W.P.(C).966 of 2021 and W.P.(C).5591 of 2021

W.P(C).966 AND 5591 OF 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** ## **WP(C) NO. 966 OF 2021** ## **PETITIONER:** MUHAMMED RAFI, AGED 55 YEARS S/O.MUHAMMED RASHEED, RESIDING AT T.C.NO.20/1328, MANKADU VEEDU, MANKADU LANE, MELARANOOR, KARAMANA P.O., THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-695 002. BY ADVS. G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENTS:** 1 MUHAMMED RASHEED AGED 85 YEARS S/O.APPUKUNJU, RESIDING AT T.C.NO.20/1328, MANKADU VEEDU, MANKADU LANE, MELARANOOR, KARAMANA P.O., THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-695 002. 2 AYSHA KUNJU, AGED 75 YEARS W/O.MUHAMMED RASHEED, RESIDING AT T.C.NO.20/1328, MANKADU VEEDU, MANKADU LANE, MELARANOOR, KARAMANA P.O., THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-695 002. 3 RANEEZA BEEGUM, W/O.RAUF, RESIDING AT T.C.NO.20/1328, MANKADU VEEDU, MANKADU LANE, MELARANOOR, KARAMANA P.O., THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-695 002. 4 RAJEENA BEEGUM, W/O.SHERAF ABUBAKER, RESIDING AT T.C.NO.20/1328, MANKADU VEEDU, MANKADU LANE, MELARANOOR, KARAMANA P.O., THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM-695 W.P(C).966 AND 5591 OF 2021 2 002. 5 RAZIYA BEEGUM, AGED 57 YEARS W/O.SUBAIR, RESIDING AT SANOOJ MANZIL, MADATHAPPATHA, THIRUVANANTHAPURAM-695 605. BY ADVS. DR.K.P.PRADEEP SMT.T.THASMI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.04.2021, ALONG WITH WP(C).5591/2021, THE COURT ON 22.06.2021 DELIVERED THE FOLLOWING: W.P(C).966 AND 5591 OF 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943** ## **WP(C) NO. 5591 OF 2021** ## **PETITIONERS:** 1 SHAHIDA A.F AGED 49 YEARS W/O. MUHAMMED RAFI, RESIDING AT T.C. 20/1328, MANKADU VEEDU, MANKADU LANE, MELARANNOOR, KARAMANA P.O, THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT - 695002. 2 SHAHIRA M.S. AGED 21 YEARS D/O. MUHAMMED RAFI, RESIDING AT T.C. 20/1328, MANKADU VEEDU, MANKADU LANE, MELARANNOOR, KARAMANA P.O, THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT - 695002. 3 MOHAMMED ADIL M.S AGED 17 YEARS S/O. MUHAMMED RAFI, RESIDING AT T.C. 20/1328, MANKADU VEEDU, MANKADU LANE, MELARANNOOR, KARAMANA P.O, THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT - 695002.(IS REPRESENTED BY HIS MOTHER GUARDIAN AND NEXT FRIEND, THE 1ST PETITIONER) BY ADVS. M.R.RAJESH SMT.E.S.SANDHYA ## **RESPONDENT/S:** 1 AYSHA KUNJU W/O. MUHAMMED RASHEED, RESIDING AT T.C. 20/1328, MANKADU VEEDU, MANKADU LANE, MELARANNOOR, KARAMANA P.O, THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT - 695002. 2 MUHAMMED RAFI W.P(C).966 AND 5591 OF 2021 4 AGED 56 YEARS S/O. MUHAMMED RASHEED, RESIDING AT T.C. 20/1328, MANKADU VEEDU, MANKADU LANE, MELARANNOOR, KARAMANA P.O, THYKKADU VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT - 695002. BY ADVS. DR.K.P.PRADEEP SMT.T.THASMI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.04.2021, ALONG WITH WP(C).966/2021, THE COURT ON 22.06.2021 DELIVERED THE FOLLOWING: W.P(C).966 AND 5591 OF 2021 5 ## **COMMON JUDGMENT** The petitioner in W.P(C).966 of 2021 is the son of the respondents 1 and 2 herein. Respondents 3, 4 and 5 are the daughters of the respondents 1 and 2. Parties would hereinafter be referred to as the son and the parents. The writ petitioners in W.P(C).5591 of 2021 are the wife and children of the son. 2. The records reveal that the parents had assigned an extent of 4.34 cents of land in survey No.1768/B/2/2 of Thycaud village in favour of the son by document No.2864 of 2006. It seems that the parents, the son and his family reside in tharvad house No.TC 20/1328 of Manacaud Village in Thiruvananthapuram taluk. 3. The relationship between the son and the parents got strained. Hence, the parents filed an application as J/1202/2018 before the RDO invoking the provisions under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, hereinafter referred to as the Senior Citizens Act. The son filed a written objection. Subsequently, on the request of the son, the sisters were impleaded as parties. The prayer in the application was to cancel the settlement deed executed in favour of the son, to direct the respondent son and his family to vacate from the house belonging to the parents and to protect the life and property of the parents. The property was assigned in his favour in 2006 on a specific understanding and assurance by the son that he will maintain the parents. It was alleged that the son was residing elsewhere. He along with his family members trespassed into the house of the parents. W.P(C).966 AND 5591 OF 2021 6 Thereafter, the son started harassing the parents and refused to maintain them. The parents were threatened. Hence they were constrained to seeks reliefs. 4. The son in his objections contended that the allegations were false, that the house belonged to him by virtue of the settlement deed and he could not be evicted from the house. It was also contended that he was maintaining cordial relationship with his parents. However, under the instigation of the daughters, the complaint was laid. 5. On the basis of the enquiry conducted by the Maintenance Tribunal, impugned order was passed, inter alia directing the son to vacate the house. Tribunal found that the parents were enjoying service pension and a total sum of Rs.42,000/- was received by them as pension. Hence, they were not required to be maintained by the son, and they had not prayed for it also. It was also held that, there was no evidence to show that the son had rendered the parents homeless. The authority found that the assignment in favour of the son was in the year 2006 and evidently, prior to the introduction of the Senior Citizens Act. Consequently, the document was not liable to be declared as void. 6. However, on the basis of the available materials, the authority reached a finding that the parents were badly treated physically and mentally by the son and consequently, he was liable to vacate the house. Accordingly the order was passed directing the son to vacate from the family house. He was also directed that he shall not alienate, sale or encumber the property that W.P(C).966 AND 5591 OF 2021 7 was assigned by document of 2006. This is under challenge at the instance of the son, in W.P(C).966 of 2021. 7. Pending the proceedings, the wife and children of the son have filed W.P(C).5591 of 2021 contending that the above application filed by the parents before the RDO was to evict the writ petitioners therein from the residential house. It was contended that, she and her children were harassed by the parents and accordingly, she had moved the authority under the Domestic Violence Act alleging domestic violence. She was granted an interim order against dispossession and also from harassing the wife mentally, physically or emotionally. The SHO Karamana was directed to implement the order. It was hence contended that, in the light of the above order, they are not liable to be evicted from the disputed house. Their right of joint residence in the property subject to the final decision was protected. 8. Pursuant to the notices issued, parties appeared. Parents filed detailed counter affidavit along with several documents. Heard both sides and examined the records. 9. The entire facts lie in a short factual matrix. In the detailed counter affidavit filed by the parents, they have specifically contended that the property assigned in favour of the son, did not take in the tharvad house. The residential house where the parents were residing was outside the property, which formed a larger parcel of land, having an extent of 9 cents. Out of it, 4.34 cents were assigned to the son, on his request for constructing a house therein. He did not construct a house and started pressurizing the parents to W.P(C).966 AND 5591 OF 2021 8 assign the remaining portion of the land and also the tharvad house. In fact he was residing with his family outside but, later, he trespassed into the house and permitted the wife and children also to trespass and under the cover of an order granted by the Magistrate under the Domestic Violence Act. After having trespassed into the house, they have filed civil suits against forceful eviction. It was further contended by the parents that the attempt of the son was to project that the property assigned to him in 2006 takes in the residential house also. However, it was contended that, in the complaint before the RDO, it was specifically contended that the property was different and consequently no order of eviction could be granted against the son. 10. It is pertinent to note that the title deed is not produced along with the writ petition. However, the parents have produced copy of title deed as Ext.R1(b). It shows that an extent of 4.700 cents of land from a portion of larger extent of land was assigned to the son. There is no indication that there was any building in that report. Reference to the complaint submitted by the mother as Ext.R1(e) and the complaint jointly submitted by the parents as Ext.R1(a) specifically indicates that only 4.34 cents vacant land alone was assigned to the son. Thereafter, he wanted the remaining land with the residential house to be assigned and he started harassing the parents physically, mentally and emotionally. There is absolutely no other record to indicate that the son has ownership over the house or that, it formed a part and parcel of Ext.R1(b) title deed. Hence, it is evident that the house wherein the parents are residing seems to be outside as Ext.R1(b) title deed. Hence, W.P(C).966 AND 5591 OF 2021 9 clearly the son has no assignable interest over the house. 11. The Maintenance Tribunal arrived at a correct finding that the assignment in favour of the son could not be set aside on a specific ground that the document was executed prior to the commencement of Senior Citizens Act which came into force in 2006. no interference is called for into that finding. The parents have also not challenged that finding. 12. Lengthy arguments were advanced by either side as to whether the son and his family members were residing in the disputed house. It was contended that attempts were made by the son to make it appear that he was residing in the house along with the parents. The addresses of the parties were wrongly shown to make it appear that all of them were residing under the same roof. A perusal of the applications/complaints submitted by the parents before the authorities show that, even in those applications the addresses of the parents and the son were the same as resided in TC No.20/1328 Mankadu Veedu, Mankadu Lane, Thiruvananthapuram. Hence, it is evident that as on the date of the complaint, parties were living under the very same roof. 13. The specific finding arrived at by the Maintenance Tribunal was that, there was materials to indicate that the parents were harassed physically or mentally by the son. The other daughters and parents were given statements before the authorities which is available on record and produced along with the counter affidavit. In those records, the parents as well as the daughters have uniformly asserted that parents were harassed by the son and they needed to be protected from the son. It is an admitted fact that W.P(C).966 AND 5591 OF 2021 10 relationship is strained. The son had filed suits asserting his right of possession and enjoyment of the residential house. He has sought for permanent prohibitory injunction restraining the sisters and others from entering the house. He has also sought for eviction by denial of possession. It seems that, police complaints were also laid by the parties alleging harassment. In the above circumstances, I am satisfied that, there were sufficient materials to show that the parents were apprehensive and the relation between the parties was strained. Definitely the parents need to be protected. 14. Relying on the decision reported in **Thoppil Anto v. Glancin T.A. and Others (2020(1) KHC 757)** it was contended by the learned counsel for the son that the Tribunal under the Senior Citizens Act could not have passed an order directing the son to vacate the house. In the above decision, after an elaborate consideration of the precedents, it was held that, District Magistrate alone was competent to entertain an application for an order of eviction. However, that does not mean that the court was foreclosed from granting the remedy available to the Senior Citizen or the District Magistrate authorize a competent officer to record statement and to implement his powers. The records available in this case show that in fact the complaint was filed before the RDO. Thereafter it was referred to the concerned Sub Collector/Maintenance Tribunal. In the light of the above, I find that there is no substance in the contention set up by the petitioner relied on the Thoppil Anto's case. The above contention is liable to be rejected. W.P(C).966 AND 5591 OF 2021 11 15. In the light of the above, I find that the finding arrived at by the authority that the son is liable to vacate the house is not liable to be interfered. 16. It seems that the wife and children had obtained an order of protection under Domestic Violence Act. W.P(C).5591 of 2021 is for implementing that order and to ensure that the order passed under Senior Citizens Act is not utilized for evicting them. 17. Since the direction of the Maintenance Tribunal is only as against the son, I do not find any merit in the anxiety expressed by the wife and children. The parents and the writ petitioner herein will be entitled to work out their reliefs with reference to the rights available to the parties before the appropriate forum. I find no reason to grant any relief to the writ petitioners in W.P(C).5591 of 2021. 18. However, the impugned order shows that there was a direction that the son shall not deal with transact, alienate or encumber the property assigned to him in 2006. I find no reason in that restriction. The above document was executed much prior in 2007, the date when the Act came into force. In the above circumstance, there is no reason as to why the authority should have passed an order obstructing this. Having considered this, I am inclined to dispose of W.P(C). 966 of 2021 by allowing it in part, while confirming the order directing the writ petitioner to vacate the residential house, I am inclined to set aside the order to the extent of directing the son not to alienate, encumber or create charge over the property assigned to him. He will be free to deal in accordance with his W.P(C).966 AND 5591 OF 2021 12 interest. He shall vacate the residential house forthwith failing which the order can be implemented by due process of law under the Act. W.P(C).5591 of 2021 is dismissed recording presence of the parties and also directing that the writ petitioners shall work out their reliefs under the provisions of Domestic Violence Act. Sd/- **SUNIL THOMAS JUDGE** **Sbna** W.P(C).966 AND 5591 OF 2021 13 ## **APPENDIX OF WP(C) 5591/2021** PETITIONER ANNEXURE EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 27.11.2020 IN CMP NO.1130/2020 IN MC NO. 25/2020 BY THE JFMC -I, THIRUVANANTHAPURAM. EXHIBIT P2 A TRUE COPY OF THE ORDER NO.J.1202/2018/K.DIS DATED 04.09.2018 OF THE TRIBUNAL. - EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 06.01.2021 NO. RDOTVM/23/2021/J1 ISSUED BY THE TRIBUNAL. EXHIBIT P4 A TRUE COPY OF THE ORDER NO. DCTVM/332/2021-A1 DATED 24.02.2021. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 14.01.2021 IN WP(C) NO. 966/2021 OF THIS HON'BLE COURT. W.P(C).966 AND 5591 OF 2021 14 ## **APPENDIX OF WP(C) 966/2021** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE TAX RECEIPT DATED 22.06.2018. EXHIBIT P2 TRUE COPY OF ORDER NO.J/12021/18/K.DIS DATED 04.09.2018 OF THE MAINTENANCE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE PLAINT IN OS NO.1252/2020 DATED 21.11.2020 THE MUNSIFF COURT, THIRUVANANTHAPURAM.