Kerala High Court
Mavila Sathi vs State Of Kerala
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH KARTHIKA, 1938
WP(C).No. 9108 of 2014 (K)
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PETITIONER(S):
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MAVILA SATHI, W/O.SURENDRAN,
'SREENIVAS', NELLUNNI, MATTANNUR P.O.,
PIN - 670 702.
BY ADVS.SRI.R.SANJITH
SMT.K.JASMIN BABY
SMT.RENJINI S.NAIR
SMT.C.S.SINDHU KRISHNAH
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY SECRETARY, REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 691 601.
2. PRESIDING OFFICER
MAINTENANCE TRIBUNAL AND SUB COLLECTOR,
THALASSERRY, KANNUR - 670 101.
3. DEVAKI AMMA
W/O.NARAYANAN NAMBIAR, PRESENTLY RESIDING AT
C/O.GOVINDAN, SRUTHILAYAM, PANICHIPPARA,
PAZHASSI AMSOM, NELLUNNI, MATTANNUR P.O.,
PIN - 670 702.
4. GOVINDAN, S/O.NARAYANAN NAMBIAR,
SRUTHILAYAM, PANICHIPPARA
PAZHASSI AMSOM, NELLUNNI, MATTANNUR P.O.,
PIN - 670 702.
R1 & R2 BY GOVERNMENT PLEADER SMT.RAJI T BHASKAR
R3 & R4 BY ADV. SRI.CIBI THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-10-2016, THE COURT ON 04-11-2016 DELIVERED THE
FOLLOWING:
bp
WP(C).No. 9108 of 2014 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P-1: TRUE COPY OF THE ORDER PASSED BY THE 2ND
RESPONDENT DT.12.12.13
EXT.P-2: TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 3RD
RESPONDENT BEFORE THE 2ND RESPONDENT DT.21.10.13
EXT.P-3: TRUE COPY OF THE CONCILIATION REFERENCE ORDER
DATED 12.12.13
EXT.P-4: TRUE COPY OF THE MEMORANDUM OF SETTLEMENT
DATED 4.12.13
EXT.P-5: TRUE COPY OF THE SALE DEED EXECUTED BY 3RD
RESPONDENT IN FAVOUR OF THE PETITIONER BEARING
NO.3530 OF SRO, MATTANNUR DT.23.11.2012
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
ANU SIVARAMAN, J.
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W.P(C).No. 9108 of 2014
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Dated this the 4th November, 2016
JUDGMENT
This writ petition is filed challenging Exhibit P1 order issued by the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act'). Petitioner is the daughter of the 3rd respondent. It is contended by the learned counsel for the petitioner that the 3rd respondent, who is having three children, had gifted her properties to her children, including the petitioner. The petitioner was assigned 23 cents of property retaining the 3rd respondent's right to take the benefits and right of residence in the tharawad building situated in the property. Thereafter, the 3rd respondent was staying with the petitioner. Subsequently, in the year 2012, the 3rd respondent assigned a further extent of 10 cents of property by Exhibit P5 settlement deed in favour of the petitioner. On 3.8.2013, the 4th respondent, who is the brother of the petitioner, took the 3rd respondent to his house. Thereafter, M.C.C.No.73 of 2013 was filed under the Act before the 2nd respondent at the instigation of the 4th respondent alleging that though the petitioner was assigned 41 cents of property on condition that she will look after the 3rd respondent, the petitioner ousted the 3rd respondent from the house and is refusing to look after the mother. WP(C).9108/14 2 The 2nd respondent passed Exhibit P1 order dated 12.12.2013 directing the petitioner to pay an amount of Rs.500/- to the 3rd respondent as monthly maintenance and also to re-convey the 10 cents of property covered under Exhibit P5 settlement deed No.3530/2012. The said order which is one purportedly recorded on agreement is under challenge in this writ petition.
2. Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for respondents 3 and 4.
3. Learned counsel for the petitioner contended that Exhibit P1 order issued by the 2nd respondent is liable to be struck down as it does not satisfy the statutory requirements contemplated under the Act. The complaint was filed by the 3rd respondent before the 2nd respondent only at the instigation of the 4th respondent, it is submitted. It is contended that the petitioner was not served with a copy of the complaint at the time of hearing or at the conciliation meeting and it is only after receipt of Exhibit P1 that the petitioner has applied for a copy of the complaint filed by the 3rd respondent and she was served with the same. It is further contended that the petitioner was not given an opportunity to file reply to the complaint. Learned counsel for the petitioner submitted that when the petitioner appeared before the conciliation officers on 12.12.2013, she was directed to sign on some papers so as to submit a report to the 2nd respondent. It is also WP(C).9108/14 3 submitted that the 3rd respondent, who is aged 74 years and capable of managing her affairs was pictured as incompetent and illiterate and her thumb impression was affixed in Exhibit P2 complaint. It is submitted that as per Section 23 of the Act, in order to declare a transfer of immovable property by a senior citizen to be void, two conditions should be satisfied; 1) the transfer should be subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and 2) the transferee should have refused or failed to provide such amenities and physical needs. It is also submitted that the procedure adopted by the 2nd respondent is illegal and arbitrary. It is specifically contended by learned counsel for the petitioner that the property has been transferred by the 3rd respondent to the petitioner only on love and affection and not on a condition that the petitioner shall provide the basic amenities and basic physical needs to the 3rd respondent. Since the petitioner considers that it is her duty to look after and maintain 3rd respondent, she is not challenging the portion of Exhibit P1 order to the extent it directs payment of Rs.500/- per month as maintenance.
4. A counter affidavit has been filed by the 3rd respondent inter alia stating that she had gifted the 41 cents of property to the petitioner on a specific understanding that the petitioner will look after her, but after getting the property in her name, the petitioner treated WP(C).9108/14 4 her with cruelty. The allegation that the 4th respondent was instigating the 3rd respondent to get back the 10 cents of property from the petitioner is denied by the 3rd respondent. It is stated in the counter affidavit that the averment that the petitioner was not given a copy of the complaint is incorrect. The petitioner appeared before the 2nd respondent on getting summons and a copy of the complaint and she participated in the conciliation proceedings after knowing fully about the contents in the complaint and she had put her signature with the full knowledge regarding the contents of the settlement, it is submitted. It is further submitted that the attempt of the petitioner is only to escape the liability to maintain the 3rd respondent as promised at the time of executing of the gift deed.
5. I have considered the contentions advanced on either side. The main grievance voiced by the petitioner is with regard to the condition in Exhibit P1 to the effect that she is to reconvey ten cents of property gifted as per Exhibit P5 back to the 3rd respondent. The petitioner contends that she had never agreed to any such condition in the settlement. It is argued that the contents of the petition, if taken as a whole, would not disclose a cause of action for issuance of a direction to reconvey the property or even to hold that Exhibit P5 is void. She further contends that she had never refused to look after her mother and is ready to take care of her and to provide shelter for her. It is WP(C).9108/14 5 further contended that the procedure prescribed for recording of an agreement had not been followed by the conciliation officer or the Tribunal before Exhibit P1 order was issued.
6. It is now contended that the petitioner is always ready and willing to take care of her mother and look after her. Going by the pleadings on record, it appears that Exhibit P2 complaint of the 3rd respondent was instituted on 21.10.2013. Exhibit P1 order is seen dated 12.12.2013. There is nothing on record to show that the petitioner had actually refused to look after her mother. Petitioner has a specific case that she was staying along with her mother in the tharawad house which is not the property covered by Exhibit P5. The 3rd respondent was taken away by the 4th respondent from there. It is also contended that it is only at the instance of the 4th respondent and his wife that the complaint came to be filed.
7. The Act is one enacted to ensure the proper protection and maintenance of senior citizens. It cannot be allowed to be used as a tool in property disputes among siblings. The substantial right of the 3rd respondent which is sought to be enforced by recourse to the Act is the right to be maintained and protected by her children. In view of the specific contention of the petitioner that she had never refused to do so and that Exhibit P1 is an agreement recorded without her understanding the contents of the same, I am of the opinion that WP(C).9108/14 6 interests of justice will be met by directing that the petitioner shall look after her mother.
In the result, Exhibit P1 is set aside. It is directed that the petitioner shall also have the responsibility of looking after her mother. If the 3rd respondent agrees to go and reside with the petitioner, she shall be looked after well and expenses shall be met by the petitioner. If the 3rd respondent is not desirous of going and staying with the petitioner, the petitioner will pay an amount of Rs.5,000/- (rupees five thousand) to the 3rd respondent instead of Rs.500/-per month as agreed in Exhibit P1 on or before 10th day of every month commencing from November, 2016 towards the personal expenses of the mother. If any default is committed by the petitioner in paying maintenance as directed above, the 3rd respondent will be free to approach the Tribunal afresh.
The writ petition is ordered accordingly.
ANU SIVARAMAN JUDGE vgs