Janaki v. The District Collector, Maintenance and Welfare of Parents and Senior Citizens Appellate Tribunal, Kozhikode; The Revenue Divisional Officer; Dinesh Babu; Kakkodi Grama Panchayath

WP(C) NO. 12466 OF 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 WP(C) NO. 12466 OF 2020** ## **PETITIONER/S:** JANAKI AGED 78 YEARS W/O.LATE MANAKKAL KARUNAKARAN, KUDILIL HOUSE, CHERUKULAM, MAKKADA P.O., KOZHIKODE-673611. BY ADVS. PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SMT.VANDANA MENON SRI.VIMAL VIJAY SHRI.RESHMA T.R. SRI.P.SHAMSUDDEEN ## **RESPONDENT/S:** 1 THE DISTRICT COLLECTOR MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS APPELLATE TRIBUNAL, KOZHIKODE-673001. 2 THE REVENUE DIVISIONAL OFFICER, MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL, KOZHIKODE-673001. 3 DINESH BABU, S/O.LATE MANAKKAL KARUNAKARAN, KUDILIL HOUSE, KUNIYIL THAZHATH, 33/302-A, PAROPPADI, MALAPARAMBU P.O., KOZHIKODE-673009. 4 KAKKODI GRAMA PANCHAYATH, REPRESENTED BY ITS PRESIDENT, P.O.KAKKODI, KOZHIKODE DISTRICT-673611. BY ADVS. WP(C) NO. 12466 OF 2020 2 SRI.VINOD SINGH CHERIYAN SRI.T.M.KHALID SMT.K.P.SUSMITHA ## **OTHER PRESENT:** SMT.MABLE.C.KURIAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12466 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J** **-------------------------** ## **WP(C) No.12466 of 2020-G** **--------------------------** Dated this the 4[th ] day of August 2021 ## **JUDGMENT** The Writ Petition is filed with the following prayers: - _“i.To issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts.P3 and P4 orders_ - _ii.Issue a writ of mandamus or any other appropriate writ, order, direction, directing the 1[st] respondent to invalidate Ext.P1 gift deed invoking Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007._ - _iii.Declare that Ext.P1 gift deed executed in favour of the 3[rd] respondent is void in the light of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007; and_ - _iv.Grant such other relief as this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case”._ WP(C) NO. 12466 OF 2020 4 2. The short facts of the case are like this: the petitioner is a senior citizen. She is the second wife of Manakkal Karunakaran. The 3[rd] respondent herein is the son of Manakkal Karunakaran in his first wife. The petitioner is not having any children in the relation with Manakkal Karunakaran. According to the petitioner, the 3[rd] respondent had managed to execute Ext.P1 gift deed by the petitioner. Ext.P1 is a gift deed executed by the petitioner in favour of the 3[rd] respondent. According to the petitioner, the 3[rd] respondent is not maintaining or looking after the welfare of the petitioner. The petitioner filed petition before the 2[nd] respondent for invalidating Ext.P1 deed. The same was dismissed. An appeal was filed before the 1[st] respondent. That was also dismissed. Thereafter the petitioner filed WP(C) No.37792/2018 before this Court. As per Ext.P2 judgment this Court was pleased to set aside the order of the Tribunal and the appellate authority 5 WP(C) NO. 12466 OF 2020 and directed the Tribunal to reconsider the matter in the light of the observations in Ext.P2 judgment. Thereafter the Tribunal again passed Ext.P3 order. The same was confirmed by the appellate authority as per Ext.P4 order. Aggrieved by Exts.P3 and P4 this Writ Petition is filed. 3. When this Writ Petition came up for consideration, notice was ordered to respondents 3 and 4. There is no appearance for respondent no.3. The 4[th] respondent is represented through a Lawyer. 4. The short point raised by the petitioner is that the Tribunal, while passing Ext.P3 order, has not considered the directions issued by this Court in Ext.P2 judgment. It will be better to extract the relevant portion of Ext.P2 judgment. _“4. I am afraid that the question that was really relevant before the Tribunals below was not whether the document had been executed using deceit by the third respondent or otherwise, but whether the third respondent had failed in his duty or has refused in his obligation to provide the basic amenities and_ WP(C) NO. 12466 OF 2020 6 _physical needs to a senior citizen and if not whether the said document can be deemed to have been obtained by fraud, coercion or under undue influence, as is mandated under the provisions of Sec. 23 of the Act. I do not see any such enquiry having been done in the impugned orders and I am therefore, of the view that the said orders cannot find favor in law, at least in the absence of such an enquiry._ _5. In the afore circumstances, without entering into the merits of the contents of Exts. P3 and P4, I am of the firm view that all the issue involved requires to be reconsidered by the Maintenance Tribunal after affording reasonable opportunity to both sides, so that this particular question can also be taken note of by it and answered appropriately._ _6. To pave way for a fresh consideration on the above lines, I quash Exhibits P3 and P4 without entering into the merits, and leaving liberty to both sides to use all reasonable opportunities to prove their contentions appropriately before the said Tribunal”._ 5. I perused Ext.P3 order. In paragraph 1 to 6 of Ext.P3, only the statement of facts are narrated. The order is in the last portion, which is extracted below: WP(C) NO. 12466 OF 2020 7 _“_ 1. ഹര്‍ജജികക്കാരജിയക്കായ ശശ്രീമതജി കുടജിലജില്‍ ജക്കാനകജിയയ എതൃകകജിയക്കായ ദജിനനഷഷ് ബക്കാബ സസംരകണ ചജിലവഷ് നല്‍കജി സസംരകജിക്കുന്നുയണ്ടെനഷ് യമയജിന്റനന്‍സഷ് ടട്രൈബബ്യൂണലജിനഷ് നബക്കാധധ് **യ** പ്പെടജിട്ടുണ്ടെഷ്. നമല്‍ പറഞ്ഞ സക്കാഹചരധ്യതജില്‍ മക്കാതക്കാപജിതക് **ക** ാ ളുനടയസം മുതജിര്‍ന യപപൌരന്‍മക്കാരുയടയസം നകമവസം, സസംരകണവസം നജിയമസം 2007 യസകന്‍ 23 പ്രകക്കാരസം വസ ടകമക്കാറസം റദഷ് യചനയ്യേണ്ടെ ആവശധ്യമജിലക്കാ എനഷ് കക്കാണുന്നു. ആയതജിനക്കാല്‍ 30.11.2016 യല യജ4599/14 നസംപര്‍ ഉതരവഷ് നജിലനജിര്‍തജി യമയജിന്റനന്‍സഷ് ടട്രൈബബ്യൂണല്‍ ഉതരവക് **ക** ാന്നു. ശശ്രീമതജി കുടജിലജില്‍ ജക്കാനകജി എനവര്‍ യമയജിന്റനന്‍സഷ് ടട്രൈബബ്യൂണല്‍ മുമക്കായക സമര്‍പ്പെജിച്ച അനപക ” . തശ് **ര** ീപ്പെഷ് കലപ്പെജിച്ചഷ് ഇതജിനക്കാല്‍ ഉതരവക് **ക** ാന്നു 6. I am not satisfied the way in which the Tribunal passed Ext.P3 order. According to me, Ext.P3 order is not in accordance with the directions issued by this Court in Ext.P2 judgment. This Court directed the Tribunal to reconsider the matter. 7. Even though the learned Government Pleader submitted that in Ext.P4, the appellate authority considered the matter in detail, according to me that is not sufficient. When this Court directed the Tribunal to consider the matter in the light of certain observations, it is the bounden duty of the Tribunal to consider the same in accordance with Ext.P2 judgment. More over there is a Full Bench WP(C) NO. 12466 OF 2020 **==> picture [7 x 9] intentionally omitted <==** decision of this Court in _Subhashini vs. District Collector, Kozhikkode and others: 2020 (5) KHC 195_ . The Full Bench also considered this point in detail. The Tribunal should consider the points discussed by the Full Bench also while deciding the matter afresh. 8. Therefore this Writ Petition is disposed of in the following manner: 1. Exts.P3 and P4 are set aside. 2. The 2[nd] respondent is directed to restore the application submitted by the petitioner after giving an opportunity of hearing to the petitioner and the 3[rd] respondent and thereafter will pass appropriate orders in accordance with law. 3. The 2[nd] respondent will reconsider the matter. **==> picture [426 x 45] intentionally omitted <==** WP(C) NO. 12466 OF 2020 **==> picture [7 x 9] intentionally omitted <==** judgment. 5. As directed in Ext.P4 order, the 3[rd] respondent will pay the monthly maintenance at the rate of Rs.7,000/- to the petitioner till disposal of the petition as an interim arrangement. The Tribunal will also consider the eligibility of the petitioner to get maintenance while disposing the matter. ## **SD/-** **P.V.KUNHIKRISHNAN JUDGE** rkc WP(C) NO. 12466 OF 2020 10 ## **APPENDIX OF WP(C) 12466/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF GIFT DEED EXECUTED IN THE NAME OF THE 3RD RESPONDENT AS PER DOCUMENT NO.4244/2010 OF THE S.R.O., KAKKODI, DATED 29.12.2010. EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 07.12.2018 IN WP(C)37792/18 ON THE FILE OF THIS HON'BLE COURT. EXHIBIT P3 TRUE COPY OF ORDER PASSED BY THE 2ND RESPONDENT ON 29.09.2019. EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT ON 13.01.2020. EXHIBIT P5 TRUE COPY OF AFFIDAVIT ISSUED BY THE 4TH RESPONDENT DATED 04.11.2019.