Madras High Court
Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., addressed a matter with regard to coparcenary rights of sons and daughters.

Plaintiff had sought for relief of partition and for allotment of 1/5th share in the suit property and also sought for declaration of the sale deed executed by the 1st defendant in favour of the 5th defendant as null and void.

Plaintiff’s case was that the suit property formed part of a larger extent of property which was ancestral in nature. It was claimed that 1st defendant father and defendants 2 to 4 who were the sisters of the plaintiff were each entitled 1/5th share in the suit property.

The grievance of the plaintiff was that the 1st defendant went ahead and sold an extent of 36 cents in favour of the 5th defendant through a sale deed and according to the plaintiff, this sale deed was null and void and not binding on the other sharers. Further, the 1stdefendnat was not coming forward to allot the shares to the other legal heirs and hence, the suit came to be filed seeking for the reliefs.

1st defendant submitted that he was the absolute owner of the property during his life time and plaintiff cannot claim any share in the property.

Analysis, Law and Decision

High Court noted that the source of the property was admitted to be ancestral.

Main Issue

Nature of inheritance made by the three sons of Thalaivirichan Reddy.

The Bench expressed that, even after the Joint Family properties are partitioned and allotted to each sharer, the same can be held to be the individual property of the sharer only till a son and/or daughter are born. Once a son and/or daughter is born, they will get a right and share over the property by birth. As rightly held in the above judgment, the 1956 Act has not put to an end the co-parcenary rights and infact, it continues to be reiterated after the coming into force of the 2005 amendment Act.

Further, the Court expressed that,

Even if there was a family arrangement between the three sons of Kathavaraya Reddy and by virtue of the same, the 1st defendant had allotted 1.07 acres, the moment the plaintiff and defendants 2 to 4 were born, they will also be entitled for a share in the property.

In High Court’s opinion, lower Courts had lost the sight of law governing the property and had erroneously concluded that the property in the hands of 1st defendant was his exclusive property and that daughters will not be entitled to claim a share in the property.

It is nobody’s case that the 1st defendant had sold the property and had utilized the money for illegal purposes. Therefore, the assumption should be that it was utilized by the 1st defendant for the family.

“…this Court must also safeguard the rights of the plaintiff and defendants 2 to 4 to the extent possible and ensure that they get a reasonable share in the suit property. This is the only way to balance the rights of the daughters and the father in the suit property.”

Court added that,

The manner in which the property is going to be distributed by balancing the equities can be decided by the Trial Court at the time of passing the final decree.

Hence, the second appeal was partly allowed granting 1/4th share to the plaintiff and defendants 2 to 4 in the property that remained after the extent that had already been sold in favor of 5th respondent. [S. Sampoomam v. C.K. Shanmugam, 2022 SCC OnLine Mad 1594, decided on 5-4-2022]


Advocates before the Court:

For Appellant: Mr.A.Gouthaman

For Respondents: Mr.R.Rajarajan for R1 to R5

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a matter, wherein a senior citizen has approached the Court with her grievance with respect to her son, Murali Purushothaman, J., expressed that,

“When the Senior Citizen or parent who has earnings makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the Senior Citizen or parent is able to maintain herself from her earnings.”

“To care for those who once cared for us is one of the biggest honours.”

Question for Consideration


If the parent is able to maintain herself from her own earnings, but the son has obstructed the parent to have access to her earning, can the Maintenance Tribunal constituted under the Senior Citizens Act direct the son not to obstruct the parent from taking the earnings and to create a peaceful living atmosphere for her in the residence?

Petitioner, a senior citizen was the wife of K.V. Eapen who had executed Will, whereby life interest was created in favour of the petitioner in respect of A schedule properties in the Will and after her death, the property was to devolve absolutely in favour of their son, the 4th respondent.

As per the Will, the petitioner can enjoy A schedule properties with absolute freedom including the right to collect and take all income and to reside in the house ad libitum.

Later, the Petitioner preferred an application before the Maintenance Tribunal under the Senior Citizens Act against the 4th respondent son and the 5th respondent daughter in law, alleging that they were not maintaining her and were not permitting her and her mother-in-law to stay in the house peacefully and to enjoy or collect usufructs from the property covered by the Will.

Reliefs sought before the Maintenance Tribunal:

(i) to ensure a peaceful living for her and her mother-in-law in the house,

(ii) the right to take usufructs from the property,

(iii) the right to sell the agricultural products yielded during the lifetime of her husband,

(iv) protection for life from son and daughter in law.

Maintenance Tribunal directed respondents 4 and 5:

i) not to obstruct the petitioner from taking usufructs from the property

(ii) to create a peaceful living atmosphere for the petitioner in the house, and

(iii) not to cause any harm to the petitioner.

Petitioner contended that the Maintenance Tribunal did not take any steps to enforce the above-said order, hence the present petition was filed.

Analysis, Law and Decision


A senior citizen including a parent who is unable to maintain himself from his own earning or out of the property owned by him alone is entitled to maintain an application under Section 5.

 High Court expressed that, when a Senior Citizen or parent who has earning makes an application to the Maintenance Tribunal contending that her right to earning is obstructed by the son who has statutory obligation to maintain the parent, the Maintenance Tribunal has to ensure that the senior citizen or parent is able to maintain herself from her earnings.

Power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to mere ordering of monthly allowance for maintenance of senior citizen where the relative or children neglect or refuses to maintain the senior citizen or parent, but to ensure maintenance from own earnings to lead a dignified life.

In the present case as well, the directions of the Maintenance tribunal are to remove the incapacity of the petitioner to maintain herself, so that she is not left destitute, but leads a normal dignified life.

The three directions passed by the Maintenance Tribunal, were in furtherance of the purpose of the Act, to ensure that the petitioner maintains herself out of her own earnings to live a normal life with peace, security and dignity.

The Bench added that respondents 4 and 5 cannot just walk away from the moral and statutory obligation to maintain the petitioner. They cannot be permitted to take advantage of their own wrong.

The power of the Maintenance Tribunal under the Senior Citizens Act is not circumscribed to ordering of monthly allowance to be paid in monetary terms for maintenance of senior citizen, but also to ensure maintenance from his own earnings if any, to lead a dignified life.

The Court directed the District Magistrate to take necessary steps to enforce the Maintenance Tribunal’s order within a period of three months. Further, the Bench added that the District Magistrate shall before taking steps to enforce the order make an attempt to see whether the matter can be amicably settled between the petitioner and her son and daughter in law so that they all live in comfort.

In view of the above, the petition was allowed. [Leelamma Eapen v. District Magistrate, 2022 SCC OnLine Ker 1560, decided on 28-3-2022]


Advocates before the Court:

For the Petitioner:

BY ADV SRI.K.M.VARGHESE

For the Respondents:

BY ADV MS.BEA MARY BENNY-R4,5

          GP SRI.C.N.PRABHAKARAN

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The Division Bench of G.S. Patel and Madhav J. Jamdar, JJ., held that Asif i.e. son has no rights in his father’s flats.

As per the petition, Fazal Khan was living in a vegetative state for the last decade and he not only had dementia but has had multiple strokes also. The crux of the petition was the appointment of Fazal’s wife, Sonia as the 1st petitioner, as the guardian of Fazal’s personal and property.

It was noted from the medical report of Fazal that he was totally dependent on his caregivers.

In the present case, the Court was concerned with a Bank Account wherein Fazal was the first holder and Sonia, i.e. his wife the joint holder. The second asset was a property which was a residential flat.

An intervention application as pointed by the Court, which was filed by Asif Fazal Khan, the “de facto” guardian of Fazal for many years and there was absolutely nothing in the said application to show that.

Further, Asif submitted that although his parents were alive, there are two flats and both are what he describes as “a shared household” therefore he, the son, had some sort of enforceable legal right or entitlement to either or both of these flats.

High Court expressed that,

“In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable.”

Therefore, the intervention application filed by the son was rejected.

High Court permitted the wife of Fazal Khan to operate the Bank account and added that she may draw amounts in the said account to meet all and any of Fazal’s expenses, though she can’t use that money for her personal expenses nor she can transfer the said amount to her personal account and once a year, the wife is required to file a statement of account.

The wife proposed to sell the flats so that the proceeds could be used to look after Fazal, hence the Court permitted the same and directed that without prior leave to this Court she can execute an MoU or an agreement for sale.

In view of the above -said the petition is kept pending. [Sonia Fazal Khan v. Union of India, 2022 SCC OnLine Bom 627, decided on 16-3-2022]


Advocates before the Court:

Mr Nikhil Wadikar, i/b Ganesh Dhonde, for the Petitioner.
Mr Maneesh Trivedi, i/b LR & Associates, for Intervenor/Applicant

in IA/2411/2021.
Mr Adavit Sethna, i/b Anusha P Amin & Tanay M Mandot, for

Respondent 1-UOI.
Mrs Uma Palsuledesai, AGP, for State.

Case BriefsHigh Courts

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.

Unfortunate Tale

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.

Background

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.

Factual Trajectory

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.


Also Read:

Senior Citizen soon to enter her 90’s desired to end her life: Son and Grandson mentally left no stone unturned to make life of ‘grandmother’ a living hell | Bom HC emphasizes on family and societal values being perished

“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

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

Case BriefsHigh Courts

Bombay High Court: G.S. Kulkarni, J., addressed an ordeal of a senior citizen who would be soon in her nineties and was subjected to harassment by her son and grandson due to which she desired to end her life.

Court remarked that,

Looking at this case, one would surely perceive the perishing and deterioration of the family and societal values inherent in our culture, beliefs, ideals and traditions that parents and elders are to be treated with highest respect, love and empathy.

It is so disheartening that at such old age when the only expectation of a senior citizen, from the near and dear ones is of care, concern, affection and love, instead, what has been returned is harassment, wretchedness, suffering and abuse.

Background

Respondent 1 (Grandmother) who was 89 years old defended herself against her adamant grandson and her own son in proceedings initiated under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.

Grandmother had initially approached the Senior Citizen’s Tribunal initially claiming the maintenance.

She submitted that she was scared of her son as he was using all pressure tactics to make sure that she gives away all the assets to him, which were standing in her name and in the name of her late spouse. Further, she pleaded that her son and grandson along with their spouses entered her house, after which continued violence and pressure were created in order to grab the assets which were in her name and in her late husband’s name and not to give any share to her two daughters who also had equal shares in the estate of the grandmother and that of her deceased husband.

The grandmother stated that when she refused to succumb to such pressures and persistence of Jayesh to transfer all the assets in his name, he started behaving violently, which caused her to leave her own flat and stay with one of her daughters. Even after she left her house, the behaviour of her son continued to remain violent, and he started causing distress not only to her life but also to her married daughters.

In view of the above, respondent 1 decided that she would go back to her own house so that her son would not disturb the family members of any of her daughters.

Further, in another petitioner, respondent 1’s grandson took an extremely hard adversarial position asserting his rights more than what her son could assert.

Tribunal had given its decision in favour of the grandmother while giving her the possession of the said house and evicting the son and grandson from the said property.

On being aggrieved by the Tribunals’ decision, both the son and grandson have approached this Court.

Analysis, Law and Decision

High Court noted the stand of the son who stated that he has no objection in vacating the flat, to which the Court expressed that it is a fair stand, and it reflects a relisation on the part of the son that he would not have any legal right when the flat belonged to his mother. Though the grandson still asserted the claim on the basis of a purported Will of his grandfather to claim that the said flat was bequeathed to him.

What did the grandson say with respect to the property?

He admitted the fact that the flat belonged to his grandmother, however, the said flat was bought by his grandfather in his grandmother’s name since she had no source of income, hence his grandfather was the real owner who had bequeathed the flat to him by the purported Will and hence he had become the owner of the flat. However, he made a charitable statement that he would not mind if the grandmother decided to stay with him.

Whether Abhimanyu (Grandson) on the purported Will of his grandfather can refuse to vacate the flat in question?

In Court’s opinion answer would be negative.

Reasons:

  • Respondent 1-grandmother was admittedly the owner of the flat in question, the share certificate in relation to the said flat stood in her name.
  • This flat was continuously reflected in her income-tax returns as her asset. She is also paying the maintenance towards the said flat.
  • She categorically stated not only in her affidavit before the tribunal but also in the affidavit filed before this Court, that she is the sole owner of the said flat.
  • She also submitted that her grandson along with other family members, since the demise of her husband was taking all possible steps to usurp all her properties which were worth about 20 Crores.
  • By public notice, her husband had disowned her son.
  • She has set out repeated events of physical harassment and mental torture which went to such an extent that she attempted to commit suicide.

It was thus clear, that if Abhimanyu intended to assert any right on the flat in question on the basis of any Will of his grandfather, and more particularly, when such will was admittedly not probated, when the parties were within the jurisdiction of this Court, Abhimanyu could not have asserted any right to retain possession or occupation of the grandmother’s flat which independently belonged to her as an owner, which even Abhimanyu does not deny, except for the Will, which in any case are future rights to be established in appropriate adjudication.

Classic case where son Jayesh and grandson Abhimanyu have left no stone unturned to make life of the grandmother a living hell.

Greed of Property

The Bench further expressed that,

Courts have witnessed senior citizens knocking the doors of the Courts throughout the country, praying for reliefs under the Act. It is seen that when such senior citizens have property and when they become physically, psychologically and mentally weak and dependent and or they are in ill health, in such helpless position, the torture, harassment and depravement to them, from self-centered relatives and family members commences so as to grab their property.

While concluding the decision, Bench parted stating that,

“…with a hope that wiser sense would prevail on the petitioners and they would show empathy and mercy towards the grandmother so that she is not required to physically visit any Court as she did for the present proceedings and toil any further.”

Directing the petitioners to vacate the grandmother’s flat within 10 days, Court dismissed the petition. [Abhimanyu Jayesh Jhaveri v. Nirmala Dharmadas Jhaveri, 2021 SCC OnLine Bom 5861, decided on 17-12-2021]


Advocates before the Court:

Mr Kishor S. Patil, Advocate for the Petitioner in WP/4650/2021.

Mr Amit Sale, Advocate for the Petitioner in WP/6916/2021.

Mr Hiral Thakkar i/b. Ms. Vimal Sanghavi, Advocate for the Respondent.


Also Read:

Harassment to grab senior citizen’s property | 94-year old father approaches Court stating he doesn’t want his daughter even for one-minute longer: Read Bom HC’s decision

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.

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

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