K. Saraswathi Amma and Unni Nair v. Maintenance Tribunal, Thiruvananthapuram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY ,THE 01ST DAY OF MARCH 2019 / 10TH PHALGUNA, 1940** ## **WP(C).No. 41703 of 2018** ## **PETITIONER/S:** |**1**|**K. SARASWATHI AMMA, AGED 68 YEARS**| |---|---| ||**W/O. UNNI NAIR, VAIKUNDAM, PULLUVILA P.O,**| ||**KARUMKULAM, THIRUVANANTHAPURAM-695 526**| |**2**|**UNNI NAIR, VAIKUNDAM, PULLUVILA P.O,**| ||**KARUMKULAM, THIRUVANANTHAPURAM-695526**| ||**BY ADV. SRI.M.SREEKUMAR**| ## **RESPONDENT/S:** |**1**|**MAINTENANCE TRIBUNAL,**| |---|---| ||**THIRUVANANTHAPURAM, COLLECTORATE,**| ||**KUDAPPANAKKUNNU P.O, THIRUVANANTHAPURAM-695 043**| |**2**|**RUPA V, RUPA SREE, TC 6/2399, KURUVIKKAD,**| ||**VATTIYOORKAVU, THIRUVANANTHAPURAM-695 013**| |**3**|**ASHOK KUMAR, RUPA SREE, TC. 6/2399, KURUVIKKAD,**| ||**VATTIYOORKAVU, THIRUVANANTHAPURAM-695 013**| |**4**|**DISTRICT COLLECTOR AND MAINTENANCE TRIBUNAL,**| ||**APPELLATE AUTHORITY, THIRUVANANTHAPURAM,**| ||**COLLECTORATE, KUDAPPANAKKUNNU P.O,**| ||**THIRUVANANTHAPURAM-695 043.**| |**5**|**SUB INSPECTOR OF POLICE, KANJIRAMKULAM POLICE**| ||**STATION, KANJIRAM KULAM POLICE STATION,**| ||**KANJIRAMKULAM P.O, THIRUVANANTHAPURAM-695 524**| WPC 41703/18 2 **BY ADVS. SRI.B.RAGUNATHAN SRI.MANOJ RAMASWAMY SMT.SANJANA R.NAIR SRI.K.JALADHARAN SRI.M.SALIM SRI.T.S.SUBASH SRI.V.M.JACOB SMT.AMMINIKUTTY-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 41703/18 3 ## **JUDGMENT** Two senior citizens, both coming under the sweep of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as Act for short), have filed this writ petition, challenging Exts.P13 and P15 orders issued by the Maintenance Tribunal and Appellate Tribunal respectively, constituted under the provisions of the Act, whereunder, their claims have been negated. 2. According to the petitioners they are entitled to the reliefs under Section 23 of the Act, but that instead of doing so, both the Tribunals misdirected themselves and concluded on various other issues in the impugned orders. They, therefore, pray that these orders be set aside. 3. I notice that this case has a fair amount of litigative history behind it. I see that the Maintenance Tribunal had earlier issued an order, which was challenged by the senior WPC 41703/18 4 citizens before this Court, which culminated in Exts.P11 and P12 judgments. Through Ext.P11, a learned Single Judge of this Court remanded the matter to the Maintenance Tribunal with a direction to consider the claim of the petitioners under Section 23 of the Act; while through Ext.P12, a learned Division Bench approved these directions. Therefore, indubitably, the Maintenance Tribunal ought to have considered the impact of Section 23 of the Act with respect to the document executed by the senior citizens in favour of their son, namely the 3[rd] respondent herein, a copy of which has been placed on record as Ext.P1. 4. However, the materials on record would show that subsequent to Ext.P1, the son had transferred the property by way of a sale deed in favour of his wife-the 2[nd] respondent herein, and the Maintenance Tribunal has now concluded that since the daughter-in-law cannot be a 'relative' under the provisions of the Act, an WPC 41703/18 5 application against her cannot lie. The Tribunals have also concluded in the impugned orders that since the petitioners have transferred another property to their daughter, pending their application before the Tribunal, their locus to claim under Section 23 is lost. It is these orders that have been impugned in this writ petition. 5. I have heard Sri. M. Sreekumar, the learned counsel for the petitioners; Sri. B. Raghunathan, the learned counsel appearing for the 2[nd] respondent; Sri. Manoj Ramaswamy, the learned counsel appearing for the 3[rd] respodnent and Smt. K. Amminikutty, learned Senior Government Pleader appearing for respondents 1, 4 and 5. 6. As I have already indicated above, the essential claim of the senior citizens is against their son-the 3[rd] respondent herein, in whose favour they had executed a settlement deed, namely Ext.P1. It is subsequent to this WPC 41703/18 6 document that the said respondent had sold the property in favour of his wife-the 2[nd] respondent herein, through another sale deed and the singular claim of the petitioners/senior citizens is that since Ext.P1 was executed by them in favour of their son, with an implied covenant that he will take care of their basic needs and amenities, his refusal to do so invites the rigour of Section 23 of the Act. 7. That said, as I have also indicated above, both the Tribunals, however, misunderstood that Section 23 will apply only in the case of senior citizens who have no other means to maintain themselves. They appear to have been guided to this view on account of the prescriptions of Section 4 of the Act; but it is ineluctable from a reading of Section 23 that such a condition is not a _sine qua non_ as regards its operation. 8. Going by the way Section 23 is worded, a senior citizen, who had transferred property in WPC 41703/18 7 favour of his/her children, under a condition that they will take care of him/her and provide him/her basic amenities and physical needs and if they fail to do so, will obtain the locus to claim a presumption that such transfer was by fraud or coercion or under undue influence. Therefore, the question whether the senior citizens have means of their own or whether they have transferred other properties to other people during the period of pendency of the application are all irrelevant. The only question that the Maintenance Tribunal ought to have considered was whether there is an express condition attached to Ext.P1 or whether an implied condition can be inferred, that the 3[rd] respondent is obligated to provide them their basic amenities and physical needs, as is declared by this Court in **Shabeen Martin and another v. Muriel and another [ILR 2016 (4) Kerala 601]** . Unfortunately, this line of consideration is not even seen done by the WPC 41703/18 8 Maintenance Tribunal in Ext.P13 and this has been lost sight of by the Appellate Tribunal also while issuing Ext.P15 Appellate order. 9. I am, therefore, of the certain view that the impugned orders cannot obtain the imprimatur of this Court and that the Maintenance Tribunal must reconsider this issue in the light of Section 23 afresh, after affording all the parties necessary opportunity of being heard. 10. In the afore perspective, I set aside Exts.P13 and P15 and remit this matter for a fresh consideration to the Maintenance Tribunal, which shall, after affording all necessary opportunity to the parties, decide whether there is an express or implied condition in Ext.P1 that the 3[rd] respondent is obligated to provide the basic amenities and physical needs to the senior citizens and then to decide whether the said document will require to be set aside; which shall be done _de hors_ the question whether WPC 41703/18 9 the daughter-in-law is a relative and whether the senior citizens have transferred other properties in favour of their other children. 11. I, however, confirm Ext.P13 to the extent to which it orders the other children to pay the senior citizens Rs.5,000/- each and it will be obligated on them to do so without, in any manner, being affected by this judgment. 12. The exercise as ordered herein shall be completed by the Maintenance Tribunal as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 41703/18 10 ## APPENDIX ||APPENDIX| |---|---| |PETITIONER'S/S|EXHIBITS:| |EXHIBIT P1|TRUE COPY OF SETTLEMENT DEED NO.| ||1175/2008 OF SUB REGISTRY OFFICE,| ||KANJIRAMKULAM DATED 7.11.08| |EXHIBIT P2|TRUE COPY OF SALE DEED NO. 1001/2012| ||OF SUB REGISTRY OFFICE, KANJIRAMKULAM| ||DATED 17.11.2012| |EXHIBIT P3|TRUE COPY OF PETITION DATED 21.11.13| ||FILED BY 1ST PETITIONER BEFORE THE| ||MAINTENANCE TRIBUNAL, TVM| |EXHIBIT P4|TRUE COPY OF ORDER NO.| ||J/25553/13/K.DIS. DATED 1.12.2014 OF| ||THE 1ST RESPONDENT.| |EXHIBIT P5|TRUE COPY OF JUDGMENT DATED 17.11.2016| ||OF THIS HON'BLE COURT IN WP(C) NO.| ||32306/15| |EXHIBIT P6|TRUE COPY OF ORDER NO.| ||J/20657/16/K.DIS DATED 6.2.2017 OF THE| ||1ST RESPONDENT.| |EXHIBIT P7|TRUE COPY OF APPEAL FILED BY| ||PETITIONERS BEFORE 4TH RESPONDENT| ||WITHOUT ANNEXURES DATED 21.2.2017| |EXHIBIT P8|TRUE COPY OF STAY PETITION FILED BY| ||PETITIONERS BEFORE 4TH RESPONDENT| ||DATED 21.2.2017| |EXHIBIT P9|TRUE COPY OF JUDGMENT DATED 28.2.2017| ||OF THIS HON'BLE COURT IN WP(C) NO.| ||6564/17| |EXHIBIT P10|TRUE COPY OF ORDER NO. A4/12473/17| ||K.DIS DATED 12.4.2017 OF THE 4TH| ||RESPONDENT.| |EXHIBIT P11|TRUE COPY OF JUDGMENT DATED 28.11.2017| ||OF THIS HON'BLE COURT IN WP(C) NO.| ||18829/17| |EXHIBIT P12|TRUE COPY OF JDUGMENT DATED 13.12.2017| WPC 41703/18 11 OF THIS HONBLE COURT IN WA NO. 2447/17 EXHIBIT P13 TRUE COPY OFORDER NO. J.1. 820/18/K.DIS DATED 20.3.2018 OF THE 1ST RESPONDENT EXHIBIT P14 TRUE COPY OF THE APPEAL FILED BY PETITIONERS BEFOE 4TH RESPODNENT WITHOUT ANNEXURES DATED 7.5.2018 EXHIBIT P15 TRUE COPY OF THE ORDER IN FILE NO. DCTVM 850/2018-A4 DATED 27.10.2018 OF THE 4TH RESPODNENT ## RESPONDENTS' EXHIBITS: EXHIBIT R2(A) TRUE COPY OF THE NOTE SUBMITTED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT DATED 09.02.2018.