Allowed

Shini v. State of Kerala

Kerala HC4 Nov 2022WP(C)/22514/2022

Case brief

AI extract

What is this about?

This writ petition challenged an order by the Maintenance Tribunal cancelling a settlement deed executed in favor of the father-in-law. The High Court, finding the Tribunal lacked power to cancel registered documents without partition, set aside the impugned order as cryptic and opaque under Article 226.

What did the court decide?

The impugned order Ext.P4 of the Maintenance Tribunal directing execution of documents to cancel the settlement deed is set aside. Writ petition allowed.

Shini Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 4^TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 WP(C) NO. 22514 OF 2022

¶2

PETITIONER/S:

¶3

SHINI AGED 37 YEARS W/O. SRINIVASAN, AMBALAPURATHU HOUSE, MURUKKADY PO, MURUKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT.

¶4

BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM

¶5

RESPONDENT/S:

¶6

1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

¶7

2 THE MAINTENANCE TRIBUNAL & REVENUE DIVISIONAL OFFICER, IDUKKI DISTRICT-686602.

¶8

3 THE REGISTRAR, PEERMADE SUB REGISTRAR OFFICE, PEERMADE, IDUKKI DISTRICT - 686513.

¶9

4 KRISHNANKUTTY, AMBALAPURATHU HOUSE, MURUKKADY PO, MURUKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT 686513. -

¶10

5 SRINIVASAN, S/O. KRISHNANKUTTY, AMBALAPURATHU HOUSE, MURUKKADY PO, MURUKKADY KARA, KUMILY VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT - 686513.

¶11

BY ADVS. C.S.MANILAL KARJET KODUVATH S.NIDHEESH

¶12

OTHER PRESENT:

¶13

GP SRI JIMMY GEORGE

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

WP(C) NO. 22514 OF 2022

¶16

¶17

JUDGMENT

¶18

Order dated 18.6.2022 of the Presiding Officer of the Maintenance Tribunal, Idukki allowing the complaint preferred by the father in law respondent No.4 has been assailed on behalf of the petitioner/ the daughter in law.

¶19

The gist of the contention raised by the petitioner had already been extracted in the order dated 11.7.2022 while issuing notice before admission. The same reads as under:

¶20

Inter alia contends that the petitioner has a matrimonial dispute with her husband Mr.Srinivasan. In the proceedings under domestic violence Act, a restraint order had already been issued against the 4^th respondent. During his life time had entered into a settlement deed dated 06.04.2018 in favour of the petitioner and her husband Mr.Srinivasan. The dispute between the husband and wife erupted thereafter. Now the 4^th and 5^th respondents without informing the petitioner and revealing about the proceedings under the Welfare of the Citizens and Maintenance Act, appeared and conceded to execute the documents in favour of the 4^th respondent. Petitioner has not been given an effective opportunity. The only child born in the wedlock is with the petitioner, who is carrying out the business of laboratory, by obtaining loan.

¶21

Issue notice before admission. In the meantime, there shall be an interim stay of operation of Ext.P4 order. Since the dispute is amongst the family members, I intend to refer it to the mediation and Conciliation Centre of this Court. All the parties including Father-in-law, daughter-in-law, and mother-in-law to appear before the Mediation Centre on 25.07.2022. The Mediator will try to sort out all the disputes pending between the parties.

¶22

For mediation report, post on 26.09.2022.

¶23

3. This Court had also referred the matter to the mediation

¶24

and as per the report of the Mediation and Conciliation dated

¶25

WP(C) NO. 22514 OF 2022

¶26

¶27

23.9.2022, mediation proceedings have failed.

¶28

The learned counsel appearing on behalf of the petitioner submits that there is no provision in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Act and Rules much less Rule 19 which empower the competent Magistrate to protect the life and liberty of the senior citizens for cancellation of the settlement deed. The settlement deed did not contain any clause of maintenance of Senior Citizen respondent No.4. Therefore the provisions of sub Section (1) of Section 23 are not attracted. Petitioner and her husband, respondent No.5 with whom she had a matrimonial dispute are the joint owners of the property as per the settlement deed. In the absence of any partition, respondent No.5 husband, who is apparently in collusion with respondent No.4, his father, suffered statement before the Tribunal for cancelling the sale deed. It could not have been done without the consent and signatures of the petitioner. Even otherwise the property stands mortgaged with the bank and the order of cancellation as noticed by the Maintenance Tribunal could not have been done. Petitioner has already approached the Family Court and there is an injunction order against the party respondent from interfering with smooth functioning of her laboratory situated at Kumily and Vandipperiyar.

¶29

WP(C) NO. 22514 OF 2022

¶30

¶31

On the other hand, counsel for the respondent No.4 and 5 opposed the aforementioned prayer and submits that the petitioner is living separately in the house in question which has bee n raised ou t of the funds provided by them. Neither she let her husband or the father in law live in, therefore, the husband had no other choice but to take care of his father respondent No.4. Respondent No.4 has other son also. Even if there is no clause of maintaining the senior citizen at the time of the execution of the settlement deed, Maintenance Tribunal is empowered to protect the life and liberty of the senior citizen.

¶32

I have heard the learned counsel for the parties and appraised the paper book. It would be expedient to extract the relevant contents of the order under challenge Ext.P4 and also the order passed by the Domestic Violence Court, Ext.P3, 25.

¶33

Ext.P4: Proceedings of Presiding Officer, Idukki, Maintenance Tribunal

¶34

Sub: The Maintenance and Welfare of Parents and Senior Citizens Act 2007 - Orders passed in the Application submitted by Sri. Krishnan Kutty, Ambalapurath House, Murikkady P.O, Kumali Villageregarding Ref. 1. Application submitted by Sri. Krishnan Kutty, Ambalapurath House, Murikkady P.O, Kumali Village. 2 Hearing conducted on 03/06/2022,13/06/2022

¶35

Petition was submitted by Sri. Krishnan Kutty. Ambalapurath House, Murikkady P.O. Kumall Village, Peerumedu Taluk to get maintenance and protection from his son Sreenivasan, and daughter in law (Shini) who are the opposite parties and to set aside the fraudulently obtained Settlement Deed executed in favour of. In the petition it is stated that the petitioner is 72 years old and he is having two sons and the opposite parties and

¶36

WP(C) NO. 22514 OF 2022

¶37

¶38

the petitioner were residing jointly in a house. On assurance made by the opposite parties that they will look after the petitioner and his wife a Settlement Deed No 1096/12018 was executed in the joint names of the opposite parties. When the opposite parties constructed a residential house therein, he financially supported them. Thereafter the opposite parties has neglected them and not maintaining. It is mentioned in the petition that the 2 opposite party has filed a Criminla Case against the petitioner and his wife. Petition was considered as per reference cited as (2) above in this office and heard both the parties and recorded their statements.

¶39

Findings

¶40

1.Petitioner and opposite parties are residing in separate houses:

¶41

During the hearing the petitioner submitted that his only prayer is to get back the property which was given to them. 3. Tribunal is convinced that the opposite party is ready to return theTitleDeed.

¶42

The following order is passed based on the above narrated circumstances and on perusal of all the related documents and in view of the provisions contained in in the Maintenance and Welfare of Parents and Senior Citizens Act 2007. In the petition submitted by Sri. Krishnan Kutty, Ambalapurath House, Murikkady P.O, Kumall Village, under Maintenance and Welfare of Parents and Senior Citizens Act 2007 since the opposite party Sri Sreenivasan has expressed his willingness to return back the Title Deed, it is directed the opposite party to execute the document relating to the petition in favour of the complainant.

¶43

Ext.P3: Order of the Family Court, Kattappana

¶44

Heard the counsel for the petitioner and perused the document and affidavit in support of the application and the relevant pleadings. On going through the affidavit and on perusal of records, I am satisfied that the petitioner has got a prima facie case in her favour. Delay will defeat the object of granting injunction. Hence notice is dispensed with. Respondents and persons under them are hereby restrained by an order of temporary injunction from trespassing into the petition scheduled property (Building No. KP IV/856) of Kumily Grama Panchayat and committing any act of waste therein and from interfering with the peaceful enjoyment thereof. They are also restrained from anyway interfering with smooth functioning of petitioner's High-tech Laboratories situates at Kumily and Vandipperiyar and also from interfering her enjoyment thereof. Petitioner is directed to comply with Order XXXIX Rule 3 CPC.

¶45

WP(C) NO. 22514 OF 2022

¶46

¶47

Issue interim order

¶48

On perusal of the impugned order, it is evident that there appears to be an apparent collusion between the father and the son, respondent No.4 and 5 pertaining to the property in dispute . There is no provision under the Act or the rules framed thereunder for setting aside the registered documents. The remedy lies elsewhere. But, without the consent of the other, one of the co-owner cannot make a statement of cancellation deed. There has to be either a partition or some other settlement.

¶49

The injunction order has already been issued with respect to the scheduled property and the subject matter of the settlement deed is under mortgage with the bank, where the petitioner is managing the laboratory. The order under challenge cannot go unescaped from the judicial review of this Court while exercising the power under Article 226 of the Constitution of India. The Ext.P4 order per se is cryptic an d opaque and accordingly set aside. Writ petition stands allowed.

Sd/-

AMIT RAWAL

sab

JUDGE

WP(C) NO. 22514 OF 2022

¶55

¶56

APPENDIX OF WP(C) 22514/2022

¶57

PETITIONER EXHIBITS

¶58

Exhibit P1 TRUE COPY OF THE SETTLEMENT DEED BEARING NO. 1096/2018 DATED 6/4/2018 ALONG WITH ITS ENGLISH TRANSLATION Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED 8/7/2022 ISSUED BY THE CENTRAL BANK EVIDENCING THE FACT THAT PROPERTY COVERED BY EXT. P1 IS MORTGAGED WITH THE BANK Exhibit P3 TRUE COPY OF THE ORDER DATED 2/7/2021 PASSED BY THE FAMILY COURT, KATTAPPANA IN I.A. NO. 3/2021 IN O.P. NO. 355/2021 Exhibit P4 TRUE COPY OF THE ORDER DATED 18/6/2022 PASSED BY THE 2ND RESPONDENT ALONG WITH ITS ENGLISH TRANSLATION Exhibit P5 TRUE COPY OF THE COPY OF THE NOTICE DATED 3/3/2022 ALONG WITH ITS ENGLISH TRANSLATION WHICH WAS SENT TO THE PETITIONER ON 3/6/2022 THROUGH WHATSAPP

Shini v. State of Kerala

Case brief

What is this about?

What did the court decide?

Shini v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Selvaraj M. Vs the Deputy Labour Officer

Palakkad District Co-Operative Hospital and Research Centre Ltd.No.P 878 Vs Employees Provident Fund Organization

P.Raju Vs Mini Antony IAS

Southern Engineering Co. Vs the Regional Provident Fund Commissioner

Mohanan Pillai.K Vs Biju Prabhakar

Kerala State Civil Supplies Corporation Limited, Vs the State of Kerala