Partly allowed

Bindu v. the District Collector

Kerala HC2 Jul 2018WP(C)/3377/2016

Case brief

AI extract

What is this about?

The High Court of Kerala addressed two related writ petitions concerning a settlement deed. It held that respondents' appeals under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, were not maintainable. It set aside the appellate order denying the father's specific prayer for cancellation of the deed and eviction, remitting the matter for fresh consideration.

What did the court decide?

The appellate order rejecting the daughter-in-law's appeal was confirmed. The appellate order regarding the father's appeal was set aside and remitted to the appellate Tribunal for fresh consideration

Bindu Vs the District Collector — Maintenance and Alimony | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940

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WP(C).No. 3377 of 2016

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PETITIONER(S):

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1. BINDU, W/O.HARIKRISHNAN, VAAKAYIL HOUSE, PRAKKANAM.P.O, CHENEERKARA VILLAGE, PATHANAMTHITTA DISTRICT.

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2. HARIKRISHNAN, S/O.GOPALAKRISHNAN, VAAKAYIL HOUSE, PRAKKANAM.P.O, CHENEERKARA VILLAGE, PATHANAMTHITTA DISTRICT.

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BY ADVS.SRI.ARUN.B.VARGHESE SRI.JAYKAR.K.S. SMT.M.B.DHANYA BABU

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RESPONDENTS:

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1. THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, PATHANAMTHITTA-689645.(APPELLATE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007).

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2. THE REVENUE DIVISIONAL OFFICER, ADOOR(MAINTENANCE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007)-689101.

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3. THE VILLAGE OFFICER, CHENEERKARA, PATHANAMTHITTA DISTRICT-689645.

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4. RAMAKRISHNA KURUP, NEPHEW OF NARAYANAKURUP, AGED 87 YEARS, VAAKAYIL HOUSE, PRAKKANAM.P.O, CHENEERKARA VILLAGE, NOW RESIDING AT VIJAYA VIHAR HOUSE, PUNTHALA, PANDALAM, PATHANAMTHITTA DISTRICT-689645.

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5. THE TAHASILDAR, TALUK OFFICE, KOZHENCHERRY, PATHANAMTHITTA DISTRICT-689645. R1 TO R3 & R5 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R4 BY ADV. SRI.R.AZAD BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-07-2018 ALONG WITH WPC.12331/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 3377 of 2016 (V)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1 :	TRUE COPY OF THE SETTLEMENT DEED DATED 13/2/2013 EXECUTED BY THE 4TH RESPONDENT IN FAVOUR OF MR.SAJEEV KUMAR.
EXT.P2 :	TRUE COPY OF THE PROCEEDINGS NO.45/14 DATED 3/4/2014 ISSUED BY THE 3RD RESPONDENT.
EXT.P3 :	TRUE COPY OF THE LATEST TAX RECEIPT ISSUED BY THE 3RD RESPONDENT.
EXT.P4 :	TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER DISTRICT REGISTRAR(GENERAL),PATHANAMTHITTA EVIDENCING THE MARRIAGE OF THE WRIT PETITIONERS.
EXT.P5 :	TRUE COPY OF THE APPLICATION DATED 8/12/2014 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT.
EXT.P6 :	TRUE COPY OF THE EXPLANATION DATED 10/3/2015 SUBMITTED BY THE FIRST WRIT PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P7 :	TRUE COPY OF THE ORDER NO.C4/7714/2014 DATED 16/9/2015 ISSUED BY THE 2ND RESPONDENT.
EXT.P8 :	TRUE COPY OF THE MEMORANDUM SUBMITTED BY THE WRIT PETITIONERS BEFORE THE FIRST RESPONDENT.
EXT.P9 :	TRUE COPY OF THE ORDER NO.B3-422363/2015/KDS DATED 23/12/2015 ISSUED BY THE FIRST RESPONDENT.

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RESPONDENTS' EXHIBITS: NIL

/TRUE COPY/

P.S.TO JUDGE

mbr/ 10.09.2018.

ALEXANDER THOMAS, J.

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W.P.(C)Nos.3377 & 12331 of 2016

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Dated this the 02^nd day of July, 2018

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JUDGMENT

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The petitioner in W.P.(C)No.12331 of 2016 is contesting respondent No.4 in W.P.(C)No.3377 of 2016. Contesting respondents 3 and 4 in W.P.(C)No.12331 of 2016 are the petitioners in W.P. (C)No.3377 of 2016, in which contesting respondent No.4 therein is the writ petitioner in W.P.(C)No.12331 of 2016. As the matters are interrelated and as the same order has been impugned in both these writ petitions, these two cases are disposed of on the basis of this common judgment.

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The petitioner in W.P.(C)No.12331 of 2016, viz., Sri.Ramakrishna Kurup, now aged 90 years had settled his landed property coming to 68 cents and the residential house situated thereon, in favour of his son Sri.Sajeev Kumar as per Ext.P1 settlement deed No.427/2013 dated 13.2.2013 which was duly registered with the S.R.O. concerned. Sri.Sajeev Kumar (son of the petitioner in W.P.(C)No.12331 of 2016) had married Smt.Bindu, who is contesting respondent No.3 in W.P.(C)No.12331 of 2016 and the 1^st petitioner in W.P.(C)No.3377 of 2016. It appears that the father, son and daughter-in-law had stayed

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W.P.(C)Nos.3377 & 12331/2016

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together in the above said residential house. Later Sri.Sajeev Kumar had died on 18.9.2013 and she had subsequently re-married Sri.Harikrishnan, who is contesting respondent No.4 in W.P. (C)No.12331 of 2016 as well as the 2^nd petitioner in W.P.(C)No.3377 of 2016. According to the petitioner in W.P.(C)No.12331 of 2016, his life became miserable due to the mistreatment that he had to suffer from his former daughter-in-law and her new husband and therefore he had no other way but to seek refuge in the house of his daughter, that he had also come to know that the above said property covered by the said settlement deed was mutated in the name of Smt.Bindu, on her application filed before the competent Village Officer concerned. In view of the above said aspects, the petitioner in W.P.(C)No.12331 of 2016 had filed application dated 8.12.2014, before the 2^nd respondent Tribunal under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (a copy of the said application has been produced as Ext.P5 in W.P.(C)No.3377 of 2016 and Ext.P2 in W.P. (C)No.12331 of 2016). In the said application, the above said former daughter-in-law and her husband were arrayed as respondents therein. After hearing both sides the Tribunal (presided over by the R.D.O.) had passed the impugned order dated 16.9.2015, thereby it was ordered that

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W.P.(C)Nos.3377 & 12331/2016

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the petitioner in W.P.(C)No.12331 of 2016 will have all the rights in the above said property covered by the settlement deed, including the right to live there freely and peacefully and to enjoy the income and usufructs from the said property, as reiterated in the said settlement deed and had also directed the competent revenue officials concerned to re-examine the matter relating to the mutation that was earlier made in respect of the above property in favour of the former daughter-in-law. In this context it is relevant to note that as per the above said settlement deed, the father had all the rights to live peacefully in the said property and to take income and usufructs from the said property and he had also the life interest in that property and after the life time of the father, the son will have the full right over the property. However as per the said settlement deed the father had permitted the son to effect mutation. A copy of the above said order dated 16.9.2015 rendered by the Tribunal (presided over by the R.D.O.) has been produced as Ext.P7 in W.P. (C)No.3377 of 2016 and Ext.P3 in W.P.(C)No.12331 of 2016.

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The former daughter-in-law and her husband were aggrieved by the said order of the R.D.O./the Tribunal to the extent it directed the competent revenue authorities to re-examine the matters relating to mutation which was earlier made in favour of the daughter-

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W.P.(C)Nos.3377 & 12331/2016

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in-law. The said parties (petitioners in W.P.(C)No.3377 of 2016) had filed an appeal in terms of Section 16 of the above said Act before the appellate Tribunal (presided over by the Collector). So also the father was aggrieved by the said order of the Tribunal to the extent it denied his prayers for cancellation of the settlement deed and for eviction of the contesting respondents in the application from the said property. Thus it appears that the petitioners in W.P.(C)No.3377 of 2016 had filed appeal dated 24.10.2015 before the appellate Tribunal and the petitioner in W.P.(C)No.12331 of 2016 had filed appeal dated 16.11.2015 before the appellate Tribunal.

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The appellate Tribunal (presided over by the Collector) has now passed the impugned order dated 23.12.2015 whereby it was ordered that the appeal preferred by the petitioners in W.P.(C)No.3377 of 2016, who are only the respondents in the application filed before the Tribunal, is not maintainable before the appellate Tribunal in terms of the mandatory provisions contained in Section 16(1) of the above said Act and therefore the appeal is liable to be dismissed. However as regards the appeal filed by the petitioner in W.P.(C)No.12331 of 2016, it was only ordered by the appellate Tribunal that all the directions issued by the Tribunal in the impugned order dated 16.9.2015, should be

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W.P.(C)Nos.3377 & 12331/2016

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strictly complied with by the contesting respondents therein (the two petitioners in W.P.(C)No.3377 of 2016). However the specific prayer made by the petitioner in W.P.(C)No.12331 of 2016 that the settlement deed itself should be cancelled and that the contesting respondents therein should be evicted from his property has not been considered and adverted to by the appellate Tribunal.

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Aggrieved by the original order passed by the Tribunal as well as the appellate order passed by the appellate Tribunal, the daughter-in-law and her husband has filed W.P.(C)No.3377 of 2016; whereas the father who is aggrieved by the order of the appellate Tribunal as well as the original Tribunal to the extent the said impugned orders have not considered his specific prayers for cancellation of the settlement deed under Section 23(1) as well as for eviction of the contesting respondents in his application, have been challenged by him by filing W.P.(C)No.12331 of 2016.

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Heard Sri.R.Azad Babu, learned counsel appearing for the petitioner in W.P.(C)No.12331 of 2016 and respondent No.4 in W.P. (C)No.3377 of 2016, Sri.Arun B.Varghese, learned counsel appearing for respondents 3 and 4 in W.P.(C)No.12331 of 2016 and the petitioners in

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W.P.(C)Nos.3377 & 12331/2016

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W.P.(C)No.3377 of 2016 as well as Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the official respondents concerned.

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Sri.Arun B.Varghese, learned counsel appearing for the petitioners in W.P.(C)No.3377 of 2016 would submit that the direction issued by the Tribunal in the impugned order to the extent it directs the competent revenue official concerned to re-examine the matter relating to mutation is illegal and improper. Further it is also argued by him that no notice was served on his parties in respect of the appeal dated 16.11.2015 filed by the father and that the directions issued by the appellate Tribunal in the impugned order in respect of the matters arising out of the separate appeal dated 16.11.2015 filed by the father is illegal and bad in law for that reason alone.

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Sri.Arun B.Varghese, learned counsel appearing for the petitioner would submit that no conditions have been laid down in the registered settlement deed that the beneficiary thereof should pay any maintenance to the father and that therefore the impugned direction of the original Tribunal is bad in law. It is true that there are no conditions in the registered settlement deed in the matter of any monetary maintenance claimable by the father. However there are specific

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W.P.(C)Nos.3377 & 12331/2016

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conditions that the father will have all the rights to live peacefully and freely in the said property and that he will have the right to collect the income and usufructs from that property. All what the Tribunal has directed in the impugned order is to protect those rights which have already reiterated in the registered settlement deed and therefore the impugned order passed by the original Tribunal (presided over by the R.D.O.) reiterating therein that the father will have said rights as already mentioned in the registered settlement deed cannot be faulted with in any view of the matter.

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It is further argued by Sri.Arun B.Varghese, learned counsel that the finding made by the appellate Tribunal that it has no jurisdiction to entertain an appeal filed by his parties who are the respondents in the application filed before the Tribunal, is illegal and that the appeal should be directed to be considered on merits, in view of the judgment of the Division Bench of the Panjab and Haryana High Courts in the case in Paramjit Kumar Saroya v. Union of India reported in (2014 KHC 3407) whereas Sri.R.Azad Babu, learned counsel appearing for the petitioner in W.P.(C)No.12331 of 2016 would urge that the appeal filed by the official side is not maintainable in view of the plain and simple language enunciated in Section 16(1) of the

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W.P.(C)Nos.3377 & 12331/2016

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above said Act and further that though his parties separate appeal dated 16.11.2015 has been referred to by the appellate Tribunal in the impugned appellate order, none of the effective prayers in that appeal has been even remotely considered and adverted to by the appellate forum and therefore the contesting respondents cannot be said to have any grievance in respect of the simple direction issued by the appellate Tribunal that the said parties should strictly comply with the original order of the Tribunal. Further Sri.Azad Babu, learned counsel would urge that since the two main prayers of his party urged before the original Tribunal as well as before the appellate forum regarding cancellation of the settlement deed and for eviction of the contesting respondents, has not even been considered by both the said fora, this Court may issue appropriate direction in that regard. So also Sri.R.Azad Babu, learned counsel appearing for the petitioner in W.P.(C)No.12331 of 2016 would also urge that the Tribunal as well as the appellate Tribunal should not have merely directed the competent revenue authorities to re-examine the matter relating to mutation made in favour of the former daughter-in-law but should have issued a positive direction to cancel the mutation as well.

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W.P.(C)Nos.3377 & 12331/2016

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The first point to be decided is as to whether an appeal under Section 16(1) of the above said Act is maintainable at the instance of the respondents in an application filed before the Tribunal. The point is no longer res integra and it is fully covered by the judgment dated 28.6.2018 rendered by this Court in W.P.(C)No.41379 of 2017 wherein it was held that this Court is not in concurrence with the views of the Punjab and Haryana High Court in Paramjit Kumar Saroya v. Union of India reported in (2014 KHC 3407) and that the plain and simple language of Section 16(1) makes it clear that appeal as envisaged in that provision is maintainable only in a case where the parents/senior citizen concerned is aggrieved by the order of the Tribunal. Further it was held by this Court that in case the respondents in the application filed before the original Tribunal has any grievance with the order that may be passed by that forum, then the remedy of such a party is to file petitions under Article 226 and/or Article 227 of the Constitution of India has held in similar situations in judgment of the Apex Court in 2008 (2) SCC 660:2008(2) KLT 236 (SC) State of Punjab v. Jalour Singh and L.Chandrakumar v. Union of India reported in (1997 (3) SCC 261):AIR 1995 (SC) 1151) , provided the party can make out valid grounds for interference by this Court in judicial review

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W.P.(C)Nos.3377 & 12331/2016

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and/or exercise of its visitorial jurisdiction. Therefore the contention raised by the petitioners in W.P.(C)No.3377 of 2016 that the appellate forum should have entertained their appeal on merits is untenable and is overruled. Now coming to the merits of the contentions made by the petitioners in W.P.(C)No.3377 of 2016, this Court is of the considered view that the original Tribunal (presided over by the R.D.O.), cannot be faulted with for having issued the impugned directions in the order dated 16.9.2015. The Tribunal has only directed that the father will have all the rights as already reiterated in the settlement deed, to enjoy the property peacefully and freely and have right to collect the income and the usufructs from the said property. These aspects have already been engrafted as specific conditions in the registered settlement deed. Moreover the Tribunal has only directed the competent revenue officials to re-examine the matter relating to mutation and as regards the said direction, this Court need not make any further findings, as the matter is proposed to be remitted, based on the submissions of the petitioner in W.P.(C)No.12331 of 2016.

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Now coming to the contentions of the petitioner in W.P. (C)No.12331 of 2016, it can be seen that the original Tribunal as well as the appellate Tribunal has not been considered his plea that the

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W.P.(C)Nos.3377 & 12331/2016

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settlement deed is liable to be cancelled by virtue of the enabling provisions conferred under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act in view of the facts and circumstances disclosed in the petition and further that the prayer for eviction of the contesting respondents has also not been considered by the original Tribunal as well as by the appellate Tribunal. Further the petitioner in W.P.(C)No.12331 of 2016 would also urge that the original Tribunal instead of merely directing the competent revenue authorities for re-examination of the matter relating to mutation, should have passed positive direction for cancellation of the mutation. It is seen that none of these aspects are considered properly either by the original Tribunal or by the appellate Tribunal. Therefore this Court is of the considered view that the matter requires a remit to the appellate Tribunal for consideration afresh of the appeal dated 16.9.2015 submitted by the petitioner in W.P.(C)No.12331 of 2016 and after affording a reasonable opportunity of being heard to both sides. Moreover the appeal dated 16.9.2015 is not seen served to the contesting respondents. For this reason also a remand is eminently desirable in the facts and circumstances of this case. Accordingly, it is ordered that the impugned appellate order dated 23.12.2015 to the limited extent it deals

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W.P.(C)Nos.3377 & 12331/2016

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with the appeal dated 16.11.2015 of the petitioner in W.P.(C)No.12331 of 2016 will stand set aside and the appeal of the said petitioner will stand remitted to the appellate Tribunal (presided over by the Collector) for consideration afresh after hearing both sides.

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A Division Bench of this Court in the judgment in Shabeen Martin & another v. Muriel & another reported in (2016 (4) KLJ 699) has categorically held that even if there are no conditions in the transfer deed made by the parents/senior citizen, that the beneficiary should take care of the transferor, still the parents/senior citizens will have a cause of action to file an application under Section 23(1) for voiding the document provided the other jurisdictional parameters are satisfied.

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It is made clear that the impugned appellate order to the extent it rejects the appeal preferred by the petitioners in W.P. (C)No.3377 of 2016 is confirmed.

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The appellate Tribunal (presided over by the Collector) will consider the appeal dated 16.11.2015 filed by the petitioner in W.P. (C)No.3377 of 2016 afresh and after hearing both sides should decide whether the above said prayers made by the father seeking cancellation of the settlement deed, eviction of the contesting respondents and

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W.P.(C)Nos.3377 & 12331/2016

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cancellation of mutation, should be granted or not. The appellate orders in this regard should be passed by the appellate Tribunal without much delay preferably within a period of two months from the date of production of a certified copy of this judgment. Needless to say a reasonable opportunity of being heard should be afforded to both sides before final orders are passed in the appeal.

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With these observations and directions the above said writ petitions (civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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skj

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CONTINUED AT PAGE No.14

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W.P.(C)Nos.3377 & 12331/2016

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The number of Writ Petition (Civil) occurring at line No.3 of Paragraph 14 of the common Judgment dated 02/07/2018 in W.P.(C).No.3377/2016 and W.P.(C).No.12331/2016 is corrected as “W.P.(C)No.12331/2016” instead of “W.P.(C)No.3377/2016” as per the order dated 11/12/2018 in I.A.No.01/2018 in W.P. (C).No.12331/2016.

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Sd/-

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Registrar (Judicial)

Bindu v. the District Collector

Case brief

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Bindu v. the District Collector

Case brief

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