1. The Petitioners are wife and husband.

2. They are challenging Ext.P20 Order dated 18.08.2019 of the Respondent No.1/Maintenance Appellate Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’), cancelling Ext.P1 Settlement Deed dated 13.02.2013 executed by Respondent No.4 in favour of his son, who was the husband of the Petitioner No.1.

3. The Petitioner No.1 was earlier married to the son of Respondent No.4, Sajeev Kumar. Sajeev Kumar died on 18.09.2013. After the death of Sajeev Kumar, the Petitioner No.1 married Petitioner No.2.

4. Before the death of Sajeev Kumar, Respondent No.4 had executed Ext.P1 Settlement Deed in favour of Sajeev Kumar with respect to 64.320 Cents of land and the residential building therein, reserving life interest in favour of the Respondent No.4. The Respondent No.4 filed Ext.P9 Application dated 08.12.2014 before the Respondent No.2/Maintenance Tribunal against the Petitioners to cancel Ext.P1, to evict the Petitioners from the residential building in the said property permitting the Respondent No.4 to reside therein and to set aside any fraudulent Document obtained by the Petitioners from the Respondent No.4. The Respondent No.2 passed Ext.P14 Order dated 16.09.2015 directing the Tahsildar to review the mutation and to take steps to cancel the mutation in favour of the Petitioner No.1; declaring that the Respondent No.4 shall have all rights in the residential building till his death; and further directing not to remove the income and movables or to effect any conveyance without consent of the Respondent No.4. The Petitioners and the Respondent No.4 filed separate Appeals challenging Ext.P14 Order before the Respondent No.1. The Respondent No.1 passed Ext.P16 Order dated 23.12.2015 refusing to entertain the Appeal filed by the Petitioners on the ground that, as per Section 16(1) of the Act, only the Senior Citizen or Parent alone is entitled to file Appeal and directing the Petitioners to comply with Ext.P14 Order of the Maintenance Tribunal and in case of default, directing the Maintenance Tribunal and Station House Officer, Pathanamthitta, to take strict action. Petitioners filed W.P.(C) No.3377/2016 and Respondent No.4 filed W.P.(C) No.12331/2016 challenging Ext.P16 Order of Respondent No.1 before this Court and said Writ Petitions were disposed of by this Court as per Ext.P18 Common Judgment dated 02.07.2018 confirming Ext.P16 Order to the extent to which it rejects the Appeal filed by the Petitioners and directing the Respondent No.1 to consider the Appeal filed by the Respondent No.4 afresh and to decide whether the prayers made by the Respondent No.4 seeking cancellation of Ext.P1 Settlement Deed, eviction of the Petitioners and cancellation of mutation should be granted or not. Thereafter, the Respondent No.1 passed Ext.P20 Order dated 18.08.2019 setting aside Ext.P1 Settlement Deed, cancelling the mutation in favour of Petitioner No.1; directing the Petitioners to vacate the residential building within one month; directing the Tahsildar (LR) to take steps to maintain the Thandaper of the property in favour of Respondent No.4; and directing the Station House Officer of the Police Station concerned to take appropriate steps to implement the Order on the request of the Respondent No.4.

5. The Petitioners filed this Writ Petition on 03.09.2019 praying to set aside Ext.P20 Order; to declare that the Petitioner No.1 is entitled to enjoy the ownership and possession of Ext.P1 property; and to declare that the Respondent No.1 has exceeded his power and jurisdiction while setting aside Ext.P1 Settlement Deed by invoking the powers under Section 23(1) of the Act.

6. This Court passed an Interim Order on 04.09.2019 directing the Petitioners and Respondent No.4 to maintain the status quo with respect to Ext.P1 property and not to create any further encumbrance or charges over it without further orders from this Court.

7. The Respondent No.4 died on 14.12.2019. The Addl. Respondent Nos.6 to 8 were impleaded as the Legal Heirs of Respondent No.4 as per Order dated 23.01.2025 in I.A. No.1/2020. Since the Respondent No.4 executed Ext.R6(a) Settlement Deed dated 26.08.2019 in favour of his grandson, Sri. Harikrishnan V.A., he was impleaded as Addl. Respondent No.9 as per Order dated 23.01.2025 in I.A. No.1/2024.

8. I heard the learned Senior Counsel for the Petitioners, Sri.S.Sreekumar, instructed by Adv. Sri. Arun B. Varghese and the learned Counsel for the Respondent Nos.6 to 9, Sri. Surin George Ipe.

9. Referring to Section 23(1) of the Act, learned Senior Counsel contended that the Maintenance Tribunal has jurisdiction to entertain an Application for cancellation of document only if there is a condition in the said document that the transferee shall provide basic amenities and basic physical needs of the transferor, and if such transferee refuses or fails to provide such amenities and physical needs. Learned Senior Counsel invited my attention to the recitals in Ext.P1 Settlement Deed to substantiate the point that there is no such condition in Ext.P1 Settlement Deed. What is reserved in favour of the Respondent No.4 is only a life interest in the property. Learned Senior Counsel further pointed out that in Ext.P9 Application, the Respondent No.4 did not have a case that such a condition is there in Ext.P1 and that the transferee refused and failed to provide the amenities and physical needs of the Respondent No.4. Learned Senior Counsel further invited my attention to Ext.P11 Plaint filed by the Respondent No.4 and P17 Plaint filed by the Respondent Nos.4, 6 & 8 to substantiate the point that they had no contention that such a condition is included in Ext.P1 Settlement Deed and the same was violated by the transferee. Learned Senior Counsel invited my attention to Ext.P5 Request dated 25.04.2014 submitted by the Respondent No.4 to the Secretary of NSS Karayogam requesting to give NOC for the marriage of Petitioner No.1 with the Petitioner No.2 and Ext.P4 Marriage Certificate dated 16.07.2014 with respect to the Petitioners in which the Respondent No.4 is the Witness No.3 and contended that the Petitioners and Respondent No.4 had been in good terms and the Application was submitted by the Respondent No.4 before the Respondent No.2 at the instigation of the Respondents Nos.6 to 8. Learned Senior Counsel cited the decision of the Full Bench of this Court in Subhashini v. District Collector, Kozhikode and Others [2020 (5) KHC 195], in which this Court held that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a Senior Citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer, and it is a jurisdictional fact which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry; and that in the case of a Settlement Deed in which a life interest for the purpose of residence/ taking usufructs alone is reserved, such life interest created cannot be interpreted as a condition for cancellation of deed. Learned Senior Counsel cited the decision of the Hon'ble Supreme Court in Sudesh Chhikara v. Ramti Devi [2022 (7) KHC 637] in which it is held that for attracting Sub-Section (1) of Section 23, the two conditions that – (a) the transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and (b) the transferee refuses or fails to provide such amenities and physical needs to the transferor, must be fulfilled; that if both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence; and that such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void. Learned Senior Counsel made available copies of the Judgments in Exts.P11 and P17 Suits to show that Ext.P11 Suit is dismissed as abated and Ext.P17 Suit is dismissed for default. Learned Senior Counsel contended that Ext.R6(a) Settlement Deed is executed by Respondent No.4 immediately after Ext.P20 Order with the intent to defeat the rights of the Petitioner No.1 over the said property. The Respondent No.4 executed Ext.R6(a) Settlement Deed as he got the right on the basis of Ext.P20 Order, setting aside Ext.P1 Settlement Deed. Ext.R6(a) Settlement Deed will not have any validity upon setting aside Ext.P20 Order by this Court. In support of this contention, the learned Senior Counsel cited the Division Bench decision of this Court in Chandrasekharan C.K. v. State of Kerala and Others [2018 (3) KHC 339] in which this Court held that when an assessment order is set aside, the basis for the sale conducted pursuant to the assessment order stands extirpated and the sale becomes untenable in law and that when the basis of the action itself was eroded, State could not have held on to the property contending that there is no legal provision for reconveyance of bought-in land. Since the two conditions mentioned in Section 23(1) of the Act are not attracted in the present case, the Maintenance Tribunal or Appellate Tribunal does not have jurisdiction to cancel Ext.P1 Settlement Deed. Learned Senior Counsel concluded his arguments praying to set aside the Ext.P20 Order passed by Respondent No.1.

10. On the other hand, the learned Counsel for the Respondents Nos.6 to 9 contended that the Petitioners cannot maintain the Writ Petition to set aside Ext.P20 Order when the Respondent No.4 had transferred the property by Ext.R6(a) Settlement Deed in favour of Respondent No.9, after passing Ext.P20 Order and before the filing of the Writ Petition. The Writ Petition stood abated on the death of Respondent No.4, as the Respondent No.4 was exercising his statutory right protected under Section 23(1) of the Act, which could not be inherited by his Legal Heirs. At any rate, the remedy of the Petitioners is to file a Suit for declaration of their title over the subject property. Learned Counsel relied on the Single Bench decision of this Court in Antony Scaria and Others v. The District Collector, Kottayam and Others [2020:KER:6560] in which this Court held that the Writ Petition filed by the Senior Citizen stood abated since in the Writ Petition the Senior Citizen was espousing her right under the Act, which right was one that accrued to her in her personal capacity as a Senior Citizen and not a heritable right under the common law. This Court found that if there is a dispute regarding the rights of the parties over the items of property that were in the ownership of the deceased Senior Citizen, then it is for the legal heirs to agitate their respective rights in respect of the property before the Civil Court of competent jurisdiction. Learned Counsel cited the Division Bench decision in Antony Scaria and Others v. District Collector, Kottayam [2020 (3) KHC 303] confirming the aforesaid Single Bench decision. Learned Counsel cited the decision of the High Court of Karnataka in Sri. Venkataiah v. The State of Karnataka [NC: 2026:KHC:6283] in which it is held that the proceeding under the Act is not for adjudication of title in the conventional civil law sense. Learned Counsel concluded his arguments, praying to dismiss the Writ Petition.

11. I have considered the rival contentions with reference to the materials on record, provisions of law and the precedents cited by the Counsel on either side.

12. The contention of the learned Senior Counsel for the Petitioners is that the Respondent No.2 does not have jurisdiction to invoke Section 23(1) of the Act. On going through Ext.P1 Settlement Deed, it is clear that there is no condition in it that the transferee shall provide the basic amenities and basic physical needs to the transferor. In Ext.P9 Application filed by the Respondent No.4, the Respondent No.4 did not have a contention that Ext.P1 Settlement Deed contains a condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and that the transferee refused or failed to provide such amenities and physical needs to the Respondent No.4. The contention of the learned Counsel for the contesting Respondents is that since the Application is made in a prescribed format, there was no occasion for the Applicant to state the entire facts required for maintaining the Application. I am unable to accept the said contention. There is a specific column for stating the reason for making the Application and the Respondent No.4/Applicant has stated that he has no residence to reside in, as the Petitioners illegally obtained his property and residence. As rightly pointed out by the learned Senior Counsel for the Petitioners in Ext.P11 Plaint filed by the Respondent No.4 and Ext.P17 Plaint filed by the Respondent Nos.4, 6 & 8, there is no allegation that the Ext.P1 Settlement Deed contains a condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and that the transferee refused or failed to provide such amenities and physical needs to the Respondent No.4. In view of the twin conditions in Section 23(1) of the Act and also in view of the decision of the Hon'ble Supreme Court in Sudesh Chhikara (supra), it is to be held that the Respondent No.2 did not have jurisdiction to entertain Ext.P9 Application as the twin conditions in Section 23(1) of the Act are not satisfied.

13. It is true that in Ext.P1, a life interest is reserved in favour of the Respondent No.4. In Subhashini (supra), the Full Bench of this Court held that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a Senior Citizen has to be expressly stated in the document of transfer. It is further held that a mere reservation of life interest or right to collect usufructs from the property has to be enforced against the beneficiary of the document or a subsequent transferee and Section 23(1) does not come to the aid of a transferor seeking that remedy; that neither can Section 23(1) be considered to have interfered with the valuable rights of the transferee nor be taken as imposing any restriction on his/her right when there is a settlement made with reservation of life interest for residence or taking usufructs from the property; and that there can be no implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest. Hence, I conclude that the Respondent No.2 did not have any jurisdiction to entertain Ext.P9 Application under Section 23(1) of the Act with respect to Ext.P1 Settlement Deed.

14. The learned Counsel for the contesting Respondents contended that the Writ Petition is not maintainable raising two grounds.

15. The first ground is that the Respondent No.4 had transferred the subject property as per Ext.R6(a) Settlement Deed dated 26.08.2019 executed in favour of Respondent No.9 even before the filing of the Writ Petition on 03.09.2019 and hence the remedy of the Petitioners is to institute a suit for declaration of title. In Ext.P14 Order of the Maintenance Tribunal, Ext.P1 Settlement Deed was not set aside. Ext.P1 Settlement Deed was set aside by the Maintenance Appellate Tribunal as per Ext.P20 Order dated 18.08.2019 in an Appeal filed by the Respondent No.4. The Respondent No.4 derived the right over the subject property only on the basis of Ext.P20 Order when Ext.P1 Settlement Deed executed by him was set aside as per the said Order. It is this right which was restored to the Respondent No.4 on setting aside Ext.P1 Settlement Deed, which was transferred by him as per Ext.R6(a). If Ext.P20 Order is found to be unsustainable and is set aside, the cancellation of Ext.P1 Settlement Deed as per Ext.P20 will go. In such case, all the documents executed by the Respondent No.4 on the strength of Ext.P20 Order will also automatically go. Merely because the Respondent No.4 had executed a Transfer Deed before the filing of the Writ Petition, it could not be said that Ext.P20 Order could not be challenged in the Writ Petition. This Court can very well consider the legality of Ext.P20 Order within the limited scope of jurisdiction under Article 226 of the Constitution of India. Hence, I find that this ground raised by the Counsel for the contesting respondent is unsustainable.

16. The second ground is raised on the strength of the Single Bench Judgment of this Court in Antony Scaria (supra) which is confirmed by the Division Bench of this Court in Antony Scaria (supra). The contention is that the Writ Petition is abated on the death of the Respondent No.4, as he had only enforced his statutory right and the remedy of the Petitioners is to file a civil suit. In Antony Scaria (supra), the Writ Petition was filed by the legal heirs of one Mariyamma John, who filed an Application before the Maintenance Tribunal. The Maintenance Tribunal dismissed the Application and the Appellate Tribunal also dismissed the Appeal filed by Mariamma John confirming the Order of the Maintenance Tribunal. Thereafter, the legal heirs of Mariamma John filed the Writ Petition. This Court found that Mariamma John was espousing her rights under the Act, which right was one that accrued to her in her personal capacity as a Senior Citizen and not a heritable right under common law.

17. The said decision in Antony Scaria (supra) is clearly distinguishable on the facts of the present case. In the case on hand, the Writ Petition is filed by the transferee of the Settlement Deed executed by the Senior Citizen and not by the Senior Citizen. When the property rights of any person are affected by passing of any Order by a statutory authority, such person is entitled to challenge the same in accordance with law and there is no need to relegate him to civil remedies. If the impugned Orders are not in accordance with the provisions of the Act and against the transferee, the transferee is perfectly justified in challenging the same. If such right to challenge is denied, it will result in violation of the constitutional right to property guaranteed under Article 300A of the Constitution of India.

18. On the death of Respondent No.4, the Additional Respondent Nos.6 to 8 were impleaded as his legal heirs. Since the property was transferred in favour of Respondent No.9, the Respondent No.9 was also impleaded in the Writ Petition. It is clear from the recitals in Ext.R6(a) that the Respondent No.9 is the grandson of Respondent No.4. Ext.P20 Order is dated 18.08.2019 and Ext.R6(a) Settlement Deed is executed on 26.08.2019. It is clear that the Respondent No.4 executed Ext.R6(a) Settlement Deed in a hasty manner in favour of his grandson only to defeat the rights of the Petitioner No.1. As a matter of fact, even if there was no mala fide intention either on the part of the Respondent No.4 or Respondent No.9, the said document will not have any bearing on the issue of the legality of Ext.P20 Order. In a Writ Petition filed by the Petitioner No.1, the Respondent No.9 is a necessary party, as on the date of filing of the Writ Petition, the property stood in the name of Respondent No.9. Hence, the Petitioners are fully justified in impleading the Respondent No.9 in the Writ Petition in order to provide him an opportunity to contest the Writ Petition, as he will be the person affected if Ext.P20 Order is set aside. Hence, I find that this ground raised by the Counsel for the contesting Respondents is also unsustainable.

19. Even though the learned Counsel for the contesting Respondents cited the decision of the Karnataka High Court in Sri. Venkataiah (supra), I could not find anything in favour of the contesting Respondents in the said decision and hence I am not considering the said decision.

20. In view of the aforesaid discussion and findings, this Writ Petition is allowed, setting aside Exts.P14 & P20 Orders and dismissing Ext.P9 Application filed by the Respondent No.4.