Bombay High Court: G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,
This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.
The plight of a benighted widowed mother, a senior citizen, to gain a roof over her head in a tenement owned by her and the hard struggle faced by her from one of her sons.
By the present petition, an order passed by the Parents and Senior Citizens Subsistence Tribunal was challenged by the petitioner, who was the son of respondent 2 (mother).
The mother had approached the tribunal as she was dis-housed from her only abode being a small tenement.
The original tenement was possessed by the petitioner’s father and respondent 2’s husband. The building in which such tenement existed was taken up for redevelopment and on completion of the same, petitioner’s father would have become entitled to the house. However, he expired, and the petitioner’s mother’s name permitted for allotment of the redeveloped tenement.
At an old age, the said tenement was the only roof over the mother’s head.
It was noted that the petitioner on the exclusion of other siblings started asserting a right of residence on the tenement belonging to the mother and in such pursuit, he along with his family members foisted himself on the mother.
Petitioner by taking advantage of her old age mother, her lack of education entered into a rent agreement with her. As per the said agreement, he agreed to pay the mother a monthly rent of Rs 5,000, which he never paid.
The glaring fact was that for the petitioner rent agreement was only a piece of paper and was never to be acted upon, either by making payment of rent as agreed or vacating the tenement. He also conveniently chooses to forget that he had recognized the mother to be the absolute owner of the tenement.
What did the mother complain of?
The mother approached several authorities stating that the petitioner did not make payment of the rent which was also a source of her livelihood and had been ousted from her residence as also she was not paid by her son.
Tribunal had directed the petitioner to vacate the premises by following directions issued under Sections 4(2) and 4(3) read with 23 of the Senior Citizens Act.
Analysis and Discussion
Rent agreement with mother
High Court noted that the petitioner did not spare any effort to retain the possession of the tenement and for that matter, he also tried to enter into such rental agreement, with the mother, however, in doing so he completely overlooked that such a rent agreement was a temporary relief to him, inasmuch as, in the rent agreement in the recital clause, he accepted the mother to be the exclusive owner of the tenement oblivious of the consequence of such recital. The petitioner cannot set up a defence which is contrary to such document, to which he is himself a party.
In Court’s opinion, the tribunal had rightly recognized the applicability of Sections 4,5 read with 23 of the Act.
There was nothing on record to show that the petitioner had any independent right in respect of the tenement in question. Even in the rent agreement stated above, the petitioner categorically admitted that the mother was the owner of the said tenement.
“…quite astonishing that the petitioner invented such a novel method namely to enter into a rent agreement with the mother and only to be breached, as it is seen that only when the mother made a police complaint, the petitioner paid the amounts to the mother.”
The High Court along with a catena of decisions also referred to the decision of Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246, wherein the Court observed that,
“31. In my view, Section 4 cannot be read in isolation but has to be read with Section 23 and also Sections 2(b), 2(d) and 2(f) of the said Act. The respondent no.1 mother cannot be restrained from recovering exclusive possession from her son or his other family members for the purpose of generating income from the said premises or to lead a normal life. In my view, if the respondent no.1 mother who is 73 years old and is a senior citizen, in this situation, is asked to file a civil suit for recovery of possession of the property from her son and his other family members who are not maintaining her but are creating nuisance and causing physical hurt to her, the whole purpose and objects of the said Act would be frustrated.”
The Bench found that the rent agreement was with the mother was only an attempt and a struggle on the mother’s part to receive the benefits from the tenement, so as to avail such small money from the petitioner for her survival. Though petitioner defaulted in making such payment.
Concluding the matter, Court held that son had no legal right in the tenement so as to sustain a claim that he can dis-house the mother and exclusively enjoy the tenement.
As the mother has substantially suffered for a long period, it is imminently in the interest of justice that the petitioner expeditiously vacates the premises.
Therefore, the petition was wholly misconceived and was accordingly dismissed. [Suryakant Kisan Pawar v. Kusum Kisan Pawar, 2022 SCC OnLine Bom 120, decided on 18-1-2022]
Advocates before the Court:
Mr. Akshay Petkar with Mr. Aniket Mali, for Petitioner.
Mr. Himanshu Takke, AGP for Respondent No.1.
Mr. P. R. Yadav with Mr. Saumitra Salunke for Respondent No.2.
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