Jameela K v. Appellate Tribunal (Maintenance and Welfare of Parents & Senior Citizens Act), Palakkad; K. Shakeela v. Appellate Tribunal (Maintenance and Welfare of Parents & Senior Citizens Act), Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944** ## **WP(C) NO. 27360 OF 2014** ## **PETITIONER/S:** JAMEELA.K AGED 67 YEARS W/O.LATE SAIDUMOHAMMED, KALLARAKKAL HOUSE, YASMIN NAGAR, MANNUR, NAGARIPURAM POST, PALAKKAD AND NOW RESIDING AT THATTARATHODI HOUSE, KANNAIAMPURAM POST, OTTAPALAM - 679 104. BY ADV SRI.R.SREEHARI ## **RESPONDENTS:** - 1 THE APPELLATE TRIBUNAL (MAINTENANCE AND WELFARE OF PARENTS & SENIOR CITIZENS ACT) CIVIL STATION, PALAKKAD - 678 001. - 2 MAINTENANCE TRIBUNAL UNDER MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT AND REVENUE CIVIL STATION, PALAKKAD - 678 001. - 3 DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, PALAKKAD - 678 011. - 4 SUB INSPECTOR OF POLICE MANKARA POLICE STATION, MANKARA POST, PALAKKAD - 678 613. - 5 K.SHAKEELA - AGED 47 YEARS - D/O.LATE SAIDUMOHAMMED, KALLARAKKAL HOUSE, YASMIN NAGAR, MANNUR, NAGARIPURAM POST, PALAKKAD - 678 642. BY ADV SRI.P.U.SHAILAJAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2022, ALONG WITH WP(C).33732/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) Nos.27360/2014 & 33732/2014 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944** ## **WP(C) NO. 33732 OF 2014** ## **PETITIONER/S:** K.SHEKKEELA AGED 41 YEARS D/O.LATE SEYDU MUHAMMED,KALLARAKKAL HOUSE,YASIM NAGAR,NAGARIPPURAM P.O,MANNOOR,PALAKKAD DISTRICT BY ADV SRI.P.U.SHAILAJAN ## **RESPONDENT/S:** - 1 K.JAMEELA W/O.SYEDU MUHAMMED,KALLARAKKAL HOUSE,YASIM NAGAR,NAGARIPPURAM P.O,MANNOOR,PALAKKAD DISTRICT 678 642 - 2 MAINTENANCE TRIBUNAL AND REVENUE DIVISIONAL OFFICERPALAKKAD 678 001 - 3 APPELLATE TRIBUNAL AND DISTRICT COLLECTOR PALAKKAD 678 001 BY ADV SRI.R.SREEHARI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2022, ALONG WITH WP(C).27360/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING W.P.(c) Nos.27360/2014 & 33732/2014 3 ## **JUDGMENT** Since the issues involved in both the writ petitions are the same, they are heard together and are disposed of by this common judgment. 2. The petitioner in W.P.(C) 27360/2014 is the mother of the petitioner in W.P.(C) No.33732/2014. For the sake of convenience, the parties will hereinafter be referred to as 'mother' and 'daughter' in this judgment. The Exhibits are referred to as they appear in W.P.(C) 27360/2014, unless otherwise specifically mentioned. 3. According to the mother, she became a widow at the age of 18 when the only daughter was aged one year. After the marriage of the daughter, the properties including residential building were transferred to the daughter by Ext. P1 sale deed dated 07.11.2008 after reserving the right of the mother to reside in the house. In 2012, the mother approached the Maintenance Tribunal for setting aside Ext. P1 W.P.(c) Nos.27360/2014 & 33732/2014 4 and for protection to reside in the house, contending that the daughter is not looking after her. Based on a settlement between the parties, the Maintenance Tribunal passed Ext. P2 order setting aside Ext.P1 Sale deed with a direction that the mother shall execute a Will in favour of the grandson in respect of the property covered by Ext.P1. 4. Ext.P2 was challenged by the daughter before the appellate authority contending that she had never consented for cancellation of Ext. P1 sale deed. The appellate authority, by Ext.P3 order, refused to interfere with Ext.P2 order of the Maintenance Tribunal. In W.P.(C) 27360/2014, the mother seeks for enforcement of Exts.P2 and P3 orders, whereas the daughter has challenged the said orders in W.P.(C) No.33732/2014. According to the daughter, Ext.P2 order of the Maintenance Tribunal is without jurisdiction and against the provisions of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the 'Act' for short). W.P.(c) Nos.27360/2014 & 33732/2014 5 5. Heard Sri. R. Sreehari, the learned counsel for the petitioner in W.P.(C) 27360/2014, Sri. P.U. Shailajan, the learned counsel for the petitioner in W.P.(C) No.33732/2014 and the learned Government Pleader. 6. Sri. P.U. Shailajan, the learned counsel for the daughter submits that, in Ext.P1 sale deed, though the right of the mother to reside in the house has been reserved, there is no recital or any condition in the sale deed that the daughter shall provide the basic amenities and basic physical needs to the mother. Sri. Shailajan further contends that, Ext.P1 is a sale deed and the provisions of Section 23 of the Act apply only in respect of Gift Deed. The learned counsel relies on the Full Court judgment of this Court in **Subashini v. District Collector (2020(5) KHC 195** ) in support of his contention. It is also contended that the daughter has not given any consent for cancellation of Ext.P1 sale deed. 7. For the purpose of invoking Section 23 of the Act, the document by which the property has been transferred shall contain a condition that the transferee shall provide the W.P.(c) Nos.27360/2014 & 33732/2014 6 basic amenities and basic physical needs to the transferor. Ext.P1 does not contain such a recital. Accordingly, I find that Ext.P2 order passed by the Maintenance Tribunal setting aside Ext. P1 sale deed invoking powers under Section 23 is not sustainable and the same is set aside. 8. Sri. Sreehari submits that, in Ext.P2 order, in the light of the consent made by the daughter before the Tribunal, the Tribunal did not consider the other prayers of the mother including the question of her residence in the house situated in the property covered by Ext.P1. Accordingly, Sri. Sreehari seeks for remand of the matter to the Maintenance Tribunal. The Maintenance Tribunal as well as the appellate authority considered only the question of cancellation of Ext. P1 sale deed. The other prayers of the mother in Ext.P2 application (in W.P.(C) No.33732/2014), were not considered by the Maintenance Tribunal or the appellate authority. Accordingly, the matter is remanded to the Maintenance Tribunal for the limited purpose of considering the rest of the prayers in the application for maintenance. The Tribunal shall W.P.(c) Nos.27360/2014 & 33732/2014 7 hear both parties and take appropriate decision after affording opportunity to adduce fresh evidence, if any, within a period of three months from the date of receipt of a copy of this judgment. The writ petitions are disposed of with the said direction. Sd/- **MURALI PURUSHOTHAMAN JUDGE** al/-+. W.P.(c) Nos.27360/2014 & 33732/2014 8 ## **APPENDIX OF WP(C) 33732/2014** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTERED ASSIGNEMENT DEED NO 4911/2008 DATED 7-11-2008 BEFORE THE S.R.O PARALI EXHIBIT P2 TRUE COPY OF THE COMPLAINT B-8593/2012 DATED 4- `12-2012 GIVEN BY THE 1ST RESPONDENT BEFORE THE REVENUE SUB DIVISIONAL OFFICER,PALAKKAD EXHIBIT P3 TRUE COPY OF THE STATEMENT OF 1ST RESPONDENT RECORDED ON 22-1-2013 EXHIBIT P4 TRUE COPY OF THE STATEMENT OF PETITIONER RECORDED ON 22-1-2013 EXHIBIT P5 TRUE COPY OF THE STATEMENT GIVEN BY THE 1ST RESPONDENT ON 30-01-2013 BEFORE THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 31-1-2013 BEFORE THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE STATEMENT GIVEN ON 13-2-2013 BY THE 1ST RESPONDENT EXHIBIT P8 TRUE COPY OF THE STATEMENT GIVEN ON 14-2-2013 BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT EXHIBIT P9 EXHIBIT P9 TRUE COPY OF THE RODER DATED 15-42013 PASSED BY THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE STATEMENT ALLEGED TO BE GIVEN BY THE PETITIONER DATED 14-2-2013 EXHIBIT P11 TRUE COPY OF THE APPEAL FILED BY PETITIONER BEFORE THE APPELLATE TRIBUNAL AND DISTRICT COLLECTOR,PALAKKAD DATED 11-10-2013 EXHIBIT P12 TRUE COPY OF THE ORDER DATED 11-08-2014 OF THE 3RD RESPONDENT W.P.(c) Nos.27360/2014 & 33732/2014 9 ## **APPENDIX OF WP(C) 27360/2014** ## PETITIONER EXHIBITS EXHIBIT P1. PHOTO COPY OF THE DOCUMENT NO.4911/2005 OF SRO PARALI. EXHIBIT P2. PHOTO COPY OF THE ORDER B-8593/2012 DATED 15.04.2013 PASSED BY THE 2ND RESPONDENT. EXHIBIT P3. PHOTO COPY OF THE ORDER NO.J42013/66323/9 DATED 11.08.2014 PASSED BY THE 1ST RESPONDENT. EXHIBIT P4. PHOTO COPY OF THE COMPLAINT DATED 20.08.2014 FILED BEFORE THE 3RD RESPONDENT. EXHIBIT P5. PHOTO COPY OF THE PETITION DATED 23.09.2014 FILED BEFORE THE FIRST RESPONDENT. EXHIBIT P6. PHOTO COPY OF THE PLAINT IN OS NO.287/2014 OF MUNSIFF'S COURT, PALAKKAD.