K. Saraswathi Amma and Unni Nair v. Maintenance Tribunal, Thiruvananthapuram; Rup V., Rup Sree, Ashok Kumar; District Collector & Maintenance Tribunal Appellate Authority; Sub Inspector of Police, Kanjiramkulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:-** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939** ## **W.P(C).No.18829 of 2017 (C)** **---------------------------------------** **PETITIONER(S):-** - **----------------** **1. K. SARASWATHI AMMA, W/O.UNNI NAIR, VAIKUNDAM, PULLUVILA PO, KARUMKULAM,** **THIRUVANANTHAPURAM-695 526.** **2. UNNI NAIR, VAIKUNDAM, PULLUVILA PO, KARUMKULAM, THIRUVANANTHAPURAM-695 526.** **BY ADV. SRI.M.SREEKUMAR** **RESPONDENT(S):-** ## **----------------** **1. MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM, COLLECTORATE, KUDAPPANAKKUNNU PO, 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 & MAINTENANCE TRIBUNAL APPELLATE AUTHORITY, THIRUVANANTHAPURAM, COLLECTORATE, KUDAPPANAKKUNNU PO, THIRUVANANTHAPURAM-695 043.** **5. SUB INSPECTOR OF POLICE, KANJIRAMKULAM POLICE STATION, KANJIRAMKULAM PO, THIRUVANANTHAPURAM-695 524.** **R1, R4 & R5 BY SENIOR GOVERNMENT PLEADER SRI.B.VINOD. R2 & R3 BY ADVS. SRI.B.RAGUNATHAN SRI.M.SALIM SRI.V.M.JACOB.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C).No.18829 of 2017 (C)** **----------------------------** ## **APPENDIX** ## **PETITIONER(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 MAINTENANCE TRIBUNAL, TRIVANDRUM. 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. RESPONDENT(S)' EXHIBITS:------------------------EXHIBIT R2(a) TRUE COPY OF THE REPRESENTATION SUBMITTEED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT DT.15.12.2014. EXHIBIT R2(b) TRUE COPY OF THE NOTE DATED 3.1.2017 SUBMITTED TO THE 1ST RESPONDENT. EXHIBIT R2(c) TRUE COPY OF THE COUNTER AFFIDAVIT DATED 25.11.2015 FILED BY THE PETITIONERS AND THEIR DAUGHTER IN W.P.(C) NO.32306 OF 2015-K. EXHIBIT R2(d) TRUE COPY OF THE REPLY AFFIDAVIT DATED 16.7.2016 FILED IN W.P.(C) NO.32306 OF 2015-K. COURT EXHIBIT:---------------COURT EXHIBIT C1 REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, KANJIRAMKULAM POLICE STATION DATED 28.11.2017, PRODUCED BY GOVERNMENT PLEADER. Vku/[ true copy ]** **Vku/-** K. Vinod Chandran, J ---------------------------------------- W.P.(C).No.18829 of 2017-C ----------------------------------------Dated this the 28[th] day of November, 2017 ## **JUDGMENT** The petitioners, senior citizens, are wife and husband and parents of the 3[rd] respondent. The 2[nd] respondent is the wife of the 3[rd] respondent. The petitioners were owners in possession of 3 **½** cents of property, which was transferred by way of a settlement deed, as per Exhibit P1, in the name of the son, the 3[rd] respondent. The son constructed a residential house in the property, which, the father claims, is with his retirement benefits. The son transferred the property in the name of his wife in 2012 as per Exhibit P2. The petitioners, admittedly, were residing in the said property as disclosed from the records. 2. The 1[st] petitioner filed an application dated 21.11.2013, evidenced at Exhibit P3, before the Maintenance Tribunal constituted under the Kerala Maintenance & Welfare of Parents and Senior Citizens Act, 2007 [for brevity “Act of 2007”] contending that the transfer of property was made on the condition that the son would look after them in their old age and now their son is attempting to evict them from the residential building in the property. The son has also refused to provide for them and hence the document was sought to be set aside. WP(C) No.18829 of 2017 - 2 - 3. By Exhibit P4, an order was passed affirming the right of the petitioners to reside in the house during their life time and interdicting alienation of the property, in their life time. The daughter-in-law then filed a writ petition before this Court, contending that the property was purchased by her from her husband. It was alleged that both the daughter-in-law and her husband were not given an opportunity to make their submissions before the Tribunal. Despite this Court, having found that the respondents were negligent in appearing before the Tribunal, there was a direction to the Tribunal to take on board the objection and consider the application afresh. 4. The Tribunal by Exhibit P6 found that the son of the petitioners having transferred the property in the name of his wife, the Tribunal could not exercise its jurisdiction. It was also found that the petitioners have another residential building and that the petitionersparents cannot claim any right to reside in the property now belonging to their daughter-in-law. Hence, the earlier order was set aside and an order of maintenance of Rs.5,000/- [Rupees five thousand only] per month was directed. There was also a direction in Exhibit P6 to the Station House Officer, Kanjiramkulam Police Station to ensure the WP(C) No.18829 of 2017 - 3 - compliance of the order at Exhibit P6. 5. On the basis of the direction to the SHO, Kanjiramkulam in Exhibit P6, the petitioners were evicted from the house. The petitioners filed an appeal before the District Collector, produced at Exhibit P7. The petitioners also approached this Court and there was a direction issued by Exhibit P9 directing expeditious disposal of the appeal and also staying the enforcement of the order. However, by that time, the petitioners were evicted by the SHO, is the submission of the learned Counsel for the petitioners. 6. Immediately it has to be noticed that there could not have been an eviction ordered by the Tribunal of the applicants who were admittedly in possession. This Court will come back to that after completing the narration. The appeal was considered and disposed of by Exhibit P10. The Appellate Tribunal confirmed the order of the Maintenance Tribunal. 7. The application was filed by the petitioners to set aside the settlement deed at Exhibit P1. The subsequent conveyance made by the son of the petitioners to his wife would be inconsequential; insofar as considering the sustainability of Exhibit P1. The Act of 2007 - 4 - WP(C) No.18829 of 2017 specifically empowered the Maintenance Tribunal to set aside a transfer made, subject to the condition of provision of basic amenities and physical needs by the transferee; when the said condition has been violated. If Exhibit P1 is set aside, then there is no question of any rights being established by the daughter-in-law as per the subsequent conveyance made in her favour. The Tribunal and the Appellate Tribunal did not consider this crucial issue. 8. It is also pointed out that even if there is no specific condition in the deed, a Division Bench of this Court in _**Shabeen Martin and Ors. v. Muriel and Ors.**_ **[2016 (5) KHC 603]** had found that there is no requirement that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs to the transferor. The Division Bench held so: “On the other hand if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document. Such an understanding of the section, WP(C) No.18829 of 2017 - 5 - according to us, would only advance the object of the Act. On the other hand, if the contention now advanced is accepted, that will defeat the very object and purpose of the Act”. An examination of Ext.P1 deed also clearly indicates that the consideration was love and affection. Going by the aforesaid declaration of the Division Bench of this Court and also the fact that the Tribunal has not examined whether Exhibit P1 deed has to be set aside or not, Exhibits P6 and P10 orders are set aside. There shall be a fresh consideration made of the complaint filed before the Tribunal by the petitioners. 9. Now, the petitioners' contention that they were evicted from the premises illegally and the Tribunal did not have any jurisdiction to interfere with their possession has to be considered. There can be no dispute that the petitioners were in possession of the property when the complaint at Exhibit P3 was filed. The petitioners were also granted a right to reside in the property during their life time as per Exhibit P4. It was later that the Tribunal considered the issue based on the directions in Exhibit P5 judgment. The Tribunal while considering the issue as per the directions in Exhibit P5, was again concerned with the complaint - 6 - WP(C) No.18829 of 2017 filed by the parents. The consideration was not of an application filed by the daughter-in-law. The daughter-in-law has absolutely no _locus standi_ to approach the Tribunal constituted, under the Act; exclusively for senior citizens. 10. The Tribunal showed the daughter-in-law as the applicant and the senior citizens and their daughter as the respondents in the impugned order. When the petitioners filed an application with their son and daughter-in-law as respondents in the party array, the respondents could only object to the prayer made of setting aside of the document. If the Tribunal finds that the document is not liable to be set aside, then the application of the senior citizens could be rejected. The Tribunal could not have interfered with the possession of the residential building, which was with the senior citizens, the parents. The Tribunal exceeded its powers insofar as directing the SHO to enforce the order at Exhibit P6 deeming the application to be one filed by the daughter-in-law for eviction of her in-laws from the residential house. This has led to gross illegality, of the senior citizens having been evicted from their residential house by the Tribunal established to look into the grievances of senior citizens. If the WP(C) No.18829 of 2017 - 7 - daughter-in-law has a claim over the property she has to approach the Civil Court. This Court on being apprised of the order passed, had stayed its enforcement as per Exhibit P9. It is admitted that the petitioners were evicted even before the judgment at Exhibit P9 was passed. This Court cannot but deprecate the excessive action of the Tribunal and in such circumstance it is only proper that they be restored with the possession. 11. On the last date of hearing, the learned Counsel for the party respondents submitted before Court that the residential house is now rented out and the respondents 2 and 3 are abroad, this Court directed the Sub Inspector of Police, Kanjiramkulam Police Station to file a report as to the possession of the building. The Sub Inspector of Police has filed a report, produced across the Bar by the learned Government Pleader, dated 28.11.2017; which is taken on record and marked as Court Exhibit C1 in the writ petition. The report also encloses the statements recorded of the neighbours. The residential building in the subject property is said to be intermittently occupied by the father and mother of the daughter-in-law. They have another residence at Vattiyoorkavu and is alternatively residing at Vattiyoorkavu and at WP(C) No.18829 of 2017 - 8 - Pulluvila, as per the submission made to the Sub Inspector of Police. In such circumstances, it is only proper that the possession of the petitioners be restored. The respondents 2 and 3 will see to it that the house is vacated within a period of one week from today and handover the keys to the Sub Inspector of Police, Kanjiramkulam. The petitioners would be entitled to take possession of the property from the Sub Inspector and reside therein. If the vacant possession is not handed over within that time, the Sub Inspector shall ensure that the petitioners are restored to the possession of the residential building. The application filed by the petitioners shall be considered afresh by the Tribunal, in accordance with the directions herein and also the declaration made by this Court in the cited decision. Writ petition is disposed of as above. Parties are left to suffer their respective costs. **Sd/-** vku/- K.Vinod Chandran Judge. [ true copy ]