examine that provision, which reads thus:

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Transfer of property to be void in certain circumstances. 1) Where any senior citizen who, after the commencement of

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this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

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Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

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(italics supplied)

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If any senior citizen has transferred, through gift or otherwise, her property, she can seek a declaration under certain circumstances that the deed of gift or other conveyance is void. First, transferring property must have been conditional. And those conditions must concern the transferor’s basic amenities and basic physical needs. Second, the transferee must have refused or failed to provide those amenities and physical needs to the transferor.

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Here, the impugned judgment has observed:

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“[T]he gift itself implied that it was executed based on the love and affection of mother to her daughter, the petitioner herein. The love is enduring. The moment it was found that the very basis of execution of gift deed is not reflected from the conduct of the transferee after transfer, it can be presumed that the gift was obtained by the transferee with intention to deceive by pretending love and affection”.

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Regrettably, the observation sweeps broad and the finding travels beyond the issue on hand. If at all every gift has an implied condition and that condition comes into play whenever the donee betrays the donor’s love and neglects her, the legislative mandate in Section 23 becomes otiose. We cannot wish away the statutory mandate, however laudable is the objective behind the interpretation doing away with the statutory mandate.

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The legality of an issue need not coincide with the morality of that issue.

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In the expression “the gift of love” or “the gift out of love”, word “love” is tautological, redundant. A gift usually implies, as rightly held in the impugned judgment, love. But it does not always impose conditions, even by implication. There can be unconditional love—particularly towards children—and so

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is the gift.

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Even those conditions, as mentioned in Section 23,

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should concern only the basic amenities and the basic physical needs. The transferor must impose, at least, one such condition, and the transferee must have neglected to meet it.

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Indeed, the gift deed executed by Lakshmi Amma and her husband did reserve the donors' right to residence in the property till their life time. We reckon that the right to residence is a basic amenity or physical need as contemplated in Section 23 of the Act. So we cannot lay down a universal proposition that a gift deed is animated by enduring love and that an allegation on the donor's part that the love is lost suffices to cancel it.

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Granted, section 23 provides for cancellation of a deed of conveyance—usually a gift, though not necessarily confined to it—or declaration that the document is void only if it is conditional. But whether a condition should be apparent from the gift deed or can be gathered from the circumstances does not

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arise here: the gift deed does contain a recital.

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As a result, we cannot but set aside the following

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observation in para 4 of the impugned judgment: “[t]he moment it was found that the very basis of execution of gift deed is not reflected from the conduct of the transferee after transfer, it can be presumed that the gift was obtained by the transferee with intention to deceive by pretending love and affection.”

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Sri Sunil Nair has strenuously contended that Janardhanan answers in the daughter’s favour. He further argues that we cannot take a different stand. In other words, he wants to bind us precedentially with our own judgment, for this very Bench rendered Janardhanan also.

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We are afraid that the facts of Janardhanan are different

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from what we have before us here. We have observed in paragraphs 51 and 52 of Janardhanan thus:

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Statutory impact on the Case:

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The Act is beneficial. A senior citizen, including a parent, must be, as a precondition, unable to maintain himself from his own earning or out of the property owned by him. Only

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then can a senior citizen claim maintenance. In other words, the parent must be without means or with inadequate means. And the children must have refused to maintain him or her. This filial obligation has nothing to do with the children's possessing the parent's property or their succeeding to it in future.

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Once the Act lends to an interpretation that the parent must be unable to maintain herself to claim maintenance, then her assertion or claim over property by invoking this Act sounds, to us, paradoxical. So, we reckon that the entire scheme of the Act does not contemplate or provide for resolving property disputes between or among the members of a family. We cannot be oblivious that among family members who claim their rights as co-owners, there can be property disputes. And this Act cannot annihilate the rights of other members of the family, however salutary or laudable the Act's objective is.”

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We also observed in paragraph 54 that once the right to own or possess a piece of property is disputed by the other members of a family, who include, for instance, the parents and children, this Act is unavailable. And a parent's claim to property—an asset translatable into money's worth and capable of providing means to a senior citizen to maintain herself—the dispute assumes altogether a different dimension. In short, Janardhnan’s holding turns on its own facts.

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We acknowledge that Sundhari is a co-owner and has half share in the property, including the residential building. Indeed, she is entitled to joint possession of the property along with the other co-owner-her mother. Further important is the fact that summary eviction may not be in the contemplation of the Act.

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But, here, the facts as alleged and as prima facie believed by us are significant—and startling. They give a cause for concern. Sundhari has been accused of brutally beating her mother. She has also been accused of throwing her mother out, letting her sleep outside the house days on end, and also starving her. Lakshmi Amma did assert that she had required hospitalization. The police also registered a crime. True, Sundhari denied them all.

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Under these circumstances, letting Sundhari and Lakshmi Amma live together, though daughter and mother they are, we reckon, is impermissible and unsafe, too. It is not an

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invariable principle of law that a co-owner should always be in joint possession. Under certain circumstances, a co-owner may

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have been out of possession either by force of circumstances, or by force of law.

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Here, we hold that Sundhari cannot continue to live with Lakshmi Amma unless she permits. But we hasten to add that Sundhari is not remedyless. As a co-owner, she can assert her right and seek partition of the property. If advised thus, Sundhari can seek legal steps to seek partition of the property and, then, on the division of properties, by metes and bounds, alone can Sundhari have exclusive possession of her share in the house.

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With these observations, we dispose of this writ appeal.

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sd/- Antony Dominic Chief Justice sd/- Dama Seshadri Naidu Judge css/

Sundhari v. the Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

Sundhari v. the Revenue Divisional Officer

Case brief

What is this about?

What did the court decide?

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