Dismissed

Sindhu B. v. v.Balachandran

Kerala HC26 Nov 2021WP(C)/10359/2015

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging orders of the Maintenance Tribunal regarding maintenance under the Maintenance and Welfare of Parents and Senior Citizens Act. The court held that the petitioner's written undertaking precluded her from refusing maintenance based on the subsequent cancellation of a settlement deed.

What did the court decide?

Vacated interim order; dismissal of writ petition; no money costs.

Sindhu B. Vs v.Balachandran — Pension and Retirement Benefits | Kerala HC (2021)

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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 MURALI PURUSHOTHAMAN

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FRIDAY, THE 26^TH DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943

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WP(C) NO. 10359 OF 2015

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PETITIONER:

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SINDHU B.

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W/O. JAYAKUMAR, GITA AVENUE, SASTHA NAGAR 259, KOIKKAL, KILIKOLLUR P.O., KOLLAM DISTRICT.

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BY ADVS.

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SRI.T.M.CHANDRAN SRI.S.SUJITH

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RESPONDENTS:

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1 V.BALACHANDRAN S/O. LATE SRI. VELAYUDHAN, CHILANKA, VAIDYASALA NAGAR -223, ASRAMAM P.O., KOLLAM - 691 002.

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2 THE COURT OF THE MAINTENANCE TRIBUNAL AND SUB DIVISIONAL MAGISTRATE, KOLLAM - 691 001.

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3 DEPUTY TAHSILDAR (O. N. G. D) OFFICE OF THE TAHSILDAR (RR), KOLLAM - 691 001.

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SRI.V.JAYADHAR-R1 GOVERNMENT PLEADER SRI.K.M.FAISAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2021, THE COURT ON 26.11.2021 DELIVERED THE FOLLOWING:

W.P.(C)10359/2015

JUDGMENT

The petitioner is challenging Exts.P2 and P7 orders of the Maintenance Tribunal, Kollam constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('Act', for short) and Ext.P6 revenue recovery notice for recovery of the amount ordered by the Maintenance Tribunal.

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The first respondent has four children including a son. The petitioner is the eldest daughter. According to the petitioner, from 1999 onwards, she along with her husband and two children was residing with her parents in the house in the property extending to 8.33 Ares comprised in R.S Nos.288/9, 288/10 and 279/79 in Block No.3 of Thrikkadavur Village, Kollam district. The parents jointly settled the said property in her favour by executing Ext.P9 Settlement Deed No.1149 of 2007 dated 7.6.2007 of Anchalummodu Sub Registry Office reserving their right of enjoyment over the property including the right of residence in the house and taking income from the

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property. The petitioner effected mutation and paid tax in her name.

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Later, certain disputes arose between the petitioner's husband and her father in relation to their money lending business and the petitioner moved out of the family house with her husband and children and they started living in a rented house from 28.4.2009 onwards.

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The first respondent filed Ext.P1 petition dated 20.4.2010 before the Maintenance Tribunal under Section 4 of the Act seeking cancellation of the Settlement Deed or in the alternative, for awarding maintenance to him. Before the Tribunal, the petitioner resisted Ext. P1 petition contending that the first respondent has earnings to maintain himself and that she has been ousted from the property settled in her favour. She also contended that her father has borrowed Rs.5 lakhs from her and if he returns the said amount, she would give back the property settled on her. However, she gave an undertaking in writing before the Tribunal that she is ready to give Rs.4,000/- per month to the first respondent towards his maintenance. After hearing both parties, the Tribunal passed Ext. P2 order directing the petitioner to

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give Rs.4,000/- per month as agreed, as maintenance to the first respondent with effect from 1.11.2010. Pursuant to the said order, the petitioner paid maintenance to the first respondent till 30.8.2012.

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Later, the petitioner's parents jointly executed a cancellation deed No.2446/2011 dated 24.11.2011 of SRO, Anchalummodu cancelling Ext.P9 Settlement Deed.

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The petitioner filed Ext.P4 petition under Section 10 of the Act seeking alteration in allowance ordered as per Ext.P2 on the ground that the parents have cancelled Ext. P9 Settlement Deed and that the first respondent has earnings to maintain himself and she has no source of income. The first respondent filed Ext.P5 objection to Ext. P4 pointing out that the cancellation deed is challenged by the petitioner in O.S No.803/2012 before the Munsiff Court, Kollam and that he has no earnings to maintain himself.

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According to the petitioner, the Tribunal did not consider Ext. P4 petition filed by her under Section 10, but, considered the application preferred by the first respondent for enhancement of the

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amount of maintenance. By Ext.P7, the Tribunal refused to enhance the amount of maintenance and confirmed Ext.P2 order of maintenance. Later, at the instance of the Tribunal, the Deputy Tahsildar, the third respondent, initiated revenue recovery proceedings and issued Ext.P8 demand notice under the Revenue Recovery Act for recovery of Rs.1,12,000/- towards arrears of maintenance for a period of 28 months. Exts.P2, P7 orders and P8 notice are impugned in the writ petition.

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The first respondent has filed a counter affidavit dated 23.6.2021 contending that he is aged 84 years and had suffered cardiac arrest and has no earnings to maintain himself and his only property was settled on the petitioner on the belief that she would maintain him. Since his sole property was settled on the petitioner, he could not give any property to the other children. The first respondent also states that the petitioner's husband is doing business in money lending and has an exceptionally good house in 72 cents of land and the averment that she has no source of income is incorrect. It is also stated that the petitioner

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is leading a luxurious life. He has filed Exts. R1 (a) to (c) applications before the Tribunal pointing out that the petitioner has defaulted payment of maintenance as ordered in Ext. P2 and requesting for enhancement of maintenance amount as the amount awarded is inadequate. Since the petitioner defaulted payment of monthly maintenance, Ext.P9 Settlement Deed was cancelled by the 1^st respondent. Ext.P7 has been passed pursuant to Exts.R1 (a) to (c) applications submitted by him. The 1^st respondent states that he is unable to maintain himself and prays to dismiss the writ petition.

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The petitioner has filed a reply affidavit denying the averments of the first respondent in the counter affidavit. She has filed I.A No.4/2021 producing Ext. P10 postal receipt to show that she had filed Ext.P4 petition under Section 10 of the Act and I.A No.5/2021 seeking amendment of the writ petition incorporating a prayer to direct the second respondent to dispose of Ext. P4 petition after hearing all parties.

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The main contention of the petitioner is that while receiving

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maintenance from her pursuant to Ext. P2 order, the first respondent cancelled Ext. P9 settlement deed without informing her. The prayer in Ext. P1 application was either to cancel the settlement deed or to award maintenance. Since Ext.P9 settlement deed was cancelled on 24.11.2011, he is not entitled to get maintenance at least from that date onwards. The first respondent cannot seek the help of Section 23 of the Act to set aside the Settlement Deed as the Act came into force only on 24.8.2008 and the settlement deed was executed on 07.06.2007. It is also contended that the father has not demanded maintenance from the other three children. The father is engaged in money lending business apart from carrying out the business of selling Iron Nails, whereas the petitioner has no means to pay the maintenance.

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Heard Sri. T.M. Chandran, the learned counsel for the petitioner, Sri. Jayadhar V., the learned counsel for the 1^st respondent and Sri. K.M. Faisal, the learned Government Pleader for respondents 2 and 3.

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Ext.P1 application is filed by the 1^st respondent before the

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Maintenance Tribunal under Section 4 of the Act against the petitioner stating that she is not maintaining him. The remedy sought before the Tribunal is to cancel the Settlement Deed or for ordering maintenance. The Tribunal has passed Ext.P2 order directing the petitioner to give Rs.4,000/- per month towards maintenance to the 1^st respondent as agreed by her in writing. The 1^st respondent has filed Ext. R1 (a) application dated 18.10.2011 before the Tribunal stating that the petitioner defaulted payment of maintenance ordered in Ext. P2 and praying to re-convey the property settled on her and to enhance the maintenance amount. Ext.P9 Settlement Deed was cancelled by the 1^st respondent on 24.11.2011. It is pursuant to Ext.R1 (a) application that Ext.P7 order was passed by the Tribunal. In Ext.P7 order, it was noted by the Tribunal that the Settlement Deed was cancelled by the 1^st respondent and the Tribunal, without enhancing the amount of maintenance, confirmed Ext.P2 order. Ext.P4 application is stated to be filed by the petitioner under Section 10 of the Act for alteration of allowance in the change of circumstances pursuant to cancellation of

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Settlement Deed by the 1^st respondent. According to the petitioner, the Tribunal considered Ext.R1 (a) application of the 1^st respondent without considering Ext.P4 application.

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It is admitted by both sides in the counter affidavit and in the reply affidavit that the cancellation deed No.2446/2011 dated 24.11.2011 of SRO, Anchalummodu cancelling Ext.P9 Settlement Deed was declared void by the Court of the Additional Munsiff, Kollam by judgment dated 17.10.2016 in O.S. No.803 of 2012 filed by the petitioner. It is also submitted that the appeal filed by the 1^st respondent against the judgment and decree in O.S. No. 803 of 2012 was dismissed by the Additional District Court, Kollam by judgment dated 21.12.2020 in A.S. No.10/2017. The copies of the said judgments were made available by the counsel for the petitioner for the perusal of this Court.

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According to the petitioner, the 1^st respondent, while receiving the maintenance amount in pursuance of Ext.P2 order has cancelled Ext. P9 Settlement Deed and therefore, he is not entitled to

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get maintenance at least from the date of cancellation of the Settlement

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Deed. During the pendency of this writ petition, the cancellation deed No.2446/2011 dated 24.11.2011 of SRO, Anchalummodu, cancelling Ext.P9 Settlement Deed was declared void by the Court of the Additional Munsiff, Kollam and the appeal preferred by the 1^st respondent against the said judgment has been dismissed by the Additional District Court, Kollam and the said judgment has become final. Therefore, it is no longer open for the petitioner to contend that, in view of the cancellation of Settlement Deed, the 1^st respondent is not entitled to get maintenance.

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Ext.P2 order has been passed by the Tribunal on the basis of an undertaking in writing by the petitioner to the effect that she is ready to give Rs.4,000/- per month to the 1^st respondent towards maintenance. The amount requested by the 1^st respondent for his maintenance was Rs.10,000/- per month. Ext.P2 is dated 30.11.2010. The application of the 1^st respondent for enhancement of the amount of compensation was not allowed by the Tribunal, since, at the time of

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consideration of the said application, Ext. P9 Settlement Deed stood cancelled. Ext.P2 order to pay maintenance of Rs.4,000/- to the 1^st respondent was confirmed as per Ext.P7. In view of the undertaking given by the petitioner before the Tribunal, she cannot now contend that she is not liable to maintain the 1^st respondent. In view of the said undertaking, the income of the petitioner and other factors to be considered provided under Rule 13 (3) of the Kerala Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 ('Rules, 2009', for short) are not relevant and the contention that there is non-compliance with the provisions of Rule 13 (2) and (3) of the Rules, 2009 is not sustainable. The petitioner must have agreed to pay Rs.4,000/- towards monthly maintenance to the 1^st respondent considering her income and the value of the property settled on her.

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Since the Tribunal has not passed an order under Section 23 of the Act to declare the Settlement Deed as void, the contention of the petitioner that the Act came into force only on 24.8.2008 and the settlement deed was executed on 07.06.2007 and therefore the 1^st

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respondent cannot seek the aid of Section 23 of the Act, need not be considered.

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Another contention of the petitioner is that the first respondent has not demanded maintenance from the other three children. Before the Tribunal, the 1^st respondent contended that, since his sole property has been settled on the petitioner, he requires protection and maintenance from the petitioner. In this context, it is

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apposite to refer to Section 5 (5) of the Act which reads as follows:-

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“(5) An application for maintenance under sub-section (1) may be filled against one or more persons:

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Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance."

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The petitioner did not take steps to implead her siblings in the proceedings before the Tribunal. Therefore, the said contention of the petitioner in this proceedings does not merit consideration.

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The 1^st respondent is now aged 84 years and was aged 73

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years at the time of filing Ext.P1 application for maintenance. He might have had income from money lending or other business years

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back. As directed by this Court the District Social Welfare Officer, Kollam had visited the 1^st respondent and the petitioner on 26.03.2021 and submitted a report dated 28.03.2021.The District Social Welfare Officer has reported that the 1^st respondent need the support of others for day to day activities and is living in the house along with his 81 year old wife. The 1^st respondent has told the said officer that he had income from money lending business previously , but now he has no income and has to incur lot of expenses towards medicines. Going by the affidavit filed by the 1^st respondent and the report of the District Social Welfare Officer, there is no reason to disbelieve the 1^st respondent, a senior citizen, that, he is unable to maintain himself from his own earnings and out of the property owned by him and is entitled to maintenance from the petitioner as ordered in Ext.P2. As already noted, the amount of Rs.4,000/- was ordered in the year 2010. Since, even the payment of that amount was defaulted for more than 28 months, revenue recovery proceedings were initiated. In the light of the foregoing discussion, I do not find any reason to interfere with

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Exts.P2 and P7 orders of the Maintenance Tribunal and Ext.P8 revenue

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recovery notice. The interim order dated 31.03.2015 is vacated. The

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writ petition is dismissed. There will be no order as to costs.

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Sd/-

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MURALI PURUSHOTHAMAN JUDGE

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W.P.(C)10359/2015

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APPENDIX OF WP(C) 10359/2015

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PETITIONER's EXHIBITS

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EXHIBIT-P1-TRUE COPY OF THE PETITION DATED 20/04/2010.

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EXHIBIT-P2-TRUE COPY OF THE ORDER DATED 30/11/2010.

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EXHIBIT-P3-TRUE COPY OF THE DEMAND DRAFT DATED 30/08/2012 OF BANK OF INDIA.

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EXHIBIT-P4-TRUE COPY OF THE PETITION DATED 26/06/2013.

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EXHIBIT-P5-TRUE COPY OF THE OBJECTION DATED 04/03/2014 FILED BY THE FATHER.

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EXHIBIT-P6-TRUE COPY OF THE ORDER DATED 02/03/2014 (02/03/2015).

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EXHIBIT-P7-TRUE COPY OF THE CERTIFIED COPY OF THE ORDER DATED 07/07/2014.

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EXHIBIT-P8-TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 03/12/2014.

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EXHIBIT-P9-TRUE COPY OF SETTLEMENT DEED NO.1149/2007 DATED 07-06-2007 EXECUTED BY FATHER (RESPONDENT NO.1) AND MOTHER IN FAVOUR OF PETITIONER.

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EXHIBIT P10-TRUE COPY OF THE POSTAL RECEIPT DATED 01-072013 FROM KILIKOLLUR POST OFFICE AND A/D CARD.

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EXHIBIT-P11-TRUE COPY OF PETITION DATED 09-01-2015 BY THE COUNSEL UNDER RTI ACT.

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EXHIBIT -P12-TRUE PHOTOGRAPH.

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EXHIBIT-P13-TRUE PHOTOGRAPH

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EXHIBIT-P14-TRUE COPY OF TELEPHONE BILL FOR THE MOBILE NO.9633450043 FOR THE MONTH OCTOBER 2020.

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RESPONDENTS' EXHIBITS:

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R1(A):PHOTOCOPY OF THE FIRST RESPONDENT'S APPLICATION DATED 18.10.2011 SUBMITTED TO THE 2ND RESPONDENT TRIBUNAL.

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R1(B):PHOTOCOPY OF THE FIRST RESPONDENT'S APPLICATION DATED 17.11.2011 SUBMITTED TO THE 2ND RESPONDENT TRIBUNAL.

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R1(C):PHOTOCOPY OF THE FIRST RESPONDENT'S APPLICATION DATED 19.08.2013 SUBMITTED TO THE 2ND RESPONDENT TRIBUNAL.

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R1(D):PHOTOCOPY OF THE CAUSE TITLE OF THE DECREE OF MUNSIFF COURT, KOLLAM OS NO.803/2013 DATED 17.10.2016.

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spc/

Sindhu B. v. v.Balachandran

Case brief

What is this about?

What did the court decide?

Sindhu B. v. v.Balachandran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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