High Court of KeralaSingle JudgeWrit petition disposed of; directed to avail ap...

Mathukutty v. Revenue Divisional Officer, Adoor and Others

Case / Petition Number:WP(C).No.543/2020(P)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • N. Nagareesh
Judgment Date
2020-08-06
Court Decision / Holding
Writ petition disposed of; petitioner directed to file a statutory appeal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 within two weeks; Appellate Authority to consider the appeal, with a hearing if necessary, and to pass appropriate orders while considering related jurisprudence; the court has not adjudicated the merits of the claims.
Final Disposition
Writ petition disposed of; directed to avail appellate remedy under Section 16 of the Act within two weeks; Appellate Authority to pass orders considering the judgments cited. The Court did not decide merits at this stage.

Parties to the Case

Appellants / Petitioners

  • Mathukutty S/o Yohannan

Respondents

  • Revenue Divisional Officer, Adoor
  • Simon P. Mathew
  • Santosh P. Mathew
  • Reji P. Mathew

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. Arun B. Varghese
  • • Adv. R. Sanjay Sankar

Counsels for Respondents

  • • Adv. Mable C. Kurien
  • • Adv. D. Kishore
  • • Adv. Jaykar K.S

Case Synopsis & Summary

The petitioner, an 84-year-old senior citizen, challenges Exhibit‑P5, an order passed by the Maintenance Tribunal and Revenue Divisional Officer, Adoor, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. He states that after his wife’s death he was settled in Nedumangad with his son (second respondent) who later pressed him to execute Exhibit‑P1, a Settlement Deed in which the petitioner retained life interest. Following strained relations, the petitioner alleges coercion and isolation from his other children, leading to his resultant move back to his family home which the second respondent had locked, forcing him to reside with the fourth respondent. The petitioner sought to declare Exhibit‑P1 void and to lead evidence, but contends the first respondent did not allow evidence or exercise powers under Section 23 to invalidate the deed. The respondents argue maintainability issues and that the proceedings are in a summary mode under Section 8 of the Act. The Court places emphasis on the availability of an appellate remedy under Section 16 of the Act and notes that the merits need not be decided in a writ petition; it references several decisions clarifying the Tribunal’s power to invalidate documents. Ultimately, the writ is disposed of, directing the petitioner to file a statutory appeal within two weeks, with the Appellate Authority to decide after considering the cited authorities; the court clarifies it has not decided the merits.

Provisions of Law Cited

Maintenance and Welfare of Parents and Senior Citizens Act, 2007Section 16 of the Act, 2007Section 23 of the Act, 2007Section 8 of the Act, 2007

Legal Doctrines & Maxims

  • bona fide

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Exhibit P1 was executed voluntarily and retains the petitioner’s life interest; he argues that the first respondent failed to allow evidence and to exercise power under Section 23 to invalidate the Settlement Deed, relying on established jurisprudence that authorizes invalidation on showing that the transfer adversely affects the senior citizen. He seeks invalidation of Exhibit P1 and permission to adduce evidence, highlighting that the matter involves disputed facts and the need for proper hearing. The petitioner asserts the need for protection under the Act and asserts that the order issued (Exhibit‑P5) without proper consideration is contrary to statutory rights and due process.

Contentions of Respondents

The respondents maintain that the writ petition is not maintainable given the statutory remedy under Section 16 of the Act; the matter involves a summary proceeding under Section 8 of the Act and the first respondent’s order complied with statutory requirements. They argue that Exhibit P1 was executed voluntarily by the petitioner, that the petitioner has access to income and resources, and that the petitioner's contentions relate to disputed facts more appropriately resolved by the Appellate Authority. They submit the petition does not warrant interference at the writ stage and that the appellate remedy should be pursued; they also assert compliance with the order, including handing over keys and depositions.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Shabeen Martin and another v. Muriel and another2016 (5) KHC 603 (DB)PositiveCited to support the proposition that Section 23 power to invalidate a document can be invoked when evidence satisfies the statutory requirements under the Act.
Radhamani and others v. State of Kerala and others2016 (1) KLT 185PositiveCited in context of setting aside a deed of transfer when basic amenities and needs are not provided, reinforcing Tribunal’s jurisdiction in protective actions for seniors.
Rajesh and another v. District Magistrate (District Collector), Alappuzha and others2019 (4) KHC 764PositiveCited to illustrate that the presence of a senior citizen living with a daughter does not oust the Tribunal’s jurisdiction; supports authority to issue protective orders.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 06TH DAY OF AUGUST 2020/15TH SRAVANA, 1942** ## **WP(C).No.543 OF 2020(P)** ## **PETITIONER:** **MATHUKUTTY,S/O.YOHANNAN,AGED 84 YEARS, SANTHOSH VILLA, KODUMON P.O., PATHANAMTHITTA DISTRICT-691 555, NOW RESIDING AT CHERIVUKALA HOUSE, PUTHENPEEDIKA, OMALOOR P.O., PATHANAMTHITTA DISTRICT-689 647.** **BY ADVS. SRI.ARUN.B.VARGHESE SRI.R.SANJAY SANKAR** ## **RESPONDENTS:** - **1 THE REVENUE DIVISIONAL OFFICER, ADOOR-691 523 (MAINTENANCE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007).** - **2 SIMON P.MATHEW,POOVANALILPLAVILA, KOLLAMKAVU, NEDUMANGAD P.O., THIRUVANANTHAPURAM DISTRICT-695 541.** - **3 SANTHOSH P.MATHEW,POOVANNALIL HOUSE, NAKSHATHRA GARDENS, NAKSHATRA GARDENS, MUKALAYKAL P.O., THIRUVANANTHAPURAM- 695044.** - **4 REJI P.MATHEW,CHERIVUKALA HOUSE, PUTHENPEEDIKA, OMALOOR P.O.-689 647.** **R1 BY GOVERNMENT PLEADER SMT. MABLE C.KURIEN R2 BY ADV. SRI.D.KISHORE R4 BY ADV. SRI.JAYKAR.K.S.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC No.543/2020 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 6[th] day of August, 2020**_ The petitioner, who is a senior citizen, is before this Court aggrieved by Exhibit-P5 order of the Maintenance (Tribunal) and Revenue Divisional Officer, Adoor. 2. The petitioner is the father of respondents 2 to 4. The petitioner states that after the death of his wife, he was taken to Nedumangad where the second respondent is residing. The second respondent treated the petitioner well initially. Later, the second respondent asked the petitioner to execute a settlement deed with respect to petitioner's property in favour of the second respondent. The petitioner executed Exhibit-P1 Settlement Deed wherein the life interest was retained by the petitioner. 3. The petitioner states that after execution of Exhibit-P1 Settlement Deed, the second respondent and his WPC No.543/2020 : 3 : wife started to behave indifferently towards the petitioner. The petitioner was restrained from contacting his other children. When the misbehaviour exceeded limits and when the second respondent failed to maintain the petitioner, the petitioner escaped from the house of the second respondent and reached his house at Kodumon in Pathanamthitta District. However, the second respondent had locked the house. The petitioner could not enter his house and therefore he went to the house of the fourth respondent with whom he is now residing. 4. Aggrieved by the action of the second respondent, the petitioner filed an application before the first respondent seeking to declare Exhibit-P1 Settlement as void. The petitioner also sought to adduce evidence in the matter. The petitioner alleges that the case was posted before the first respondent on 14.11.2019. Though the petitioner and his counsel were present and though the petitioner submitted Exhibit-P3 application seeking to adduce evidence, the first respondent was not ready to take evidence. The first WPC No.543/2020 : 4 : ## respondent adjourned the case. 5. Apprehending that the first respondent will not act in accordance with the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the petitioner filed W.P.(C) No.30925 of 2019. This Court passed Exhibit-P4 interim order staying all further proceedings. When the writ petition was taken up for hearing on 16.12.2019, the second respondent produced Exhibit-P5 order passed by the first respondent on 14.11.2019. By Exhibit-P5, the first respondent held that the petitioner will be entitled to reside in his property and use its usufructs entirely and the respondents in the complaint shall not make any obstruction. The third respondent in the complaint was directed to handover the keys of the house to the petitioner within three days. The respondent-sons were directed to deposit ₹3,000/- each per month in the account of the petitioner. It is dissatisfied by the said order of the first respondent that the petitioner is before this Court. 6. The second respondent contested the writ petition WPC No.543/2020 : 5 : filing reply statement. The second respondent stated that the writ petition is not maintainable as the petitioner has an appellate remedy under Section 16 of the Act, 2007. According to the second respondent, it is the petitioner who wanted the second respondent to take him to his family house. The second respondent is a Private School Teacher having a monthly salary of ₹10,000/-. He has his wife and two children also to be taken care of. However, the second respondent and his wife have been taking care of the needs of the petitioner. The second respondent stated that Exhibit-P1 Settlement Deed was executed by the petitioner on his own volition. The second respondent has not withdrawn amounts from the savings bank account of the petitioner without his knowledge. The petitioner has been taking the yield of rubber trees in his property. The petitioner is having a monthly income of ₹2,000/-. 7. The second respondent further stated that the petitioner has cut and sold trees in the property and the sale proceeds were deposited in fixed deposit accounts. As per WPC No.543/2020 : 6 : Section 8 of the Act, 2007, the proceeding impugned is a summary procedure. The first respondent has not violated any provisions of the statute in passing Exhibit-P5 order. In compliance of the order of the first respondent, the second respondent has handed over the key of the building to the petitioner. The writ petition is without any merit and it is liable to be dismissed, contended the second respondent. 8. I have heard the learned counsel for the petitioner, the learned Government Pleader representing the first respondent and the learned counsel appearing for the second respondent. 9. The prime grievance of the petitioner seems to be that in spite of a prayer made by the petitioner, the first respondent has not invalidated Exhibit-P1 Settlement Deed. The petitioner has a further case that the first respondent is bound to permit the petitioner to adduce evidence on oath and for that purpose enforcing attendance of witnesses. Such an opportunity to adduce evidence was not granted by the first respondent. The legal position in WPC No.543/2020 : 7 : respect of the powers of the first respondent to invalidate documents, is settled by a number of judgments of this Court. In _**Shabeen Martin and another v. Muriel and another** [2016 (5) KHC 603 (DB)]_ , a Division Bench of this Court held that if there is evidence to the satisfaction of the authorities under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that the requirements of Section 23 are satisfied in the case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate a document. 10. In _**Radhamani and others v. State of Kerala and others** [2016 (1) KLT 185]_ , this Court held that it is not necessary that there should be a specific recital or stipulation that transferee will provide basic amenities and physical needs to the transferor. This Court held that even in the absence of such recital, if the transferee fails to provide basic amenities and the basic physical needs, deed of transfer can be set aside. Again, in the judgment in _**Rajesh and another v. District Magistrate (District Collector), Alappuzha and**_ WPC No.543/2020 : 8 : _**others** [2019 (4) KHC 764]_ , this Court held that the fact that a senior citizen is living with his daughter, will not take away the jurisdiction of the Tribunal in passing an order in favour of the senior citizen. 11. However, the factual disputes need not be ascertained at this stage in this writ petition because the petitioner has an effective alternative remedy by way of appeal before the District Collector under Section 16 of the Act, 2007. When the Act provides for an effective mechanism to evaluate disputed questions of fact, it would not be appropriate for this Court to exercise jurisdiction under Article 226 of the Constitution of India. In the facts of the case, it is necessary that the petitioner be relegated to invoke appellate remedy provided under the Act. Accordingly, the writ petition is disposed of permitting the petitioner to file a statutory appeal before the Appellate Authority invoking Section 16 of the Act, 2007 within a period of two weeks from the date of receipt of a copy of this judgment. If the petitioner prefers such an WPC No.543/2020 : 9 : appeal within two weeks, the Appellate Authority shall condone the delay, if any, in filing the appeal, treating that the petitioner has been prosecuting the case _bona fide_ before this Court. After condoning the delay, the Appellate Authority shall pass appropriate orders on the appeal, giving an opportunity of hearing to the petitioner. The Appellate Authority shall also consider the legal position emerging from the judgments referred to hereinabove while passing order. It is made clear that this Court has not pronounced anything on the merits of the claims of the petitioner. Sd/- **N. NAGARESH, JUDGE** aks/24/08/2020 WPC No.543/2020 : 10 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFIED COPY OF SETTLEMENT DEED REGISTERED AS DOCUMENT NO.78/2019 OF SRO ADOOR.** **EXHIBIT P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE WRIT PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF AFFIDAVIT AND PETITION FILED BY THE WRIT PETITIONER IN PROCEEDINGS NO.C4/7698/2019 BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE INTERIM ORDER DATED 15.11.2019 IN WP(c)NO.30925/2019.** **EXHIBIT P5 TRUE COPY OF THE ORDER NO.C4/7698/2019/KDIS DATED 14.11.2019 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P6** **TRUE COPY OF THE JUDGMENT DATED 07.01.2020 IN WP(C)NO.30925/2019.** ncd