Kerala High Court
Janardhanan vs The Maintenance Tribunal Appellate ... on 24 March, 2017
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939
WA.No. 1487 of 2017 () IN WP(C).30350/2015
--------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 30350/2015 of HIGH COURT OF KERALA
DATED 24.03.2017
APPELLANT(S)/PETITIONERS:
1. JANARDHANAN,
H/O MANIYAMMA, AGED 58 YEARS, RESIDING AT
POTHEEPPADU VADAKKEKARA VEETTILL @ VADAKKEKKARA, ERAM,
MALAYALAPUZHA PO & VILLAGE, KONNI TALUK, PATHANAMTHITTA.
2. MANIYAMMA, W/O. JANARDHANAN,
AGED 54 YEARS, RESIDING AT POTHEEPPADU VADAKKEKARA VEETTILL
@ VADAKKEKKARA, ERAM, MALAYALAPUZHA PO & VILLAGE,
KONNI TALUK, PATHANAMTHITTA.
BY ADV. SRI.MANU RAMACHANDRAN
RESPONDENT(S)/RESPONDENTS:
1. THE MAINTENANCE TRIBUNAL APPELLATE AUTHORITY &
DISTRICT COLLECTOR,
PATHANAMTHITTA, COLLECTORATE,
PATHANAMTHITTA DISTRICT-689 645.
2. THE MAINTENANCE TRIBUNAL & REVENUE DIVISIONAL OFFICER,
ADOOR, REVENUE DIVISIONAL OFFICE, ADOOR,
PATHANAMTHITTA DISTRICT -691 523.
3. P.C. JANAMMA,
AGED 69 YEARS, D/O.PENNAMMA,
POTHEEPPADU VADAKKEKARA VEETTIL @ VADAKKEKARA,
ERAM, MALAYALAPUZHA P.O. & VILLAGE,
KONNI TALUK, PATHANAMTHITTA DISTRICT-699 666.
R3 BY ADV. SRI.M.T.SURESHKUMAR
R3 BY ADV. SRI.R.RANJITH
R BY SRI RENIL ANTO K., SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27-09-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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W.A. No. 1487 of 2017 ( )
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Dated this the 27th day of September 2017.
JUDGMENT
Dama Seshadri Naidu,J.
Introduction:
Mother and daughter fight over a piece of property. Mother claims exclusive right over the property; the daughter, on the other hands, claims to be a co-owner along with the mother. Alleging that she was dispossessed, the mother wants the daughter and son-in-law to be evicted from the property so she could repossess the property.
2. In this appeal, therefore, we are called upon to decide the jurisdictional scope of the Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Dispute:
3. The dispute involves a mother and her daughter. Now the daughter along with her husband is before us in this writ appeal W.A. No.1487/2017 -2- assailing the judgment dated 24.03.2017 in W.P.(C) No. 30350 of 2015.
4. To begin with, on 27.05.2013, the mother, the third respondent, filed the Ext.P1 complaint before the Maintenance Tribunal, the second respondent. She contended that her daughter and son-in-law, the appellants before us, had forcefully evicted her from her house and refused to let her in. She also alleged that whenever she tried to enter the house, the daughter and the son-in- law set their dog on her, preventing her entry--reads pathetic. But an allegation's severity is no proof of its truth. Given the litigation between the mother and daughter, the Court may not come under the spell of passion in its adjudication.
5. In course of time, the appellants entered their appearance before the Tribunal and contested the case, among other things, on the ground that the property is ancestral, and the family is governed by the Marumakkathayam Law of Succession. According to the daughter, as the property belongs to the mother's parents, she too W.A. No.1487/2017 -3- has a birthright along with her mother. Eventually, the Tribunal, through Ext.P4, directed the daughter and the son-in-law to vacate the house within 45 days and to maintain the mother appropriately.
6. As seen from the record, further complaining that the daughter and the son-in-law did not comply with the Ext.P4 order, the mother approached the appellate authority, the first respondent, who treated the mother's application as an appeal. He directed the daughter and the son-in-law to vacate the premises within one month.
The Impugned Judgment:
7. Under these circumstances, both the daughter and the son- in-law filed W.P.(C) No. 30350 of 2015, which a learned single Judge of this Court dismissed, through judgment dated 24.03.2017.
8. The learned Single Judge has referred to section 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ("the Act") to observe that "a senior citizen, including those who W.A. No.1487/2017 -4- are unable to maintain himself or herself, has a statutory right for being maintained by his or her children. The only qualification against the reciprocal statutory obligation of children to maintain their parents is that they are not in possession of the property of such senior citizen or that they would not inherit such property." It is further observed that the daughter and the son-in-law are, admittedly, enjoying both these benefits. "They are concededly in possession of the property of the third respondent and they are, going by the rules of intestate succession, entitled to inherit the property from the third respondent."
9. As the daughter and the son-in-law were ordered to be evicted, they questioned the authorities' jurisdiction and also contended that the eviction is beyond the statutory scope. In answer, the learned Single Judge has observed that their contention "causes violation to every possible logic and reasoning and, to say the least, is completely innocent of comprehension." Further goes the observation that "the statute is a special one intended to take W.A. No.1487/2017 -5- into its protection those less fortunate citizens who are infirm and old but being without any support and who are then exploited by those who are either in possession of their property or entitled to inherit such property."
Writ Appeal:
10. Further aggrieved, the daughter and the son-in-law filed this appeal.
Submissions:
Appellants':
11. Sri Manu Ramachandran, the appellants' counsel, has drawn our attention to both Ext.P4 and P5 orders and contended that they are cryptic, devoid of any reasoning and, therefore, non- speaking. According to him, neither order can be sustained. He has further submitted that the daughter already filed O.S. No. 169 of 2012 on 03.04.2012 against her mother and her uncle (the mother's brother), claiming that she is a co-owner along with her mother and W.A. No.1487/2017 -6- that her uncle, exercising undue influence on her mother, had been trying to evict her forcefully, despite she being a co-owner.
12. The mother approached the Tribunal, Sri Ramachandran contends, pending the civil suit, in which the daughter already had an interim injunction.
13. Sri Ramachandran has also drawn our attention to sections 4, 6 and 9 of the Act and contended that the relief of eviction granted by the Tribunal and affirmed by the Appellate Tribunal is beyond the jurisdiction of both the authorities, for the Act only contemplates maintenance in pecuniary terms. To support his contentions, the learned counsel has placed reliance on Jayantram Vallabhdas Meswania v. Vallabhdas Govindram Meswania[1], P. Rajan Ponnarassery[2], C.K. Vasu v. The Circle 1[]AIR 2013 Guj. 160 2[]An unreported judgment of this Court dated 18.09.2012 in W.P.(C) No. 31491 of 2011 W.A. No.1487/2017 -7- Inspector of Police and others[3] and Johnson M. Paul v. State of Kerala[4].
The Third Respondent's:
14. Per contra, Sri R. Renjith, the learned counsel for the third respondent has, with equal vehemence, contended that both Exts.P4 and P5 are unexceptionable. According to him, Ext.P5 is an order of execution. In this regard, he has drawn our attention to Rule 19 of the Rules to contend that the Appellate Tribunal can execute the orders of the primary authority and ensure that the statutory objective is achieved. To counter the rival contention that eviction is beyond the jurisdiction of the authorities, he cited Virender Singh and others v. District Magistrate Rohtak and others [5]. As to the pending civil suit and the ex parte judgment, Sri Renjith submits that he is not aware of the developments in the 3[]An unreported judgment dated 25.05.2017 in W.P.(C) No. 20850/2011 4[]An unreported judgment dated 29.10.2012 in W.P.(C) No. 26925 of 2011 5[]AIR 2017 NOC 416 W.A. No.1487/2017 -8- suit, though the record revealed that the mother was a party to it and she entered her appearance, too.
15. Eventually, the learned counsel urges us not to interfere with Exts.P4 and P5 on the premise that they both aim at achieving the objective of the Act, which is beneficial and meant to protect the senior citizens.
16. Heard Sri Manu Ramachandran, the learned counsel for the appellants, and Sri R. Renjith, the learned counsel for the third respondent, besides perusing the record.
Discussion:
Non-Speaking Orders:
17. Indeed, the third-respondent mother may have been, at least going by the pleadings, rendered homeless. It cannot be said that her application before the primary authority is, pure and simple, an application for maintenance. In fact, she has asserted a right to the property; she has set up an exclusive title to the W.A. No.1487/2017 -9- residential property, from which she was allegedly ousted. And she wanted the possession to be restored to her.
18. To be fair to the appellants, we must observe that neither Ext.P4 primary order nor Ext.P5 appellate order spells out any reasons. They both are very cryptic and peremptory. In fact, the Act mandates that the order of maintenance, or, for that matter, any order either under the Act or the Rules, needs to be supported by reasons.
Parallel Proceedings:
19. Undeniably by the time the mother approached the primary authority against her daughter and son-in-law, a civil suit, filed by the daughter, was pending. She seems to have suffered an ex parte injunction, too. Though she entered her appearance, later she did not contest the case; instead, she approached the Tribunal and obtained an order of eviction--and it was in the teeth of a restraint order from a competent civil court, at that. Further, on 09.10.2015, the Civil Court did hold, through a binding decree, that W.A. No.1487/2017 -10- the daughter had a right to the property and that she should not be evicted forcefully, without due process.
20. First, it is beyond the scope of this writ appeal to go into the correctness of the civil court's judgment; it binds, however. Second, its binding effect accepted, we must acknowledge, that the mother's claim for maintenance is a lis pendence proceeding. Factual Inaccuracies:
21. The impugned judgment records that "the daughter and the son-in-law are, admittedly, enjoying both these benefits":
possessing the senior citizen's property and inheriting it in future. The judgment also observes that if neither condition is met, the obligation to maintain ceases. It, in fact, concludes that the daughter and the son-in-law "are concededly in possession of the property" of the mother.
22. But the pleadings disclose neither admission nor concession. On the contrary, the daughter sets up her own title; she claims to be a co-owner along with her mother under the W.A. No.1487/2017 -11- Marumakthayam Law of Succession. So, the finding that these persons have been "admittedly" enjoying the mother's property may not be correct. The devolution of property, too, is spes successionis
--a mere chance.
23. Further, we must also observe that a person's obligation to maintain, say, a senior citizen has nothing to do with the prospect of his possessing the senior citizen's property or his succeeding to the senior citizen's estate. Neither section 4 nor section 9 constricts a senior citizen's right; nor does any other provision ties down a destitute's welfare to his owning property: a paradox. What a senior citizen, including a parent, gets under section 9 is an allowance. Lexically, "allowance" means "a sum of money paid regularly to a person to meet needs or expenses." The Oxford English Dictionary (online) gives this example: `the elderly receive a heating allowance every winter'
24. The means criterion, however, applies to relatives other than the children. And, among the relatives, the proportionality W.A. No.1487/2017 -12- principle applies if there are more than one relative and are entitled to inherit the senior citizen's property.
Statutory Scheme:
(a) The Foundations:
25. The Legislature took note of the changing mores of the Society--the withering away of the joint families or the ushering in of nuclear families is being one such phenomenon. It has, thus, acknowledged that aging has become a major social challenge and felt the need of caring and protecting the elderly. True, the parents can claim maintenance under the Code of Criminal Procedure, 1973. But the Act in its `Objects and Reasons' has felt that the procedure is both time-consuming and expensive. So it devised a simple, inexpensive, and speedy enactment for the elderly to claim maintenance: the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
26. The Constitution may not have directly dealt with the welfare or the protection of the elderly, but from the Directive W.A. No.1487/2017 -13- Principles of State Policy (Part IV), we can discover the undercurrent of a socio-economic legislative stream, meant to benefit the elderly, too: Articles 41 and 47 may have a bearing.
27. Statutorily, long back, the Legislature has transformed a moral obligation--indeed, a felt societal need--into an enforceable statutory right. The Hindu Adoption and Maintenance Act, 1956, personal law, took the lead. Under section 20 of that Act, a Hindu is bound to maintain his or her aged or infirm parents. This obligation extends if the parent is unable to maintain himself or herself out of his or her own earnings or other property. Noted commentators like Mulla and Tyabji have clarified that under Islamic personal law, too, the children in "easy circumstances" are bound to maintain their "poor" parents. Other personal laws, we may observe, have not spelt out this familial obligation. Yet, the destitute parents of whatever religious hue can take recourse to a secular piece of legislation: Section 125 of the Code of Civil Procedure.
W.A. No.1487/2017 -14-
28. With the increased longevity, old age is an international phenomenon; it compelled the nations, even the United Nations, to come up with policies, laws, and welfare measures to see that the elderly are not exposed to the vagaries of the marching, changing times. Of all the nations, India stands at the crossroads: It tries to shake off the cloak of underdevelopment and set itself on the road of development. It can ill afford to neglect its growing multitude of the elderly. Every other culture may respect the old, but the Indian culture venerates them.
(b) Legislative Scope & Objective:
29. As to the scheme of the Act, it is a special beneficial legislation aimed at providing more efficient, more expedient, but less expensive means for the maintenance and welfare of parents and senior citizens. Section 2 is the lexical provision. It defines, among other things, "maintenance" to include provision for food, clothing, residence, medical attendance, and treatment. Further, section 2 (f) defines "property" to mean property of any kind, W.A. No.1487/2017 -15- whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property. And "welfare" is defined to mean provision for food, health care, recreation centres, and other amenities necessary for the senior citizens. The Act has an overriding effect (sec.3).
30. Section 4 of the Act, the pivotal provision, elaborates on maintenance and reads:
"Section 4. Maintenance of parents and senior citizens.--(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of--
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of Section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen W.A. No.1487/2017 -16- provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.
(italics supplied)
31. The statute further examined, section 5 prescribes the procedure how a senior citizen can apply for maintenance; section 6 deals with jurisdiction and procedure; and section 7 with how the Maintenance Tribunals are constituted. Under Chapter 2, section 8 provides for a summary procedure in case of enquiry.
32. Section 9, a substantial provision, spells out how the maintenance is ordered and how much:
9. Order for maintenance.--(1) If children or relatives, as the case may be, neglect or refuse to maintain a senior citizen being unable to maintain himself, the Tribunal may, on being satisfied of such neglect or refusal, order such children or relatives to make a monthly allowance at such monthly rate for the maintenance of such senior citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the Tribunal may, from time to time, direct.
(2) The maximum maintenance allowance which may be ordered by such Tribunal shall be such as may be prescribed W.A. No.1487/2017 -17- by the State Government which shall not exceed ten thousand rupees per month.
33. Section 10 deals with any alternation in allowance. Under Section 11 the order may be enforced by "any Tribunal in any place where the person against whom it is made." The maintenance order made under the Act will have the same force and effect as an order passed under Chapter IX of the Code of Criminal Procedure, 1973, and will be executed in the manner prescribed for the execution of such order by that Code.
34. Section 12 puts a senior citizen to election as to the statute under which he can claim maintenance and the forum he can approach: It can be either under chapter IX of the Cr.P.C., or this enactment, but not both. Section 13 fixes a time-frame for the compliance of the maintenance order: 30 days. Section 14 empowers the Tribunal to award interest on the amount of maintenance; the interest may vary between 5 and 18 per cent. W.A. No.1487/2017 -18-
35. Sections 15, 16, and 17 deal with the appellate tribunal, appeal, and the right to legal representation respectively. Section 18 empowers the Government to designate a maintenance officer. Section 19 under Chapter III concerns the establishment of old age homes; Section 20, under Chapter IV, deals with medical support for senior citizens; Section 21, under Chapter V, enumerates the measures to be taken to `sensitise' the public about the problems faced by the senior citizens and the pressing need for their welfare. Section 22, under the same chapter, deals with the authorities who can enforce this Act.
36. Of considerable importance is section 23 of the Act. It declares that the property transferred by the senior citizens, for example, by way of a gift or settlement, may become void under certain circumstances. Pithily put, any gratuitous transfer coupled with a condition that the transferee must maintain the transferor, a senior citizen, may be void at the senior citizen's behest. W.A. No.1487/2017 -19-
37. Chapter VI, comprising sections 24 and 25, deals with the penal aspects of the enactment. Section 29 is the so-called Henry VIII clause, enabling the Government to remove difficulties in its implementing the Act. Section 30 empowers the Central Government to give directions; whereas, section 31 empowers it to review and monitor the implementation of the Act. Finally, Section 32 confers rule-making power on the State Government.
38. The State of Kerala has formed the Rules--Maintenance and Welfare of Parents and Senior Citizens Rules, 2009--invoking Section 32 of the Act. Rule 19 elaborates on the duties and powers of the District Magistrate. The District Magistrate, who also acts as an appellate Tribunal, among other things, shall protect the life and property of senior citizens of the District so they can live with security and dignity.
Beneficial or Remedial Legislation:
39. It is probably true that all legislation in a welfare state, observes the Supreme Court in The Works Manager, Central W.A. No.1487/2017 -20- Railway Workshop, Jhansi vs. Vishwanath,[6] is enacted with the object of promoting the general welfare. But certain enactments are more responsive to some urgent social demands and have more immediate and more visible impact on social vices by operating more directly to achieve social reforms. These enactments, concludes the Court, demand an interpretation liberal enough to achieve the legislative purpose, without doing violence to the language.
40. Such legislations as aimed at avoiding a mischief and promoting a virtue--say, a socio-economic objective--are variably described as remedial or beneficial statutes. They are welfare oriented, founded on social justice. It is clichitic to observe that a remedial statute receives a liberal construction; a penal statute, strict construction. A beneficial provision doubted, it should be resolved in favour of the persons for whose benefit it has come into 6[]AIR 1970 SC 488, P.491 W.A. No.1487/2017 -21- existence. The penal provisions, on the other hand, interpretatively lean towards the accused.
41. Precedents are a legion to hold that remedial statutes demand liberal interpretation. But the question is, how liberal should this liberality be? As observed in Vishwanath, the interpretative spin cannot distort the plain language. Ambiguity in the language is a precondition to resolve it in the beneficiary's favour.
42. In a case of ambiguity in the language of a beneficial legislation, the courts must resolve the quandary in the beneficiary's favour, but without rewriting and/or violating the enactment. So held the Supreme Court in Steel Authority of India Ltd. vs. National Union Water Front Workers[7]. While construing a statute, 'sympathy', according to the Supreme Court[8], has no role to play. Pertinent it is to point out that "a beneficial legislation as is well 7[]AIR 2001 SC 3527 8[] Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638 W.A. No.1487/2017 -22- known should not be construed in such a manner so as to bring within its ambit a benefit which was not contemplated by the legislature to be given to the party."[9]
43. Antonin Scalia and Bryan A. Garner, the dyed-in-the-wool textualists, mince no words against what they term judicial lawmaking in the name of liberal construction. In their Reading Law: The Interpretation of Legal Texts, they call it a false notion if anybody asserts that remedial statutes should be liberally construed. They invoke Justice Joseph Story, who explained in the mid-19th century that "this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms."
44. So they conclude that a fair reading is all that is required. Scalia et al also quote Jeremy Bentham's objection to the idea that certain statutes were to be "liberally and beneficially expounded,"
and his retort: "As if other statutes were to be expounded illiberally and unbeneficially." Then, polemically they put a poser: "The first 9[] Deddappa vs. The Branch Manager, National Insurance Co. Ltd. (2008) 2 SCC 595 W.A. No.1487/2017 -23- problem with the remedial-statute rule is the difficulty of determining what constitutes a remedial statute. Is any statute not remedial? Does any statute not seek to remedy an unjust or inconvenient situation? The other problem with the remedial- statute rule, according to Scalia et al, is "that identifying what a `liberal construction' consists of is impossible--which means that it is an open invitation to engage in `purposive' rather than textual interpretation, and generally to engage in judicial improvisation."
45. To conclude, Scalia et al concessively observe that "of course, `liberal construction' does have an identifiable meaning if it means (as we suspect it originally did mean) nothing more than rejection of "strict construction" and insistence on fair meaning. The canon is therefore today either incomprehensible or superfluous."[10] 10[]. Pp.364-366 W.A. No.1487/2017 -24- Precedential Position:
46. In C.K. Vasu v. the Circle Inspector of Police[11], the petitioner, aged 85 years, complained that his three sons were likely to evict him from his residence, besides causing bodily harm to him. He filed a complaint before the Maintenance Tribunal and obtained an order of eviction. A learned single Judge of this Court, after examining the Act, held that the Act does not empower the Tribunal to grant relief of eviction. Even about an injunction to prevent the senior citizens' children from trespassing upon his or her property, the learned single Judge has held that such a relief is beyond the jurisdictional bounds of the Tribunal.
47. In Johnson M. Paul v. State of Kerala[12], this Court, per another learned single Judge, found the case to have a chequered history. The senior citizen on the one hand and his son and 11[]an unreported judgment dated 25.05.2012 in W.P.(C) No. 20850 of 2011 12[]an unreported judgment dated 29th October, 2012 in W.P.(C) No. 26925/2011 W.A. No.1487/2017 -25- daughter, on the other hand, have had many disputes and much litigation between them. They filed cases against each other, both before the civil and criminal courts. When the senior citizen approached the Tribunal under the Act, it passed orders giving a slew of directions. And it was without hearing the respondent- children, at that. This Court held that any order passed under the Act must comply with the principles of natural justice and that the affected person must be heard.
48. In Vallabhdas Govindram Meswania, Section 23 of the Act fell for consideration. There, the Senior citizen, a father, sought maintenance from his son and also wanted to recover property. In fact, the senior citizen gifted a piece of property with a condition that the donee should maintain him. In that context, the Court held that if the condition is violated, the senior citizen as the donor can recover the property under Section 23 of the Act. W.A. No.1487/2017 -26-
49. In Virender Singh v. District Magistrate Rohtak[13], the Punjab and Haryana High Court has upheld the Tribunal's direction to evict the children and to hand over possession to the Senior citizen. But as seen from the judgment, the State of Haryana, through a notification dated 26.05.2015, prescribed a procedure for eviction from the senior's property. We find no such procedure prescribed or provision provided in the Kerala Rules.
50. In P. Rajan, Ponnarassery v. Malukutty Ponnarassery[14], this Court has held that once a child, a transferor under Section 23, is demonstrably willing to maintain the donor-senior citizen, that provision is unavailable for the senior citizen to have the property recovered or reconveyed.
Statutory Impact on the Case:
51. The Act is beneficial. A senior citizen, including a parent, must be, as a precondition, unable to maintain himself from his 13[].AIR 2017 NOC 416 14[].An unreported judgment dated 18.09.2017 in W.P.(C) No. 31491/2011 W.A. No.1487/2017 -27- own earning or out of the property owned by him. Only then can a senior citizen claim maintenance. In other words, the parent must be without means or with inadequate means. And the children must have refused to maintain him or her. This filial obligation has nothing to do with the children's possessing the parent's property or their succeeding to it in future.
52. Once the Act lends to an interpretation that the parent must be unable to maintain herself to claim maintenance, then her assertion or claim over property by invoking this Act sounds, to us, paradoxical. So, we reckon that the entire scheme of the Act does not contemplate or provide for resolving property disputes between or among the members of a family. We cannot be oblivious that among family members who claim their rights as co-owners, there can be property disputes. And this Act cannot annihilate the rights of other members of the family, however salutary or laudable the Act's objective is.
W.A. No.1487/2017 -28-
53. True, Rule 19 empowers the District Magistrate to protect the life and property of senior citizens living in the District so they can live with security and dignity. Sri R. Renjith, the third respondent's counsel, wants us to hold that under Rule 19, the District Magistrate, as an Appellate Tribunal, can execute the order passed by the Tribunal under section 9 of the Act. Empowered by Rule 19, the District Magistrate, in his administrative capacity, may take measures to achieve the objective set out in the Rules. Yet, under the same cause of action, he cannot be both an appellate tribunal and an executing authority. In our view, the Appellate Tribunal's passing Ext.P5 order as if it were executing the Ext.P4 order is open to attack. An expansive interpretation of this subordinate piece of legislation will obliterate other legal remedies available to the other members of a family vis-`-vis a senior citizen of that family.
54. Our discussion boils down to this: Once the right to own or possess a piece of property is disputed by the members of a W.A. No.1487/2017 -29- family, which includes, for instance, the parents and children, this Act is unavailable. Further, a parent's claim to property--an asset translatable into money's worth and capable of providing means to a senior citizen to maintain herself--the dispute assumes altogether a different dimension.
Conclusion:
55. Here, the mother set up an exclusive title to the property, including a house; the daughter, claiming to be a co-owner, set up a rival title. The dispute matured into litigation and resulted in a decree, too. The mother, a party to the litigation, ignored it but pursued parallel litigation. The Tribunal's approach would have been understandable had it ordered maintenance to the mother, after finding that she could not maintain herself, and by leaving the property dispute to a competent forum.
56. Then, the maintenance could have, at best, become an interim measure for the mother to avoid trying circumstances. If we stretch this discussion, hypothetical as it may seem, a little further, W.A. No.1487/2017 -30- the maintenance to be paid by the daughter could as well become a charge on the mother's property if the competent forum holds that the mother owns the entire property or a share in it and that the property provides sufficient means to maintain herself.
57 . Therefore, the order of eviction, in the face of a civil court decree, is erroneous and unsustainable. Accordingly, we set aside Exts.P4 & P5 orders and remand the matter to the Tribunal for fresh adjudication. The Tribunal, needless to observe, will hear all the parties concerned and pass a speaking order, keeping in view the decree of the civil court and also the statutory provisions of the Act, especially Section 9 of the Act.
With the above observations, we allow the writ appeal. No order on costs.
ANTONY DOMINIC, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
Rv W.A. No.1487/2017 -31-