Case BriefsHigh Courts

Bombay High Court: Expressing that mother and father are equally responsible to equally share the education expenses of the child, Division bench of A.S. Chandurkar and G.A. Sanap, JJ., enhanced the maintenance amount of the child.

Instant appeals arose out of the decisions passed under Section 20 of the Hindu Adoptions and Maintenance Act, 1956.

Petitioner sought enhancement on the monthly maintenance.

Background

Petitioner was the son of the respondent. It was stated that after the marriage dispute arose between the parents of the petitioner. Respondent used to demand the salary of his mother and ill-treating and torturing her.

Mother of the petitioner lodged the complaint on the basis of the crime registered under Section 498-A Penal Code, 1860. Respondent was prosecuted.

When the petitioner was born, his parents were living separately. Petitioner’s mother had given notice to the respondent for divorce by mutual consent and divorce for petition was filed. Later the marriage was dissolved amongst them.

Reason for approaching Court

Petitioner stated that the respondent did not bother to maintain him, and his mother handled his education as well as day to day expenses.

Doing the above, petitioner’s mother faced great difficulties while maintaining him with her meager salary. Respondent did not bother to inquire about the well-being of the petitioner as well as his mother.

 On what grounds respondent seeks dismissal of the petition?

 According to the respondent, the mother of the petitioner is doing service as an ‘Assistant Teacher’ and getting a monthly salary of Rs 48,000/-. The respondent has to maintain his divorcee sister and the daughter of his sister. He has also to maintain his old aged mother. On these grounds, he prayed for the dismissal of the petition.

Lower Court granted decree and awarded the maintenance of Rs 5,000.

Analysis, Law and Decision

 High Court noted the grievance that the respondent was not allowed access to the petitioner and therefore there was a dispute. But as the petitioner was a major, he could freely meet his father-respondent. Hence, the said fact would not stand in the way of petitioner from getting the maintenance from the respondent.

The Father and Mother of the petitioner had been serving as “Teachers”. Therefore, it was apparent that both were equally responsible to share the maintenance as well as the education expenses of the petitioner.

Considering his plight and needs, the petitioner was constrained to knock on the door of the Court.

Lower Court took in consideration the day to day living cost in ordinary circumstances by a person along with the skyrocketing education expenses.

Grievance of the petitioner was that the amount of maintenance was not sufficient to satisfy his bare minimum requirements.

In High Court’s opinion also the quantum of maintenance could not be said to be just and reasonable.

Bench expressed that the father was responsible and liable to make provisions for the maintenance of his son.

If the respondent fails to share the maintenance & expenses then the mother would be required to bear the unnecessary burden

Therefore, the maintenance was enhanced to Rs 7,500 and as far as education expenses were concerned, father and mother shall share it equally.[Pradeep v. Master Sakashit, 2021 SCC OnLine Bom 3575, decided on 13-10-2021]


Advocates before the Court:

R.M. Patwardhan, Advocate for the appellant in FCA No.43/2019 and for respondent in FCA No.16/2020.

Amruta Gupta, Advocate for respondent in FCA No.43/2019 and for appellant in FCA No.16/2020.

Case BriefsHigh Courts

Sikkim High Court: If a father keeps his self-acquired property for the purpose of mortgage, can his sons interfere in the same? Bhaskar Raj Pradhan, J. answered in the negative and stated that the sons did not have a right to stop the father in dealing with his self-acquired property in the manner he chose to.

Background

Petitioners in the instant matter were the adult sons of respondent 4 who was proceeded against before the Tribunal having stood as guarantor for the loan taken by respondent 2 from respondent 1.

Respondent 4 had mortgaged the landed property in dispute to respondent 1 as a guarantor. Respondent 3 wife of respondent 2 was also a guarantor. Respondent 1 was the Certificate Debtor 2 and respondent 4 was Certificate Debtor 3.

With this Court, a declaration was sought that the property involved in the auction sale shall not be sold in auction to realize the dues of respondent 1. Further, it was added that a declaration that the other landed properties of respondent 2 first be proceeded against to realize the dues of respondent 1 and a direction that the loan shall be realized from respondent 3 from her employer duly adjusting the considerable amount towards recovery loan.

Petitioners stated that the property was originally acquired by the father of respondent 4 and he got his property from his father on partition, hence the same was an ancestral property of the petitioners.

Further, it was stated that the petitioners, as well as the respondent, were Hindus governed by Mitakshara School of Hindu Law and that by virtue of their birth, they became owners of the property along with respondent 4 as coparceners.

Analysis

Whether the property was an ancestral property of the petitioners or if they had any enforceable right on the property mortgaged by respondent 4 in favour of respondent 1 as a guarantor?

According to Hindu Law by Sir Dinshaw Fardunji Mulla 23rd Edition “all property inherited by a male Hindu from his father, father’s father or father’s father father, is ancestral property.”

Supreme Court reiterated in Shyam Narayan Prasad v. Krishna Prasad, (2018) 7 SCC 646, “A property of a Hindu male devolves on his death.”

A 3-Judge Bench of the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, AIR 1953 SC 495, held that

“father of a Joint Hindu Family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way. The Supreme Court while examining the question as to what kind of interest a son would take in the self- acquired property of his father which he receives by gift or testamentary bequest from him, it was held that Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. It was held that it was not possible to hold that such property bequeathed or gifted to a son must necessarily rank as ancestral property.

 “…a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.”

 In the instant case, it was evident that respondent 4 did not get the disputed property as his share on the partition as claimed by petitioners. The property was acquired on transfer by his father who had originally acquired it.

The above facts make the property self-acquired of late Hari Prasad Sharma and thereafter, of respondent 4 consequently not ancestral property of petitioners.

Hence, respondent 4 has the right to deal and dispose of the property as he desires.

Section 58 (a) of the Transfer of Property Act, 1882 states that a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.

Concluding the matter, Bench held that petitioners, sons of respondent 4 could not have any right to stop him in dealing with his self-acquired property in the manner he chose. Mortgage on the property does not create rights in favour of respondent 1.

In view of the above petition was dismissed. [Umesh Prasad Sharma v. Allahabad Bank, 2021 SCC OnLine Sikk 149, decided on 30-9-2021]


Advocates before the Court:

Mr A. Moulik, Senior Advocate with Ms K. D. Bhutia, Advocate for the petitioners.

Mr Sudesh Joshi, Advocate for Respondent 1,

Mr Pratap Khati, Advocate for Respondents 2 & 3.

None appears for respondents 4 and 5.

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

Case BriefsHigh Courts

Bombay High Court: Noting the misery of parents aged 90 years, G.S. Kulkarni, J., observed that,

“Daughters are daughters forever and sons are sons till they are married” albeit there would surely be exemplary exceptions.

A Sad Case

In the present matter, petitioner 1 alongwith his wife petitioner 2 and their daughter petitioner 3 dragged his parents-respondents 1 and 2, aged 90 and 89 years in protracted legal proceedings.

As a last resort, the parents had to invoke the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 on which the Maintenance Tribunal granted relief to the parents.

Aggrieved with the decision of the Maintenance Tribunal the present petition was filed.

Misery of Parents 

At such an advanced stage of lives, parents had to reach the tribunal as petitioners 1 and 2 were forcibly trying to grab the flat in which the parents were residing and had permitted the petitioners to reside who were harassing and torturing the parents since many years.

Flat in Question

The flat initially belonged to the father and later gifted it to his two daughters by gift deed.

Metropolitan Magistrate had prohibited petitioner 1 and 2 from committing any act of domestic violence and had restrained them from dispossessing or in any manner disturbing the possession of the mother from the shared household.

The above order was passed on the complaint of the mother.

Analysis

High Court noted that the present case was a ‘classic case’ where the petitioners 1 and 2 intended to prevent the parents from leading a normal life at their old age of about 90 years.

Defeating Parents right to lead a normal life

It was stated that the property in question was not an ancestral property on which the petitioner 1 could claim any legal right so as to keep himself on such property alongwith his family and foist themselves on the parents against their wishes by remaining on the property without any legal rights.

Hence, Maintenance Tribunal had rightly recognized the rights of the parents on the property.

Concluding the matter, Court noted that the present case was a story of desperate parents who intend to be at peace at such advanced stage in life.  Whether such bare minimum expectations and requirement should also be deprived to them by an affluent son, is a thought which the petitioners need to ponder on.

Adding to the above, Bench stated that the son seemed to be blinded in discharging his obligations to cater to his old and needy parents and on the contrary dragged them to litigation.

It is painful to conceive that whatever are the relations between the son and the parents, should the son disown his old aged parents for material gains?

While directing the petitioners to vacate the flat in question alongwith his family members, the petition was rejected. [Ashish Vinod Dalal v. Vinod Ramanlal Dalal, 2021 SCC OnLine Bom 2976, decided on 15-09-2021]


Advocates before the Court:

 Mr Yashpal Thakur with Mr Surendra Raja with Mr Mukund Pandya, for the Petitioner.

Mr Abhay Khandeparkar, Senior Advocate i/b. Mr Kunal Tiwari, for Respondent Nos.1 and 2.

Ms Vaishali Nimbalkar, AGP for the State.

Case BriefsSupreme Court

Supreme Court: The Division Bench of Dr Dhananjaya Y Chandrachud and MR Shah, JJ., modifies the maintenance amount being to a son.

Grant of maintenance

Issue in the present appeals pertained to the grant of maintenance to the first respondent who was the minor son of appellant and second respondent.

First respondent was residing with his mother, the second respondent. Family Court had directed the appellant to pay maintenance at the rate of Rs 20,000 per month to the first respondent, further, the High Court had declined to entertain the revision.

Special Leave Petition

On 29th July, 2020, while entertaining the Special Leave Petition this Court had passed an order directing the petitioner to pay Rs 10,000 per month to his son and had added that the amount that has already been paid over shall be adjusted against the amount which is due and payable. Petitioner was also asked to filed his salary slips as on 31st March, 2016, 2017, 2018, 2019 and for the period between January 2020 to July 2020 and along with this, the petitioner shall also explain the deduction being made from his salary.

Salary Slips

Petitioner had filed his salary slips as per this Court’s order as stated above.

Principal Submission urged by the Counsel for appellant, Chinmay Deshpande was that the payment of an amount of Rs 20,000 by way of maintenance would leave the appellant with virtually no resources to meet the maintenance requirements of his family which presently consists of his spouse and two minor children.

Gaurav Agarwal, Counsel on behalf of the respondents had submitted that the appellant cannot be excused from the obligation to maintain the first respondent, his minor son.

Analysis, Law and Decision

Supreme Court decided that it was inclined to modify the order of Family Court which was affirmed by the High Court.

Bench stated that the deduction being suffered by the appellant from his salary were largely in the realm of statutory and compulsory deductions which were made from the monthly income.

“Deductions which were being suffered by the appellant from his salary were largely in the realm of statutory and compulsory deductions which were made from the monthly income.”

 Further, the appellant had shown his bona fides by paying an amount of Rs 6.64 lakhs and also made a disclosure of his salary slips. Payment of Rs 20,000 per month to the first respondent would leave no resources to maintain his other two children and family.

In view of the above, some scaling down was required. But an arrangement to provide maintenance to the first respondent until he completes his first-degree course after High School will be necessary so that the first respondent becomes self-supporting and can live in dignity.

Bench added that it is conscious of the fact that by this Order the Court is extending the period for maintenance, however in issuing the said direction, the Court has borne in mind two significant aspects:

firstly, the maintenance payable by the appellant has been reduced from rupees twenty thousand per month to rupees ten thousand per month;

and secondly the past arrears have been capped at the amount of Rs 6.64 lacs which has already been paid.

Therefore, in view of the facts and circumstances along with the needs of the minor child, Court opined that the appeals should be disposed of in terms of the following directions:

  • Amount of Rs 6.64 lakhs which has been paid by the appellant towards the arrears of maintenance of the first respondent shall be treated as a full and final payment as of 28 February 2021
  • Commencing from 1 March 2021 and for the period until 31 March 2022, the appellant shall pay a monthly maintenance of Rs 10,000 towards the expenses of the first respondent. The amount shall be paid no later than the tenth day of each succeeding month commencing from 10 March 2021. In the event that the second respondent nominates a bank account for that purpose, the appellant shall ensure a transfer of funds in the electronic mode to the nominated bank account. If this arrangement is not suitable, the money shall be paid over by Demand Draft on or before the tenth day of every succeeding month for the maintenance of the first respondent;
  • Amount of monthly maintenance shall stand increased by Rs 1000 per month commencing from 1 April 2022. For succeeding years, the amount of maintenance shall similarly stand increased by a further amount of Rs 1000 per month commencing from the first day of April; and
  • Appellant shall pay maintenance for the first respondent on the above basis for a period of six years commencing from 1 April 2021 until 31 March 2027 or until the first respondent completes his first degree course, whichever is earlier. This direction is intended to ensure that the first respondent shall be maintained by the appellant until he completes his basic education ending with a first degree course after he completes his high school education.

In view of the above directions, appeal were disposed of. [Chandrashekar v. Swapnil, 2021 SCC OnLine SC 656, decided on 4-03-2021]

Case BriefsHigh Courts

Bombay High Court: R.D. Dhanuka, J., held that relinquishment of properties held by the legal heirs of a person whose properties were self-acquired properties would enure only for those persons in whose favour such deed of relinquishment was executed.

The First Appeal was filed under Section 96 of the Code of Civil Procedure, 1908.

Respondents (original plaintiffs) case was that the suit properties were the self-acquired properties of Late Shripad Pandit who was the grandfather of the respondents. The said properties were purchased in the name of Late Smt. Usha was the wife of Shripad Pandit and the grandmother of the respondents.

Appellants (original defendants) are the uncles of the respondents (original plaintiffs). Father of the respondents expired and after his death, the mother of the respondents who were defendant 4 got re-married.

Respondents stated that the deceased Usha Pandit and Shripad Pandit had four sons and four daughters. After their demise, each son and daughter had 1/8th share therein. Sisters of appellant1 to 3 relinquished their undivided share in the suit property by a registered release deed and thus had no right, title and interest of any nature in the suit property.

Trial Judge declared that the appellants and respondents 1 to 3 were having 1/4th share each in units/apartments reserved for their joint family. It was further held that respondents 1 to 3 (original plaintiffs) are entitled for partition, separate possession of their 1/4th share in the suit property. Court restrained the appellants permanently from creating third party interest to the extent of 1/4th share of respondents 1 to 3 in the suit property and directed that partition of 1/4th share of respondents 1 to 3 effected by appointing Court Commissioner and separate possession of their share be given to them.

In view of being affected with the trial court judgment, appellants filed the present appeal.

Analysis and Decision

A perusal of the judgment and decree passed by the Trial Court indicates that the trial Court though had rendered a finding that the suit properties were inherited by the parties had rendered perverse finding that the suit properties were co-parcenary properties and release deed executed by the sisters of the appellants were for the benefit of all the members of the family and not only the appellants.

Trial Judge strongly placed reliance on the judgment of the Andhra Pradesh High Court in the case of M. Krishna Rao v. M. L. Narasikha Rao, 2003 SCC OnLine AP 526 & L. Sundaram and Ravichandran v. Lakshmanana (died)2003 (1) Mh. LJ. 195, held that relinquishment of the right and interest by the daughters of Shri Shripad Pandit and Usha was in favour of the entire family and not in favour of the appellants only.

Co-Parcenary & Not Self Acquired | Erroneous

Trial Judge erroneously proceeded on the premise that the Deed of Release by four daughters of Shripad Pandit in favour of the appellants were co-parcenary properties and not his self-acquired properties.

Bench relied on the decision of the Supreme Court in Kishore Tulshiram Mantrim v. Dilip Jank Mantri,  Second Appeal No. 374 of 2018 decided on 14-8-2018 and opined that the suit properties were self-acquired properties of the deceased Shripad Pandit, all the legal heirs of the said deceased were entitled to equal share including the four daughters of the said deceased who were sisters of the appellants. The daughters of the said deceased thus were free to relinquish their undivided share in the suit property in favour of the other legal heirs of the said deceased exclusively.

Relinquishment of properties inherited by the legal heirs of the person whose properties were self-acquired properties would not enure for the benefit of all the legal heirs of the said deceased but would enure only for those persons in whose favour such deed of relinquishment/release was executed.

 In the present matter, Trial Judge erroneously applied the principles applicable to the relinquishment of undivided share by a coparcener in favour of another coparcener to the properties inherited by the legal heirs of a deceased whose properties were self-acquired.

A perusal of the release deed which was produced on record in evidence executed by the four daughters of the said deceased i.e. Pushpalata, Bharti, Hemlata and Varsha clearly show that they had released all their undivided share right, title and interest in the suit property in favour of the appellant exclusively. Hence respondents 1 to 3 would be entitled to only 1/8th share in the suit property and not 1/4th share. [Shashikant Shripad Pandit v. Kaustubh Subhash Pandit, 2020 SCC OnLine Bom 309, decided on 25-02-2020]


Advocates before the Court:

Girish R. Agrawal for the appellants.

Jaydeep Deo for the respondents 1 to 3