Kerala High Court
Mr.Silva vs Francis on 27 January, 2020
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941
WA.No.2405 OF 2019
AGAINST THE JUDGMENT IN WP(C) No.13781/2018(W) DATED
13.09.2018 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2:
1 MR.SILVA, AGED 74 YEARS,
S/O. GILBERT, AARKKUVEEDU, NEAR KOCUPALLI,
ANCHUTHENGU P.O., ANCHUTHENGU VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM.
2 MRS. BABY, AGED 71 YEARS,
W/O. SILVA, AARKKUVEEDU, NEAR KOCUPALLI,
ANCHUTHENGU P.O., ANCHUTHENGU VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM.
BY ADV. SMT.SHERLY THOMAS
RESPONDENTS/PETITIONERS 1 & 2 AND RESPONDENTS 3 TO 10:
1 FRANCIS, AGED 31 YEARS,
S/O.ERANIMOS, AARKKUVEEDU, NEAR KOCHUPALLI,
ANCHUTHENGU P.O., ANCHUTHENGU VILLAGE,
CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695304.
2 DALINI, AGED 21 YEARS,
W/O.FRANCIS ERANIMOS, AARKKUVEEDU,
NEAR KOCUPALLI, ANCHUTHENGU P.O.,
ANCHUTHENGU VILLAGE, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM.
3 DOLLY, D/O. SILVA, AARKKUVEEDU,
NEAR KOCUPALLI, ANCHUTHENGU P.O.,
ANCHUTHENGU VILLAGE, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM
W.A.No.2405 of 2019 2
4 SHERLY, D/O. SILVA, JOSE MANDIRAM,
ARINALLOOR MURI, THEVALAKKARA VILLAGE,
KARUNAGAPPALLY TALUK, KOLLAM-690518.
5 ANILKUMAR, S/O. NEPPOLIAN, JOSE MANDIRAM,
ARINALLOOR MURI, THEVALAKKARA VILLAGE,
KARUNAGAPPALLY TALUK, KOLLAM-690538.
6 SORIN, D/O. SILVA, JINI NIVAS,
KARINJAVAYAL, CHITTATTUMUKKU, KANIYAPURAM P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN-695301.
7 JOHNSON, JINI NIVAS,
KARINJAVAYAL, CHITTATTUMUKKU, KANIYAPURAM P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN-695301.
8 THE MAINTENANCE TRIBUNAL,
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR
CITIZENS, OFFICE OF THE SUB COLLECTOR,
COLLECTORATE, THIRUVANANTHAPURAM-695001.
9 VILLAGE OFFICER, ANCHUTHENGU POLICE STATION,
THIRUVANANTHAPURAM DISTRICT, PIN-695001.
10 STATION HOUSE OFFICER, ANCHUTHENGU POLICE
STATION, THIRUVANANTHAPURAM DISTRICT-695001.
R4 BY ADV. SMT.MEREENA JOSEPH
OTHER PRESENT:
SR.GP SRI.TEK CHAND FOR R9 AND R10
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
27.01.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.2405 of 2019 3
"C.R"
JUDGMENT
Dated this the 27th day of January, 2020 S. Manikumar Instant writ appeal is filed against judgment dated 13.09.2018 in W.P.(C) No.13781 of 2018. Relevant portion of the said judgment is reproduced hereunder:
"11. In view of the various aspects stated herein above, the impugned order at Ext.P-4 is illegal and ultra vires. Accordingly, the impugned Ext.P-4 order dated 16.2.2018 will stand set aside. It is also ordered that the all actions taken in consequence thereof are also declared as illegal and ultra vires. So in case R-1 and R-2 are still residing in the abovesaid residential building of the petitioners, then R-1 and R-2 are liable to vacate the premises, which they occupy on the strength of Ext.P-4 order.
12. However, it is made clear that R-1 and R-2 will be at liberty to file appropriate application for grant of maintenance after impleading all the children concerned and in case R-1 and R-
2 have any case that his children are financially incapable of providing them maintenance, then R-1 and R-2 may implead all the grandchildren also as respondents in the said application. It is further made clear that in case R-1 and R-2 do not implead all the parties concerned in such application, then it will be open to the respondents in such proceedings to seek for appropriate directions under Sec. 5(5) proviso for impleadment of the other children/ grandchildren concerned.
W.A.No.2405 of 2019 4
With these observations and directions, the above Writ Petition (Civil) stands finally disposed of."
2. Short facts leading to the appeal are that, writ petitioners/ respondents 1 and 2 herein are husband and wife respectively. Respondent No.2 is the daughter of the 3 rd respondent and granddaughter of appellant No.1. Appellants are spouses and they have three children, who are respondent Nos.3, 4 and 6. Respondent No.5 is the husband of respondent No.4 and respondent No.7 is the husband of respondent No.6.
3. Appellant No.1 executed a Sale Deed No.896/2004 dated 07.05.2004 (Ext-P2) conveying landed property, including a residential building, in favour of his daughter, respondent No.4. Later, the 4 th respondent conveyed the property in favour of respondent No.3 as per Settlement deed No.1189/11 of SRO, Kadakkavoor. Thereafter, the 3 rd respondent executed Ext.P1 settlement deed dated 18.08.2017 in favour of the writ petitioners.
4. Alleging that respondent No.3 and her son-in-law have neglected to take care of his necessities, appellant No.1 had filed an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Maintenance Tribunal praying to set aside the above deeds. Even though the prayer for cancellation of W.A.No.2405 of 2019 5 the transfer deeds has not been granted, the Tribunal on 16.02.2018 issued directions to respondent Nos.1 and 3 herein to permit the appellants to stay in the residential house concerned and that all the children of the appellants should take care of them. Challenging the said order, instant writ petition has been filed. Writ court by the impugned judgment, disposed of the writ petition, as extracted above.
5. Being aggrieved, the instant appeal is preferred on the following grounds:
A) The order impugned in the writ petition is passed without granting time to file counter and without hearing the appellants.
B) Writ petitioners used legal machinery to evict senior citizens with fraudulent attitude as they, with the connivance of 3rd respondent, executed a settlement deed with intention of evicting the appellants during the pendency of the petition before Maintenance Tribunal.
C) Writ court ought to have found that Exhibit-P1 settlement deed is void ab initio as the same is created with intention to evict the appellants and the same is created during the pendency of the petition before Maintenance Tribunal with regard to the same property.
D) Writ court ought to have found that the disputed property is purchased by appellants in 1976 and the sale deed is executed in favour of their younger daughter i.e. respondent No.4 with the promise that she would look-after W.A.No.2405 of 2019 6 them and no sale consideration. Thus, according to the appellants, the said document is void ab initio.
E) The marriage of the writ petitioners was held in the year 2017 and after the marriage, they were residing at the house of petitioner No.1. However, he trespassed into the house of the appellants and taken away all legal documents from their safe custody and executed Exhibit-P1 document.
F) The order impugned before the writ court is against the provisions of the Statute, which specifically emphasis that all the transaction with the intention of defeating the right for peaceful stay of senior citizens are void ab initio.
6. Heard learned counsel for the parties and perused the material available on record.
7. Material on record discloses that Maintenance Tribunal, Thiruvananthapuram, after considering the facts and scrutinizing the evidence, passed order dated 16.02.2018 (Exhibit-P4). Relevant portion of the said order is extracted hereunder:
"As per the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the petitioner is entitled for maintenance under Section 4.
ORDER The children should look after petitioners at house belonging to the family till the life time of petitioner and his wife peacefully and provide food, cloth, shelter, treatment including all basic needs of petitioner and allow them to live peacefully.
This order should be obeyed properly and so as to see that the same is objected properly and so as to see that the same is objected and if any complaint arise in future I entrust the Station W.A.No.2405 of 2019 7 House Officer, Achuthenge to the appropriate action This order I recited to section officer and the said section officer transcribed and types through Typist, corrected the typed copy and delivered Sd/-
Dr.Divya S. Iyyer, I.A.S Presiding Officer Maintenance Tribunal & Sub Collector."
8. Sections 4, 5 and 6 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, are extracted hereunder:
"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 provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen:W.A.No.2405 of 2019 8
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."
5. Application for maintenance.-(1) An application for maintenance under Section 4, may be made-
(a) by a senior citizen or a parent, as the case may be; or
(b) if he is incapable, by any other person or organisation authorised by him; or
(c) the Tribunal may take cognizance suo motu.
Explanation. For the purposes of this section "organisation" means any voluntary association registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force.
(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.
(3) On receipt of an application for maintenance under sub- section (1), after giving notice of the application to the children or relative and after giving the parties an opportunity of being heard, hold an inquiry for determining the amount of maintenance.
(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person: W.A.No.2405 of 2019 9
Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.
(5) An application for maintenance under sub-section (1) may be filed against one or more persons:
Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.
(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.
(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.
(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due."
6. Jurisdiction and Procedure.-(1) The proceedings under Section 5 may be taken against any children or relative in any district-W.A.No.2405 of 2019 10
(a) where he resides or last resided: or
(b) where children or relative resides.
(2) On receipt of the application under Section 5, the Tribunal shall issue a process for procuring the presence of children or relative against whom the application is filed. (3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974) (4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases;
Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.` (5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the Official Gazette, specify in this behalf.
(6) The Tribunal before hearing an application under Section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.
Explanation. For the purposes of this sub-section "Conciliation Officer" means any person or representative of an organisation referred to in Explanation to sub-section (1) of Section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of Section 18 or any other person nominated by the Tribunal for this purpose." W.A.No.2405 of 2019 11
9. In the case on hand, appellant No.1 has executed Exhibit-P2 Sale Deed No.896/2004 on the file of Sub Registrar, Kadakkavoor, as early as on 07.05.2004, in favour of his daughter Sherly, respondent No.4, and her husband, respondent No.5, and later the abovesaid purchasers had re-conveyed the said property in favour of their daughter, Dolly, respondent No.3, as per Settlement deed No.1189/2011. Thereafter, said Dolly has executed Exhibit-P1 settlement deed dated 18.08.2017 in favour of Dalini (respondent No.2), granddaughter of the appellants. Francis is the husband of Dalini.
10. An application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as, 'the Act') is maintainable to cancel Exhibit-P2 Sale Deed No.896/2004 registered on the file of Sub Registrar, Kadakkavoor. If only, a senior citizen, after the commencement of the Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal. As per Section 1(3) of the Act, it shall come into force in a W.A.No.2405 of 2019 12 State on such date as the State Government may, by notification in the Official Gazette, appoint.
11. Government have issued notification G.O.(P) No.54/2008/SWD dated 24.09.2008 in K. G. Ext. No.2100 dated 26.09.2008 and the Act has come into force with effect from 24.09.2008. In the case on hand, admittedly, the abovesaid sale deed has been executed prior to the coming into force of the Act. In the light of the statutory provisions, a complaint under Section 23 of the Act is not maintainable to declare Exhibit-P2 as void. Settlement deed No.1189 of 2011 executed in the year 2011, in favour of the 3rd respondent and the further document, Settlement deed No.596 of 2017 executed by the 3 rd respondent in favour of the writ petitioners, are not documents executed by the appellants, and that, therefore, they will not fall within the ambit of Section 23 of the Act.
12. For the abovesaid reasons, relief sought for by the appellants before the Maintenance Tribunal, respondent No.8, to cancel the documents, is not at all maintainable. Insofar as the claim for maintenance under Section 4 of the Act is concerned, the writ court after considering Section 2(a) of the Act, which defines "Children", Sections 4 and 5 of the Act, at paragraph (9) of the impugned judgment, observed as under:
W.A.No.2405 of 2019 13
"9. So going by a combined reading of provisions contained in Sec. 5(5) and its proviso and the other provisions mentioned herein above would make it clear that even though the applicant senior citizens may seek to proceed as against one or more of the children concerned, the respondent in the application will be at liberty to insist that the other children or relatives should also be impleaded in the proceedings in order to enable the Tribunal to adjudicate as to whether maintenance should be ordered and if so, who all are the persons, who should share the burden in that regard and as to whether it should be confined to the original respondent or to the additionally impleaded respondents. Since no specific prayer for maintenance has been made in the application in question, this Court need not dwell into further aspects of the matter and liberty could be granted to R-1 and R-2 to institute appropriate application before the Tribunal seeking maintenance, etc. in terms of the provisions contained in the abovesaid Act. However, it is only to be held that the present application in question filed by R-1, which led to the impugned Ext.P-4 order is not maintainable for the abovesaid reasons inasmuch as the prayer of cancellation of the deeds in question is not maintainable as aforestated. Therefore, the impugned Ext.P- 4 order is liable to be set aside."
13. Having regard to the contention that after filing of the writ petition, appellants had forcibly entered into the subject property on 06.07.2018 and based on the complaint, police have registered a crime, the writ court at paragraphs (10) to (12) of the impugned judgment, ordered thus:
W.A.No.2405 of 2019 14
"10. It is now submitted by Sri.K.V.Anil Kumar, learned counsel appearing for the petitioners on the basis of the instructions of his parties that respondents 1 and 2 have been residing along with respondents 4 and 6 and that after filing of the present Writ Petition on 12.4.2018, respondents 1 and 2 had forcefully entered into the residence of the petitioners on 6.7.2018 and that based on the complaint preferred by the petitioners a crime has been registered against R-1, R-2, R-4 R-6, R-7, etc. as per crime No.608/2018 of Anchuthengu Police Station, Trivandrum District, for offences under Sec. 448, 427 read with Sec. 34 of the I.P.C.
11. In view of the various aspects stated herein above, the impugned order at Ext.P-4 is illegal and ultra vires. Accordingly, the impugned Ext.P-4 order dated 16.2.2018 will stand set aside. It is also ordered that the all actions taken in consequence thereof are also declared as illegal and ultra vires. So in case R-1 and R-2 are still residing in the abovesaid residential building of the petitioners, then R-1 and R-2 are liable to vacate the premises, which they occupy on the strength of Ext.P-4 order.
12. However, it is made clear that R-1 and R-2 will be at liberty to file appropriate application for grant of maintenance after impleading all the children concerned and in case R-1 and R-2 have any case that his children are financially incapable of providing them maintenance, then R- 1 and R-2 may implead all the grandchildren also as respondents in the said application. It is further made clear that in case R-1 and R-2 do not implead all the parties concerned in such application, then it will be open to the W.A.No.2405 of 2019 15 respondents in such proceedings to seek for appropriate directions under Sec. 5(5) proviso for impleadment of the other children/grandchildren concerned."
14. Subsequently, when Cont. Case (C) No.214 of 2019 was filed, on 30.05.2019 writ court ordered thus:
".............Accordingly, this Court has posted the above W.P.(C) as "to be spoken to" to be heard along with this Contempt case. Taking note of the above said facts and circumstances of the case and also the finality of the above said judgment and also the contumacious conduct of the respondents 1 and 2, it is ordered that the matter will stand remitted to the Maintenance Tribunal presided over by the Revenue Divisional Officer/Deputy Collector/Sub Collector, Thiruvananthapuram, to immediately take action so as to ensure respondents 1 and 2 vacates the residential premises.
6. Accordingly it is ordered that, on receipt of the copy of this order, the Maintenance Tribunal issue notices to the petitioners herein as well as respondents 1 and 2 herein and if respondents 1 and 2 herein do not turn up pursuant to the notice then their appearance will be enforced by the Maintenance Tribunal by taking recourse to coercive steps empowered as per the provisions of the Act and Rules either under. The petitioners will be at liberty to file a formal application before the Maintenance Tribunal seeking for immediate directions to ensure that respondents 1 and 2 vacate the said residential premises, as Ext.P4 order has already been set aside and also in view of the directions already rendered by this Court in the judgment dated 13.09.2018 in the above W.P.(C) as well as the present directions W.A.No.2405 of 2019 16 now rendered in this proceedings, thereafter the Maintenance Tribunal will give reasonable time of two weeks to respondents 1 and 2 to vacate the premises and if they do not vacate the premises within the said time limit, then Maintenance Tribunal will immediately take necessary steps including coercive steps to ensure that respondents 1 and 2 in the W.P.(C), vacate the above said residential premises of the petitioners herein, which the respondents 1 and 2 had happened to occupy on the strength of Ext.P4 order. The Maintenance Tribunal will also be at liberty to secure the assistance of competent Police Authorities as well to ensure that the above said directions are complied strictly and without any further delay. The above said directions shall be enforced by the Maintenance Tribunal within a total time limit of two months from the date on which the petitioners file a formal application before the said Tribunal along with the certified copy of this order.
The Registry will forward a certified copy of this order to the Maintenance Tribunal presided over by the Revenue Divisional Officer/Sub Collector, Thiruvananthapuram. The office of the Advocate General also will forward certified copy of this order to the said Maintenance Tribunal for necessary action. The above said directions now issued will form part of the directions in the W.P.(C) as it has been issued only as consequential directions to ensure effective compliance of the directions in the said judgment which has already become final."
Though Smt.Sherly Thomas, learned counsel for the appellants, made submissions on the basis of the grounds raised, going through the material on record and giving due consideration to the statutory W.A.No.2405 of 2019 17 provisions, we do not find any merit in this appeal warranting interference. Writ appeal fails and accordingly, dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE krj