V.M. Chacko v. Revenue Divisional Officer, Presiding Officer of Maintenance Tribunal & Sub Divisional Magistrate, Kottayam; Achamma W/o Late Mosha; Tahsildar, Changanacherry Taluk, Kottayam Dist.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY # FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944 ## WA NO. 1898 OF 2016 AGAINST THE JUDGMENT IN WPC 7421/2015 OF HIGH COURT OF KERALA DATED 8.1.2016 ## APPELLANT/PETITIONER: V.M.CHACKO, AGED 50 YEARS, S/O. LATE MOSHA, VAZHAPARAMBIL HOUSE, SACHIVOTHAMAPURAM P.O., KURICHY VILLAGE, KOTTAYAM-686 532. BY ADVS.SRI.GOKUL DAS V.V.H. SRI.M.P.MADHAVANKUTTY ## RESPONDENTS/RESPONDENTS: 1 REVENUE DIVISIONAL OFFICER, PRESIDING OFFICER OF MAINTENANCE TRIBUNAL & SUB DIVISIONAL MAGISTRATE, COLLECTORATE P.O., KOTTAYAM-686 001. 2 ACHAMMA, W/O. LATE MOSHA, VAZHAPARAMBIL HOUSE, SACHIVOTHAMAPURAM P.O., KURICHY VILLAGE, KOTTAYAM-686 532. 3 THE TAHSILDAR, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT-686 001. BY ADV..SRI.K.P.HARISH, SR.GOVT.PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1898 of 2016 :: 2 :: ## JUDGMENT Dated this the 23[rd] day of December, 2022 ## S.MANIKUMAR, C.J. Instant writ appeal is filed by petitioner in W.P.(C) No.7421 of 2016, challenging the judgment of the writ court dated 8.1.2016. 2. Short facts leading to the filing of the writ petition are as under: 2.1 The 2[nd] respondent in the writ petition, viz., Mrs. Achamma, W/o. late Mosha, filed an application claiming maintenance before the 1[st] respondent - Revenue Divisional Officer, Presiding Officer of Maintenance Tribunal & Sub Divisional Magistrate, Kottayam, under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 2.2 The 2[nd] respondent herein claimed maintenance against the appellant/writ petitioner (son) and his siblings. The Revenue Divisional Officer, Kottayam, 1[st] respondent, passed Exhibit P1 order under Section 9 of the Maintenance W.A.No.1898 of 2016 :: 3 :: and Welfare of Parents and Senior Citizens Act, 2007 and awarded maintenance to the 2[nd] respondent, at a monthly rate of Rs.2,000/-, including rent. In Exhibit P1 order, elder brother of the petitioner was directed to pay maintenance, at the rate of Rs.500/- per month, and the petitioner was directed to pay maintenance, at the rate of Rs.1,500/-. Thereafter, the 2[nd] respondent herein - mother, filed another application before the 1[st] respondent alleging non compliance of the order of maintenance. 2.3. It was also alleged that the petitioner herein is taking rent of shop rooms and not entrusting the same with the 2[nd] respondent. Relying on the report of the Village Officer, Kurichy, the 1[st] respondent passed Exhibit P2 order on 7.1.2015 and directed the two tenants, viz., Mr. Rajeesh, S/o. Ravi and Mr. Anil Kumar, to pay rent to the 2[nd] respondent herein. 2.4 According to the appellant/writ petitioner, the 1[st] respondent exceeded his jurisdiction in considering the aspect of payment of rent and related matters which stood W.A.No.1898 of 2016 :: 4 :: outside the purview of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 2.5 According to him, Section 9(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, deals only with payment of maintenance and that respondent No.1 - Revenue Divisional Officer, has no authority whatsoever under the Act, 2007, to adjudicate the issue, with regard to title of property, tenancy, payment of rent and matters connected thereto. 3. In the above circumstances, W.P.(C) No.7421 of 2015 has been filed seeking for the following reliefs: “(i) to issue a writ of certiorari and quash Exhibit P2 order as illegal and arbitrary. (ii) to issue a declaration that the 1[st] respondent (Maintenance Tribunal) has no jurisdiction to adjudicate the issue with regard to title of property, tenancy, payment of rent and matters connected thereto under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.” 4. After considering the rival submissions, writ court vide the impugned judgment, dismissed the writ petition, relevant portion of which reads thus: W.A.No.1898 of 2016 :: 5 :: “1. Petitioner is the son of the 2[nd] respondent. He challenges the order passed by the Maintenance Tribunal. The Maintenance Tribunal appears to have passed originally Ext.P1 order, directing the petitioner and his siblings to pay maintenance to the 2[nd] respondent. Thereafter, Ext.P2 order was passed, directing the tenants under the 2nd respondent to pay the rent directly to the 2nd respondent. Petitioner impugns the above order of the Maintenance Tribunal. 2. Petitioner's case is that the Maintenance Tribunal has no authority to pass such an order. 3. It is to be noted that, the Tribunal is competent enough to take a decision relating to senior citizens. The tenants are, in fact, under the 2[nd] respondent. Therefore, there is nothing wrong in the Tribunal directing the tenants to pay the rent directly to the 2[nd] respondent. The writ petition is devoid of any merit. It is, accordingly, dismissed. 5. Being aggrieved, instant writ appeal is filed contending, inter alia, that the writ court has not properly appreciated the facts of the case, while passing the impugned judgment. According to the appellant, the 1[st] respondent has no jurisdiction, whatsoever under the Act, 2007, to pass Exhibit-P2 order. 6. Learned counsel for the appellant pointed out that Section 9(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 deals only with payment of W.A.No.1898 of 2016 :: 6 :: maintenance. The 1[st] respondent has no authority, whatsoever under the Act, 2007, to adjudicate the issue with regard to title of property, tenancy, payment of rent and matters connected thereto. If there is any dispute with regard to the rental arrangement or boundaries of the respective shares of the appellant and 2[nd] respondent, it is for the Civil Court to decide those disputes. 7. Pending disposal of this appeal, I.A. No.1/2022 has been filed by the writ petitioner, stating as under: A. It is respectfully submitted that, my father died on 25.05.1993 leaving behind my mother Achamma, sisters viz., Gracy and Santhamma, my brother Poulose and myself. It is also submitted that, a partition deed has been executed between myself, my brother, my sisters and my mother on 12.07.1999 and the same has been registered as document No. 1945/1999 before the Sub Registrar's Office, Changanacherry. As per the recitals of the above partition deed, the property which has been inherited by us from our father late Mosha situated in Old Survey No. 229/6A in Resurvey No. 282/24 in Block No. 1 in Kurichy Village having an extent of 7 Ares 40 square meters. 'A' schedule property described therein was set apart as the share of my brother Mr. Poulose which is having an extent of 1 Ares 72 square meters (4.25 cents) situated on the extreme north-east portion of the total extent. 'B' schedule mentioned the partition deed has been set apart as my share which is having an extent W.A.No.1898 of 2016 :: 7 :: of 4 Ares 6 square meters, which is lying on the extreme southern end in north-south direction and the building situated therein. 'C' schedule property mentioned as the share of our sisters which is having an extent of 81 square meters is situated on the western side of 'A' schedule in the north-south direction. 'D' schedule property mentioned in the above partition deed has been earmarked as the share of my mother Achamma which is having an extent of 81 square meters and the three rooms situated therein which is on the exact southern side of 'A' schedule property. - B. It is further submitted that, 'A' schedule as well as 'C' schedule mentioned in the above partition deed which belong to my brother Poulose and our sisters Santhamma and Gracy respectively has been sold by them to third parties. So in brief, the remaining properties and building covered by the above mentioned partition deed belongs to my mother as well as me. My share including shop room is situated on the extreme southern side of the above property. My mother's property and building is situated on the northern side of my property. It is also submitted that, the properties covered by the above mentioned partition deed which has been specifically allotted as my share and my mother's share has not been physically earmarked and separated. - C. It is further submitted that, a shop-room is situated on the extreme south covered by the partition deed. The above building is allotted with building No. III/449 by the Kurichy Grama Panchayat. One Rajeesh, S/o. Ravi is conducting a workshop in AIGH the above building. The above building stands in the name of my father Mosha in the records of Kurichy Grama Panchayath. The above mentioned Rajeesh has executed a rent deed in my favour and the same has been periodically extended from time to W.A.No.1898 of 2016 :: 8 :: time. The present rent which the petitioner is availing from my tenant is Rs. 8,000/- per month. - D. It is further submitted that, on the western side of the above building bearing No. III/449, my residential house is situated and I am residing there along with my family there. There is a room bearing No. III/452 on the northern side of my building. Earlier on Anilkumar was the tenant with respect to the above room. In the records of the Kurichy Grama Panchayath, the above room stands in the name of my mother Achamma. On the northern side of the above room bearing No. III/452, there are two rooms which belongs to my mother Achamma. On the eastern side, the room belonging to my mother Achamma having building No. III/451, one Rajan is conducting a shop there. On the western side of the above room, there is a room bearing No. III/450 is situated. My mother used to reside in the above room. There is a dilapidated room on the extreme north of the above building which has not any building number. My wife is conducting a been allotted with any small hotel there which provides meals during noon. It is also submitted that, my mother is receiving Rs. 5000/- per month as rent from the tenant by name Rajan, who is conducting his shop in Room No. III/451. My mother's room bearing No. III/450 owned by her is lying vacant. The other rooms situated on the southern side of building Nos. 451 and 450 having number III/452 are also lying vacant as of now. - E. It is further submitted that, my mother was residing along with me till August, 2022. Thereafter, she was residing along with her elder son Poulose. My mother has obtained a sum of Rs. 2.75 lakhs as compensation for the motor accident sustained by her. The above sum is lying in her bank account maintained at Federal W.A.No.1898 of 2016 :: 9 :: Bank, Chingavanam Branch. It is further understood that, she has received a sum of Rs. 6 lakhs from Shri. Rajan who is the tenant with respect to building No. II/451 as advance sale consideration The above amount is also lying in the account of my mother. - F. It is further submitted that, the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has passed an order dated 26.07 2010 initially bearing No. E-5304/09 By virtue of the above order, the 1[st] respondent has directed me to pay a sum of Rs. 1,500/- per month which includes the rent received from the tenant and a sum of Rs. 500 from my brother Poulose. I was meeting with all the expenses of my mother who was residing with me till 2022 August. Apart from the above. she was receiving the rent from the tenant Rajan who is presently conducting business in building No. III/451. - G. It is further submitted that, during the period of residence of my mother along with me and my family, she again approached before the 1[st] respondent and contended that, I am receiving the rent pertaining to building Nos. III/449 and III/452. The 1[st] respondent has passed an order dated 07.01.2015 bearing No. E-4373/2014 directing the tenant, viz., Rajeesh and another tenant namely Anilkumar to pay the rent at the rate of Rs. 1,500/- and Rs. 2,500/- directly to my mother. Being aggrieved by the above order, I have approached before this Court by filing the writ petition. The main contention advanced by me in the above writ petition before the learned Single Judge was that, the 1[st] respondent has exceeded his jurisdiction under the Maintenance and Welfare of Parents and Senior Citizens Act. 2007. It is also submitted that without appreciating the legal contention raised by me, W.A.No.1898 of 2016 :: 10 :: writ court has dismissed the writ petition. Being aggrieved, the writ appeal is preferred. - H. It is further submitted that, my mother has been allotted only with 80 square meters of land and the building situated therein. She is claiming more right than which she has received as per the partition deed. I have approached the Revenue Department Survey Department for effecting physical separation of the boundaries pertaining to the properties which has been received by me and my mother by virtue of the partition deed of the year 1999 by metes and bounds. But the above proceeding has not taken place till this time due to various reasons. It is also submitted that, even though the building bearing No. III/452 stands in the name of my mother, the above building forms part of the share allotted to me as per the partition deed. A clarity with regard to the rights of the parties will be arrived only after the physical shares obtained by each of the share holders are measured. - I. It is pertinent to note that, the purport of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is to provide maintenance for parents and senior citizens who are unable to maintain themselves. It is submitted that, till August 2022, my mother was under my care and protection. I was giving all sorts of financial and other supports to her well being. Now, my mother is under the care and protection of my brother who is looking after her at present. Apart from the above, my mother is receiving a sum of Rs. 5,000/- per month from the building bearing No. III/451 occupied by Rajan. The direction given by the Tribunal to pay the rent by the tenants directly to my mother is beyond the jurisdiction of the Maintenance and Welfare of W.A.No.1898 of 2016 :: 11 :: Parents and Senior Citizens Act, 2007. They are neither the children or relatives of my mother. J. It is further submitted that Section 23 (2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 speaks about the rights of the senior citizen to receive maintenance out of an estate which has been transferred after having notice to the transferee. It is also submitted that, the Hon'ble Apex Court in Vanitha S. v. Deputy Commissioner of Bangalore Urban District and others [2020 (6) KHC 749] held that, the expression transfer occurring in Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 will include not only absolute transfer of property but also transfer of interest of the property. The Hon'ble Apex Court was considering a gift deed executed in that case belonging to senior citizen. A Hon'ble Division Bench of the Chhattisgarh High Court has considered the question of eviction of a tenant under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It has been held in the above decision ( Bhisham Lal Banchor v. State of Chhattisgarh and others [2021 KHC 4383] that, the right of a land lord to seek eviction is governed under the Chhattisgarh Rent Control Act, 2011. It was further observed by the Court that, provisions under the Chhattisgarh Rent Control Act cannot be read into the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which does not deal with the rights of a landlord qua its tenant only because the landlord happens to a citizen. It is concluded in the above Judgment that, the rights of a senior citizen against the third party is strictly controlled under the provision of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and once such provisions is not applicable to a transaction it does not W.A.No.1898 of 2016 :: 12 :: amount to transfer. A senior citizen landlord has to seek eviction under the ordinary law. So in brief, the respondent has exceeded his jurisdiction under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. - K. The question to be considered in the above writ appeal is whether a direction under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 can be enforced against a third party who does not come within the definition of children and relative under Section 4 (2) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Whether the question of tenancy and the civil dispute can be tried by the 1" respondent under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is also a question to be considered. In the above circumstance, it is very much necessary in the of justice that, this Court be pleased to accept the avements contained in this affidavit. 8. We have taken note of the same. 9. Mr. K. P. Harish, learned Senior Government Pleader, on obtaining instructions from the 2[nd] respondent (Smt.Achamma), through the Village Officer, Kurichy Village, Changanacherry Taluk, Kottayam, has placed the following facts and village records: “The 2[nd] respondent - Mrs. Achamma, is now residing with her elder son Mr. Paulose at Kottayam Taluk, have collected her mobile phone no. and made a phone call with her about the status of land, building which were in possession W.A.No.1898 of 2016 :: 13 :: and title of her and she informed that the land which she has in possession and title had disposed to the tenants before one year and now she has no land and building in Kurichy village and now residing with her elder son Mr.Paulose V.M., Vazhaparambil, Sabandaman, Kanjiram P.O., Kottayam Taluk and she remarked that no arrears due in rent till the date of documentation and lead a happy life with her son. On verification of the Village records, an extent of 0.0080 ares of land in Block No.1 Re-Sy. No.282/24 of Mrs.Achamma, W/o. Mosha, Vazhaparambil, Kurichy, as per (TP 6365) has been mutated and transferred to Mr. Rajan Sukumaran, S/o.Sukumaran Kochuparayil, Sachivothamapuram P.O., Kurichy (TP12482) as per Document No.1242/2021 dtd. 09.09.2021 of SRO Chenganacherry and the T. P. holder Poulose till the date. As per the above documents, the building is situated in the land which was belonged to Achamma and transferred to Mr. Rajan S. Sukumaran and now the II[nd] respondent has no landed property in the area of Kurichy village. These facts are reported for your kind attention.” ## Account Number – 8 ## Thandaper Accounts Taluk : Changanassery Taluk : Changanassery Kurichi Village Thandaper Number : 12482 Kurichi Kara Name of the Thandaper holder : Rajan. S. Sukumaran, S/o Sukumaran, Kochuparambil, S. Puram, Kurichi – 686532. |Survey|Survey|Extent|Extent|Extent|Nilam<br>or<br>Purayidom|Type|Basic Tax or<br>Rajabhogam<br>Rs. Ps.|Remarks| |---|---|---|---|---|---|---|---|---| |Nu<br>m-<br>ber|Sub<br>Division<br>Number|He<br>cta<br>re|Are|Sq.<br>Metre||||| |1||2|||3|4|5|6| W.A.No.1898 of 2016 :: 14 :: |As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365|As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 from T.P - 6365| |---|---|---|---|---|---|---|---|---| |282|24|00|00|81|Purayidom|||| Sd/28/10 Account Number – 8 ## Thandaper Accounts Taluk : Changanassery Thandaper Number : 6365 Name of the Thandaper holder : Achamma, W/o Mosha, Parambil, Kurichy Village-686532 ||||||||||| |---|---|---|---|---|---|---|---|---|---| |Survey|||Extent|||Nilam or<br>Purayidom|Type|Basic Tax or<br>Rajabhogam<br>Rs. Ps.|Remarks| |Nu<br>m-<br>ber|Sub<br>Divisio<br>n<br>Numb<br>er||He<br>cta<br>re|Are|Sq.<br>Metre||||| |1|||2|||3|4|5|6| |2b 727 /89 as per TP 2287|||||||||| |282||24/3<br>24|00|00|81|Purayidom|Padam|50|-| |As per decision in P.V. No. 503/2021, dtd 28.10.2021<br>Doc. No: 1242/2021 / 09.09.2021 to T.P – 12482<br>No Balance|||||||||| As per decision in P.V. No. 503/2021, dtd 28.10.2021 Doc. No: 1242/2021 / 09.09.2021 to T.P – 12482 No Balance Sd/28/10” 10. He further submitted that the second respondent (Smt. Achamma) informed that there is no arrears due in rent, till the date of documentation. W.A.No.1898 of 2016 :: 15 :: 11. In the light of the averments in I.A. No.1/2022, filed by the writ petitioner, and the details furnished by the learned Senior Government Pleader, Mr. K.P.Harish, there is no dispute as regards the transfer, possession, and tenancy rights created between the parties. 12. Learned counsel for the 2[nd] respondent - Mother submitted that she is now aged above 70 years and ailing. Considering the plight of the 2[nd] respondent, the writ petitioner - son, who has a pious duty to take care of and maintain his mother, cannot refuse to pay maintenance at Rs.50/- per day. 14. No one should forget the sacrifices of a mother. On the aspect of role of mother, we deem it fit to consider a few decisions: (i) In D. Govindasamy v. The District Collector reported in 2011 (2) CTC 46 (Mad), a learned single Judge of the Madras High Court, while considering the role of a mother, in bringing up the children, observed as under: "The role of mother in bringing up the children is very essential and that too for daughters, the love and affection and care of mother are essential. Mother's role is very important during attainment of puberty as well as during delivery. Petitioner's children lost their W.A.No.1898 of 2016 :: 16 :: mother's care, love and affection throughout their life and the same cannot be estimated in terms of money. The loss of irreparable and no one could play the role of "mother". That is the reason why an ancient Tamil poem describes "mother and father" as first god." (ii) In State of Tripura v. Arjun Biswas, reported in 2013 SCC OnLine Tri. 601 , a Hon’ble Division Bench of Tripura High Court observed as under: “....The relation between the parents and children is considered a most pious relation, especially the relation between the mother and son, so far our mythology is concerned, is regarded as sacred most. The parents after the birth of the children, grow them up, protect them from all odds and, perhaps, all parents try to give the best earthly teaching to their children. At the old age, parents similarly expect protection, nursing, care from their children. A mother sacrifices what not for the well being of her children and similarly, the children also admire and respect the mother as the highest living God on the earth….” (iii) In Pintu Ghosh v. State of Tripura, [Criminal Appeal (J) 33 of 2020] , a Hon’ble Division Bench of Tripura High Court observed as under : “10.....A mother is also a selfless loving human who sacrifices many of her wants and needs for the wants and needs of her child. A mother works hard to make sure that her child is safe equipped with the knowledge skills and abilities to make it a competent human being….” In the light of the above discussion and decisions, we are of the view that the appellant/writ petitioner is liable to W.A.No.1898 of 2016 :: 17 :: pay the maintenance/arrears of maintenance, at the rate of Rs.1,500/- per month, from the date of claim, till today, within three months from the date of receipt of a copy of this judgment, less the rent to the mother, 2[nd] respondent herein. Writ appeal is accordingly disposed of. SD/S.MANIKUMAR CHIEF JUSTICE SD/SHAJI P. CHALY JUDGE jesxxxxxxxxx