The Court quashed an order declaring a gift deed void under Section 23(1) of the Act. Holding that the condition to provide amenities must be expressly stated in the transfer document itself, the Court set aside the Tribunal order in light of Subhashini.
The order passed by the Tribunal is set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 7TH DAY OF OCTOBER 2021 / 15TH ASWINA, 1943
WP(C) NO. 9454 OF 2019
PETITIONER:
M.V.ANITHA,AGED 45 YEARS W/O.GOPALAKRISHNAN, NAVAGEETHAM, NEAR NELLIYOTT TEMPLE, KANUL P.O., KALYASSERRY, KANNUR DISTRICT- 670564.
BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.SHASHANK DEVAN
RESPONDENTS:
1 P.V.KRISHNAMARAR, S/O.AMBU, KANOOL NELLIYOTT HOUSE, MORAZHA P.O., TALIPARAMBA TALUK, KANNUR DISTRICT- 670567. 2 THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR, THALASSERI, KANNUR- 670101. BY ADVS. SR. GP SMT.SHEEJA C.S SRI.K.MOHANAKANNAN SMT.T.V.NEEMA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Order of the Maintenance Tribunal under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, 'the Act'), declaring the gift deed executed by 1st respondentfather in favour of the petitioner-daughter as null and void, is under challenge in this writ petition.
Section 23(1) of the Act reads thus:
“Where any senior citizen who, after the
commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the
W.P(C) NO.9454 OF 2019
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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. ”
District Collector, Kozhikode and others (2020(5) KLT 533) held that, unless the condition to provide for the amenities and needs is expressly stated in the document of transfer, the Tribunal does not get jurisdiction to exercise its power under Section 23(1) of the Act. Though the learned counsel appearing for the 1st respondent would submit that the issue has been carried before the Apex Court and is pending consideration, it is not in dispute that, as of now the law laid down in Subhashini's case ( supra ) holds the field.
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passed by the Tribunal, is liable to be set aside
and I do so.
The writ petition is allowed as above.
Sd/-
SATHISH NINAN
JUDGE
vdv
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APPENDIX OF WP(C) 9454/2019
PETITIONER EXHIBITS
| EXHIBIT P1 | TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT IN MCC 164/2015 DATED 28.02.2019. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE GIFT DEED NO.1008/2014 OF KALLIASERY SUB REGISTRAR OFFICE, TALIPARAMBU TALUK, KANNUR DISTRICT DATED 28.04.2014. |
| EXHIBIT P3 | TRUE COPY OF THE PLAIN IN O.S.NO.502/2015 FILED BY THE 1ST RESPONDENT. |
| EXHIBIT P4 | TRUE COPY OF THE SAID SUIT FILED BY THE PETITIONER IN O.S.NO.514/2015 DATED 06.10.2005. |
| EXHIBIT P5 | TRUE COPY OF THE SAID ORDER DATED 08.12.2016 PASSED BY THE 2ND RESPONDENT TRIBUNAL. |
| EXHIBIT P6 | TRUE COPY OF THE SAID JUDGMENT DATED 18.12.2017 IN WP(C)NO.10893/2017. |
| EXHIBIT P6 | TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT TRIBUNAL IN MCC 164/2015 DATED 25.01.2018. |
| EXHIBIT P7 | TRUE COPY OF THE JUDGMENT IN WP(C)NO.25266/2018 DATED 15.11.2018. |
| EXHIBIT P8 | TRUE COPY OF THE FIR DATED 01.03.2017 IN THE CR.NO.313/2017. |
| EXHIBIT P9 | TRUE COPY OF THE FIR DATED 07.02.2018 IN CR.NO.153/2018. |
| EXHIBIT P10 | TRUE COPY OF THE SAID FIR IN |
| CR.NO.120/2018 DATED 29.01.2018. |
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EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 30.01.2018 IN WP(C)NO.19838/2016 PASSED BY THIS HON'BLE COURT.
RESPONDENT EXHIBITS
| EXHIBIT R1(A) | TRUE COPY OF THE FINAL REPORT DATED 15.3.2017 OF TALIPARAMB POLICE STATION |
|---|---|
| EXHIBIT R1(B) | TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 18.9.2018 IN CRIMINAL.M.C 1999/2018 |
| EXHIBIT R1(C) | TRUE COPY OF THE REPORT IN CRIME NO 153/2018 DATED 1.5.2018 |
| EXHIBIT R1(D) | TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE TALUK HEAD QUARTERS HOSPITAL, TALIPARAMBA DATED 22.2.2017 |
| EXHIBIT R1(E) | TRUE COPY OF THE DEPOSITION MADE BY THE PETITIONER BEFORE THE TRIBUNAL DATED 17.1.2019 |
| EXHIBIT R1(F) | TRUE COPY OF THE COMPLAINT FILED BEFORE THE SUB INSPECTOR OF POLICE, TALIPARAMBA ON 24.6.2019 |
| EXHIBIT R1(G) | TRUE COPY OF THE RECEIPT ISSUED TO COMPLAINT DATED 24.6.2019 BY THE TALIPARAMBA POLICE STATION |
3 issues framed by the court
Whether the Tribunal has jurisdiction to declare a gift deed void under Section 23(1) of the Act when the condition to provide amenities is expressed only in the certiorari order and not in the gift d
Whether the Full Bench judgment in Subhashini precludes jurisdiction to declare a supplementary condition deed void under Section 23.
Whether the order passed by the Tribunal declaring the gift deed void is liable to be set aside.
Colour shows how this judgement treated each authority
Subhashini v. The District Collector, Kozhikode and othersFollowed¶23
Subhashini v. The District Collector, Kozhikode and others (2020(5) KLT 533)
1 provisions across 1 enactments
M.V.ANITHA
P.V.KRISHNAMARAR
THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR, THALASSERI
SATHISH NINAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
SATHISH NINAN
Parties & counsel
