K.K. BHANUMATHI AMMA and KEERIYADATHU KALARIKKAL VILASINI ALIAS RADHA AMMA v. THE DISTRICT COLLECTOR, KOZHIKODE and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** ## **WP(C) NO. 25677 OF 2017** ## **PETITIONER:** 1 K.K.BHANUMATHI AMMA AGED 80 YEARS D/O MEENAKSHI AMMA, AGED 80 YEARS,KOONAMMADATHIL HOUSE, NEAR GHS BEYPORE,NORTH BEYPORE, KOZHIKODE-673 015. [DIED] 2 KEERIYADATHU KALARIKKAL VILASINI ALIAS RADHA AMMA W/O SANKARAN, AGED 73, 'REVATHI', ARAYARUKAVU PARAMBIL, CHERUVANNUR AMSOM DESOM, KOZHIKODE TALUK-673631. (IS IMPLEADED AS SUPPL.2ND PETITIONER AS PER ORDER DATED 27-03-2018 IN IA.NO.5848/18.) BY ADVS. SRI.SRINATH GIRISH SRI.ATHUL PRABHAKAR ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR,KOZHIKODE, APPELLATE AUTHORITY UNDER THE MAINTENANCE AND WELFARE OF PARENTS ANSENIOR CITIZENS ACT, CIVIL STATION, KOZHIKODE-673 020 2 THE SUB COLLECTOR KOZHIKODE, MAINTENANCE TRIBUNAL UNDER,THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, CIVIL STATION, KOZHIKODE-673 020. 3 SREEKUMARI. P W/O LATE K.K. BALAKRISHNAN,AGED ABOUT 67, 'SREECHITRA',BEYPORE NORTH, KOZHIKODE-673 015 4 P. CHITRA D/O LATE K.K. BALAKRISHNAN,AGED ABOUT 35,'SREECHITRA', BEYPORE NORTH,KOZHIKODE-673 015. 5 K.K. SURESH KUMAR S/O RAMAN MENON, AGED ABOUT 60,KALARIKKAL VEEDU,NEW MAHE, BEYPORE, KOZHIKODE-673 015. WP(C) NO.25677/2017 2 ADDL.R6 INDIRA D/O LATE NARAYANANKUTTY PANICKER, AGED ABOUT 60, 'AJITH NIVAS', THENJHIPPALAM, NEAR KOYAPPA TEMPLE, MALAPPURAM-676312. ADDL.R7 RAJALATHA D/O LATE NARAYANANKUTTY PANICKER, AGED ABOUT 58, 'N.K.VIHAR',ARIYALLUR P.O., TIRUR, MALAPPURAM-676312. ADDL.R8 USHARANI D/O LATE NARAYANANKUTTY PANICKER, AGED ABOUT 55, 'NIRMALYAM',ARIYALLUR P.O., TIRUR, MALAPPURAM-676312. ADDL.R9 ANIL KUMAR K.P S/O LATE KUNHUNNI PANICKER, AGED ABOUT 50, 'ANI VIHAR' NADUVATTOM AMSOM AND DESOM, KOZHIKODE-673015. ADDL.R10 ANITHA K.P D/O LATE. KUNHUNNI PANICKER, AGED ABOUT 48, 'SIVAMALLI', PERUMUDIYOOR P.O., PATTAMBI-679303. (ADDL.R6 TO R10 IMPLEADED VIDE ORDER DATED 31-5-18 IN IA.NO.6673/18) BY ADVS. SMT.REKHA ARAVIND SRI.SANTHARAM.P SMT.SHEEJA C.S, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.25677/2017 3 ## **P.V.KUNHIKRISHNAN, J** ## **------------------------------W.P.(C)No.25677 of 2017 -------------------------------Dated this the 05[th ] day of July 2021 JUDGMENT** **The original petitioner is a widow and a senior citizen. She approached the Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and obtained cancellation of two settlement deeds executed by her on the ground of lack of maintenance by the respondents. Ext.P5 is the order passed by the Maintenance Tribunal and Sub Collector, Kozhikode. Challenging Ext.P5 order, respondent Nos.3 to 5 filed an appeal before the appellate authority constituted under the Maintenance and Welfare of Parents and Senior Citizens Act. As per Ext.P8 order, the appellate authority modified the order passed by the Maintenance Tribunal. Challenging Ext.P8, this Writ Petition is filed.** **2. Heard the learned counsel appearing for** WP(C) NO.25677/2017 4 **the petitioner, the learned counsel for the contesting respondents and the learned Government Pleader.** **3. Pending the Writ petition, the senior citizen who approached the Maintenance Tribunal died. Her legal heirs and legal representatives were impleaded in the Writ petition.** **4. The short point raised by the learned counsel for the petitioner is that Ext.P8 order is unsustainable because respondent Nos.3 to 5 can not file an appeal against Ext.P5 order in the light of the decision of this Court in** _**Najeeb v. Maintenance Tribunal, Tvm and others [2018(3) KHC 825].**_ **The learned counsel submitted that the order passed by the appellate authority is without jurisdiction and non est and therefore, Ext.P8 order may be set aside.** **5. The learned counsel for the contesting respondents submitted that, this point is not raised either before the appellate authority or before this Court in the Writ petition. The** WP(C) NO.25677/2017 5 **learned counsel submitted that, in such situation this Court may not interfere with Ext.P8 order at this instance of time. The learned counsel also relied on the judgment of this Court in** _**Ananthakrishnan v. Oriental Fire and General Insurance Co. Ltd.[1988(2)KLT 159].**_ **6. The learned Government Pleader submitted that, no appeal will lie against Ext.P5 order at the instance of respondents 3 to 5.** **7. This Court in** _**Najeeb v. Maintenance Tribunal, Tvm and others [2018(3) KHC 825],**_ **considered this point in detail and observed that no appellate remedy is conferred on a party who is the respondent in the application before the tribunal.** **8. In the light of the above authoritative judgment of this Court, according to me, the District Collector has no jurisdiction to entertain an appeal at the instance of respondents 3 to 5. According to me, Ext.P8 order is without jurisdiction and non est. In such circumstances,** WP(C) NO.25677/2017 **==> picture [7 x 7] intentionally omitted <==** **Ext.P8 order is to be set aside. But, I make it clear that the respondents 3 to 5 can challenge Ext.P5 order if they are aggrieved by appropriate proceedings in accordance with law. I make it clear that I have not considered any of the contentions raised by the petitioner or the contesting respondents. All contentions of the petitioner and the contesting respondents in the matter are left open. With these observations this Writ petition is disposed of in the following manner.** **(i) Ext.P8 order is set aside.** **(ii)All the contentions of the petitioner and the contesting respondents on merit are left open.** **(iii)Respondent Nos.3 to 5 are at liberty to challenge Ext.P5 order in accordance with law, if they are adviced so.** **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) NO.25677/2017 7 ## **APPENDIX OF WP(C) 25677/2017** ## **PETITIONER'S EXHIBITS:** |EXHIBIT P1|TRUE COPY OF THE SETTLEMENT DEED| |---|---| ||DATED 15-7-2013 EXECUTED BY K.K.| ||BHANUMATHI AMMA IN FAVOUR OF| ||BALAKRISHNAN (DOCUMENT NO. 2248/2013,| ||MEENCHANDA S.R.O)| |EXHIBIT P2|TRUE COPY OF THE SETTLEMENT DEED| ||DATED 15-7-2013 EXECUTED BY K.K.| ||BHANUMATHY AMMA IN FAVOUR OF SURESH| ||KUMAR (DOCUMENT NO. 2249/2013,| ||MEENCHANDA S.R.O)| |EXHIBIT P3|TRUE COPY OF THE COMPLAINT FILED BY| ||K.K. BHANUMATHI AMMA BEFORE THE| ||MAINTENANCE TRIBUNAL (RDO, KOZHIKODE)| |EXHIBIT P4|TRUE COPY OF THE COUNTER STATEMENT| ||DATED<br>29-10-2016<br>SUBMITTED<br>BY| ||SREEKUMARI & OTHERS IN PETITION NO. J| ||10927 BEFORE THE MAINTENANCE TRIBUNAL| ||(RDO, KOZHIKODE)| |EXHIBIT P5|TRUE COPY OF THE ORDER DATED 25-11-| ||2016 IN PETITION NO. J 10927 PASSED| ||BY THE MAINTENANCE TRIBUNAL (RDO| ||KOZHIKODE)| |EXHIBIT P6|TRUE COPY OF THE APPEAL FILED BY| ||SREEKUMARI & OTHERS BEFORE THE| ||APPELLATE<br>AUTHORITY<br>(DISTRICT| ||COLLECTOR, KOZHIKODE)| |EXHIBIT P7|TRUE COPY OF THE MEMORANDUM OF WRIT| ||PETITION IN WPC NO. 39470/2016) FILED| ||BY SREEKUMARI P & OTHERS BEFORE THE| ||HONOURABLE HIGH COURT OF KERALA| ||WITHOUT EXHIBITS.| |EXHIBIT P8|TRUE COPY OF THE ORDER PASSED BY THE| ||APPELLATE<br>AUTHORITY<br>(DISTRICT| ||COLLECTOR, KOZHIKODE) IN APPEAL NO.| ||5/16.| WP(C) NO.25677/2017 8 EXHIBIT P9 TRUE COPY OF THE WILL DATED 5-10-2017 EXECUTED BY LATE K.K.BHANUMATHI AMMA (DOCUMENT NO.72/2017, SRO, FEROKE). ## **RESPONDENTS EXHIBITS:** EXHIBIT R3 (A) TRUE COPY OF THE WILL DATED SAID TO HAVE EXECUTED ON 5/10/2017. //TRUE COPY// PA TO JUDGE