Quashed

Nisha P.T., v. Kandoth Nallakandi Sathyabhama

Kerala HC14 Nov 2022WP(C)/19595/2022

Case brief

AI extract

What is this about?

This High Court quashed an order by the Maintenance Tribunal that set aside a gift deed. The Court held that Section 23(1) of the 2007 Act applies only when the deed contains conditions for basic amenities and those are breached. Absent such clauses, the Tribunal lacked jurisdiction.

What did the court decide?

The order of the Sub-Collector/Maintenance Tribunal dated 25.03.2022 setting aside the gift deed is quashed. The writ petition is allowed.

Nisha P.T., Vs Kandoth Nallakandi Sathyabhama — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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MONDAY, THE 14TH DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944
WP(C) NO. 19595 OF 2022

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PETITIONER:

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NISHA P.T.,
AGED 42 YEARS,
W/O LATE K.N.NANDAKUMAR, NO OCCUPATION,
RESIDING NO.730, HAL 3RD STAGE, 4TH MAIN, 1ST BLOCK,
NEAR MOTHER MARY SCHOOL, NEW THIPPASANDRA,
BENGALURU – 560075.

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BY ADVS.
MAHESH V RAMAKRISHNAN
K.PRAMOD

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RESPONDENTS:

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1 KANDOTH NALLAKANDI SATHYABHAMA, SRINILAYAM, P.O.KALLYATT, KANNUR – 670593.

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2 THE PRESIDING OFFICER, MAINTENANCE TRIBUNAL AND SUB COLLECTOR, THALASSERY, KANNUR – 670101.

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3 THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, IRIKKUR, KANNUR – 670306.

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4 THE DISTRICT COLLECTOR, KANNUR -670002.

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BY ADVS.
SRI JIMMY GEORGE, GOVERNMENT PLEADER
M.K.SUMOD MUNDACHALIL KOTTIETH
K.R.AVINASH (KUNNATH)(K/1364/2003)
ABDUL RAOOF PALLIPATH(K/920/1998)
VIDYA M.K.(K/910/1990)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 19595 OF 2022 -2-

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JUDGMENT

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The order of the Maintenance Tribunal dated 25.03.2022 Ext.P5 settling aside the gift deed dated 02.03.2016 has been assailed on behalf of the widow of late K.N.Nandakumar, the beneficiary. Respondent No.1 and aunt of Nandakumar, out of love and affection, on volition, executed a gift deed in respect of a land measuring 1.6187 Hector in Re-survey No.93 of Padiyur Village. The aforementioned gift deed, as per the pleadings was executed with intention that the donor had no child. Unfortunately Nandakumar, the beneficiary of the gift deed, owing to the COVID pandemic died on 01.01.2021. Petitioner, widow of Nandakumar was arrayed as respondent in a petition filed by respondent No.1 before the Sub-Collector on 29.07.2021 and filed a statement Ext.P3.

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Learned counsel appearing on behalf of the petitioner submitted that the gift deed did not contain

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WP(C) NO. 19595 OF 2022 -3-

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any clause of maintenance much less welfare of the donor respondent No.1 and therefore the Maintenance Tribunal did not have jurisdiction to try the petitioner as per the provisions of Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘2007 Act’, for short). The Tribunals do not have the power to set aside the gift deed as such power vests with a Civil Court in view of the ratio decidendi culled out by Full Bench of this Court in Subhashini V. District Collector (2020(5) KLT 533 (FB)) . It was further contended that the steps of mediation and conciliation proceedings initiated by this Court have also proved futile.

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On the other hand, learned counsel for the respondents supported the order of the Tribunal and submitted that the conscious of the Court cannot be overlooked for adjudication of the lis. Since the donor as respondent No.1 did not have any child out of the marriage, the nephew Nandakumar was being looked

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WP(C) NO. 19595 OF 2022 -4-

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upon as a child. During his life time respondent No.1 was being looked after but situation changed after his demise. It is on that account petition was filed in July, 2021, not immediately after the demise, thus, urged this Court for dismissal of the writ petition.

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I have heard learned counsel for the parties and appraised the paper-book.

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Section 23 of the 2007 Act reads thus:

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“ 23. Transfer of property to be void in certain circumstances.

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(1) Where any senior citizen who, after the commencement of 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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(2) 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,

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WP(C) NO. 19595 OF 2022 -5-

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or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

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(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.”

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The gift deed dated 02.03.2016 placed on record as Ext.P1 do not reflect any clause of maintenance of respondent No.1. Despite having taken the objection before it, the Maintenance Tribunal proceeded with the trial. In my view, Maintenance Tribu nal manned b y the officers of Collector or SubCollector should be sensitized of the provisions of the Act and not proceed with the case callously as has been done in this case. The gift deed did not contain any clause of maintenance. Petition under the Act was ex facie not maintainable. If at all the party has grievance they are at liberty to challenge the same by filing a suit as has been held in paragraph No.28 of the Full Bench judgment, which reads as under:

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WP(C) NO. 19595 OF 2022

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-6-

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“28. Section 23 does not create or negate any substantive rights; except the one mentioned above and merely provides a procedure for speedy recovery, to ensure which a deeming fiction is created with respect to certain categories of transfer of property, made subject to a condition. The fiction created; on a breach of the specified condition, deems the transfer itself to be vitiated by reason of fraud, coercion or exercise of undue influence. The transfer of property as spoken of in the provision has to concede to the various transfers spoken of in the T.P Act. The vitiating factors are those available under common law and defined under the Indian Contract Act. Normally the transferor will have to approach the civil courts to enforce his claim to get the transfer set aside. When a remedy is sought before the Civil Court, the normal rules of evidence applies and the adjudication is carried on by a judicial officer.”

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For the reason aforementioned, I am of the view that the order of the Sub-Collector – Maintenance Tribunal is wholly without jurisdiction, not sustainable and hereby quashed. Writ petition is allowed.

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Sd/-

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AMIT RAWAL JUDGE

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vv

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WP(C) NO. 19595 OF 2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF THE REGD GIFT DEED NO.405
OF 2016, S.R.O., IRIKKUR EXECUTED BY
THE 1ST RESPONDENT TO LATE
K.N.NANDAKUMAR.
Exhibit P2TRUE COPY OF THE PETITION DATED 29-07-
2021 SUBMITTED BY THE 1ST RESPONDENT
BEFORE THE MAINTENANCE TRIBUNAL AND
SUB COLLECTOR, THALASSERY (2ND
RESPONDENT HEREIN).
Exhibit P3TRUE COPY OF THE STATEMENT DATED 14-
02-2022 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P4TRUE COPY OF THE STATEMENT SENT
THROUGH EMAIL DATED 23-02-2022 BY THE
PETITIONER TO THE 2ND RESPONDENT
Exhibit P5TRUE COPY OF THE ORDER DATED 25-03-
2022 ISSUED BY THE 2ND RESPONDENT
TRIBUNAL IN MCC 60/2021
Exhibit P6TRUE COPY OF THE POLICE COMPLAINT
DATED 05-072021 LODGED BY THE
PETITIONER BEFORE JEEVAN BHEEMA NAGAR
POLICE STATION, BANGALURU.
Exhibit P7TRUE COPY OF THE RECEIPT DATED 05-07-
2021 ISSUED BY THE JEEVAN BHEEMA NAGAR
POLICE STATION BANGALURU ALONG, WITH
TRANSLATION.
Exhibit P8TRUE COPY OF THE REGD GIFT DEED NO.406
OF 2016 EXECUTED BY THE PETITIONER IN
FAVOUR OF SMT. RADHIKA.

Nisha P.T., v. Kandoth Nallakandi Sathyabhama

Case brief

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Nisha P.T., v. Kandoth Nallakandi Sathyabhama

Case brief

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