Dismissed

Kolaprath Manoharan v. Kolaprath Kamalakshi

Kerala HC4 Jul 2022WP(C)/17444/2016

Case brief

AI extract

What is this about?

This judgment dismissed a writ petition challenging an order of the Maintenance Appellate Tribunal directing the petitioner to pay Rs.5,000/- monthly maintenance to his unmarried, childless, senior citizen sister, who allotted him property while retaining a life interest. The Court held the petitioner has a statutory obligation to maintain her.

What did the court decide?

The writ petition was dismissed with no costs.

Kolaprath Manoharan Vs Kolaprath Kamalakshi — Maintenance and Alimony | Kerala HC (2022)

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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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MONDAY, THE 4^TH DAY OF JULY 2022 / 13TH ASHADHA, 1944

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WP(C) NO. 17444 OF 2016

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PETITIONER/S:

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KOLAPRATH MANOHARAN

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TEACHER, GOVT. HIGHER SECONDARY SCHOOL,P.O.CHAVASSERY, KANNUR, RESIDING AT ANANDOTH HOUSE, EDAYANNUR, P.O. KANAD, KANNUR DT.

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BY ADVS.

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SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH

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RESPONDENT/S:

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1 KOLAPRATH KAMALAKSHI

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MANAKKAL HOUSE, THALAMUNDA, P.O. KOODALI, KANNUR-670592.

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2 THE DISTRICT COLLECTOR KANNUR-670002.

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3 THE REVENUE DIVISIONAL OFFICER THALASSERY-670101, KANNUR DT.

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BY ADVS. SRI.M.SASINDRAN SRI.P.SASI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17444 OF 2016 ..2..

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JUDGMENT

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The petitioner is the younger brother of the 1^st respondent who is a 76 years old, unmarried and physically handicapped lady. The 1^st respondent had assigned an extent of 44 cents of land and a residential building therein to the petitioner as per a settlement deed of 1996. Her right to reside in the house and to take usufructs from the property was retained.

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The 1^st respondent filed Ext.P1 application before the Maintenance Tribunal praying to declare the settlement deed executed by her in favour of the petitioner as null and void and for payment of Rs.10,000/- as monthly maintenance. She also sought for a direction to restrain the petitioner from interfering with her peaceful residence in the house.

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The Maintenance Tribunal, by Ext.P3 order found that the 1^st respondent is free to reside in the 44 cents of land transfered to the petitioner and can also take

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WP(C) NO. 17444 OF 2016 ..3..

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usufructs from the property and the petitioner shall not obstruct the same.

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Against Ext.P3, the 1^st respondent preferred an

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appeal before the Appellate Tribunal and the Appellate Tribunal, by Ext.P4 order found that the property was transferred by the 1^st respondent prior to the commencement of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'the Act') and as such the same cannot be declared as null and void. However, taking note that the 1^st respondent is an unmarried, physically handicapped person with ailments and that the petitioner would obtain the property on the death of the 1^st respondent, the Appellate Tribunal directed the petitioner to pay an amount of Rs.5,000/- per month as maintenance to the 1^st respondent.

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Aggrieved by Ext.P4 order, the writ petition is filed.

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The contention of the petitioner is that, the petitioner does not come within the purview of the Act and that the 1^st

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WP(C) NO. 17444 OF 2016 ..4..

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respondent had executed the settlement deed, after retaining her right to reside in the house and to take usufructs from the property and as such, the petitioner is not liable to maintain her and he is obliged to maintain her only if he is allowed to take usufructs from the property.

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Heard the learned Counsel for the petitioner, the learned Counsel for the 1^st respondent and the learned Government Pleader for the respondents 1 and 2.

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The 1^st respondent has executed settlement deed in respect of the 44 cents of land with residential building in favour of the petitioner, retaining her right to reside in the house and to take usufructs from the property. By creating life interest, she can enjoy the property during her life time and on her death, the property will devolve on the petitioner. The 1^st respondent is a childless senior citizen and the petitioner is her relative on whom her property will devolve by virtue of the settlement deed. Therefore, the petitioner has got a statutory obligation to maintain

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WP(C) NO. 17444 OF 2016 ..5..

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the 1^st respondent as per the provisions of the Act. Though the provisions of Section 23 of the Act cannot be invoked, as the transfer of the property by way of settlement deed is prior to the commencement of the Act, that will not absolve the petitioner, the relative, as defined in Section 2(g) of the Act from maintaining the 1^st respondent, who is a childless senior citizen. According to the petitioner, the 1^st respondent is taking usufructs from the 44 cents of land transferred to the petitioner and therefore, he is not obliged to maintain her. It is also stated that she is having another 10 cents of land. The yield from such small extent of land will not be sufficient for the maintenance of a senior citizen and to lead a normal life. 'Maintenance'; as defined under the Act includes provision for food, clothing, residence, medical attendance and treatment. Accordingly, the Tribunal has awarded an amount of Rs.5,000/- towards maintenance of the 1^st respondent. I do not find any error of law or error

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WP(C) NO. 17444 OF 2016 ..6..

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of fact in Ext.P4 order passed by the Appellate Tribunal warranting interference by this Court. The amount of Rs.5,000/- awarded by the Tribunal towards maintenance

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is only reasonable.

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Accordingly, the writ petition is dismissed. No costs.

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Sd/MURALI PURUSHOTHAMAN JUDGE

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SB/05/07/2022

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WP(C) NO. 17444 OF 2016 ..7..

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APPENDIX OF WP(C) 17444/2016

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PETITIONER EXHIBITS

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P1 TRUE COPY OF THE PETITION NO. MCC 6/15 FILED BY THE 1ST RESPONDENT BEFORE THE REVENUE DIVISIONAL OFFICER, THALASSERY.

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P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER.

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P3 TRUE COPY OF THE ORDER NO. M.C.C. 6/15 DATED 21-52015 OF THE MAINTENANCE TRIBUNAL, THALASSERY.

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P4 TRUE COPY OF THE ORDER NO. DCKNR/331/2015-M5 DATED 13-4-2016 OF THE MAINTENANCE APPELLATE TRIBUNAL.

Kolaprath Manoharan v. Kolaprath Kamalakshi

Case brief

What is this about?

What did the court decide?

Kolaprath Manoharan v. Kolaprath Kamalakshi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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