Madras High Court
Anbalagan vs The Sub Divisional Executive … on 26 April, 2012
DATED : 26.04.2012
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.12145 of 2012
M.P.No.1 of 2012
Anbalagan .. Petitioner
1.The Sub Divisional Executive Magistrate
and Revenue Divisional Officer,
2.The Inspector of Police,
Mathur Police Station,
Mathur, Pochampalli Taluk,
Krishnagiri District-635 203.
3.M.Jagadeesan .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the order of the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Krishnagiri, dated 23.5.2011 in case No.1/2011 and quash the same.
For Petitioner : Mr.V.Nicholas
– – – –
This writ petition raises the question of true interpretation of the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short MAWOPASC Act) and the rules framed thereunder. In this writ petition, the petitioner challenges the order passed by the Sub Divisional Executive Magistrate-cum-Revenue Divisional Officer, Krishnagiri, dated 23.5.2011. Perhaps this is the first case received by his office under this Act which is in force for three years. The petitioner is none other than the son of the third respondent herein.
2.By the impugned order, the first respondent held that the petitioner cannot claim any right over the properties enjoyed by the third respondent father including the land in S.No.110 to an extent of 2.24 acres, S.No.111 to an extent of 1.76 acres and in S.No.226/A to an extent of 2.66 acres (altogether 6.66 acres), as well as two tiled houses situated in Nagampatti village which are in possession and enjoyment of the third respondent. The petitioner was also directed to vacate the house forthwith with further direction not to enter into the land in possession and enjoyment of the third respondent father. It was also declared that the third respondent is entitled to enjoy the property and maintain the same till his life time.
3.The case of the petitioner was that his father, i.e., the third respondent has two wives. The petitioner was the son of the first wife Sellammal. Besides him, there are also three other daughters through first wife, i.e., Dhanalakshmi, Kanmani and Poongothai. At present, all were married and settled elsewhere along with their husbands. During the life time of his mother, the third respondent had married one Alankarammal and has son by name Chakravarthy and one daughter by name Vijayalakshmi. The third respondent father is now living with the petitioner’s aunt, i.e., the second wife and her son Chakravarthy.
4.It is claimed that the third respondent has filed a suit against the petitioner, his mother and sisters for a declaration and permanent injunction from interfering with the possession of ‘A’ schedule properties in O.S.No.8 of 2007 on the file of the District Munsif, Pochampalli. Subsequently, the suit was transferred to the Sub Court, Krishnagiri and was renumbered as O.S.No.172 of 2010. In the plaint, the third respondent claimed that there was partition of properties on 2.5.2002 in the family. The ‘B’ schedule properties were purchased by the petitioner’s grand father Munusamy Gounder. They were divided into two shares, of which one share was allotted to the petitioner and the other share was allotted to the second wife’s son Chakravarthy. The third respondent claimed that he alone is enjoying the ‘A’ schedule properties. The suit was contested by the petitioner by contending that the marriage with one Alankarammal was void and no share is available to her son Chakravarthy. The ‘A’ schedule properties themselves were purchased from and out of the funds derived from the ‘B’ schedule properties. The petitioner’s sisters also filed a suit against the petitioner and his father in O.S.No.38 of 2007 on the file of the Principal District Judge, Krishnagiri, which was subsequently transferred to the Principal Sub Judge, Krishnagiri and was renumbered as O.S.No.158 of 2010. It is claimed that both suits are pending.
5.It is also the claim of the petitioner that in Nagampatti village, there are two houses. In one house, he is living with his family and mother Sellammal who is now 68 years. In the other house, his father is living with his second wife and her son Chakravarthy. The third respondent got rental income from the shops and a portion of the house. It was at this stage, without any rhyme or reason, the third respondent has filed an application under Section 5(1) and 5(2) of the MAWOPASC Act claiming relief under the Act including an action against the petitioner and to retrieve the properties. In the complaint, he had claimed that he did duties of a father by getting all the daughters married with appropriate gifts. He had also purchased properties out of the help rendered by the second wife’s father and also by doing trade in Palm Jaggery. He also made certain family arrangements for grant of properties to children. It was agreed that he can live in any one of the wife’s house who is willing to maintain him till his life time. He is also in possession of a Coconut grove, from which he gets lease amount of Rs.85000/- per year. One day, when he was watering the coconut trees, the petitioner came there and slapped him on his face. He got swooned and fell down. The persons who were working near the land came running and saved him. The petitioner also threatened to kill him. The third respondent also had obtained an injunction from the District Munsif Court. Because of this, the petitioner had prevented him from going to the coconut grove. Hence he could not attend to the coconut trees and they are deteriorating. The persons who took the coconut grove on a lease were also demanding for return of the lease amount. Because of the attitude of the petitioner, the third respondent could not do any agriculture work and is without any income. He is also suffering due to diabetic. The petitioner being his son along with his brother-in-law, i.e., his son-in-law Venkatesan is attempting to kill him with a view to cover the properties.
6.Based upon his complaint, the first respondent had directed both parties to appear before him on 03.12.2010. The petitioner sent a reply dated 03.12.2010 and informed him about the pendency of two suits. The first respondent on exercising power under the provisions of the Act, found that it was the petitioner who tried to mislead the authorities by not accepting the properties given to him during the family partition. He also held that Chakravarthy being the second wife’s son of the third respondent is also entitled a share in the properties. The properties claimed by the third respondent is entirely his own, over which the petitioner cannot make any claim. Therefore, the first respondent had directed the petitioner not to interfere with the peaceful enjoyment of the properties by the third respondent till his life time, failing which he had also imposed penalty of three months imprisonment including a fine of Rs.10000/- vide the impugned order dated 23.05.2011.
7.It was contended by the petitioner that the first respondent has no power to pass any order under Section 5 of the MAWOPASC Act directing him to vacate the house in which he was living. The findings that the third respondent has no other house to reside is also contrary to records. Under Section 5 of the MAWOPASC Act, he can provide maintenance to parents who is unable to maintain himself from his own earning. Whereas the third respondent is living in his own house with the second wife and also is getting rental income of over Rs.10,000/-. The Sub Divisional Executive Magistrate can only order maintenance and there is no power to direct to vacate the house where the petitioner is residing with his own mother.
8.This court is not inclined to accept the stand of the petitioner. The complaint given by the third respondent who is none other than his own father is very serious. Further, it was stated that his son had not only physically attacked him but also intended to kill him with a view to cover his properties. Since the petitioner has questioned the jurisdiction of the authority under the Act, it is necessary to extract the provisions from the MAWOPASC Act.
9.Section 2(b) defines the term maintenance which reads as follows:
(b) maintenance includes provision for food, clothing, residence and medical attendance and treatment;
10.The term property is defined under Section 2(f) which reads as follows:
(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;
11. Section 2(j) defines Tribunal. The Tribunal means the Maintenance Tribunal constituted under section 7. Section 3 of the MAWOPASC Act is having a non obstante clause to over ride any other enactment or any instrument. Section 4 provides for maintenance of parents and senior citizens and it reads as follows: 4. Maintenance of parents and senior citizens : (1)A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of – (i)parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.
(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. (4)Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such senior citizen or he would inherit the property of such senior citizen: Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property. (emphasis added)
12. Under Section 5, an aggrieved person can make an application to the Tribunal. Under Section 7, the Tribunal has been constituted and it reads as follows:
7. Constitution of Maintenance Tribunal : (1)The State Government shall within a period of six months from the date of the commencement of this Act, by notification in the Official Gazette, constitute for each Subdivision one or more Tribunals as may be specified in the notification for the purpose of adjudicating and deciding upon the order for maintenance under section 5. (2)The Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State.
(3) Where two or more Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them.
13. Under Section 9, the tribunal can order for maintenance of a senior citizen which the tribunal may deem fit. Section 16 provides for an appeal to the appellate tribunal in case of any person is aggrieved by the order. Pursuant to the enactment, the State Government had framed rules known as the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009. The same was gazetted on 31.12.2009. The rules came into force in the State on 31.12.2009. The power of the Tribunal is set out under Rule 14. The form of appeal is set out under Rule 16.
14. By a notification dated 31.12.2009 published in the Tamil Nadu Gazette Extraordinary, the Tribunal is notified as an officer in respect of each sub division and it is presided over by the Revenue Divisional Officer of the concerned Sub Division. Similarly, the appellate tribunal has also been notified and it is notified as the District Collector of the concerned District. It is necessary to extract these notifications which are as follows: Notification on the Tribunal :
In exercise of powers conferred under sub-section (1) of Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Central Act No.56 of 2007), the Governor of Tamil Nadu, hereby constitutes a Tribunal in each Sub-division for the purpose of adjudicating and deciding upon the order for maintenance under Section 5 of the said Act. The above Tribunal shall be presided over by the Revenue Divisional Officer of the concerned Sub-division. [No.II(2)/SWNMP/725(b-1)/2009]
Notification on the Appellate Tribunal :
In exercise of powers conferred under sub-section (1) of Section 15 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Central Act No.56 of 2007), the Governor of Tamil Nadu, hereby constitutes one Appellate Tribunal for each district to hear the appeal against the order of the Tribunal. The above Appellate Tribunal shall be presided over by the District Collector of the concerned district. [No.II(2)/SWNMP/725(b-2)/2009]
15. In the light of these facts, it is not clear as to why the petitioner never availed the remedy of an appeal which has been statutorily provided. On this ground, the writ petition is liable to be dismissed. Even otherwise, in the present case, suits are said to be pending in the subordinate court and they have not become final. The findings of the Tribunal is that the petitioner had suppressed the information regarding the properties given to him in the family partition and that the threat made to his own father, i.e., the third respondent was not sufficiently disproved. The prima facie finding of the tribunal was that the property in question belonged to the third respondent. Because of the petitioner’s interference, he could not get the real fruits of the properties. At present, the third respondent is unable to maintain himself. Therefore, the tribunal was correct in ordering restoration of properties of the third respondent.
16. The term maintenance cannot be understood as only maintenance in terms of Section 125 Cr.P.C. The Act deliberately defines maintenance as the one include even the right of residence as found under Section 2(b) of the Act. In the present case, the petitioner cannot contend that his father is having properties and having sufficient means, especially when the allegation was that he could not enjoy his properties because of the petitioner’s interference. The authority in order to maintain balance had directed that the third respondent is entitled to restore his properties and found that the petitioner has not established that he is the sole owner of the property which he has been asked to vacate. The petitioner will have to be ashamed of himself for ill-treating his father in such a fashion. Perhaps only with a view to prevent such occurrences of senior citizens like the third respondent being ill-treated that too at the hands of their own sons, a summary procedure has been contemplated in the Act.
17. This court is not inclined to interfere with the well considered order of the first respondent. In this context, it is necessary to refer to a judgment of the Delhi High Court in Lotika Sarkar Vs. Preeti Dhoundial and others in C.S.(OS)No.1983 of 2009, dated 26.11.2009, wherein a house property was directed to be handed over to the real owner. In that process, the Delhi High Court also found that the property which was illegally transferred from a senior citizen was not valid. The findings rendered by the Delhi High Court in paragraphs 11 and 14 reads as follows: 11….Thus, it seems to me that though the gift deed was executed by Mrs.Lotika Sarkar but she had executed the gift deed without understanding the complete nature of document and the result of the document.
14.In view of this, the suit is decreed to the extent that the gift deed dated 28th June, 2007 executed by Mrs.Lotika Sarkar in favour of defendant No.1 in respect of house No.L-1/10, Hauz Khas Enclave, New Delhi is hereby declared null and void and cancelled with consent of the defendants. The property No.L-1/10, Hauz Khas Enclave, New Delhi henceforth shall belong absolutely to Mrs.Lotika Sarkar and she shall be the absolute owner of the property. The possession of the property which is presently lying sealed under lock and key of police shall be handed over to Mrs.Lotika Sarkar forthwith. The other reliefs in the suit are not pressed by the plaintiff.
18.In the light of the same, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petition stands closed.
1.The Sub Divisional Executive Magistrate
and Revenue Divisional Officer,
2.The Inspector of Police,
Mathur Police Station,
Mathur, Pochampalli Taluk,
Krishnagiri District 635 203