Preethi M.K. v. The Presiding Officer (Sub Collector), Tribunal for Maintenance and Welfare of Parents and Senior Citizens Act, Thalassery; The Appellate Tribunal under the MWPS Act, Kannur; M.K. Omana; A. Anilkumar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940** **WP(C).No. 21292 of 2018** **-----------------------** **PETITIONER:** **-----------** **PREETHI M.K, AGED 47 YEARS, W/O. PADMANAND, THODUVAYAL HOUSE, P.O. KANIYARAM, MANANTHAWADI, WAYANAD DISTRICT.** **BY ADV.SRI.C.P.PEETHAMBARAN** **RESPONDENT(S):** - **--------------** **1. THE PRESIDING OFFICER (SUB COLLECTOR), TRIBUNAL FOR MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, THALASSERY-670101.** **2. THE APPELLATE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR - CITIZENS ACT, (DISTRICT COLLECTOR), KANNUR-670002.** **3. M.K. OMANA, D/O. K.P. KARUNAKARAN NAMBIAR, KANDOTH HOUSE, PILANHI, P.O. MAKRERI, KANNUR DISTRICT-670622** - ***4. A. ANILKUMAR, S/O. SREEDHARAN,** - **SOUPARNIKA, MAKRERI AMSOM, MAKRERI P.O., THALASSERY, KANNUR-670622 (DELETED)** **R4 IS DELETED FROM THE RESPONDENT ARRAY AS PER ORDER DATED 24.07.2018.** **R1 & R2 BY GOVERNMENT PLEADER SMT.A.C. VIDHYA R3 BY ADV. SRI.M.DINESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 21292 of 2018 (I) --------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS: ---------------------** |**EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED NO.3363/1/2008**| |---| |**OF SUB REGISTRAR'S OFFICE, KADACHIRA**| |**EXHIBIT P2 TRUE COPY OF THE APPLICATION IN M.C.C.NO.159/2017**| |**FILED BY THE 3RD RESPONDENT BEFORE THE**| |**1ST RESPONDENT.**| |**EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 21/11/2017 ISSUED**| |**BY THE 1ST RESPONDENT.**| |**EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.11.2017 IN**| |**MCC NO.159/2017 OF THE 1ST RESPONDENT.**| |**EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 1/1/2018 IN**| |**M.C.C. NO.159/2017 FILED BY THE PETITIONER BEFORE**| |**THE 1ST RESPONDENT WITH THE ENDORSEMENT.**| |**EXHIBIT P6 TRUE COPY OF THE APPEAL MEMORANDUM**| |**PREFERRED BY THE PETITIONER BEFORE THE**| |**2ND RESPONDENT.**| |**EXHIBIT P7 TRUE COPY OF THE ARGUMENT NOTE DATED 28.2.2018**| |**FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.**| |**EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12/6/2018 OF THE**| |**2ND RESPONDENT.**| |**RESPONDENTS' EXHIBITS:**<br>**NIL**| |**---------------------**| **/TRUE COPY/** **P.S.TO JUDGE** **mbr/ 01.08.2018.** ## ALEXANDER THOMAS, J. ----------------------------- W.P(C).No.21292 Of 2018 --------------------------------- Dated this the 31st day of July, 2018. ## J U D G M E N T The main prayer in this Writ Petition (Civil) is as follows: “call for records leading to issuance of Exhibit P-4 order from the 1st respondent and Exhibit P-8 order from the 2nd respondent and quash Exhibits P-4 and P-8 Orders by issuing a Writ of Certiorari or any other appropriate Writ, Order or Direction.” 2. Heard Sri.C.P.Peethambaran, learned counsel for the petitioner, Sri.M.Dinesh, learned counsel appearing for R-3 and Smt.A.C.Vidhya, learned learned Government Pleader appearing for respondents 1 & 2. 3. The petitioner is aggrieved by the impugned Ext.P-8 order dated 12.6.2018 issued by the 2nd respondent-appellate Tribunal, whereby Ext.P-1 settlement deed dated 10.9.2008 executed by the 3rd respondent in favour of the petitioner has been set aside. The 3rd respondent is the mother of the petitioner. The 3rd respondent had duly executed and got registered Ext.P-1 settlement deed No.3363/1/2008 dated 10.9.2008 of S.R.O., Kadachira, whereby immovable property coming to 14 cents of land was settled by the ::2:: W.P(C).No.21292 Of 2018 3rd respondent in favour of the petitioner. Later, the 3rd respondent had filed Ext.P-2 application dated 30.8.2017 before the 1 st respondentTribunal under Sec.23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, praying that Ext.P-1 settlement deed is to be cancelled as the petitioner is not taking care of the needs and necessities of the 3rd respondent. 4. The 1st respondent-Tribunal, as per the impugned Ext.P-4 order dated 30.11.2017 had directed that the petitioner shall not alienate the said property covered by Ext.P-1 settlement deed during the lifetime of the 3rd respondent. It appears that the 3rd respondent had not filed any appeal under Sec.16(1) of the above Act, so as to challenge Ext.P-4 order. On the other hand, the petitioner, being aggrieved by the directions in the impugned Ext.P-4 order, has filed Ext.P-6 appeal under Sec.16(1) before the 2nd respondent-appellate Tribunal. The 2nd respondent-appellate Tribunal as per the impugned Ext.P-8 appellate order dated 12.6.2018 has allowed the main prayer of the 3rd respondent by cancelling Ext.P-1 settlement deed even though the 3rd respondent had not preferred any appeal as against Ext.P-4 order. 5. Sec.16 of the above Act is the provision dealing with appeal, which reads as follows: ::3:: W.P(C).No.21292 Of 2018 “Sec.16: Appeals.-- (1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal : Provided that on appeal, the children or relative who is required to pay any amount in terms of such maintenance order shall continue to pay to such parent the amount so ordered, in the manner directed by the Appellate Tribunal: Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. - (2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the respondent. - (3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose order the appeal is preferred. - (4) The Appellate Tribunal may, after examining the appeal and the records called for either allow or reject the appeal. - (5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of the Tribunal and the order of the Appellate Tribunal shall be final: Provided that no appeal shall be rejected unless an opportunity has been given to both the parties of being heard in person or through a duly authorised representative. - (6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one month of the receipt of an appeal. - (7) A copy of every order made under sub-section (5) shall be sent to both the parties free of cost.” It is now well established that the appellate remedy under Sec.16(1) can be availed only by the aggrieved applicant/senior citizen and the ::4:: W.P(C).No.21292 Of 2018 appellate provision cannot be resorted to by a person like the petitioner, who is a respondent in the claim petition. Therefore, it is crystal clear that the 2nd respondent-appellate Tribunal did not have jurisdiction to entertain the appeal filed by the petitioner as per Ext.P-6. Still further, it is to be noted that the petitioner had filed Ext.P-6 appeal with the main contention that the direction issued by the Tribunal in Ext.P-4 order directing her right of alienation should be set aside. On the other hand, the 3rd respondent was never aggrieved by Ext.P-4 order and had not filed any appeal as against Ext.P-4. Therefore, it was highly improper and legally wrong on the part of the appellate Tribunal to have passed the impugned Ext.P-8 order directing cancellation of Ext.P-1 settlement deed and that too in the appeal preferred by the petitioner. Therefore, the impugned Ext.P-8 order is illegal, ultra vires and improper and is liable to be set aside. Accordingly, the impugned Ext.P-8 appellate order will stand set aside. 6. In the instant case, Ext.P-1 settlement deed has been executed on 10.9.2008 whereas the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, was enacted by the Parliament within the territorial limits of Kerala with effect from 24.9.2008. Sec.23(1) of the said Act reads as follows: ::5:: W.P(C).No.21292 Of 2018 - “Section 23: Transfer of property to be void in certain circumstances.-- - (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift 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. xxx xxx xxx” 6. This Court in the decision in Prema v. State of Kerala, reported in 2013 (3) KLT 1012, has held that the power under Sec.23(1) so as to cancel a settlement deed/transfer deed executed by the senior citizen could be invoked only if the settlement deed/transfer deed has been executed only after coming into force of the above said Act. Therefore, in the instant case, the Tribunal lacks jurisdiction to entertain the prayer of the 3rd respondent as made out in Ext.P-2, which sought for cancellation of Ext.P-1 settlement deed dated 10.9.2008. Since the Tribunal lacks jurisdiction to entertain such an application under Sec.23(1) of the above said Act as against Ext.P-1 settlement deed, the Tribunal also lacks jurisdiction to consider incidental prayer restricting the right of alienation of the petitioner in respect of the property covered by Ext.P-1. For this reason, the impugned Ext.P-4 order is also ultra vires, illegal and improper. In the light of these aspects, the impugned Ext.P-4 order will also stand set aside. Further it is made ::6:: W.P(C).No.21292 Of 2018 clear that if the 3rd respondent has any claim that she is entitled for maintenance or such other reliefs as regulated by the provisions of the above said Act, then it is clarified that nothing in this judgment will preclude the 3rd respondent from seeking such reliefs which are maintainable under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.