Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940 WP(C).No. 2125 of 2019 PETITIONER: CHAMBALON THALA AGED 89 YEARS D/O. LATE KANARAN, VENNANCHALIL HOUSE, KODIYERI AMSOM, MOOZHIKKARA DESOM, MOOZHIKKARA P. O., THALASSERY TALUK BY ADV. SRI.CIBI THOMAS RESPONDENTS:
1 CHAMBALON CHANDRAN AGED 55 YEARS S/O. KRISHNAN, VENNANCHALIL HOUSE, KODIYERI AMSOM, MOOZHIKKARA DESOM, MOOZHIKKARA P. O., THALASSERY TALUK - 670 103 2 THE MAINTENANCE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZEN AND SUB COLLECTOR, THALASSERY - 670 101 3 THE APPELLATE TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZEN AND SUB COLLECTOR, KANNUR - 670 003. BY ADVS. SMT.BINDUMOL JOSEPH SRI.B.S.SYAMANTHAK
OTHER PRESENT: SMT.AMMINIKUTTY-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, ALONG WITH WP(C).5079/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940 WP(C).No. 5079 of 2019 PETITIONER: CHAMBLON CHANDRAN, AGED 58 YEARS S/O.LATE KRISHNAN, VANNACHALIL HOUSE, MOOZHIKKARA POST, KANNUR DISTRICT. BY ADVS. SMT.BINDUMOL JOSEPH SHRI.SRIVIDYA K SRI.B.S.SYAMANTHAK RESPONDENTS: 1 THE MAINTENANCE APPELLATE TRIBUNAL AND DISTRICT COLLECTOR, KANNUR, COLLECTORATE, COLLECTORATE ROAD, KANNUR- 670002. 2 THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR, THALASSERY, OFFICE OF THE SUB COLLECTOR, THALASSERY- 670101. 3 CHAMBALON THALA, AGED 92 YEARS W/O.LATE KRISHNAN, VANNACHALIL HOUSE, MOOZHIKKARA P.O- 670103, KANNUR DISTRICT. SMT.AMMINIKUTTY-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, ALONG WITH WP(C).2125/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
I am disposing of these two writ petitions jointly through this judgment, since both challenge the same order of the Appellate Tribunal, constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act (hereinafter referred to as 'the Act' for short); with W.P. (C)No.2125 of 2019 being filed by the senior citizen and W.P. (C)No.5079 of 2019 by her son.
2. Compendiously stated, a complaint was preferred by
the senior citizen before the Maintenance Tribunal constituted under the Act, alleging that in spite of the fact that a Settlement Deed, document No.1947 of 2012 of the SRO, Chokli, had been executed in favour of her son - the petitioner in W.P.(C)No.5079 of 2019, with a condition that he must take care of her basic needs and amenities, he has refused to do so and therefore, that the said document is liable to be set aside under Section 23 of the Act.
3. I notice from the pleadings on record that the Maintenance Tribunal, however, did not consider this prayer at
all but directed the son of the senior citizen to protect her and to give her residence in his house till her life time with a further direction that the house in question will not be sold by him as long as the senior citizen is alive. This order was challenged by the senior citizen before the Appellate Tribunal, which issued the impugned order, wherein again, the prayer under Section 23 was not considered, but the son of the senior citizen was directed to pay her Rs.3,000/- per month as maintenance from the date of filing of the appeal by her namely, from December, 2017. This order has been challenged by the senior citizen as also by her son in these two writ petitions.
4. I have heard Sri.Cibi Thomas, the learned counsel
appearing for the petitioner in W.P.(C)No.2125 of 2019; Smt.Bindhumol Joseph, the learned counsel appearing for the petitioner in W.P.(C)No.5079 of 2019 and Smt.K.Amminikutty, the learned Senior Government Pleader appearing on behalf of the official respondents.
5. As I have indicated above, the prayer of the senior citizen before the Maintenance Tribunal was for relief under
Section 23 of the Maintenance Act. However, on a reading of the orders of the Maintenance Tribunal and the Appellate Tribunal, it becomes indubitable that this prayer of hers was not considered in its proper prospective. Both the Tribunals, appear to be, have been more concerned about the protection of the senior citizen rather than about her prayer to have the document set aside; and consequently, the Maintenance Tribunal directed the son to maintain, protect and offer
residence to the senior citizen; which order was thereafter, modified by the Appellate Tribunal with an additional direction that he pay her Rs.3,000/- per month.
6. Even though, being in application for the concern
shown by the Tribunals for the protection and well being of the senior citizen, I am certain that the course adopted by the Tribunals cannot obtain the full favour of this Court, because, the specific contentions of the senior citizen, under Section 23 of the Act, has been lost sight of.
7. That said, the order of the Appellate Tribunal in directing the petitioner in W.P.(C)No.5079 of 2019 to pay Rs.3,000/- per month to the senior citizen cannot be faulted because, it has been found that the senior citizen has no income of her own and that she has not been offered any assistance by any other children.
8. In the afore circumstances, I am certainly of the view
that the Maintenance Tribunal must reconsider the senior citizen's claim under Section 23 of the Act and it must also consider whether any other order, including for enhanced maintenance, is required to be issued in her favour against the petitioner in W.P.(C)No.5079 of 2019. For this purpose, I remit this matter to the Maintenance Tribunal, which shall, after affording all opportunity to the parties, including for filing
additional pleadings, producing additional documents or making additional contentions, dispose of the complaint of the senior citizen afresh, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this
judgment.
9. To pave way for this exercise, I set aside the orders
of the Maintenance Tribunal and the Appellate Tribunal impugned in these cases, but direct the petitioner in W.P. (C)No.5079 of 2019 to deposit an amount of Rs.15,000/- before
the Maintenance Tribunal towards the interim maintenance for the senior citizen, within a period of one month from the date of receipt of a copy of this judgment. If this money is so deposited, the same shall be disbursed to the senior citizen forthwith by the Maintenance Tribunal and I make it clear that whatever be the final order to be issued by the said Tribunal, consequent to the directions of this Court herein, this amount will not be recovered from her or refunded to the petitioner in W.P.(C)No.5079 of 2019 and I record the consent of his learned counsel in this regard.
10. I clarify that the Maintenance Tribunal will consider
the quantum of maintenance required to the senior citizen untrammeled by the earlier proceedings, taking note of her present requirements as also the contentions of the petitioner in W.P.(C)No.5079 of 2019 that he does not have sufficient income to pay her monthly maintenance.
Sd/- DEVAN RAMACHANDRAN rp JUDGE APPENDIX OF WP(C) 2125/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE PETITION FILED BY THE PETITIONER IN MC193/2015 DATED 28.10.2015 EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN MC193/2015 EXHIBIT P3 TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 05.10.2017 EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT RESPONDENT'S/S EXHIBITS: EXHIBIT R1 A A TRUE COPY OF THE DEED NO.1947/2012 OF SRO, CHOKLI DATED 24.9.2012. EXHIBIT R1 B A TRUE COPY OF THE DEED NO.1946/2012 OF SRO, CHOKLI DATED 24.9.2012 IN FAVOUR OF SMT.REENA. EXHIBIT R1 C A TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE LIST OF DOCUMENTS FILED BY THE PETITIONER 04.10.2007. APPENDIX OF WP(C) 5079/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE SAID APPLICATION MCC NO.193/2015 DATED 28.10.2015. EXHIBIT P2 A TRUE COPY OF THE COUNTER STATEMENT IN MC NO.193/2015 FILED BY THE PETITIONER. EXHIBIT P3 A TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE LIST OF DOCUMENTS FILED BY THE 3RD RESPONDENT 04.10.2017. EXHIBIT P4 A TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 05.10.2017. EXHIBIT P5 A TRUE COPY OF THE APPEAL PREFERRED BY THE 3RD RESPONDENT DATED 27.11.2017 BEFORE THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER. EXHIBIT P7 A TRUE COPY OF THE ORDER IN APPEAL NO.DCKNR/16677/2017 M-4 DATED 06.11.2018.