maintenance of senior citizens. It cannot be allowed to be used as a
tool in property disputes among siblings. The substantial right of the 3rd
respondent which is sought to be enforced by recourse to the Act is the
right to be maintained and protected by her children. In view of the
specific contention of the petitioner that she had never refused to do
so and that Exhibit P1 is an agreement recorded without her
understanding the contents of the same, I am of the opinion that
interests of justice will be met by directing that the petitioner shall look
after her mother.
In the result, Exhibit P1 is set aside. It is directed that the
petitioner shall also have the responsibility of looking after her mother.
If the 3rd respondent agrees to go and reside with the petitioner, she
shall be looked after well and expenses shall be met by the petitioner.
If the 3rd respondent is not desirous of going and staying with the
petitioner, the petitioner will pay an amount of Rs.5,000/- (rupees five
thousand) to the 3rd respondent instead of Rs.500/-per month as
agreed in Exhibit P1 on or before 10th day of every month commencing
from November, 2016 towards the personal expenses of the mother. If
any default is committed by the petitioner in paying maintenance as
directed above, the 3rd respondent will be free to approach the Tribunal
afresh.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MRS. JUSTICE ANU SIVARAMAN
4TH DAY OF NOVEMBER 2016
WP(C).No. 9108 of 2014 (K)
MAVILA SATHI,
Vs
STATE OF KERALA
This writ petition is filed challenging Exhibit P1 order issued by
the Maintenance Tribunal constituted under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred
to as 'the Act'). Petitioner is the daughter of the 3rd respondent. It is
contended by the learned counsel for the petitioner that the 3rd
respondent, who is having three children, had gifted her properties to
her children, including the petitioner. The petitioner was assigned 23
cents of property retaining the 3rd respondent's right to take the
benefits and right of residence in the tharawad building situated in the
property. Thereafter, the 3rd respondent was staying with the
petitioner. Subsequently, in the year 2012, the 3rd respondent assigned
a further extent of 10 cents of property by Exhibit P5 settlement deed
in favour of the petitioner. On 3.8.2013, the 4th respondent, who is the
brother of the petitioner, took the 3rd respondent to his house.
Thereafter, M.C.C.No.73 of 2013 was filed under the Act before the 2nd
respondent at the instigation of the 4th respondent alleging that though
the petitioner was assigned 41 cents of property on condition that she
will look after the 3rd respondent, the petitioner ousted the 3rd
respondent from the house and is refusing to look after the mother.
The 2nd respondent passed Exhibit P1 order dated 12.12.2013
directing the petitioner to pay an amount of Rs.500/- to the 3rd
respondent as monthly maintenance and also to re-convey the 10
cents of property covered under Exhibit P5 settlement deed
No.3530/2012. The said order which is one purportedly recorded on
agreement is under challenge in this writ petition.
2. Heard learned counsel for the petitioner, learned Government
Pleader and the learned counsel appearing for respondents 3 and 4.
3. Learned counsel for the petitioner contended that Exhibit P1
order issued by the 2nd respondent is liable to be struck down as it does
not satisfy the statutory requirements contemplated under the Act. The
complaint was filed by the 3rd respondent before the 2nd respondent
only at the instigation of the 4th respondent, it is submitted. It is
contended that the petitioner was not served with a copy of the
complaint at the time of hearing or at the conciliation meeting and it is
only after receipt of Exhibit P1 that the petitioner has applied for a
copy of the complaint filed by the 3rd respondent and she was served
with the same. It is further contended that the petitioner was not given
an opportunity to file reply to the complaint. Learned counsel for the
petitioner submitted that when the petitioner appeared before the
conciliation officers on 12.12.2013, she was directed to sign on some
papers so as to submit a report to the 2nd respondent. It is also
submitted that the 3rd respondent, who is aged 74 years and capable of
managing her affairs was pictured as incompetent and illiterate and
her thumb impression was affixed in Exhibit P2 complaint. It is
submitted that as per Section 23 of the Act, in order to declare a
transfer of immovable property by a senior citizen to be void, two
conditions should be satisfied; 1) the transfer should be subject to the
condition that the transferee shall provide the basic amenities and
basic physical needs to the transferor; and 2) the transferee should
have refused or failed to provide such amenities and physical needs. It
is also submitted that the procedure adopted by the 2nd respondent is
illegal and arbitrary. It is specifically contended by learned counsel for
the petitioner that the property has been transferred by the 3rd
respondent to the petitioner only on love and affection and not on a
condition that the petitioner shall provide the basic amenities and
basic physical needs to the 3rd respondent. Since the petitioner
considers that it is her duty to look after and maintain 3rd respondent,
she is not challenging the portion of Exhibit P1 order to the extent it
directs payment of Rs.500/- per month as maintenance.
4. A counter affidavit has been filed by the 3rd respondent inter
alia stating that she had gifted the 41 cents of property to the
petitioner on a specific understanding that the petitioner will look after
her, but after getting the property in her name, the petitioner treated
her with cruelty. The allegation that the 4th respondent was instigating
the 3rd respondent to get back the 10 cents of property from the
petitioner is denied by the 3rd respondent. It is stated in the counter
affidavit that the averment that the petitioner was not given a copy of
the complaint is incorrect. The petitioner appeared before the 2nd
respondent on getting summons and a copy of the complaint and she
participated in the conciliation proceedings after knowing fully about
the contents in the complaint and she had put her signature with the
full knowledge regarding the contents of the settlement, it is
submitted. It is further submitted that the attempt of the petitioner is
only to escape the liability to maintain the 3rd respondent as promised
at the time of executing of the gift deed.
5. I have considered the contentions advanced on either side.
The main grievance voiced by the petitioner is with regard to the
condition in Exhibit P1 to the effect that she is to reconvey ten cents
of property gifted as per Exhibit P5 back to the 3rd respondent. The
petitioner contends that she had never agreed to any such condition in
the settlement. It is argued that the contents of the petition, if taken as
a whole, would not disclose a cause of action for issuance of a direction
to reconvey the property or even to hold that Exhibit P5 is void. She
further contends that she had never refused to look after her mother
and is ready to take care of her and to provide shelter for her. It is
further contended that the procedure prescribed for recording of an
agreement had not been followed by the conciliation officer or the
Tribunal before Exhibit P1 order was issued.
6. It is now contended that the petitioner is always ready and
willing to take care of her mother and look after her. Going by the
pleadings on record, it appears that Exhibit P2 complaint of the 3rd
respondent was instituted on 21.10.2013. Exhibit P1 order is seen
dated 12.12.2013. There is nothing on record to show that the
petitioner had actually refused to look after her mother. Petitioner has
a specific case that she was staying along with her mother in the
tharawad house which is not the property covered by Exhibit P5. The
3rd respondent was taken away by the 4th respondent from there. It is
also contended that it is only at the instance of the 4th respondent and
his wife that the complaint came to be filed.
7. The Act is one enacted to ensure the proper protection and
maintenance of senior citizens. It cannot be allowed to be used as a
tool in property disputes among siblings. The substantial right of the 3rd
respondent which is sought to be enforced by recourse to the Act is the
right to be maintained and protected by her children. In view of the
specific contention of the petitioner that she had never refused to do
so and that Exhibit P1 is an agreement recorded without her
understanding the contents of the same, I am of the opinion that
interests of justice will be met by directing that the petitioner shall look
after her mother.
In the result, Exhibit P1 is set aside. It is directed that the
petitioner shall also have the responsibility of looking after her mother.
If the 3rd respondent agrees to go and reside with the petitioner, she
shall be looked after well and expenses shall be met by the petitioner.
If the 3rd respondent is not desirous of going and staying with the
petitioner, the petitioner will pay an amount of Rs.5,000/- (rupees five
thousand) to the 3rd respondent instead of Rs.500/-per month as
agreed in Exhibit P1 on or before 10th day of every month commencing
from November, 2016 towards the personal expenses of the mother. If
any default is committed by the petitioner in paying maintenance as
directed above, the 3rd respondent will be free to approach the Tribunal
afresh.
The writ petition is ordered accordingly.
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