Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court : While deciding an application under Article 227 of the Constitution of India dealing with issue of maintenance and welfare of parents, Kesang Doma Bhutia, J. directed the daughter to allow her aged parents to reside with her in a residential flat which was gifted to her by her parents via gift deed. The Court also directed both son and daughter to pay Rs. 10,000/- per month respectively as maintenance to their parents.

Facts of the Case

The instant application was filed by the petitioner-daughter from being aggrieved by the order of cancellation of gift deed dated 10.07.2017 by the Additional District Magistrate in favor of her father.

The father of the petitioner, out of love and affection gifted the flat to petitioner before her marriage via gift deed. The father used to live with his wife and petitioner in that flat. Even after the petitioner's marriage, she along with her husband used to live with her parents in that flat. The relationship between petitioner and parents had deteriorated after the marriage of the petitioner. The petitioner had driven the parents out from the flat and they had taken shelter in the house of their married son.

The father filed an application under S. 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeking maintenance as well as for cancellation of the gift deed executed by him. The ADM after inquiry directed the cancellation of gift deed and ordered the son to pay maintenance of Rs. 5000/- per month to the parents.

Court's Observation

The Court observed that “…it has become a part of Indian society to see aged parents and aged senior citizens seeking shelter of the Courts for their social and economic safety as we see some of them driven away from their home by their own children and not being provided proper maintenance and basic necessaries. And some is taking shelter in old age home run by government or by NGOs.”

The Court placed reliance on Debashish Mukherjee v. Sanjib Mukherjee, 2018 SCC OnLine Cal 616 where it was held that gift deed for transfer of immovable property executed by the parents in favor of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favor the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.

The Court also observed that since the gift deed is not conditional as per S. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, therefore order of the ADM is not maintainable.

Taking into consideration of the facts of the case, age and health conditions of the parents, the Court directed the petitioner to provide shelter to her parents in the disputed flat and restrained her from alienating the disputed flat during the life-time of her both parents. The Court further directed the petitioner to pay Rs. 10,000/- per month maintenance towards basic needs and medical expenses of her parents and also, directed the son to pay Rs. 10,000/- per month towards the maintenance of his parents.

[Piyali Tewari Dey v. Baidyanath Dey, C.O. 2059 of 2021, order dated 09.03.2022]


*Ritu Singh, Editorial Assistant has put this report together.

Case BriefsHigh Courts

Bombay High Court: In a matter wherein, the parents sought eviction of their son, Rohit B. Deo, J., expressed that,

“In the conservative Indian society, a son is not expected to brand his aged father a ‘swindler’ or then allege that the aged parents have lost mental balance.”

The petitioners were the son and daughter-in-law of respondents 2 and 3 and assailed the order rendered by the Tribunal constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 whereby the petitioners were directed to vacate the self-acquired residential house of the respondents 2 and 3.

Petitioners’ submission was that the Act does not envisage a remedy of eviction, and the Tribunal committed a jurisdiction error in virtually treating the application under Section 5 of the Act as a suit for eviction.

Respondents contended that they had constructed a residential house from self-earning and that petitioner 1 illegally and forcibly took possession of part of the said house and was conducting himself in a manner as would pose a serious threat to the safety and security of respondents 2 and 3.

Further, the respondents submitted that if the petitioners vacate the portion illegally occupied, the said portion can be let out and the rental income would enable the respondents 2 and 3 to better maintain themselves.

Significantly, respondents 2 and 3 accused their son and daughter-in-law of physical assault and further prevented the well-wishers and other sons of respondents 2 ad 3 from entering the residential house.

On finding the real possibility of the safety and security of the aged petitioners being jeopardized, Tribunal directed eviction by the order impugned.

Analysis, Law and Decision


High Court expressed that the safety and security of the respondents 2 and 3 shall be in jeopardy unless the petitioners are evicted.

The Bench stated that the emotional and physical well-being of the aged respondents 2 and 3 could not be ensured unless the petitioners vacate the self-acquired residential house of respondent 2.

Supreme Court considered the scheme of the Act in Dr Ashwini Kumar v. Union of India, 2019 ALL SCR 155, wherein several directions were issued to make the provisions of the Act more effective and to ensure that the constitutional goal which the beneficial legislation seeks to achieve is enthused with more vigor.

High Court held that the eviction order was absolutely necessary in order to ensure the physical and emotional health and safety of the parents. [Namdeo v. Geeta, 2022 SCC OnLine Bom 914, decided on 4-4-2022]


Advocates before the Court:

Mr. Lubesh Meshram, Advocate with Mr. Sourabh Singha, Advocate for Petitioners.

Mr. N. R. Rode, AGP for Respondent 1/State.

Mr. P. S. Wathore, Advocate for Respondents 2 and 3.

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Expressing that when the children, who the parents have reared with untold sorrows and miseries, throw them at the mercy of their destiny and use their muscle power to torture and harass them, the parents’ world get totally shattered which marks as the beginning for the unfortunate tale of their moving from one Forum to another for redressal, Harnaresh Singh Gill, J., while quoting from the holy script of  Sri Guru Granth Sahib, Sri Guru Ram Dass has written ‘KAAHAY POOT JHAGRAT HA-O SANG BAAP/ JIN KAY JANAY BADEERAY TUM HA-O TIN SIO JHAGRAT PAPP//” (O son, why do you argue with your father? It is a sin to argue with the one who fathered you and raised you) stated that “we have to treat our parents as God.


Life is full with extraordinary challenges and unrivalled opportunities, but such chances must not be used against those who parented you.

Classic Example

Instant matter was a classic example, wherein the petitioners sought equities entirely forgetting that it is because of their conduct that their old and aged parents had to seek their eviction so as to buy back their peace and freedom.

Grievance

Issuance of writ of mandamus was sought for directing respondents 1 to 3 to protect the life and liberty of the petitioners at the hands of respondents 4 and 5 and mandate them not to interfere in the property of the petitioners.

Application filed by respondent 4 under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 wherein the petitioners have been ordered to be ejected from the house is also sought to be dismissed.

Factual Background

Respondent 4 had filed an application under the provisions of the 2007 Act against the petitioners i.e. his son and daughter-in-law. Petitioners were not treating respondent 4 and 5 properly and depriving them even of the basic necessities and just wanted to grab respondents’ property and owing to their behaviour, respondents 4 and 5 had disowned petitioner 1 from their movable and immovable property.

Respondents had even requested the petitioners to vacate the house in question, but they did not. Sub Divisional Magistrate in his report recommended the ejectment of the petitioners and sent the same to the District Magistrate who ordered the ejectment of the petitioners from the house.

Petitioners’ Contention

Counsel for the petitioner contended that the house in question was a joint Hindu Family Property and petitioner 1 had also contributed to the construction of ground floor of the house, he also started a business in which respondent 4 was shown the proprietor.

Another submission was that the respondents had ill-treated petitioner 2 and accordingly FIR under Sections 498-A, 406, 323, 506 and 34 of Penal Code, 1860 were registered against the respondents.

Adding to its submissions, the petitioners counsel also contended that the District Magistrate had no power under Section 23 of the 2007 Act to direct a son to vacate the house of his parents because none of the circumstances contemplated in the statutory provisions, is attracted in a father-son-relationship.

Analysis, Law and Decision

Respondent 4’s case was that the house in question was his self-acquired property, and rather it was not a Joint Hindu Family Property.

SDM in its report had stated that as per the sale deed, respondent 4 was the owner of the house in question.

High Court stated that even if for the sake of arguments, Court assumes that respondent 4 had gifted the house to the petitioners, even then the transfer of property was to be held void in certain circumstances.

Section 23 of the 2007 Act dealt with the validity of the transfer of property in certain circumstances.

“…if a senior citizen who, after the commencement of the 2007 Act, has transferred by way of gift or otherwise, his property, with the condition that the transferee would provide basic amenities and basic physical needs to the transferor, who thereafter refuses or fails to provide such amenities and physical needs, then the transfer of the property made by the senior citizen shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor, be declared void by the Tribunal.”

Rule 24 of the Rules provides in the action plan as to how the property of senior citizen, which includes a residential building, can be vacated from his son, daughter or legal heir(s) while in an unauthorized occupation and how the said order is to be enforced.

Court added that though the present matter is not the one wherein any transfer or gift has been executed by respondent 4 and 5. Hence, the petitioners cannot maintain the claim on the alleged ground that petitioner 1 had contributed towards the renovation of the house.

Adding more to the analysis, Bench expressed that even in the cases, where a gift deed was executed by the parents in favour of the children, it was held that irrespective of any condition regarding providing to the transferor the basic amenities, the transferee would be bound to maintain the transferor.

High Court referred to this Court’s decision in Raksha Devi v. Deputy Commr., decided on 3-5-2018.

In view of the above, Court dismissed the petition on not finding any merit. [Anil Kumar Dhiman v. State of Haryana, CRWP 1357 of 2019, decided on 21-9-2021]


Advocates before the Court:

Mr Akhil Bhasin, Advocate, for the petitioners.

Mr Pardeep Prakash Chahar, DAG, Haryana.

Mr Anuj Balian, Advocate, for respondents 4 and 5.


Additional Reading:


“Daughters are daughters forever and sons are sons till they are married”: Bom HC orders son to vacate flat of 90 yrs old parents

Under Parents and Senior Citizens Act, is it necessary to find out whether property belongs to parent exclusively or is a shared household in which daughter-in-law has rights? Bom HC deciphers

Children living in parents’ house are at best licensees: Cal HC says senior citizens’ exclusive residentiary rights to be viewed from prism of Art. 21

P&H HC | Maintaining elderly parents is not only a value based principle but a bounden duty under Maintenance and Welfare of Parents Act

Madras HC | Sons turning turtle after giving undertaking to vacate their father’s premises is Contempt of Court: Read synopsis of Court’s opinion

Del HC | Which is the proper forum for filing appeals from the eviction order passed by DM under Delhi Maintenance and Welfare of Parents and Senior Citizens Act? Court answers

All HC | Is the District Magistrate under obligation to provide protection to senior citizens being harassed by their children? HC explains

Bom HC | “If children cannot take care of their parents and allow them to live in peace, they atleast ought not to make their life a living hell”; Court sternly warns daughter to not harass mother physically & mentally

Chh HC | Step-son held duty bound to maintain his step-mother under Maintenance and Welfare of Parents and Senior Citizens Act

Maintenance – Children and Parents

Parents can evict children under the provisions of MWPSC Act, 2007 upon being harassed: Bombay HC

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque, J. dismissed a petition challenging the order of Appellate Authority under Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 

The case of the petitioner is that her father executed a gift deed in her favour in 2014, thereafter filed an application in the Maintenance Tribunal under Section 23 of the MWPSC Act to revoke the said gift deed on the ground that his daughter is not providing him with necessary facilities to protect his well being. The Tribunal declined the father’s prayer but ordered the daughter (petitioner herein) to provide necessary facilities to her father to protect his well being. The father approached the appellate authority against the said order. The Appellate Authority allowed his appeal and granted revocation of the gift deed. Aggrieved thereby, the instant petition was filed in this Court.

Sri G. Harikumar, appearing on behalf of the petitioner argued that Section 23 can be attracted only in case of admission of a valid transfer. However, the respondent in the application stated that the deed was fraudulently obtained by undue influence and coercion. Thus, it is a case of civil dispute and shall be resolved by a civil court and not by Maintenance Tribunal.

Sri B.N.Shivsankar, appearing on behalf of the respondents relied on the object of the MWPSC Act. In addition to this, it was argued that the transfer of property of a senior citizen by way of gift is subject to providing basic amenities and if these are not provided the deed can be revoked under Section 23 of the MWPSC Act. 

The Court looked into the scope and object of the Act and accepted the respondent’s contention. The parliament enacted MWPSC Act to uphold the dignity and respect of a senior citizen at the time of old age. It relied on deontological moral theory of legislation and said that there are a certain type of actions which have universal acceptance. The Court also said that the tribunal has a duty to elicit the truth by adopting an inquisitorial approach as the act is not intended at dispute resolution but to promote measures to secure the welfare and interest of the senior citizens and parents. 

Relying on Radhamani v. State of Kerala, 2015 SCC OnLine Ker 33530, the Court held that there is no requirement of a written stipulation to effect that the transferee maintains the transferor. The tribunal should look at the circumstances under which the deed was executed.

Based on the following grounds the Court set aside the order of the Appellate Authority and remitted back the matter for reconsideration by the Tribunal. It also ordered that since the respondent is residing abroad, the Tribunal can hold sessions over electronic media.[G.S. Manju v. K.N. Gopi, 2019 SCC OnLine Ker 5363, decided on 10-10-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agarwal, J. imposed costs of Rs 2000 while dismissing a petition filed by a step-son for setting aside the order of the Tribunal directing him to pay Rs 10,000 per month as maintenance to her step-mother (respondent).

Manoj Kumar Sinha, Advocate for the step-son contended that the amount of Rs 10,000 was shockingly high and the petitioner was incapable of making the payment. Per contra, Aarti Chandra Dutt, Advocate for the step-mother submitted that the Tribunal had rightly allowed her application filed under Section 4 read with Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

Referring to the various relevant provisions of the Act, the High court observed: “The Act of 2007 has been enacted to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto.” It was also noted that “parent” as defined in Section 2(d) includes step-parents. It was found that the Tribunal passed the order granting maintenance on the basis of material available on record, holding that the step-son was a government teacher with sufficient income to maintain his step-mother.

Commenting that the present was unfortunate litigation and in view of the “well-renowned mandate of our scriptures”, the court dismissed the appeal with costs of Rs 2000 to be payable by the step-mother. [Uttar Kumar Bhoi v. Surekha Bhoi, 2019 SCC OnLine Chh 23, dated 12-3-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of R.D. Dhanuka, J., addressed a petition filed under Article 227 of the Constitution of India in regard to an order passed by the Tribunal for Welfare of Parents and Senior Citizens under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

The facts of the case stated that Respondent 1 had prayed for maintenance and eviction of her son, the petitioner and his family on various grounds for which the tribunal had passed an order in favour of Respondent 1. The said order of the tribunal was challenged by the petitioner son.

The contentions of the petitioner were that the order of the tribunal was impugned as the complaint was against the petitioner and not his son, wife, and daughter but the tribunal’s order was against all. He also submitted that the entire order is without jurisdiction as the tribunal has no jurisdiction under Section 4 of the said Act.

While giving severity to the facts such as harassment, cruelty and torture being caused to Respondent 1 by the petitioner and his family, the Court firstly considered the issue of jurisdiction, for which it placed reliance on Sunny Paul v. State (NCT of Delhi),2017 SCC OnLine Del 7451 stating that the tribunal has ample of powers to pass an order of eviction under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Therefore, by highlighting the essence of Section 4 of the above-mentioned Act and on weighing the gravity of the issue in the present case, High Court dismissed the petition on finding no merits and upheld the Tribunal’s order. [Dattatrey Shivaji Mane v. Lilabai Shivaji Mane,2018 SCC OnLine Bom 2246, dated 26-06-2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench of the Delhi High Court comprising of Siddharth Mridul and Deepa Sharma, JJ., dismissed a Letters Patents Appeal before it. The matter before the Court was related to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Hereinafter ‘act’) and the issue before the Court for adjudication was whether the Maintenance Tribunal has the jurisdiction to pass an order of eviction?

It was urged before the Court that a Maintenance Tribunal inherently lacks jurisdiction to pass an order of eviction and that the same is beyond the scope of proceedings for maintenance, instituted on behalf of a senior citizen. The facts leading up to the case were, that Respondent 3, a 68 year old man and father of the appellants, ran a printing press in a building occupied by him along with his ailing wife and his sons with their respective families in separate accommodations. Respondent 3 instituted a petition under the Act that despite having spent considerable amount on renovating the subject property, and providing separate residential accommodation to his sons, the latter backed out from their responsibility to pay a monthly sum of Rs. 20,000 collectively for his maintenance and for the requirements of his ailing wife. The Maintenance Tribunal had originally passed an order in Respondent 3’s favour, according to which, Appellant 2 and 3 were to vacate their respective residential portions and were also to refrain from indulging in arguing, making comments or other similar behaviour with the rest of the parties, including a son of Respondent 3 not implicated in the complaint. Instead of complying, the appellants instituted the present writ petition before the Court.

The Court referred to Section 32 of the Act r/w clause (i) of Section 2 along with the Rules promulgated under to adjudge that a senior citizen is entitled to institute an application seeking eviction of his son, daughter or other legal heir from his self-acquired property on grounds of ill-treatment and non-maintenance. Applications disposed of. [Shadab Khairi v. State,  2018 SCC OnLine Del 7626, decided on 22.02.2018]