Partly allowed

Asha Ramachandran v. the District Collector

Kerala HC28 Nov 2022WP(C)/2369/2022

Case brief

AI extract

What is this about?

The High Court held that a daughter-in-law does not fall within the definition of 'children' but noted she has been paying maintenance. It set aside the direction to quantify construction costs and grant revenue recovery liberties as beyond the Tribunal's powers under the Act.

What did the court decide?

The direction to quantify construction costs and allow revenue recovery was set aside; the direction to pay maintenance was allowed as no interference was sought therein.

Asha Ramachandran Vs the District Collector — Pension and Retirement Benefits | 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 AMIT RAWAL

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MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944

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WP(C) NO. 2369 OF 2022

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PETITIONER:

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ASHA RAMACHANDRAN
AGED 47 YEARS
W/O.LATE RAMACHANDRAN,
KOICKAL KARAVATTAMADATHIL HOUSE,
ARAKUZHA, MUVATTUPUZHA,
ERNAKULAM, PIN - 686 672.

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BY ADVS.
ALIAS M.CHERIAN
K.M.RAPHY
BRISTO S PARIYARAM
NEENU ANNA BABU
AJAI ALIAS CHALAPPURAM

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RESPONDENTS:

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1THE DISTRICT COLLECTOR
APPELLATE TRIBUNAL FOR MAINTENANCE OF PARENTS AND SENIOR
CITIZENS, ERNAKULAM DISTRICT,
CIVIL STATION, KAKKANAD,
ERNAKULAM, PIN- 682 030.

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2 THE REVENUE DIVISIONAL OFFICER/TRIBUNAL FOR MAINTENANCE OF PARENTS AND SENIOR CITIZENS MINI CIVIL STATION, PAZHAPPALLY, MUDAVOOR P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686 669.

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3THANKAMMA
AGED 82 YEARS
W/O.LATE KRISHNAN NAIR,
KOICKAL KARAVATTAMADATHIL HOUSE,
PANDAPPILLY KARA,
ARAKUZHA VILLAGE,
MUVATTUPUZHA,
ERNAKULAM DISTRICT, PIN- 686 672.

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WP(C) NO. 2369 OF 2022

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4BABU
AGED 54 YEARS
S/O.LATE KRISHNAN NAIR,
KOICKAL KARAVATTAMADATHIL HOUSE,
PANDAPPILLY KARA,
ARAKKUZHA VILLAGE,
MUVATUPUZHA,
ERNAKULAM DISTRICT, PIN - 686 672.

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5ANANDAVALLY
AGED 57 YEARS
W/O.VENUGOPAL, THRIKKAPPADY HOUSE,
VELLORKUNNAM VILLAGE, MUVATUPUZHA,
ERNAKULAM DISTRICT, PIN - 686 673.
BY ADVS.
N.N.ELAYATH
A.T.Anilkumar A.T.
RITAMMA MATHEW
MATHEW J.ELENJICKAL
V.SHYLAJA(K/1281/1995)
T.K.SREEKALA

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GP SRI. JUSTINE JACOB

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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WP(C) NO. 2369 OF 2022

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JUDGMENT

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Petitioner is the daughter-in-law of respondent No.3, aged 82 years. Orders of the Maintenance Tribunal and Appellate Tribunal Ext.P7 dated 01.10.2020 and Ext.P9 13.12.2021 are under challenge.

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The case has a checkered history of litigation. Petitioner was married to Ramachandran and unfortunately became widow on 22.02.2015. Respondent No.3 in a family partition amongst her siblings, got 50.12 cents of land from her father. Out of the wedlock respondent No.3 has two sons and one daughter. One son since deceased and another son and daughter are respondent Nos.4 and 5. She entered into a family settlement whereby 50 cents of land was given to her son, the husband of the petitioner. After four years of the execution of the settlement, respondent No.3 cancelled the settlement and also instituted a suit bearing No.464/2001 for injunction. Husband of the petitioner also instituted a suit bearing

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WP(C) NO. 2369 OF 2022

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No.465/2001. During the pendency of the suits, a compromise dated 09.03.2005 Ext.P1 was arrived at wherein it was held that 10 cents of land was given to the mother as life in state and after death would go to Ramachandran and Babu-respondent No.4 will not trespass or cause interference. Petitioner along with her husband moved to Malabar, north area of Kerala, as she obtained employment as a teacher. This happened in the year 2005. In the year 2011, respondent No.4-Babu trespassed into the property and started residing. This gave a cause of action to the petitioner to institute execution petition 58/2010. Simultaneously, respondent No.3-senior citizen also instituted a suit challenging the compromise decree as null and void. Trial Court vide order dated 13.07.2011 allowed the execution petition and directed Babu to vacate the premises and immediately thereafter, on 23.07.2013 vide Ext.P3 dismissed the Civil Suit with cost. It is pertinent to mention here that during the interregnum, respondent No.3-senior citizen instituted a Criminal complaint bearing No.596/2008 in the Court of Judicial First Class Magistrate Court-I alleging physical

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WP(C) NO. 2369 OF 2022

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assault. The aforementioned complaint vide order dated 23.08.2017 Ext.P4 was dismissed. Against the dismissal of the Civil Suit No.523 of 2010 challenging the compromise decree,

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an Appeal A.S.No.82/2013 was preferred, which was also dismissed on 08.01.2021.

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Learned counsel appearing on behalf of the petitioner submitted that 50 cents of land included all constructions and an empty area. For raising a construction in the empty area, a loan from the bank by mortgaging the entire property as it stood in her husband’s name and now in her name, was obtained. construction suitable to her requirement as she is working as a teacher in a private school was raised. All these litigation reflects that the respondent No.3 had been acting at the hands of her other children, particularly the son Babu respondent No.4, who is having an evil eye on the house as evident from the attempt of trespass and an order of the executing court. Respondent No.3 never attempted to reside in the house though she instituted a complaint under the provisions of the Domestic

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WP(C) NO. 2369 OF 2022

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Violence Act. The Judicial First Class Magistrate Court-I, Muvattupuzha vide order dated 08.01.2009 dismissed the petition under Section 12 of the Protection of Women from Domestic Violence Act as the petitioner arrayed as the respondent had handed over the key of the vacant house to respondent No.3. Despite that she is not living in that house but with her brother or sometimes, at earlier point of time, in an old-age home.

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On 11.05.2020, petition under the Maintenance and Welfare of Parents and Senior Citizens Act bearing No.53/2020 was preferred claiming a sum of Rs.25,000/- as maintenance from the petitioner, return of the pensionary benefits with 12% interest, compensation with not less than Rs.25 lakhs as damages and to relinquish the one-third right over the 50 cents of landed property in Schedule B of the partition deed of 1997. The aforementioned petition was contested only by the petitioner as neither other daughter or son, respondents 4 and 5, contested the petition. Learned RDO vide order dated 01.10.2020 directed all the children ie., petitioner-daughter-in-

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WP(C) NO. 2369 OF 2022

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law and respondents 4 and 5 to pay Rs.2,000/- maintenance and construct the old building for residence of respondent No.3. The aforementioned order was assailed before the Appellate Authority. The Appellate Authority got the cost of construction assessed to the tune of Rs.10,91,100/- and directed the petitioner to make that Rs.10,91,100/- and continue to pay Rs.2,000/- per month for the maintenance of respondent No.3 and on failure to recover it through revenue recovery.

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It is contended that the said order is without jurisdiction as there is no provision under the Act to pass such an order. Petitioner does not fall in the definition of a ‘family’ as defined under Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The expression ‘relative’ defined under Section 2(g) would come into play only when the senior citizen is childless, which is not the case in hand. Respondent No.3 is getting a pension of almost approximate Rs.20,000/- therefore she would not fall within the provisions of Section 4 of Chapter II of 2007 Act. Even the maximum maintenance ordered is Rs.10,000/- and in case of refusal to

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WP(C) NO. 2369 OF 2022

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maintain the senior citizen, the Tribunal has the power to order the children or relatives to make monthly allowance at such monthly rate for maintenance of such senior citizen as the Tribunal may deem fit and pay the same to such senior citizen but not in the manner and mode. In support of the aforementioned contention also relied upon the judgment of the Division Bench of the Bombay High Court i n Sheetal Devang Shah Vs. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens and Ors. (2022 SCC Online Bom 1068) to contend that daughter-in-law would not be a member of the family.

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On the other hand, learned counsel for the respondent No.3 countered arguments of Sri.Alias M.Chriyan on the ground that the impugned order Ext.P7 of the RDO was passed on the statement made by the petitioner that she is willing to construct the old and dilapidated house. Filing of the review against the said order and its dismissal is the testimony. Petitioner cannot be permitted to volte face by challenging the order before the Appellate Authority or before this Court.

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WP(C) NO. 2369 OF 2022

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9

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Daughter-in-law definitely would fall within the definition of ‘children’ and though she had been making the payment of maintenance till there was an interdiction by this Court, other children are also paying maintenance. But did not deny that the petitioner is getting a pension of more than Rs.10,000/- and at present living with her brother. The only problem with her is with regard to submission of permanent address for the purpose of renewal of the pension papers of her husband who while, alive, was working in Kerala Police.

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I have heard the learned counsel parties and

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appraised the paper book. It would be axiomatic to extract the definition of ‘children’ and ‘relative’ as defined under Section 2(a) and 2(g) much less the provisions of Sections 4 and 9 of the Act:

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“Section 2

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(a) "children" includes son, daughter, grandson and granddaughter but does not include a minor.

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(b) "maintenance" includes provision for food, clothing, residence and medical attendance and treatment

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WP(C) NO. 2369 OF 2022

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majority

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(d) "parent" means father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen

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(e) "prescribed" means prescribed by rules made by the Stale Government under this Act

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(f) "property" means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property (g) "relative" means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death

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(h) "senior citizen" means any person being a citizen of India, who has attained the age of sixty years or above

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(i) "State Government";, in relation to a Union territory, means the administrator thereof appointed under article 239 of ihc Constitution

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(j) "Tribunal" means the Maintenance Tribunal constituted under section 7

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(k) "welfare" means provision for food, health care, recreation centres and other amenities necessary for the senior citizens.”

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8. Cumulative reading of aforementioned provision leaves no

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manner of doubt that the role of the relative would come into play only if the senior citizen is childless. Now question which arises

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before this Court is whether a daughter-in-law would be a family

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WP(C) NO. 2369 OF 2022

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member. Answer to the aforementioned question does not require any further elaboration or decision in view of the ratio decidendi culled out in paragraph 32 of the Di visio n Bench judgment of Bombay High Court in Sheetal Devang Shah (supra). The same reads as under:

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“32. We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), 'children' include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in- law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs. 25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable.”

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9. Be that as it may. I would not be interdicting the

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order of the authorities particularly when the petitioner is volunteered to abide by the order with regard to payment of maintenance to respondent No.3 which had been paid till passing of the interim order by this Court.

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WP(C) NO. 2369 OF 2022

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The next question which arises for determination is

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whether RDO or the Appellate Authority, District Collector in an appeal, after determining the cost of construction, could, in the eyes of law or provisions of the Act, direct the petitioner to raise construction or grant liberty to the respondent No.3 to recover under the Revenue Recovery Act, the answer is “No”. There could have been force in the argument of respondent No.3 in the eventuality where Kerala State had come out with a rule, envisaging such provisions. However, the Rules framed by the State ie., Rule 19, only empowers the District Magistrate to ensure that life and property of the senior citizen of the district is protected and they are able to live with security and dignity and other conditions which are not relevant for adjudication. The expression property of the senior citizen cannot be expanded. However, I refrain from further commenting upon the language of Rule 19 as respondent No.3 has never taken the aid of aforementioned Rule nor any order passed thereon is under challenge in this Court. District Collector while exercising the power of an Appellate Authority could not therefore, assume the

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WP(C) NO. 2369 OF 2022

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role of District Magistrate as provided under Rule 19 of Kerala Maintenance and Welfare of Parents and Senior citizen Rules, 2009. Since the petitioner has agreed to abide by the directions of RDO and the Appellate Authority, to pay the maintenance, I do not wish to interfere with the order and the writ petition qua such direction is dismissed. The other direction whereby the amount of construction has been quantified and to be recovered, in view of the reasons above, is not sustainable and hereby set side.

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Writ petition stands partly allowed in the aforementioned terms.

Sd/-

AMIT RAWAL JUDGE

nak

WP(C) NO. 2369 OF 2022

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APPENDIX OF WP(C) 2369/2022

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PETITIONER EXHIBITS

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Exhibit P1TRUE COPY OF COMPROMISE STATEMENT DATED
09/03/2005 FILE DIN O.S.NO.464 OF 2001
BEFORE THE MUNSIFF COURT, MUVATUPUZHA.

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Exhibit P2TRUE COPY OF ORDER DATED 13/07/2011
PASSED IN E.P.NO.58 OF 2010 IN O.S.NO.464
OF 2001 BY THE MUNSIFF COURT,
MUVATUPUZHA.
Exhibit P3TRUE COPY OF JUDGMENT DATED 23/07/2013 IN
O.S.NO.523 OF 2010 PASSED BY THE MUNSIFF
COURT, MUVATUPUZHA.
Exhibit P4TRUE COPY OF JUDGMENT DATED 23/08/2017 IN
C.C.NO.596 OF 2008 PASSED BY THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-I,
MUVATUPUZHA.
Exhibit P5TRUE COPY OF JUDGMENT DATED 08/01/2021 IN
A.S.NO.80 OF 2013 PASSED BY THE SUB
JUDGMENT MUVATUPUZHA.
Exhibit P6TRUE COPY OF APPLICATION M.P.NO.53 OF
2020 DATED 11/05/2020 FILED BEFORE 2ND
RESPONDENT.

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Exhibit P7TRUE COPY OF PROCEEDINGS NO.MP 53/2020
(A10-2668/2020) DATED 01/10/2020 PASSED
BY THE 2ND RESPONDENT/RDO.

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Exhibit P8TRUE COPY OF APPEAL MEMORANDUM DATED
05/01/2021 FILED BEFORE THE 1ST
RESPONDENT/DISTRICT COLLECTOR.

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Exhibit P9TRUE COPY OF ORDER NO.DCEKM/1063/2021-M6
DATED 13/12/2021 PASSED BY THE 1ST
RESPONDENT/DISTRICT COLLECTOR.

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WP(C) NO. 2369 OF 2022

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15

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Exhibit P10TRUE COPY OF PETITION DATED 29/12/2021
FILED BEFORE THE 1ST RESPONDENT/DISTRICT
COLLECTOR.
Exhibit P11TRUE COPY OF ORDER NO.DCEKM/1963/2021/M6
DATED 13/01/2022 PASSED BY 1ST
RESPONDENT/DISTRICT COLLECTOR.
Exhibit P12TRUE COPY OF PARTITION DEED NO.2663 OF
1997 DATED 13.06.1997 REGISTERED IN THE
SUB REGISTRY OFFICE, MUVATTUPUZHA.
Exhibit P13TRUE COPY OF RECEIPT DATED 13.06.1997
EXECUTED BY 4TH RESPONDENT.

Asha Ramachandran v. the District Collector

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Asha Ramachandran v. the District Collector

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