Chittewan 1/16 29. WPL 3509-19.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO.3509 OF 2019

WITH
INTERIM APPLICATION NO.1 OF 2019

Ranjana Rajkumar Makharia … Petitioner

Versus
Mayadevi Subhkaran Makharia
And Others … Respondents

…..
Mr. Pravin D. Patel a/w Mr. Hemangi V. Kamdar for the Petitioner.
Mr. Vivek Kantawala a/w Mr. Vivek Sharma and Mr. Amey Patil i/b
Mr. Mukesh Kumar Mishra for Respondent No.1.
Ms. Jyoti Chavan, AGP for Respondent Nos.6 and 7.
…..

CORAM : S.C. GUPTE, J.

DATE : 24 FEBRUARY 2020

( Oral Judgement )

. Rule. Rule is taken up for hearing forthwith with consent of

Counsel. This writ petition challenges an order passed by Sub-
Divisional Officer, Senior Citizen Tribunal, Suburban District of
Mumbai, under Section 5(1) of Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 (“Act”).

Short facts of the case may be stated as follows :

2 The Petitioner herein is the daughter-in-law of Respondent No.1

and wife of Respondent No.2. Respondent Nos.3, 4 and 5 are
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brothers-in-law of the Petitioner. It is her case that all Respondents

were residing in a building called “Joy Sapphire”, situated at Vile
Parle (West), Mumbai-400 056. The building was said to be owned
by the joint family of all Respondents. The Petitioner has been living
with her husband, Respondent No.2, in one flat of the suit building.
It is submitted that after redevelopment of the suit building, as per a
family arrangement between all members of the family, vide Articles
of Agreement dated 16 August 2010, Flat No.101 on first floor came
to be allotted to Respondent No.5 (brother-in-law), whilst Flat No.201
came to be allotted to Respondent No.4 (another brother-in-law) and
Flat No.301 came to be allotted to the Petitioner’s husband-
Respondent No.2. The Petitioner has produced a copy of the Articles
of Agreement duly registered with Sub-Registrar of Assurances. Whilst
the parties were, respectively, in occupation of their flats, on 28
January 2019, Respondent No.1 (mother-in-law) filed an application
under Section 5(1)(a) of the Act (Application No.12 of 2019). The
application inter alia prayed for appointment of a protection officer
for safety of the applicant’s life and properties and direction against
Respondent No.2 and the Petitioner herein and their families to hand
over peaceful possession of Flat No.301, third floor of Joy Sapphire.
The application was made on the basis of allegations of cheating of
Respondent No.1 by the other Respondents and also the failure of
Respondent Nos.3, 4 and 5 to take care of, and maintain, Respondent
No.1. The application also made various personal allegations against
the Petitioner herein. It was submitted that the Petitioner herein,
with malafide intention to siphon off the property in her name,
Chittewan 3/16 29. WPL 3509-19.doc

committed various acts of misdemeanor in respect of the family

properties. Several allegations of inappropriate behavior on the part
of the Petitioner vis-a-vis Respondent No.1 find place in the
application. By his impugned order, Sub-Divisional Officer, sitting as
a Senior Citizen Tribunal, directed the Petitioner as well as
Respondent No.2 to vacate and hand over peaceful possession of the
suit flat and arrange their own housing in future. This order has been
challenged in the present petition on various grounds.

3 Broadly, it is submitted by the Petitioner that Respondent No.1

and her son, Respondent No.2 (husband of the Petitioner), have
conspired against the Petitioner, seeking to throw her out of the suit
flat, since the relationship between the Petitioner and her husband,
Respondent No.2, has been strained. It is submitted that the suit flat
is in the name of Respondent No.2 under a registered agreement and
the Petitioner has been residing therein with Respondent No.2 as her
matrimonial home. It is submitted that though far worse allegations
have been made against the other Respondents (Respondent Nos.3, 4
and 5) and despite claiming in her application that Respondent No.2,
the Petitioner’s husband, was properly maintaining her, the latter
has, in her application, sought eviction only of the Petitioner and
Respondent No.2 from the suit flat. It is submitted that the order is
wholly without jurisdiction.

4 Learned Counsel for the Petitioner submits that the Sub-

Divisional Officer had no authority, either under Section 4 or under
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Section 23 of the Act, to pass an order of eviction against the

Petitioner herein. It is submitted that no case is made out under
Section 4 of the Act in the present matter, namely, of want of
maintenance of Respondent No.1 as a senior citizen or parent of
Respondent No.2. It is submitted that there is also no case for
declaring any transfer of property as void under Section 23 of the Act,
since no property has been transferred by way of gift or otherwise
subject to any condition of provision of basic amenities or basic
physical needs to the transferor and so also, there has been no refusal
or failure alleged on the part of the transferee to make such
provision. Per contra, it is submitted by learned Counsel for
Respondent No.1 that the tribunal, constituted under Section 7 of the
Act, has ample powers to order eviction or delivery of possession of
any immovable property to the applicant parent or senior citizen
under Section 4 of the Act itself and one need not in every case have
to resort to Section 23 for seeking such eviction or recovery of
possession. Learned Counsel relies on the judgment of a learned
Single Judge of our court in the case of Dattatrey Shivaji Mane Vs.
Lilabai Shivaji Mane1. Learned Counsel also relies on Division Bench
judgments of our court in cases of Shrikant Devdas Naik Vs. The State
of Maharashtra2, Shamim Sayeed Khan Vs. Sayeed Rasheed Khan 3, and
Pritish Natvar Sanghvi Vs. Natvar Keshavlal Sanghvi 4, and two
decisions of Delhi High Court in the case of Sunny Paul Vs. State NCT
of Delhi (the decision of a learned Single Judge of Delhi High Court

1 W.P. No.10611 of 2018, decided on 26 June 2018

2 W.P.(L) No.3373 of 2019, decided on 16 December 2019
3 W.P. No.5830 of 2019, decided on 19 November 2019
4 W.P. 11735 of 2017, decided on 4 June 2018
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delivered on 15 March 20175 and confirmation of that decision by a

Division Bench of that Court on 3 October 20186).

5 Before we consider the case law cited at the Bar and rule on
the rights and liabilities of the parties under the Act in its light, we
must note the relevant provisions of law, namely, Sections 4 and 23
of the Act, which are quoted below :

4 Maintenance of parents and senior citizens. —

(1) A senior citizen including parent who is unable to maintain
himself from his own earning or out of the property owned by
him, shall be entitled to make an application under section 5 in
case of—

(i) parent or grand-parent, against one or more of his children

not being a minor;

(ii) a childless senior citizen, against such of his relative referred

to in clause (g) of section 2.

(2) The obligation of the children or relative, as the case may be,
to maintain a senior citizen extends to the needs of such citizen
so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her parent

extends to the needs of such parent either father or mother or
both, as the case may be, so that such parent may lead a normal
life.

(4) Any person being a relative of a senior citizen and having

sufficient means shall maintain such senior citizen provided he is
in possession of the property of such senior citizen or he would
inherit the property of such senior citizen: Provided that where
more than one relatives are entitled to inherit the property of a
senior citizen, the maintenance shall be payable by such relative
in the proportion in which they would inherit his property.
5 2017 4 AIR (Del) (R) 257
6 2018 253 DLT 410
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23 Transfer of property to be void in certain circumstances. —

(1) Where any senior citizen who, after the commencement of this
Act, has transferred by way of gift or otherwise, his property,
subject to the condition that the transferee shall provide the basic
amenities and basic physical needs to the transferor and such
transferee refuses or fails to provide such amenities and physical
needs, the said transfer of property 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.

(2) Where any senior citizen has a right to receive maintenance out
of an estate and such estate or part thereof is transferred, the right
to receive maintenance may be enforced against the transferee if
the transferee has notice of the right, or if the transfer is
gratuitous; but not against the transferee for consideration and
without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under
sub-sections (1) and (2), action may be taken on his behalf by any
of the organisation referred to in Explanation to sub-section (1) of
section 5.

6 A plain reading of these provisions indicates that Section 4 is

premised, firstly, on the inability of a senior citizen, including a
parent, to maintain himself or herself from his or her earning or out
of property owned by him or her. In such case, the citizen is entitled
to make an application under Section 5 for maintenance in accordance
with Section 4. The scheme of Sections 4 and 5 is premised, secondly,
on an obligation of children or relatives, as the case may be, to
maintain a senior citizen so as to cater to the latter’s needs to lead a
normal life. In case of a parent or grandparent, this obligation lies
on one or more of children or grand-children, not being a minor,
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whereas in case of a childless senior citizen, the obligation is on his

or her relatives referred to in clause (g) of section 2. (Clause (g) of
section 2 includes any legal heir of a childless senior citizen, who is
not a minor and who is in possession of, or would inherit, his or her
property after his or her death.) The foundation of this obligation on
the part of a child or grand-child or relative, as the case may be, to
maintain such senior citizen is the former’s possession of a property of
such senior citizen or likelihood of inheriting any such property. In
case of a childless senior citizen, if there are more than one relatives,
who are entitled to inherit his or her property, maintenance is
payable by such relatives in the proportion in which they would
inherit his or her property. There is nothing in Section 4, or indeed
in Section 5, which merely contains machinery provisions for an
application for maintenance under Section 4, to suggest that a senior
citizen can recover property per se from any occupier, be it a child
or relative of such senior citizen within the meaning clause (g) of
section 2 of the Act. No doubt, maintenance of a senior citizen may
itself in a given case imply his or her physical need to live in a
house and to that extent, it may be possible for a senior citizen to
either seek recovery of possession or prohibit someone from taking, or
continuing to be in, possession of immovable property. What is
beyond doubt is that such recovery or restraint can only be sought as
a measure of maintenance and not otherwise. The judgments
delivered by the learned Single Judge as well as Division Bench of our
court and also by Delhi High Court, as is noted below, have to be
understood in that light.
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7 So far as Section 23 of the Act is concerned, it does not admit

of any doubt that it provides for declaring transfers of property
covered by it as void only in stated circumstances. Firstly, it
envisages such transfer of property by way of gift or otherwise by a
senior citizen. Secondly, it envisages that such transfer must be
subject to a condition that the transferee shall provide basic amenities
or basic physical needs of the transferor. The third condition is that
such transferee must have refused or failed to provide such amenities
or needs. It is only when all three conditions are met that an
application lies to the senior citizen tribunal constituted under
Section 7 to declare any transfer of property to be void under the
deeming provision of section 23 on the ground that such transfer has
been vitiated by fraud, coersion or undue influence and thus,
rendered voidable at the option of the transferor. The declaration
may then be followed by an appropriate order of recovery of
possession from, or ousting of, the transferee.

8 Having, thus, noted and analyzed the legal provisions bearing

on the controversy, let us immediately note that in the present
matter, admittedly, there is no case under Section 23 of the Act. It is
neither the case of Respondent No.1, who was the applicant before
the tribunal, that she has transferred the suit property by way of gift
or otherwise to Respondent No.2 or the Petitioner nor her case that
any such transfer was subject to a condition that the transferee would
provide basic amenities or basic physical needs of the transferor. It is
also not her case that Respondent No.2 or the Petitioner, as such
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transferee or transferees, have refused or failed to provide any

amenities or physical needs of Respondent No.1 as the transferor.
The reliefs sought in the application before the tribunal should, in
that case, be capable of being sourced from the right to seek recourse
to Section 4 of the Act, and, if not, would be liable to be refused.

9 If one has regard to the application of Respondent No.1 before

the tribunal, there is indeed no case that the applicant, as a senior
citizen, is unable to maintain herself from her own earning or out of
the property owned by her. The application does not proceed on the
footing that it has been the obligation of Respondent No.2 as her son
or the Petitioner as her daughter-in-law to maintain her so that she,
as a senior citizen, may lead a normal life. The application is
premised more on the alleged acts of cheating and harassment by the
Petitioner and also by the other Respondents including Respondent
Nos.3, 4 and 5, who are the other children of Respondent No.1, and
not by Respondent No.2 (husband of the Petitioner herein). Curiously
enough, though equally serious allegations have been made against
the other Respondents (Respondent No.3, 4 and 5) as the Petitioner
herein, the only relief claimed in the application has been against the
Petitioner and Respondent No.2; the application restricts itself to only
recovery of possession of the suit flat occupied by the Petitioner and
Respondent No.2. Any such application for recovery of possession,
except on the footing that such recovery is necessary as a measure of
maintenance for the applicant senior citizen, is clearly not
maintainable under Sections 4 or 5 of the Act.
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10 In the case of Dattatrey Shivaji Mane (supra), decided by the

learned Single Judge of our court, it was not in dispute that the
particular senior citizen before the court in that case had the exclusive
rights to the tenement. The Petitioner and his family members, as
relatives, were allowed to occupy the tenement gratuitously by the
senior citizen. There was no legal right on their part to occupy the
tenement. The court noted that, in the facts of the case before it, the
senior citizen was prevented from using her own house by the
Petitioner and his family members. The allegation of the senior citizen
in that case was that the Petitioner and his family members were
preventing her even from using the toilet and were also closing her
water tap. The court noted that, in the premises, the decision of the
senior citizen not to allow the Petitioner and his family members to
stay with her in the house owned by her was justified and the
tribunal was, accordingly, within its rights to pass an order of
eviction not only against the Petitioner, but against the other family
members of the Petitioner. What the above narration indicates is that
in keeping with the provisions of Section 4 of the Act, the suit flat in
that case was required by the applicant senior citizen as a measure of
her maintenance and in the facts of that case, such relief was
granted to the concerned senior citizen.

11 The Division Bench cases of our court in Shrikant Devdas Naik

(supra), Shamim Sayeed Khan (supra) and Pritish Natvar Sanghvi
(supra) do not state the law otherwise. In all these cases, the
applications were essentially for maintenance. The courts proceeded
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on the footing that a senior citizen, including parent, who is unable

to maintain himself or herself from his or her own earnings or out
of property owned by him or her, is entitled to make an application
and that the obligations of children or relatives to maintain a senior
citizen or parent extended to the needs of such parent or citizen to
lead a normal life.

12 In Sunny Paul’s case (supra), eviction sought by the senior

citizen was under Section 23 of the Act; it was contended that the
child or relative was abusing the senior citizen; that there were
physical assaults and mal-treatment of the senior citizen. A learned
Single Judge of Delhi High Court, hearing the matter, held that in
such a case, all that the senior citizen or parent had to prove was
that he or she had transferred the title of the property to the other
party after the commencement of the Act with a condition that the
said party would provide basic amenities and basic physical needs of
the transferor and that the latter had refused or failed to provide the
same. The learned Judge held that the expression “transfer” does not
mean to apply only to “actual transfer of title or ownership”, but
also includes “transfer of possession of the property”. Whilst
explaining this particular aspect, the learned Judge observed that
Section 23 of the Act cannot be read in isolation from the other
provisions, particularly, Section 4 of the Act read with Sections 2(b),
(f), (g) and (h) of the Act. The learned Single judge noted that what
emerged from the record of the case was that the senior citizen before
him required the property to maintain himself, since his son, the
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petitioner before the court, who had challenged the eviction order of
the tribunal, did not seem to be taking sufficient and proper care of
the senior citizen and possession of the property was sought in view
of the latter’s failure to properly maintain him. These observations
do not either support the case of Respondent No.1 here that without
having any case under Section 23, possession of immovable property
can be recovered under Section 4 and that without reference to any
need to occupy the property for maintaining the senior citizen.

13 The Division Bench of Delhi High Court, hearing an appeal from

the order of the learned Single Judge, explained the matter in the
following words :

“It is noted that in the impugned order, the learned

Single Judge has also answered the question whether a
claim for eviction before the Maintenance Tribunal is
maintainable under Section 23 of Act of 2007 and that
too on allegations of forcible ouster and in the absence of
a claim for maintenance. The learned Single Judge
concluded that Sections 4 and 23 are separate and
distinct remedies. In other words, the claim for
maintenance is not a condition precedent for passing an
order of eviction under Section 23 of the Act of 2007.”

The Division Bench, after considering this aspect, on its own,

noted as follows :

“Section 23(1) under Chapter V confers a power of the

Tribunal to declare transfer of property in certain
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circumstances as void. Section 23(2) inter-alia stipulates

that a senior citizen has a right to receive maintenance
out of an estate and if such estate or part thereof is
transferred, the right to receive maintenance may be
enforced against the transferee if the transferee has notice
of the right, or if the transfer is gratuitous; but not
against the transferee for consideration and without notice
of right. There is nothing in Section 23, which pre-
supposes an application for maintenance as a prerequisite
for seeking a relief under it. The scope of Section 23 is
to declare the transfer of property by a senior citizen
with an intent that the transferee shall provide the basic
amenities and physical needs to the transferor and if such
transferee refuses or fails to provide such amenities and
physical needs, in such a eventuality, the transfer of
property can be declared void by the Tribunal. A senior
citizen may be contended if the transfer of property
effected is treated as void so as to enable him to
maintain himself from the estate, for which a senior
citizen may not seek maintenance. So the plea of the
learned counsel for the appellant that in the absence of a
claim for maintenance by respondent Nos.2 and 3, a
petition under Section 23 shall not be maintainable, is
without any merit.”

14 In the present case, the tribunal appears to be blissfully unaware

of this position of law. In fact, the very basic issue, on which relief
under Sections 4 and 5 must in all cases be premised, namely,
whether the applicant senior citizen was dependent on the
respondent, a child, grand-child or relative for her maintenance or
basic needs or amenities of life and which was or were denied by the
respondent, has been held in the negative by the tribunal. The order
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of eviction or recovery of possession has been sought thus without

reference to the applicant’s needs as a senior citizen to use the
property as part of her maintenance. This, as I have explained above,
obviously cannot be done. On the second issue, namely, whether the
Respondents were harassing the applicant mentally or physically, the
tribunal has not found anything against Respondent No.2, the
Petitioner’s husband. So far as Respondent Nos.3, 4 and 5 are
concerned, the court has similarly not found any act of mental or
physical harassment on their part. The only acts of physical or mental
harassment that are found are against the Petitioner herein. That, I
am afraid, is neither here nor there. As a pre-condition for any order
to be passed under Section 4 of the Act, if a senior citizen is a
parent, the order must find that one of or more of his or her
children, not being a minor, has or have breached the obligation to
maintain him or her, so that the senior citizen is not able to lead a
normal life. That her daughter-in-law has been harassing her, or
even, for that matter, not maintaining her, is no ground for seeking
an order under Section 4. It is only in case of a childless senior
citizen that the other relatives, who are referred to in clause (g) of
Section 2, are obligated to maintain the senior citizen, so that he or
she may lead a normal life. A daughter-in-law may well come within
the expression “relative” in clause (g) of Section 2; but no order can
be sought against her for that reason by a senior citizen who has a
child or grand-child, who is not a minor.

15 Learned Counsel for Respondent No.1 refers to para 7 of the

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application. In para 7, it has been alleged by Respondent No.1 that

she had allowed the Petitioner and Respondent No.2 to reside in the
suit flat gratuitously and that she was expecting good care, love and
treatment in her old age from her son and his family. These are, at
best, vague allegations so far as ingredients of Section 23 are
concerned. Besides, this case has been squarely contested by the
Petitioner. In her written statement, she has pointed out that the sole
basis of the claim of Respondent No.1 to the ownership of the suit
flat was a development agreement, whereunder the flats in Joy
Saphire, including the suit flat, have been allotted to the Respondents
as joint owners. The tribunal has not found in its impugned order
that Respondent No.1 was the sole owner of the suit flat or that it
was allotted by her to the Petitioner and Respondent No.2 gratuitously
for residence, leaving aside the question as to whether or not there
was any condition of maintenance attached to such allotment. In any
event, it has not been disputed by learned Counsel for Respondent
No.1 that her only case here is under Section 4 and not under Section
23 of the Act.

16 For the reasons discussed above, the whole basis and

jurisdictional assumption of the tribunal in the present case, are
clearly erroneous and untenable. The impugned order, accordingly,
cannot be sustained and deserves to be quashed and set aside.

17 Accordingly, Rule is made absolute and the petition is allowed

by quashing and setting aside the impugned order of the senior citizen
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tribunal dated 15 November 2019 and dismissing the application of

Respondent No.1 made under Section 5 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (Application No.12 of
2019).

17 In view of the disposal of the petition in the above terms, the

Interim Application does not survive and is disposed of.

(S.C. GUPTE, J.)

Digitally signed by
Rajesh V. Rajesh V.
Chittewan
Chittewan Date: 2020.03.17
12:51:16 +0530