Anil Kumar v. State of Kerala and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM ``` ``` PRESENT ``` ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV ``` ``` THURSDAY,THE23[RD]DAYOFMARCH2023/2NDCHAITHRA,1945 WP(C)NO.12119OF2021 ``` ``` PETITIONER: ``` ``` ANILKUMAR AGED55YEARS S/O.KRISHNAN,T.C.275,MELEKUNNILVEEDU,TPJROAD, PATTOMP.O.,THIRUVANANTHAPURAM. PRESENTLYRESIDINGATKULARAMBILVEEDU, SIVANANDANROAD,VENPALAVATTOM,ANAYARAP.O., THIRUVANANTHAPURAM-695029. ``` ``` BYADVS. BIJUBALAKRISHNAN V.S.RAKHEE K.J.GISHA ``` ``` RESPONDENTS: ``` ``` 1STATEOFKERALA REPRESENTEDBYTHESECRETARY,SOCIALWELFARE DEPARTMENT,GOVERNMENTSECRETARIAT, THIRUVANANTHAPURAM-695001. 2THEMAINTENANCETRIBUNAL, MAINTENANCEANDWELFAREOFPARENTSANDSENIORCITIZENS, THIRUVANANTHAPURAM-695043, REPRESENTEDBYITSPRESIDINGOFFICER. 3THEREVENUEDIVISIONALOFFICERANDMAINTENANCE TRIBUNAL, REVENUEDIVISIONOFFICE,CIVILSTATION,KUDAPPANAKUNNU P.O.,THIRUVANANTHAPURAM-695043. ``` W.P.(C) No.12119 of 2021 2 ``` 4VASUMATHI T.C.2/2275,KUNNILVEEDU,TPJROAD,PLAMOODU,PATTOM P.O.,THIRUVANANTHAPURAM-695004. ``` ``` BYADVP.PUSHPARAJAN ``` ``` SMT.MABLECKURIAN,SRGP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON23.03.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` W.P.(C) No.12119 of 2021 3 ## **JUDGMENT** The 4th respondent is a senior citizen. She is the mother of the petitioner. She has two other children, one Suresh and Sunilkumar. Sunilkumar is stated to be a person with mental impairment. 2. The 4th respondent has invoked the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Tribunal and has filed a petition wherein it is contended that she is 82 years old and was the owner of an item of property having an extent of about 4 cents. She asserted that her son, Sri. Sunilkumar, is sick and as the mother, she is taking care of his well-being. While so, the 4th respondent assigned 4 cents of land owned by her to the petitioner by executing a settlement deed vide No. 1637 of 2000 of the Pattom Sub Registrar’s Office. It is stated by the 4th respondent in Ext.P7 complaint that after obtaining the deed, she was neglected by the petitioner and refused to provide food, healthcare, and amenities. She stated that the petitioner has constructed a residential home in the property and has leased out the same. She asserted that her elder son was a driver and he W.P.(C) No.12119 of 2021 4 does not have the means to provide for her welfare. Her request before the Tribunal was to invoke the powers under Section 23 of the Act and to cancel the document. 3. The Maintenance Tribunal issued notice to the parties. The petitioner entered appearance and denied the assertions in the complaint. He contended that there is no condition or express recital in the document providing for the provision of basic amenities and basic physical needs to a senior citizen and in that view of the matter, the Tribunal was having no jurisdiction to cancel the document by invoking powers under Section 23 of the Act. 4. The Tribunal by Ext.P11 order dated 4.12.2018, refused to interfere and ordered that the matter has to be resolved before the Civil Court. 5. Challenging the said order, the 4th respondent preferred an appeal before the Appellate Tribunal. The Appellate Tribunal issued notice to the petitioner, but he failed to appear before the authority. By Ext.P12 order, the Appellate Tribunal proceeded to cancel document No. 1687 of 2000 executed by the 4th respondent in favor of the petitioner. W.P.(C) No.12119 of 2021 5 6. Sri.Biju Balakrishnan, the learned counsel appearing for the petitioner, would refer to Ext.P1 settlement deed and submitted that while executing the deed, the 4th respondent has not included any condition which provides for the provision of basic amenities and basic physical needs to the senior citizen. According to the learned counsel, in view of the law laid in **Subhashini v. District Collector** [2020 (5) KLT 533 (F.B.)], the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. 7. In response, the learned counsel appearing for the 4th respondent submitted that though the 4th respondent has sought maintenance as well as the right of residence in the residential building constructed by the petitioner in the property assigned to her, the Maintenance Tribunal has refused to grant the 4th respondent the said relief and instead relegated the 4th respondent to the Civil Court. The learned counsel would further submit that the District Magistrate also W.P.(C) No.12119 of 2021 6 failed to consider whether as a senior citizen and parent, any amount could be awarded by way of maintenance to the 4th respondent and also the right of residence in the building. According to the learned counsel, even if it is admitted that in view of the law laid down in **Subhashini** (supra), the District Magistrate could not have cancelled the document, the District Magistrate could have issued orders granting maintenance which would include provision for food, clothing, residence and medical attendance and treatment. 8. I have considered the submissions advanced and have perused the records. 9. I find that in the petition filed by the 4th respondent before the Tribunal, she had sought maintenance, right of residence as well as to cancel the document. However, the Maintenance Tribunal has rejected all the requests and relegated the petitioner to the Civil Court. It is challenging the said order, the petitioner has preferred appeal by invoking the appellate provision before the District Magistrate. The District Magistrate ignoring the law laid down in **Subhashini** (supra) has cancelled the document. However, as rightly submitted by the counsel W.P.(C) No.12119 of 2021 7 appearing for the 4th respondent, the District Magistrate ought to have considered whether the senior citizen/parent had made out a case for maintenance and also for right of residence. That aspect of the matter has not been considered by the District Magistrate. In that view of the matter, I am of the view that the matter requires reconsideration at the hands of the District Magistrate. Resultantly, this writ petition is disposed of by ordering as under: a) Ext.P12 order will stand quashed. b) The appeal is remitted back to the District Magistrate to re-consider whether the 4th respondent has made out a case for the grant of maintenance and right of residence in the building. c) The District Magistrate shall reconsider the matter with notice to both sides and shall pass fresh orders within a period of two months. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru W.P.(C) No.12119 of 2021 8 ## `APPENDIX OF WP(C) 12119/2021` ``` PETITIONER'SEXHIBITS ``` ``` ExhibitP1TRUECOPYOFTHESETTLEMENTDEEDNO.1637/2000 OFPATTOM,SROEXECUTEDBYTHE4THRESPONDENT INFAVOUROFTHEPETITIONER. ExhibitP2TRUECOPYOFTHESALEDEEDNO.2706/2003DATED 30/07/2003OFPATTOMSRO. ExhibitP2(A)TRUECOPYFTHELANDTAXRECEIPTDATED 25/08/2020INFAVOUROFTHEPETITIONERAND HISWIFESMT.SUGUNA. ExhibitP3TRUECOPYOFTHEENCUMBRANCECERTIFICATEFOR THEPERIODFROM01/01/1989TO31/10/2018OF THEPROPERTY. ExhibitP4TRUECOPYOFTHEPROPERTYTAXRECEIPTFORTHE PERIODFROM2019TO2021. ExhibitP5TRUECOPYOFTHECOMPLAINTDATED22/12/2017 WITHTHERECEIPTFILEDBYTHE4THRESPONDENT AGAINSTTHEELDERSONMR.SURESHKUMARAND HISWIFESMT.LATHA. ExhibitP6TRUECOPYOFTHECOMPLAINTDATED24/10/2018 FILEDBYTHE4THRESPONDENTBEFORETHE3RD RESPONDENT. ``` W.P.(C) No.12119 of 2021 9 |`Exhibit `|`P7`|`TRUE COPY OF THE COMPLAINT DATED 07/07/2018`| |---|---|---| |||`FILED BY THE 4TH RESPONDENT BEFORE THE`| |||`DISTRICT COLLECTOR.`| |`Exhibit `|`P8`|`TRUE COPY OF THE NOTICE DATED 23/10/2018 FROM`| |||`THE 3RD RESPONDENT TO THE PETITIONER.`| |`Exhibit `|`P9`|`TRUE COPY OF THE NOTICE DATED 16/11/2018 FROM`| |||`THE 3RD RESPONDENT TO THE PETITIONER.`| |`Exhibit `|`P10`|`TRUE COPY OF THE OBJECTION DATED 23/11/2018`| |||`FILED BY THE PETITIONER BEFORE THE 3RD`| |||`RESPONDENT.`| |`Exhibit `|`P11`|`TRUE COPY OF THE ORDER DATED 04/12/2018 OF`| |||`THE 3RD RESPONDENT.`| |`Exhibit `|`P12`|`TRUE COPY OF THE ORDER OFTHE 3RD RESPONDENT.`| |`Exhibit `|`P13`|`TRUE COPY OF THE LOAN SANCTION LETTER DATED`| |||`6.10.2015 ISSUED BY THE STATE BANK OF INDIA,`| |||`STATUE BRANCH, THIRUVANANTHAPURAM TO THE`| |||`PETITIONER.`| |`Exhibit `|`P14`|`TRUE COPY OF THE OWNERSHIP CERTIFICATE OF`| |||`BUILDING NO.2/2272(1), THE SUBJECT BUILDING.`|