bombay high court

Bombay High Court: In a petition challenging order dated 12-04-2022 passed by the Maintenance Tribunal under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘Senior Citizens Act’), Sandeep V. Marne, J. upheld the decision of Tribunal declaring the two gift deeds in favour of younger son as null and void and granting access to the mother to her bungalow.

Legal Track

Facts reveal that the mother filed an application under Sections 4, 5 and 23 of Senior Citizens Act against her younger son and daughter-in-law broadly seeking revocation of two gift deeds, their eviction from properties sought to be gifted, mother’s access to the bungalow and grant of monthly maintenance and medical expenses. In the impugned order, the Tribunal rejected prayer for maintenance, eviction, medical expenditure, but declared the two gift deeds as null and void and also granted access to the mother in her bungalow. The Tribunal further restrained the petitioners from causing mental and physical harassment to their mother, and that any failure to comply with the Tribunal’s directions would entail registration of complaints with the police. The same was challenged in the instant petition. It was alleged that the petitioners were not aggrieved by allowing mother’s access to the bungalow but cancellation of two gift deeds and incidental orders prohibiting them from causing mental and physical harassment and threats of registration of police complaint.

Factual Matrix

For the sake of background, there was an elder couple witnessing disputes between the father and elder son which led to execution of a Family Settlement Deed separating the elder son from family with a one-time settlement. The father was diagnosed with liver cancer and executed a Will on 18-11-2016 appointing younger son as the sole executor and beneficiary of his estate, providing his mother with life interest in immovable assets and disentitling the elder son from any share in the estate. The mother executed a Power of Attorney on 5-12-2016 in favour of the younger son empowering him to execute Gift Deeds or Partition Deeds or Rectification Deeds in relation to certain properties. The father passed away on 10-12-2016 and the younger son filed a probate petition.

On 17-05-2017, two gift deeds were executed by the mother in favour of younger son transferring her share in specific properties. On 29-05-2018, a Memorandum of Understanding was executed between the mother and her two sons for further settlement of properties between the two sons.

The petitioners stated that their mother left the home to take care of her own mother who passed away in January 2019, after which, the mother started residing in a flat provided by the elder son. On 6-09-2018, the mother filed a Caveat in probate petition alleging that the father’s Will was forged by her younger son and that the consent affidavit was forged. Thereafter, the mother filed application under Sections 4, 5 & 23 of the Senior Citizens Act, 2007 before the Tribunal, which was partly decided in mother’s favour as stated above, and challenged by the petitioners, the younger son and his wife, in the instant petition.

Court’s Consideration

The Court noted that the challenge in the instant petition was restricted to annulment of the two gift deeds, directions for handing over original title deeds of the properties and liberty for mother to proceed through police complaints and restriction against causing mental or physical harassment to the mother, as passed by the Tribunal while exercising power under Section 23 of Senior Citizens Act. The Court further listed the conditions to be met for the Tribunal to make a declaration of transfer being void as under Section 23(1) of Senior Citizens Act.

The Court referred to S. Vanitha v. Commr., (2021) 15 SCC 730 regarding legislative scheme of Senior Citizens Act. It highlighted that the dispute surrounded lack of a condition in the gift deed regarding basic amenities and basic physical needs, and refusal or failure on part of the transferee to provide such basic amenities and basic physical needs. Citing Sudesh Chhikara v. Ramti Devi, 2022 SCC OnLine SC 1684, the Court noted that in the instant matter, the mother had specifically pleaded that the two gift deeds were executed in furtherance of assurance given by Petitioners that they would take care of her during her entire life. It further indicated that the existence of such a condition need not be reflected in the deed itself in the form of a covenant or a recital and the same can be established before the Tribunal, which was evident through pleadings before the Tribunal.

The Court supported the mother’s case as asserted against Section 8 of Senior Citizens Act that and viewed that mere failure on part of the mother in leading oral evidence could not have been a ground for the Tribunal to presume absence of a condition required under Section 23(1), and that existence of such a condition could also be gathered from circumstantial evidence that the mother resided in the bungalow for 30 years, while the petitioners started residing there little before the father’s death, and within 5 months of her husband’s demise, the mother decided to gift the same to her son without knowing that a day would come when she would be out of her own house.

The Court stated that “A Mother executing gift of her residential bungalow in favour of her son is bound to expect that the son would let her reside in that bungalow. Therefore, existence of condition of providing the basic amenity to permit mother to reside in the bungalow is required to be assumed in the facts and circumstances of the present case.”

On petitioners’ failure to provide basic amenities and physical needs to the mother, the Court highlighted the Tribunal’s findings of petitioners having prevented the mother from accessing the residential bungalow. It pointed out that prior to the execution of gift deeds, she was the owner of 50% share in the bungalow, and she agreed to execute the said gift deeds in favour of the younger son on a promise that he would take care of her during her entire lifetime. The Court also acknowledged the mother’s specific reference to the incident of the year 2018 when her younger son abused her in intoxicated state and attempted to take possession of her bedroom by removing her belongings, for which, she had to approach the police station, and that after her mother’s death, her elder son arranged for a rental flat keeping away from disputes between the mother and the petitioners. The Court clarified that such findings could not be interfered with while exercising jurisdiction under Article 227 of Constitution of India.

The Court viewed that merely because the mother received certain amounts would not be enough reason to infer that there was no refusal or failure to provide her with basic amenities and physical needs, stating that the term ‘maintenance’ is not restricted only to making available money. It explained that the objective behind enacting the Senior Citizens Act was to ensure that senior citizens are not deprived of their own properties at the instance of their children, as highlighted in S. Vanitha (supra). While noting the fact that the petitioners started residing in the said bungalow a little before their father’s death, the Court sternly noted that “Today the position is that while Petitioners are occupying the Bunglow, the mother who has stayed in the same for 30 long years, is out of the same. In the light of this position, it is incomprehensible as to what more material petitioners expect the Tribunal to rely upon for drawl of a conclusion of denial of basic amenity to the mother.”

The Court upheld the Tribunal’s decision by observing that “When a widowed mother approaches the Tribunal complaining about ouster from her house, ill treatment, torture and denial of basic amenities/physical needs, the Tribunal could not have closed doors on her by accepting petitioners’ specious plea that her elder son has orchestrated the entire episode.” It explained that the directions for petitioners not to cause mental or physical agony to their mother were pointed towards their own conduct denying access to her own house and removing her belongings.

The Court viewed that “The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother.” The Court left the scope that the situation was not irreversible, and that a mother’s love and affection can be won back. It finally upheld the order passed by the Tribunal intact of vice of perversity, and dismissed the instant writ petition, but allowed order of status quo to continue for a period of 6 weeks.

[Ashwin Bharat Khater v. Urvashi Bharat Khater, 2023 SCC OnLine Bom 1921, decided on 7-09-2023]

Judgment/ Order by: Justice Sandeep V. Marne

Advocates who appeared in this case :

For Petitioners: Advocate Mayur Khandeparkar, Advocate Shaheda Madraswala, Advocate Shikha Dharia; Vashi & Vashi

For Respondents: Advocate Simil Purohit, Advocate Manoj Pandit

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