Jose vs The Revenue Divisional Officer

Gopinath P., J

This writ petition has been filed challenging Ext.P6 order of the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’), through which Ext.P2 settlement deed in favour of the petitioner has been set aside in exercise of the jurisdiction vested in the Tribunal under Section 23(1) of the aforesaid Act.

The learned counsel appearing for the petitioner would submit that the issue raised in the writ petition is squarely covered in favour of the petitioner by the Full Bench judgment of this Court in Subhashini v. District Collector, Kozhikode and Others; 2020 (5) KHC 195. It is submitted that the only right reserved in favour of the petitioner before the Tribunal (late Rosamma) was a right to reside in the property, which is clearly a reservation of life interest. It is submitted that the Full Bench has clearly observed that reservation of life interest is not a condition that could enable the filing of an application under Section 23 of the Act.

The learned counsel appearing for the 4th respondent (sister of the petitioner) and the daughter of the deceased Rosamma would submit that Ext.P2 document contains sufficient stipulations that would give jurisdiction to the Tribunal to exercise its power under Section 23(1) of the Act. It is submitted that the property in question is a small extent of property having an extent of 5 cents and the stipulation reserving life interest was sufficient in the facts and circumstances of this case for the Tribunal to have exercised jurisdiction under Section 23(1) of the Act.

Having heard the learned counsel for the petitioner and the learned counsel appearing for the 4th respondent, I am of the opinion that this writ petition can be disposed of setting aside Ext.P6 order and directing reconsideration of the matter by the Maintenance Tribunal also taking note of the Full Bench judgment of this Court in Subhashini (supra). Prima facie it appears that the contention taken by the learned counsel for the petitioner that reservation of life interest does not authorize the initiation of action under Section 23(1) of the Act, is to be accepted in the light of the law laid down by the Full Bench in Subhashini (supra). Since Ext.P6 order has been issued much prior to the determination of the law by the Full Bench of this Court in Subhashini (supra), I am inclined to set aside Ext.P6 order and direct reconsideration of the application originally filed by late Rosamma, after affording an opportunity of hearing to the petitioner and to the 4th respondent. Though notice of this writ petition was served on the 3rd respondent, there is no appearance for the 3rd respondent. Service is not complete on respondent No.5. However, in the light of execution of Ext.R4(a) document executed by late Rosamma after the execution of Ext.P2 document, it appears that even if Ext.P2 document is set aside, the beneficiary is only the 4th respondent. Accordingly, it is directed that the application filed by late Rosamma before the Maintenance Tribunal shall be reconsidered with notice to the petitioner and to the 4th respondent and taking note of the law laid down by the Full Bench in Subhashini (supra) within a period of four months from the date of receipt of a certified copy of this judgment. Ext.P7 order canceling the mutation in favour of the petitioner on the basis of Ext.P2 will also be reconsidered depending on the decision to be taken by the Maintenance Tribunal, as directed above.