IMPORTANT POINTS
Provisions contained in Sec. 5(5) and its proviso and the other provisions mentioned herein above would make it clear that even though the applicant senior citizens may seek to proceed as against one or more of the children concerned, the respondent in the application will be at liberty to insist that the other children or relatives should also be impleaded in the proceedings in order to enable the Tribunal to adjudicate as to whether maintenance should be ordered and if so, who all are the persons, who should share the burden in that regard and as to whether it should be confined to the original respondent or to the additionally impleaded respondents. Since no specific prayer for maintenance has been made in the application in question, this Court need not dwell into further aspects of the matter and liberty could be granted to R-1 and R-2 to institute appropriate application before the Tribunal seeking maintenance, etc. in terms of the provisions contained in the abovesaid Act.

JUDGMENT :

S. Manikumar, J.

Instant writ appeal is filed against judgment dated 13.09.2018 in W.P.(C) No.13781 of 2018. Relevant portion of the said judgment is reproduced hereunder:

“11. In view of the various aspects stated herein above, the impugned order at Ext.P-4 is illegal and ultra vires. Accordingly, the impugned Ext.P-4 order dated 16.2.2018 will stand set aside. It is also ordered that the all actions taken in consequence thereof are also declared as illegal and ultra vires. So in case R-1 and R-2 are still residing in the abovesaid residential building of the petitioners, then R-1 and R-2 are liable to vacate the premises, which they occupy on the strength of Ext.P-4 order.

12. However, it is made clear that R-1 and R-2 will be at liberty to file appropriate application for grant of maintenance after impleading all the children concerned and in case R-1 and R2 have any case that his children are financially incapable of providing them maintenance, then R-1 and R-2 may implead all the grandchildren also as respondents in the said application. It is further made clear that in case R-1 and R-2 do not implead all the parties concerned in such application, then it will be open to the respondents in such proceedings to seek for appropriate directions under Sec. 5(5) proviso for impleadment of the other children/ grandchildren concerned.

With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.”

2. Short facts leading to the appeal are that, writ petitioners/ respondents 1 and 2 herein are husband and wife respectively. Respondent No.2 is the daughter of the 3rd respondent and granddaughter of appellant No.1. Appellants are spouses and they have three children, who are respondent Nos.3, 4 and 6. Respondent No.5 is the husband of respondent No.4 and respondent No.7 is the husband of respondent No.6.

3. Appellant No.1 executed a Sale Deed No.896/2004 dated 07.05.2004 (Ext-P2) conveying landed property, including a residential building, in favour of his daughter, respondent No.4. Later, the 4th respondent conveyed the property in favour of respondent No.3 as per Settlement deed No.1189/11 of SRO, Kadakkavoor. Thereafter, the 3rd respondent executed Ext.P1 settlement deed dated 18.08.2017 in favour of the writ petitioners.

4. Alleging that respondent No.3 and her son-in-law have neglected to take care of his necessities, appellant No.1 had filed an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the Maintenance Tribunal praying to set aside the above deeds. Even though the prayer for cancellation of the transfer deeds has not been granted, the Tribunal on 16.02.2018 issued directions to respondent Nos.1 and 3 herein to permit the appellants to stay in the residential house concerned and that all the children of the appellants should take care of them. Challenging the said order, instant writ petition has been filed. Writ court by the impugned judgment, disposed of the writ petition, as extracted above.

5. Being aggrieved, the instant appeal is preferred on the following grounds:

A) The order impugned in the writ petition is passed without granting time to file counter and without hearing the appellants.

(B) Writ petitioners used legal machinery to evict senior citizens with fraudulent attitude as they, with the connivance of 3rd respondent, executed a settlement deed with intention of evicting the appellants during the pendency of the petition before Maintenance Tribunal.

(C) Writ court ought to have found that Exhibit-P1 settlement deed is void ab initio as the same is created with intention to evict the appellants and the same is created during the pendency of the petition before Maintenance Tribunal with regard to the same property.

(D) Writ court ought to have found that the disputed property is purchased by appellants in 1976 and the sale deed is executed in favour of their younger daughter i.e. respondent No.4 with the promise that