Mathew Sebastian v. Dr. K.C. Kurian and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **WP(C).No.15865 OF 2020(G)** ## **PETITIONER:** **MATHEW SEBASTIAN, S/O. K.C. SEBASTIAN, KADALIKKATTIL HOUSE, MUNDANKAL P.O., PALA, KOTTAYAM-686574.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE** ## **RESPONDENTS:** **1 DR. K.C.KURIAN, KADALIKKATTIL HOUSE, NEAR PRESENTATION SCHOOL, CHEVAYOOR, CALICUT-673017. 2 THE SUB COLLECTOR/MAINTENANCE TRIBUNAL, CIVIL STATION, CALICUT-673020. 3 THE STATION HOUSE OFFICER, CHEVAYOOR POLICE STATION, CHEVAYOOR, CALICUT-673017. R1 BY ADV. SRI.C.B.SREEKUMAR R1 BY ADV. SRI.SAGITH KUMAR V. SRI KP HARISH, SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15865 OF 2020** **2** ## **JUDGMENT** Dr K.C. Kurian, the 1st respondent is a senior citizen. After extensive stints abroad, he had returned back to India for good. While returning back , he also brought an Acadian Car which he had purchased from Singapore. It was reregistered in India and bears the Registration No KL- Z- 4540. 2. Mathew Sebastian, the petitioner herein, is the younger brother’s son of Dr Kurian. In the year 2015, the Acadian car was entrusted with Mr Mathew Sebastian as he was very much interested in vintage cars. The spare parts and manual were all handed over and since then Mathew was possessing the car. While so, the parties fell apart. Dr Kurian wanted the car back and his request was not obliged by Sri Mathew Sebastian. When the rift deepened, Dr Kurian, approached the RDO, Calicut and filed an application invoking the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Exhibit P1 is the complaint and his prayer is extracted below:- So, I humbly request that necessary action be taken so that, I may get back my vintage car. Since I am too old and due to corona restrictions,I am authorising my daughter Dr Roslin Kurian to represent me wherever required. 3. The 2nd respondent invoking her powers as the Maintenance Tribunal passed Exhibit P2 order directing the petitioner to return the car **WP(C).No.15865 OF 2020** **3** forthwith and directions were issued to the Station House Officer, Chevayoor to implement the same. Exhibit P2 is impugned in this petition. 4. I have heard Sri Mathew John, the learned counsel appearing for the petitioner and Sri Sagith Kumar, the learned counsel appearing for the party respondent. 5. Sri. Mathew John, the learned counsel submitted that Ext.P2 order has been passed by the 2nd respondent without any jurisdiction. According to the learned counsel, none of the conditions which are required to be satisfied for invoking the powers of the 2nd respondent under Act 56 of 2007 arises in the instant case. He would point out that Ext.P2 order was rendered without even serving a copy of the petition to him. The petitioner was called over the phone and he was asked to appear. No opportunity was granted for filing a statement. Finally, it is submitted that Ext.P2 order is non speaking and passed without proper application of mind. 6. Sri.Ragith Kumar, the learned counsel appearing for the respondent submitted that the registration of the car still stands in the name of the petitioner. When the same was returned back, the petitioner demanded a sum of Rs.3 lakhs which was purportedly spent by him for carrying out repair works. According to the learned counsel, the provisions of Act 56 of 2007 confers on the Tribunal ample powers to come to the rescue of a senior citizen. He would profusely rely on the report in **G.S. Manju v. K.N.Gopi** [(2019) SCC online Kerala 5363] and it was argued that the Tribunal has a duty to elicit the truth by **WP(C).No.15865 OF 2020** **4** adopting an inquisitorial approach as the Act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. He would also rely on the report in **Radhamani and Others v. State of Kerala** [2016(1)KHC 9] and it was argued that Section 23 of the Act would confer ample powers to the Tribunal to pass orders akin to Ext.P2. 7. Act 56 of 2007 was enacted to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto. The Maintenance Tribunal is constituted under Section 7 of the Act to exercise jurisdiction under the Act. Under Chapter II of the Act, a senior citizen including a parent who is unable to maintain himself from his own earning is entitled to file an application under Section 5 against one or more of his children as defined under Section 2 (a) of the Act , not being a minor. A childless senior citizen is entitled to claim maintenance against any of his relatives as defined in clause (g) of Section 2. The Tribunal may order payment of monthly maintenance and can enforce the same by appropriate proceedings. Chapter V of the Act provides for measures to protect the life and property of senior citizens. Under Section 23 of the Act, the Maintenance Tribunal will have jurisdiction to hold that the transfer of property made by the senior citizen to be void in certain circumstances. As per the said provision after the commencement of the Act where any senior citizen transfers by way of gift **WP(C).No.15865 OF 2020** **5** or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. In **Subhashini v. District Collector** (2020 (5) KLT 533) a Full Bench of this Court had occasion to hold that the Tribunal constituted under Act of 2007 has been constituted for the purpose of adjudicating issues of maintenance under Section 5 of the Act and also confers a restricted jurisdiction under Section 23(1) of the Act. 8. The contention of the learned counsel appearing for the respondent is that Section 23 of the Act would enable the senior citizen to get back the car which was entrusted by him with the petitioner. I am unable to agree. As held by this Court in **Subhashini** (supra), Section 23 does not create or negate any substantial rights and merely provides a procedure for speedy recovery with respect to certain categories of transfer of property made subject to a condition. The fiction created on the breach of the specified condition deems the transfer itself to be vitiated by a reason of fraud, coercion or exercise of undue influence. The transfer of property as spoken of in the provision has to concede to the various transfers spoken of in the Transfer of Property Act, 1882. It was emphatically held by this Court that the words “gift or otherwise” occurring in Section 23(1) of the Act would have a restricted application insofar **WP(C).No.15865 OF 2020** **6** as the transfer of property is concerned. Their Lordships of the Full Bench went on to answer the reference by holding that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. None of the conditions above are attracted in the instant case. The dispute is with regard to a car, the possession of which was entrusted with the petitioner by the respondent. I am of the considered opinion that the Maintenance Tribunal had no jurisdiction to entertain the application and pass the order impugned. 9. However, the petitioner is not left with remedy. Under Section 22 of the Act, the District Magistrate has been conferred with powers to ensure that the provisions of the Act are properly carried out. The District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed. 10. Rule 19 of the Kerala Maintenance and Welfare of the Senior Citizens Rules, 2009 provides for the Duties and Powers of the District Magistrate - (1) The District Magistrate shall perform the duties and exercise the powers mentioned in sub-rules (2) and (3) so as to ensure that the provisions of the Act are properly carried out in his district. **WP(C).No.15865 OF 2020** **7** - (2) It shall be the duty of the District Magistrate to,-- - (i) ensure that life and property of senior citizens of the district are protected and they are able to live with security and dignity; ## 11. Chapter VI of the Rules provides for measures to ensure the protection of life and property of senior citizens. Rule 20 reads thus: 20.Action plan for the protection of life and property of senior citizens.- (1) The District Superintendent of Police in every Districts, and in the case of cities having a Police Commissioner, such Police Commissioner shall take all necessary steps, subject to such guidelines as the State Government may issue from time, for the protection of life and property of senior citizens. - (2) Without prejudice to the generality of sub-rule (1)- - (i) each police station shall maintain an up-to-date list of senior citizens living within its jurisdiction, especially those who are living by themselves (i.e., without there being any member in their household which is not a senior citizen); - (ii) a representative of the police station together, as far as possible, with a social worker or volunteer, shall visit such senior citizens at regular intervals of at least once in a month, and shall, in addition, visit them as quickly as possible on receipt of a request of assistance from them; - (iii) complaints/problems of senior citizens shall be promptly attended to, by the Local Police; - (iv) one or more Volunteers Committee(s) shall be formed for each Police Station which shall ensure regular contact between the senior citizens, specially those living by themselves, on one hand, and the police and the district administration on the other. - (v) the District Superintendent of Police, or the Police Commissioner as the case may be, shall cause to be **WP(C).No.15865 OF 2020** **8** published widely in the (sic) and through the Police Stations, an regular intervals, the steps being taken or the protection of life and property of senior citizens; - (vi) each Police Station shall maintain a separate register containing all important particulars relating to the offences committed against senior citizens, a such form as the State Government may, by order, specify; - (vii) the register referred to in clause (vi) shall be kept available for public inspection, and every officer inspecting a Police Station shall invariably review the status as reflected in the register. (viii) the Police Station shall send a monthly report of such crime to the District Superintendent of Police/Police Commissioner by the 10th (sic) every month; (ix) list of Do's and Dont's to be followed by senior citizens in the interest of their safety will widely be publicized; (x) antecedents of domestic servants and others working for senior citizens shall be promptly verified, on the request of such citizens; (xi) community policing for the security of senior citizens will be undertaken in conjunction with citizens living in the neighbourhood, Residents Welfare Associations, Youth Volunteers, Non-Government Organisations, etc; (xii) the District, Superintendent of Police/Police Commissioner shall submit to the Director General of Police and to the District Magistrate, a monthly report by the 20th of every month, about the details of crime against senior citizens during the previous month, including progress of investigation and prosecution of registered offences, and preventive steps taken during the month. (xiii) the District Magistrate shall cause the report to be placed before the District-level Co-ordination-cumMonitoring Committee constitute under rule 22; (xiv) The Director General of Police shall cause, the report submitted under clause (xii) to be compiled, once a quarter, and shall submit them to the State Government every quarter as well as every year for, inter alia being placed before the State Council of Senior Citizens constituted under rule 21. **WP(C).No.15865 OF 2020** **9** 12. The petitioner can either approach the District Magistrate who is bound to ensure that the life and property of senior citizens of the district are protected and they are able to live with security and dignity. He can also approach the District Superintendent of Police, for the protection of his life and property. Property as defined under Section 2(f) means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property. If the petitioner approaches the competent officer under Section 20 of the Act, he shall initiate appropriate proceedings and see that the property of the petitioner is restored. In the result, Ext.P2 order will stand quashed. However, it is made clear that if the petitioner approaches the District Magistrate or the District Superintendent of Police, with a complaint seeking intervention, they shall consider the grievance and take appropriate steps to restore the car as it is registered in the name of the petitioner. This petition is disposed of with the above directions. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** ps **WP(C).No.15865 OF 2020** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION DATED 27/05/2020 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT TRIBUNAL.** **EXHIBIT P2 TRUE COPY OF THE CRYPTIC ORDER DATED 17/06/2020 PASSED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE CERTIFICATE OF REGISTRATION OF ACADIAN CAR VIDE REGISTRATION NO. KL-Z-4540.** **EXHIBIT P4 TRUE COPY OF THE TAX TOKEN IN FAVOUR OF VEHICLE NO. KL-Z-4540 DATED 12/02/2015 ISSUED BY THE RTO, KOZHIKODE.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 TRUE COPY OF THE REGISTRATION DETAILS OF THE CAR EXHIBIT R2 TRUE COPY OF THE FAMILY PHOTOS WITH CAR**