Rejula D/o Meera Sahib Haji v. Revenue Divisional Officer Kollam as the Tribunal for the Maintenance and Welfare of Parents and Senior Citizens Act Kollam, The Village Officer, Thrikkovilvattom Village, Kollam District, Noorjahan M, Shajahan M, Shihabudeen, Seedh, Muhammed Yakub

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** ## **WP(C).No. 31714 of 2018** ## **PETITIONER:** **REJULA D/O.MEERA SAHIB HAJI,AGED 43 YEARS, HOUSE NO. 116/91, II CROSS, KANAKAPALAYAM JAYANAGAR, II BLOCK, BANGALORE 560011, PRESENTLY RESIDING AT HOUSE NO. 180, 1ST FLOOR, 8TH CROSS, JAYANAGAR II BLOCK BANGALORE 560011** ## **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS:** |**NTS**<br>**:**|| |---|---| |**1**|**THE REVENUE DIVISIONAL OFFICER**| ||**KOLLAM AS THE TRIBUNAL FOR THE MAINTENANCE AND WELFARE OF**| ||**PARENTS AND SENIOR CITIZENS ACT, KOLLAM, PIN 691001**| |**2**|**THE VILLAGE OFFICER,**| ||**THRIKKOVILVATTOM VILLAGE,KOLLAM DISTRICT 691001**| |**3**|**NOORJAHAN M,**| ||**AGED 55 YEARS, W/O NATHEERKUNJU,KOLASSERI VEEDU,NEAR MANDIRAM**| ||**MUKKU,THODIYOOR P.O,KARUNAGAPPALLY,KOLLAM DISTRIST 690568**| |**4**|**SHAJAHAN M,**| ||**AGED 53,S/O MEERA SAHIB HAJI,PLAVILA VEEDU,CHERIKONATH**| ||**CHERY,KANNANALLOR P.O.THRIKKOVILVATTOM VILLAGE, KOLLAM**| ||**691576.**| |**5**|**SHIHABUDEEN,**| ||**AGED 51,S/O LATE MEERA SAHIB HAJI,PLAVILA VEEDU,CHERIKONATH**| ||**CHERY,KANNANALLOOR P.O.THRIKKOVILVATTOM VILLAGE,KOLLAM 691576**| |**6**|**SEEDH,**| ||**AGED 49,S/O LATE MEERA SAHIB HAJI,PLAVILA VEEDU,CHERIKONATH**| ||**CHERY,KANNANALLOOR P.O.THRIKKOVILVATTOM VILLAGE,KOLLAM**| ||**691576.**| **WP(C).No. 31714 of 2018** **2** **7 MUHAMMED YAKUB, AGED 45,S/O LATE MEERA SAHIB HAJI,PLAVILA VEEDU,CHERIKONATH CHERY, KANNANALLOOR P.O.THRIKKOVILVATTOM VILLAGE,KOLLAM 691576** **BY ADVS. SRI.BIJITH S.KHAN SRI.N.ANAND** **OTHER PRESENT:** **SRI. S DILIP - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 31714 of 2018** **3** ## **J U D G M E N T** The petitioner, who is concededly the daughter of a senior citizen coming within the sweep of the term under the Maintenance and Welfare of Parents and Senior Citizens Act (hereinafter referred to as 'Act' for short), impugns Ext.P7 order; as per which, the Maintenance Tribunal, constituted under the Act, set aside Ext.P1 settlement deed executed by the senior citizen in her favour, invoking the provisions of Section 23 of the said Act. As per the petitioner, the impugned order is vitiated in law, since it has been issued without adverting to the imperative statutory provisions and without enquiry as to whether the rigor of Section 23 is applicable in a case like this. She therefore, says that Ext.P7 order is illegal, unlawful and therefore, unconstitutional. 2. I have heard Sri.Latheesh Sebastian, learned counsel appearing for the petitioner; Sri.N.Anand, learned counsel appearing for respondents 3 to 7 and the learned Government Pleader appearing on behalf of respondents 1 and 2. 3. Compendiously, the assertion of the petitioner is that in Ext.P2 complaint preferred by her father – the senior citizen **WP(C).No. 31714 of 2018** **4** involved, there is no allegation that she had denied him the basic physical needs or basic amenities, in violation of any express or implied requirement to do so in Ext.P1 settlement deed; but that the senior citizen only complains that she had not gone and stayed with him giving up her own family. 4. The petitioner says that since allegation of her father is to the effect that she ought to have stayed with him and solely, since she not having done so, that she had not properly taken care of him, the ingredients of Section 23 are not attracted and therefore, that the Maintenance Tribunal could not have issued an order akin to Ext.P7. She also has a case that her statement were recorded not by the Maintenance Tribunal but by an Officer authorised by it and that she was not given the opportunity of cross examining the party respondents when their statements were so recorded. She, however, concedes that she had in Ext.P5 statement of hers, categorically stated that she had visited her father only occasionally at home and in the mosque and that she was not available when he breathed his last in the hospital. She, however, says that she was not financially well of to take care of her father while he had sufficient resources to **WP(C).No. 31714 of 2018** **5** maintain himself and that, in fact, he had offered to give some money to her so as to maintain herself and her family. She adds that her husband had a paralytic stroke and consequentially that they were pushed to a state of financial crisis. 5. In response to these submissions, the learned counsel appearing for the party respondents, Sri.Anand, says that going by the judgment of this Court in **Radhamani and Others v. State of Kerala and Others [2016 (1) KHC 9],** it is not necessary that the settlement deed or the transfer document, executed by the senior citizen in favour of his/her children, should contain an express covenant that the latter must take care of the basic needs and amenites of the said citizen. He contends that the law is now well settled such obligation will have to be ascertained by the conduct of the parties, and the evidence available; consequentially, that an implied condition can be inferred, taking note of the overall relevant circumstances. 6. Sri.Anand then adds that, as is clear from the complaint of the now deceased senior citizen in Ext.P2, the petitioner was under an obligation to go and stay with her father and that when she refused to do so he felt neglected; and that **WP(C).No. 31714 of 2018** **6** he has categorically stated in his complaint that she treated him like an enemy. He says, therefore, that in these circumstances, the provisions of Section 23 would be automatically attracted and asserts that Ext.P7 is resultantly irreproachable. 7. The learned Government Pleader, appearing on behalf of the Maintenance Tribunal, submits that the said Authority had issued Ext.P7 taking specific note of the requirements of the senior citizen involved and adverting to his complaint that the petitioner had not taken care of him even though she is enjoying his property as per Ext.P1 settlement deed. The learned Government Pleader adds that it is the duty of the Maintenance Tribunal to do so, since the said Authority is statutorily bound to provide for a dignified and sufficiently protected life to a senior citizen, going by the mandate of the Act. He also, therefore, asserts that Ext.P7 is without fault. 8. When I analyze the various submissions made before me as afore, it become indubitable that the essential question involved in this case is whether an implied obligation can be read into Ext.P1 settlement deed, enjoining the petitioner to provide for the basic physical needs and basic amenities to the senior **WP(C).No. 31714 of 2018** **7** citizen involved and if so whether she had neglected in doing so. If, these two criteria are found expressly or impliedly in a particular case then, going by the judgment of this Court in **Radhamani** (supra), certainly the provisions under Section 23 can be pressed into service. 9. However, in the case at hand, the answer to the singular question, whether there is such an implied condition, is not discernible from the proceedings on record, because, as rightly stated by the learned counsel for the petitioner, her father's complaint appears to be that the petitioner did not go and stay with him, of course, with an additional allegation that she treated him like an enemy. What this means is not really clear from the evidence on record and the party respondents have only stated in their version that even though the senior citizen was taken full care of by them, the petitioner had violated her obligation to do so by living her own life with her family, thus neglecting the needs and requirements of her father. 10. The real issue is, however, whether this is by itself would be sufficient to attract the rigor of Section 23 and to cancel Ext.P1 settlement deed; particularly when it has been **WP(C).No. 31714 of 2018** **8** stated by this Court in various judgments that an order under Section 23 cannot be issued in a casual manner, but only in exceptional circumstances. 11. When I analyze the materials on record, I am afraid that I am not in a position to enter into a conclusive decision as to the afore issues; primarily because, the evidence is lacking on all them. The impugned order does not really enter into an affirmative finding that there is implied obligation on the petitioner to have provided the basic amenities and basic physical needs to the senior citizen involved, nor does it say that the petitioner had violated such implied condition, except that she did not go and stay with her father. Whether her refusal to stay with her father would by itself be a reason to attract Section 23 has also not been discussed by the learned Tribunal in the impugned order. 12. I am therefore, of the view that Ext.P7 order will require to be tested further, with more and relevant evidence to be produced by the parties; and only thereafter, can this order be sustained under Section 23 of the Act. **WP(C).No. 31714 of 2018** **9** 13. When I disclosed my mind as afore, both counsel for the rival parties, Sri.Latheesh Sebastian and Sri.N.Anand submitted that the matter be then remanded to the Maintenance Tribunal, so as to enable their respective clients to lead further evidence, to prove their case, as per the Act and Law and that the Tribunal be directed to take a fresh decision within a short period of time. 14. Keeping this in perspective, I order the Maintenance Tribunal to allow the parties, including the petitioner, to lead additional evidence in this matter, especially in terms of the requirements under Section 23 of the Act and to thereafter, decide whether Ext.P7 order can be allowed to remain without modification. If, after such evidence is placed on record as per the procedural mandate of the Act, the Tribunal is of the view that any modification to Ext.P7 is required, it may do so; consequentially modifying the said order appropriately and the parties will thereafter be obligated, subject to their respective remedies, to abide by the same in terms of law. Needless to say if the Tribunal concludes that Ext.P7 order requires no modification, then the Tribunal will state the reasons for this **WP(C).No. 31714 of 2018** **10** conclusion in the order to be issued. 15. To facilitate an expeditious conclusion of the exercise as afore ordered, I direct the parties to appear before the Maintenance Tribunal at 11.00 AM on 01.02.2019. The Maintenance Tribunal will, thereupon, either allow them to lead evidence on that day or on any other suitable date and will complete the proceedings as above directed as expeditiously as is possible, but not later than two months from the date of receipt of this judgment. This writ petition is thus ordered. **Sd/-** rp **DEVAN RAMACHANDRAN JUDGE** **WP(C).No. 31714 of 2018** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SETTLEMENT DEED DATED 7.10.2011 EXHIBIT P2 TRUE COPY OF THE APPLICATION OF THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT BEARING NO KDIS 7178/2013/C DATED 5.7.2014** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO 19047/2014 DATED 9.1.2018** **EXHIBIT P5 TRUE COPY OF THE OBJECTION OF THE PETITIONER TO EXT P2 PETITION.** **EXHIBIT P6 TRUE COPY OF THE REPORT OF THE SENIOR SUPERINTENDENT REVENUE DIVISIONAL OFFICE KOLLAM ALONG WITH THE STATEMENTS OF THE RESPONDENTS 3 TO 7 INCLUDING THE PETITIONER.** **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 4.6.2018 BEARING NO KDS/2892/2018/C.** **RESPONDENT'S EXHIBITS: EXHIBIT R(6)(A) TRUE COPY OF THE MEMORANDUM OF WRIT PETITION FILED BY THE PETITIONER IN WP(c)NO.19047 OF 2014(WITHOUT EXHIBITS)**