Kerala High Court
Mary James vs The Maintenance Appellate Tribunal, ... on 16 March, 2026
2026:KER:23160
WP(C) No.2344/2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 16TH DAY OF MARCH 2026 / 25TH PHALGUNA, 1947
WP(C) NO. 2344 OF 2023
PETITIONER/S:
1 MARY JAMES, AGED 70 YEARS
ELUPARA HOUSE, KAKKAD. P.O., KOZHIKODE, PIN - 673586
2 SHIBI JAMES ALIAS PHILIP JAMES, AGED 37 YEARS
ELUPARA HOUSE, KAKKAD. P.O., KOZHIKODE, PIN - 673586
3 ABY JAMES, AGED 40 YEARS
ELUPARA HOUSE, KAKKAD. P.O., KOZHIKODE, PIN - 673586
BY ADVS.
SHRI.TITUS MANI
SRI.P.A.JACOB
SRI.BINNY THOMAS
SHRI.SWAROOP A.P.
RESPONDENT/S:
1 THE MAINTENANCE APPELLATE TRIBUNAL, KOZHIKODE & THE
DISTRICT COLLECTOR, KOZHIKODE,
CIVIL STATION P.O., KOZHIKODE, PIN - 673020
2 MAINTENANCE TRIBUNAL & REVENUE DIVISIONAL OFFICER,
KOZHIKODE, CIVIL STATION P.O., KOZHIKODE, PIN - 673020
3 ELSYKUTTY THOMAS MATHEW ALIAS ELSYKUTTY MATHEW, 82-39,
267TH STREET, FLORAL PARK, NEW YORK- 11004, US
AGED 68 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER-
SOONAM JOSEPH, W/O. LATE PAUL,THACHIYATH HOUSE,
PERUMPALLY P. O., THAMARASSERY VIA, KOZHIKODE, PIN -
673568
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WP(C) No.2344/2023
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4 SOONAM JOSEPH, AGED 58 YEARS
W/O. LATE PAUL, THACHIYATH HOUSE, PERUMPALLY P.O.,
THAMARASSERY VIA, KOZHIKODE, PIN - 673568
5 MARY VARGHESE, AGED 77 YEARS
W/O. M A VARGHESE, ASSARIATH HOUSE, KONOOR, INFOPARK
ROAD, KORATTY, THRISSUR, PIN - 680308
6 SARAMMA JOSEPH, AGED 71 YEARS
W/O. E K MATHEW, ELAVUNGAL HOUSE, KAKKAD P.O.,
PUTHUPPADY, KOZHIKODE, PIN - 683586
7 LILLYKUTTY JOSEPH, AGED 67 YEARS
PLAMOOTTIL HOUSE, ELAMPAL P.O., PUNALOOR, KOLLAM, PIN -
691322
8 VALSA JOSE, AGED 59 YEARS
PAREKKATTIL HOUSE, MANNOOTHY P.O., THRISSUR, PIN -
680651
BY ADVS.
SRI.GEORGE MATHEW
SRI.M.D.SASIKUMARAN
SHRI.SUNIL KUMAR A.G
SHRI.MATHEW K.T.
SHRI.GEORGE K.V.
SHRI.STEPHY K REGI
SHRI.ADARSH KURIAN
SMT.ELSA DENNY PINDIS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
19.02.2026, THE COURT ON 16.03.2026 DELIVERED THE FOLLOWING:
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JUDGMENT
The writ petition is filed with the following prayers:
"A. Declare that Ext.P-3 order dt. 16.06.2020, passed by the Kozhikode Sub-Collector and Maintenance Tribunal, cancelling gift deed no.3504/12 of Thamarassry SRO relating to 25 cents of land belonging to the petitioners, is void and not to be acted upon.
B. Call for the records leading to Ext. P-3 order and quash the same by the issuance of a Writ of Certiorari;"
2. The first petitioner is the widow of deceased James, who died on 11.08.2018, and petitioners 2 and 3 are their sons. The deceased James was the son of the late Elisubha Joseph. Respondents 3 to 8 are the daughters of the late Elisubha Joseph. Smt.Elisubha Joseph had filed Ext.P1 complaint dated 10.12.2019 before the second respondent - Maintenance Tribunal seeking maintenance and return of landed properties assigned in favour of her son, deceased James, to which the petitioners had filed Ext.P2 objection. However, the second respondent passed Ext.P3 final order, cancelling Ext.P4 Gift Deed No.3504/12 of the SRO, Thamarassery, executed by the late Elisubha Joseph transferring 25 cents of landed property in favour of the deceased James. According to the petitioners, Ext.P3 is void as the second respondent - Maintenance Tribunal had no jurisdiction to pass 2026:KER:23160 WP(C) No.2344/2023 ..4..
such an order. It is also alleged that since there was no condition in the deed that the transferee shall provide the basic amenities and physical needs to the transferor, the cancellation of the gift deed is legally unsustainable. Aggrieved by Ext.P3, the petitioners had approached the first respondent - Appellate Tribunal with Ext.P5 appeal dated 16.07.2020. Smt.Elisubha Joseph had also filed an appeal challenging Ext.P3. During the pendency of the appeals, Elisubha Joseph died on 06.06.2022 at the age of 100, pursuant to which, the Appellate Tribunal declared the appeals abated by Ext.P6 order. While so, the third respondent, through the fourth respondent, filed Ext.P7 O.S.No.249/2022 before the Munsiff Court, Thamarassery, seeking a decree of mandatory injunction against the petitioners to vacate from the subject property and hand over the keys of the house therein to the third respondent. The suit was filed on the basis of Ext.P3 order and a Will allegedly executed by late Elisubha Joseph in favour of the third respondent. It is in this context, the petitioners have approached this Court challenging Ext.P3 order.
3. Respondents 3 to 8 filed a counter affidavit, admitting the pendency of O.S.No.249/2022 before the Munsiff Court, Thamarassery, and contending that though Ext.P4 was executed by the late Elisubha Joseph in favour of her son James, she was in actual 2026:KER:23160 WP(C) No.2344/2023 ..5..
possession and enjoyment of the property and she was residing therein. It was contended that late Elisubha Joseph had filed Ext.P1 seeking cancellation of the gift deed on the ground that the petitioners were misbehaving towards her. It was also contended that the signature of late Elisubha Joseph in Ext.P4 had been obtained by fraud, coercion and undue influence, without disclosing the contents of the document, and that, it was only after the death of James that she came to know about the execution of Ext.P4. According to them, her life with her son James was not peaceful and the petitioners were ill-treating her. It was also contended that after passing Ext.P3 order, the late Elisubha Joseph executed a Will on 27.09.2020, bequeathing her entire rights in subject properties to the third respondent; and thereafter, she expired on 06.06.2022; and thus, the third respondent became the absolute owner of the property. It is their case that after the death of late Elisubha Joseph, the property in issue devolved upon the third respondent; and being the owner, she preferred Ext.P7 suit before the Munsiff Court, Thalassery. According to them, the writ petition is filed without bona fides and is devoid of any merit; and hence, they sought dismissal of the writ petition.
4. I have heard the learned counsel appearing for the petitioners, the learned Government Pleader appearing for respondents 2026:KER:23160 WP(C) No.2344/2023 ..6..
1 and 2, and learned counsel appearing for respondents 3 to 8.
5. The learned counsel for the petitioners submitted that the Maintenance Tribunal has no authority or jurisdiction to cancel Ext.P4 Gift Deed under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, "the Act"). According to the learned counsel for the petitioners, cancellation of the transfer could be ordered only if the transfer was made subject to condition that the transferee shall provide basic amenities and basic physical needs to the transferor and the transferee refuses or fails to fulfil such obligation; and only in such circumstances can the tribunal interfere with the transfer effected by the senior citizen. It was also submitted that it is only after the death of her son, James, the senior citizen has approached the tribunal seeking cancellation; and since there was no stipulation in Ext.P4 that the transferee shall provide the basic amenities and basic physical needs to the transferor, the cancellation of Ext.P4 is void and without any jurisdiction; and if the jurisdictional fact does not exist, the authority cannot act upon it. The learned counsel also relied on the principles of administrative law and submitted that it is a basic principle of administrative law that nobody can act beyond its powers; and this forms the basis of judicial review on the ground of lack of jurisdiction. It was also submitted that no authority can exceed the 2026:KER:23160 WP(C) No.2344/2023 ..7..
power conferred on it, and any action taken by it in excess of such power is invalid. The learned counsel for the petitioners also relied on the judgment of this Court in The President, the Commonwealth Co- operative Society Ltd., Ernakulam v. The Joint Registrar (General) of Co-operative Societies, Trivandrum & Others [MANU/KE/0014/1971] and submitted that if an appeal lies from a decision rendered in violation of natural justice, and an appeal is preferred, the appellant does not lose his right to complain to a court of law of such violation, if on appeal the decision is confirmed and there was no failure of natural justice in the appellate authority. It is also pointed out that this Court, in The President, the Commonwealth Co-operative Society Ltd. (supra), relied on Barnard v. National Dock Labour Board [1953 2 QB 18], wherein it was held as follows:
"So far as the decision of the appeal tribunal is concerned, it seems to me that, once the order is found to be a nullity, it follows, that the order of the appeal tribunal is also a nullity. The appeal tribunal has no original jurisdiction of its own; it cannot itself make a suspension order; it can only affirm or disaffirm a suspension order which has already been made. If none has been made because it is a nullity, the tribunal can do nothing."
Thus, according to the learned counsel for the petitioners, since no condition was stipulated in Ext.P4 Gift Deed requiring the transferee to provide basic amenities and basic physical needs to the transferor, the cancellation of Ext.P4 is totally without jurisdiction and, therefore, 2026:KER:23160 WP(C) No.2344/2023 ..8..
Ext.P3 order is liable to be declared null and void.
6. The learned counsel for the party respondents, on the other hand, submitted that pursuant to the declaration of the cancellation by the tribunal on 16.06.2020, late Elisubha Joseph executed a Will on 27.09.2020 in favour of the third respondent; and hence, the claim of the petitioners over the subject property no longer survives, and the third respondent, being the legatee, has become the absolute owner of the property. According to the learned counsel for the party respondents, the petitioners have approached this Court only after the death of the transferor and hence, the writ petition itself is not maintainable. The learned counsel, relying on the Full Bench judgment of this Court in Subhashini v. District Collector, Kozhikode & Others [2020 (5) KHC 195], further submitted that since the declaration of cancellation was made by the tribunal during the lifetime of the transferor, and since the transferor is no more, the property would, in any event, devolve upon the other legal heirs, and the remedy of the petitioners is to approach the civil court. It was also submitted that though the petitioners filed an appeal before the appellate tribunal, the same was declared abated on the death of the transferor.
7. I have considered the rival contentions raised on both 2026:KER:23160 WP(C) No.2344/2023 ..9..
sides. The issue involved in this case is the cancellation of Ext.P4 Gift Deed by the Maintenance Tribunal. Admittedly, late Elisubha Joseph executed Ext.P4 Gift Deed on 12.07.2012 in favour of her son, deceased James. It is also an admitted fact that, after the death of her son, late Elisubha Joseph approached the Maintenance Tribunal seeking cancellation of Ext.P4, alleging that the petitioners were not maintaining her and also that Ext.P4 Gift Deed had been obtained by playing fraud on her. After considering the objections, the Maintenance Tribunal passed Ext.P3 order, cancelling Ext.P4 Deed executed by the late Elisubha Joseph. Thereafter, the petitioners approached the first respondent - Appellate Tribunal by way of an appeal, which was not maintainable as the statutory right of appeal is conferred only on the senior citizen, and the remedy available to the petitioners was to file a writ petition challenging Ext.P3 order, which was not done before the death of Elisubha Joseph, the transferor. After the death of Elisubha Joseph on 06.06.2022, the third respondent filed O.S.No.249/2022 before the Munsiff Court, Thamarassery on the strength of the Will alleged to have been executed by late Elisubha Joseph on 27.09.2020. The appeals filed by late Elisubha Joseph as well as the petitioners were closed as abated by Ext.P6. It is seen that the petitioners had chosen a wrong forum by way of appeal, and the Appellate Authority did not have 2026:KER:23160 WP(C) No.2344/2023 ..10..
the power to entertain the appeal filed by the petitioners, in view of the settled position of law laid down by this Court in Aleykutty Varkey v. Appellate Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act & District Collector, Kottayam (2026 KHC OnLine 220).
8. It can be discernible from Ext.P4 Gift Deed that no condition is stipulated therein requiring the transferee to provide basic amenities and basic physical needs to the transferor. Even if Ext.P3 order passed by the tribunal was without jurisdiction, the petitioners ought to have approached this Court during the lifetime of the transferor, late Elisubha Joseph. Admittedly, Elisubha Joseph died on 06.06.2022. The petitioners approached this Court challenging Ext.P3 only on 12.01.2023. In Subhashini (supra), while considering an issue where a writ petition was filed by the transferor against the refusal of the tribunal and the Appellate Authority to invoke jurisdiction under Section 23(1) of the Act, the transferor died during the pendency of the writ petition; and when the legal heirs sought to continue the proceedings, this Court held that the right to approach the Maintenance Tribunal is available only to the senior citizen in his personal capacity and is not a heritable right under common law. It was also held that the situation would be quite different if the declaration is made by the 2026:KER:23160 WP(C) No.2344/2023 ..11..
tribunal in the lifetime of the senior citizen; and on his death, the property devolves on the legal heirs.
9. Here, in this case, the writ petition challenging the cancellation of Ext.P4 Deed by Ext.P3 order was filed by the petitioners/legal heirs of the transferee, after the death of the transferor; further, after cancellation of the deed in question, a Will is alleged to have been executed by the senior citizen/mother during her lifetime. Hence, there are complex questions of law and facts involved in this case. Since the transferor is no more, the petitioners have to seek their remedy before the appropriate court, in accordance with law. The petitioners will be at liberty to raise all issues including ouster of jurisdiction of the tribunal regarding cancellation of Ext.P4 deed, before the appropriate court in accordance with law.
With the observations as above, the writ petition is disposed of.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE bka/-
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APPENDIX OF WP(C) NO. 2344 OF 2023 PETITIONER EXHIBITS Ext. P-1 A TRUE COPY OF THE PETITION DATED 10.12.2019 FILED BEFORE THE KOZHIKODE MAINTENANCE TRIBUNAL Ext. P-2 TRUE COPY OF THE OBJECTION DATED 05.06.2020 Ext. P-3 TRUE COPY OF THE FINAL ORDER PASSED BY THE MAINTENANCE TRIBUNAL DT. 16-06-2020 Ext. P-4 TRUE COPY OF THE SAID GIFT DEED DT.12-07-2012 Ext. P-5 TRUE COPY OF THE APPEAL DT.16-07-2020 Ext. P-6 TRUE COPY OF THE ORDER OF APPELLATE AUTHORITY DT. 30-07-2022 Ext. P-7 TRUE COPY OF THE PLAINT IN O.S. NO. 249/2022