Kerala High Court
Mohammad Shahir vs P.V.Maharoof on 24 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 24TH DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943
WP(C) NO. 34559 OF 2019
PETITIONER/S:
1 MOHAMMAD SHAHIR,
AGED 36 YEARS
S/O MAHROOF, WORKING ABROAD, RESIDING AT NAAZ AL
FALAH, P.O. PERINGADI, NEW MAHE, THALASSERRY, KANNUR,
PIN - 673311, REPRESENTED BY POWER OF ATTORNEY HOLDER
SHAHIDA MAHAROOF, W/O MAHAROOF, AGED 54 YEARS,
RESIDING AT NAAZ AL FALAH, P.O. PERINGADI, NEW MAHE,
THALASSERRY, KANNUR, PIN - 673311.
2 SHAHIDA MAHAROOF,
AGED 54 YEARS
W/O MAHAROOF, RESIDING AT NAAZ AL FALAH, P.O.
PERINGADI, NEW MAHE, THALASSERRY, KANNUR, PIN -
673311.
BY ADVS.
R.SURENDRAN
KUM.S.MAYUKHA
RESPONDENT/S:
1 P.V.MAHAROOF,
AGED 63 YEARS
S/O MAMMOOTTY, NAS HOUSE, NEAR ALFALA COLLEGE,
PERINGADI P.O., THALASSERY, KANNUR, PIN - 673 312.
2 THE APPELLATE TRIBUNAL AND SUB COLLECTOR,
COLLECTORATE, KANNUR DISTRICT, PIN - 670 002.
3 THE MAINTENANCE TRIBUNAL AND SUB COLLECTOR,
GUNDERT ROAD, THALASSERY, KANNUR DISTRICT, PIN - 670
101.
4 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL
WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
BY ADV SRI.P.SAJU
BY Sr.GP: SRI.BIMAL K NATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 34559 OF 2019 2
JUDGMENT
Order of the appellate authority under the
Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 (for short, 'the Act') is under
challenge in this Writ Petition. As per the order
(Ext.P8), the 1st respondent has been given a
right of residence in the building belonging to
the 1st petitioner which situated at Vadhyar
Peedika, Thalassery.
2. The petitioners are the son and wife
respectively, of the 1st respondent. An extent of
9 cents of property with a residential building at
Peringadi, and another extent of 6 cents with a
residential building at Vadhyar Peedika,
Thalassery were acquired jointly in the names of
the 1st respondent and his wife, the 2nd
petitioner. The property with the building at
Vadhyar Peedika, Thalassery was gifted by the 1st
respondent along with the 2nd petitioner in favour
of their son, the 1st petitioner as per the Gift
Deed No.2080/2014. Subsequently, the 1st
respondent fell apart from the family. He filed
M.C.C.No.169/2018 before the Maintenance Tribunal
under Section 23 of the Act seeking cancellation
of the gift deed. The Tribunal passed Ext.P3 order
rejecting the relief sought.
3. Challenging Ext.P3 order, the 1st
respondent filed Ext.R1(b) appeal before the
Appellate Authority. In the meanwhile the 1st
respondent filed M.C.C.No.25/2019 before the
Maintenance Tribunal (Ext.P5), claiming right of
residence in the property at Peringadi. As per
Ext.P6 order, the petition was dismissed.
4. In the appeal filed against the order in
M.C.C.No.169/2018, after hearing the parties, the
Appellate Tribunal passed Ext.P8 order whereunder,
a right of residence was granted to the 1st
respondent in the house situated at Vadhyar
Peedika, Thalassery. It is aggrieved by the said
order that the petitioners have approached this
Court.
5. Heard learned counsel Sri.R.Surendran on
behalf of the petitioners and Sri.P.Saju, learned
counsel for the 1st respondent and also the Senior
Government Pleader.
6. As revealed from the facts cited supra,
the 1st respondent and the 2nd petitioner
originally owned two items of properties; one at
Peringadi and the other at Vadhyar Peedika,
Thalassery. The property with the building in
Vadhyar Peedika, Thalassery was gifted in favour
of the son by the parties. The 1st respondent
still retains his share over the property and the
building at Peringadi. He has a right of residence
in the said building. When such a right exists,
there is no reason why he should be given a right
of residence in the house at Vadhyar Peedika,
Thalassery which has already been gifted in favour
of the 1st petitioner son.
7. The learned counsel appearing for the
petitioners submits that the petitioners have no
objection in 1st respondent residing in the house
at Peringadi. The learned counsel for the
petitioners further submits that the building at
Vadhyar Peedika is presently in occupation of
tenants as inducted by the 1st respondent while he
was the owner and that the petitioners have no
objection in the 1st respondent residing in the
said house till his life time, provided he is able
to negotiate with the tenant and have them
evicted. However, he shall not induct any third
parties into possession, nor create or attempt to
create any encumbrance over the said building and
property, it is submitted.
8. Though the proceeding is one commenced on
a petition under Section 23 of the Act for
cancellation of the gift deed in favour of the 1 st
petitioner, which provision is apparently not
attracted since the 1st respondent was not a
senior citizen when the gift deed was executed,
still to arrive at a resolution of the disputes
rather than driving the parties to another
litigation, and on the stand adopted by the
petitioners, I am inclined to pass certain
directions.
9. Accordingly, the Writ Petition is disposed
of with the following directions:-
i) It will be open for the 1 st respondent to
reside along with the petitioners in the house
situated at Peringadi.
ii) The peaceful residence of the 1st
respondent, and of the petitioners shall not be
interfered with by the other.
iii) It will be open for the 1 st respondent to
reside in the house at Vadhyar Peedika, Thalassery
during his life time. If the 1st respondent opts
for the said course, then the option of residence
at Peringadi shall not be available.
iv) If the 1st respondent elects the second
option, he shall not induct any third parties in
possession of the building and the property,
commit any acts of waste therein, nor shall he
encumber the same in any manner.
Ext.P8 order will stand modified as above.
Sd/-
SATHISH NINAN
JUDGE
sd
APPENDIX OF WP(C) 34559/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE POWER ATTORNEY EXECUTED
BY FIRST PETITIONER, MOHAMMED SHAHIR IN
THE NAME OF HIS MOTHER, THE SECOND
PETITIONER, ON 24-05-2019.
EXHIBIT P2 TRUE COPY OF THE OWNERSHIP CERTIFICATE
DATED 15-12-2019 ISSUED BY THE NEW MAHE
GRAMA PANCHAYAT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27-12-2018
ISSUED BY THE MAINTENANCE TRIBUNAL,
THALASSERRY IN M.C.C NO. 169/2018.
EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX RECEIPT
DATED 17-03-2017 ISSUED BY THE THALASSERY
MUNICIPALITY I RESPECT OF THE HOUSE
BEARING NO. 47/1260 (OLD NO. 44/1389) TO
THE FIRST PETITIONER.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 27-02-
2019 FILED BY THE FIRST RESPONDENT BEFORE
THE THIRD RESPONDENT MAINTENANCE TRIBUNAL,
THALASSERY.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 14-03-2019
ISSUED BY THE 3RD RESPONDENT MAINTENANCE
TRIBUNAL, THALASSERY.
EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 26-04-2019
ISSUED BY THE SECOND RESPONDENT, REQUIRING
THE PETITIONER TO APPEAR BEFORE THE SECOND
RESPONDENT ON 20.05.2019.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 3-7-2019 OF
APPEAL NO.DCKNR/3357/2019-M4, ISSUED BY
THE SECOND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 12-11-2019
ISSUED BY THE SECOND RESPONDENT TO THE
PETITIONERS
RESPONDENT EXHIBITS
EXHIBIT R1 TRUE COPY OF COMPLAINT BEFORE THE SUB
DIVISIONAL MAGISTRATE, THALASSERY DATED
17/10/2018.
EXHIBIT R1 TRUE COPY OF THE APPEAL FILED BEFORE THE
APPELLATE TRIBUNAL DATED 26/02/2019.
EXHIBIT R1 TRUE COPY OF THE ORDER IN APPEAL
NO.DCKNR/3357/2019-M4 DATED 03/07/2019.
EXHIBIT R1 TRUE COPY OF THE PETITION DATED 10/10/2019
BEFORE THE APPELLATE TRIBUNAL TO EXECUTE
EXHIBIT R1(C).
Exhibit R1(E) TRUE COPY OF THE CERTIFICATE OF
ENCUMBRANCE DATED 17/12/2020 ISSUED BY THE
DEPARTMENT OF REGISTRATION, KERALA
Exhibit R1(F) TRUE COPY OF THE COMPLAINT LODGED AGAINST
1ST RESPONDENT BY 2ND PETITIONER ALONG
WITH REPLY UNDER RIGHT TO INFORMATION ACT
DATED 14/01/2020
