CICILI v. District Collector and Maintenance Welfare of Parents and Senior Citizens Appellate Tribunal, Trivandrum, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WP(C).No.12945 OF 2019(P)** ## **PETITIONER:** **CICILI, AGED 63 YEARS W/O.LATE KARUNAKARAN, THADATHARIKATHU, MUKKOLAKKAL, KADAVANAD, PALODE VILLAGE, TRIVANDRUM.** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS:** **1 DISTRICT COLLECTOR/MAINTENANCE WELFARE OF PARENTS AND SENIOR CITIZEN APPELLATE TRIBUNAL, TRIVANDRUM, COLLECTORATE, TRIVANDRUM-695001.** **2 MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZEN TRIBUNAL, TRIVANDRUM-695001.** **3 SAJIN K.S., S/O.KARUNAKARAN, AGASTHYAR MADAM, MUKKOLAKKAL, PEREEYAM PO, KADAVANAD, PALODE VILLAGE, NEDUMANGAD TALUK, TRIVANDRUM-695541.** **GP- SRI.N.B.SUNIL NATH R3 BY ADV. SRI.J.R.PREM NAVAZ R3 BY ADV. SHRI.SUMEEN S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12945 OF 2019 2** ## **JUDGMENT** The petitioner is a senior citizen, coming within the sweep of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (hereinafter referred to as 'the Act' for short) and she impugns Exts.P5 and P8 orders issued by the Maintenance Tribunal and the Appellate Tribunal respectively, constituted under the provisions of the said Act, as being illegal and improper, to the extent to which they have not considered her plea for setting aside a document executed by her in favour of the 3[rd] respondenther son, under the provisions of Section 23 of the said Act. 2. According to the petitioner-senior citizen, she and her husband-late Shri.Karunakaran were constrained to approach the Tribunal on account of the persistent harassment being meted out to them by their son, but that pending the Appeal before the Appellate Tribunal, her husband died and that she has now been constrained to continue with the litigation on her own. She says that, as is clear from ## **WP(C).No.12945 OF 2019 3** Exts.P5 and P8, the reason stated by the Tribunal for denying her prayer for cancellation of the settlement deed executed by her in favour of her son is that she is in possession of the property in question and also because she and her husband were enjoying a monthly pension of Rs.14,000/-. She says that these reasons are absolutely untenable, going by the provisions of Section 23 of the Act and therefore, that these orders be set aside to that extent. 3. The learned counsel appearing for the 3[rd] respondent-Shri.Premnavas, initially sought time to file counter pleadings; but then explained that, as is clear from the impugned orders itself, it was his client who was put to a lot of harassment by his siblings and that litigations and complaints were made against each other on account of such disputes. He says that he was unable to do his business of an Ayurvedic Shop on account of all these and that he has now been led to virtual perdition by his mother and siblings. He, therefore, prays that Exts.P5 and P8 orders be let uninterdicted **WP(C).No.12945 OF 2019 4** because he is complying with all the directions therein. 4. The learned Government PleaderShri.N.B.Sunil Nath, appearing on behalf of 1[st] and 2[nd] respondents submits that the Tribunals have found the condition of the petitioner and her husband to be deplorable and that, consequently, in Ext.P8, clear provisions have been made to ensure that the 3[rd] respondent takes care of his mother with dignity and offers her full protection. He submits that, however, the provisions of Section 23 of the Act had not been invoked by the Tribunals because the senior citizen is enjoying a pension of Rs.14,000/- per month and also because the property in question is still in her possession. He adds that, as is also recorded in Ext.P8, the 3[rd] respondent has explicitly agreed that he will take care of his mother. **==> picture [344 x 10] intentionally omitted <==** Government Pleader and Shri.Premnavas-the learned counsel for the 3[rd] respondent on the afore lines, it is now well settled in law that ## **WP(C).No.12945 OF 2019 5** when a senior citizen makes a plea under Section 23 of the Act, the Tribunals are expected to find out if the document of title, under which the transfer has been made, creates an obligation on the beneficiary that basic necessities and physical needs of the senior citizen will be taken care of by him/her and whether such a condition can be read into the document, even if it is not so explicitly stated, going by the judgment of this Court in _**Radhamani v. State of Kerala [2016(1)KLT185]**_ . However, in the case at hand what has been done by the Tribunals is to record that the petitioner is already enjoying a pension of Rs.14,000/- and that she is in physical possession of the property in question and therefore, that she is not entitled to any protection under Section 23 of the Act. 6. It is indubitable that these findings cannot find favour in law, since the Tribunals are not expected to go beyond the parameters of the statute, how ever laudable their intentions may be. If the specific criterion under Section ## **WP(C).No.12945 OF 2019 6** 23 are attracted in a particular case, then the Tribunals have no other option but to issue orders based on the imperatives of the Section and cannot deny relief to a senior citizen solely because he/she may have other avenues of livelyhood or even if the property in question is in his/her possession. 7. That said, in the case at hand, there is nothing to show conclusively that the senior citizen has been able to enjoy the property, even assuming the statements in the impugned orders are correct; and therefore, the Tribunals ought to have considered the petitioner's plea under Section 23 of the Act on its merits, rather than declining it for the reasons stated in the impugned orders. In the afore circumstances and since I cannot offer imprimatur to the orders assailed herein, I set aside both Exts.P5 and P8, but only to the extent to which it has denied relief to the petitioner under Section 23 of the Act; and consequentially, direct the Maintenance Tribunal to reconsider the complaint of the ## **WP(C).No.12945 OF 2019 7** petitioner solely with respect to Section 23 of the Act and then issue an appropriate order, after affording necessary opportunity of being heard to both sides, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, the other directions in the impugned orders will remain intact and the 3[rd] respondent will be obligated to act as per it, without fail. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** MC **WP(C).No.12945 OF 2019 8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE SETTLEMENT DEED EXECUTED BY THE PETITIONER'S HUSBAND TO THE 3RD RESPONDENT BEARING NO.1160/2012 OF SUB REGISTRAR OFFICE PALODE.** **EXHIBIT P2 THE TRUE COPY OF THE SETTLEMENT DEED EXECUTED BY THE PETITIONER TO THE 3RD RESPONDENT BEARING NO.1161/2012 OF SUB REGISTRAR OFFICE PALODE.** - **EXHIBIT P3 THE TRUE COPY OF THE PETITION FILED BY THE PETITIONER AND HER HUSBAND BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P4 THE TRUE COPY OF THE FIR IN CRIME NO.23/17 OF PALODE POLICE STATION.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT ON 24.1.2017.** - **EXHIBIT P6 THE TRUE COPY OF THE INTERIM INJUNCTION IN IA NO.2488/17 IN OS NO.518/17 ON THE FILE OF ADDITIONAL MUNSIFF NEDUMANGAD.** - **EXHIBIT P7 THE TRUE COPY OF THE APPEAL FILED BY THE PETITIONER UNDER SECTION 16 OF SENIOR CITIZEN ACT 2007 BEFORE MAINTENANCE APPELLATE TRIBUNAL/1ST RESPONDENT.** - **EXHIBIT P8 THE TRUE COPY OF THE ORDER IN APPEAL PASSED BY MAINTENANCE APPELLATE TRIBUNAL/1ST RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS:** ## **NIL** **MC** **(TRUE COPY) PA TO JUDGE**