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. Section 23(2) further states that 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.
Having heard the learned counsel for the petitioner, this
Court is of the view that the Act of 2007 is not without teeth. To provide
speedy redressal of grievance, the Act vests powers in the Tribunal to
make any transfer of the property void. The petitioner as per his own
averment in the application is unemployed. Nothing has been stated
regarding source of income of the petitioner. On 22.1.1999, an
agreement to sell and other papers were executed by Vijay Laxmi
Mathur. The petitioner and his wife were not possessed of the funds to
pay the sale consideration, noted in the agreement to sell. The
respondent no.3 Hanuman Prasad Sharma has specifically stated that he
had purchased the flat for his wife Pushpa Devi Sharma, and possession
was handed over to him and the original agreement to sell and other
original documents like allotment letters, letter of possession are with
Hanuman Prasad Sharma. Thus, it is discernible that the father in old age
being not able to move here and there, had asked the seller to execute
power of attorney in favour of his son.
In the present case, attorney has cheated the person who
had provided funds for execution of the agreement to sell. Scope of
Section 23 of the Act of 2007 cannot be restricted as the Act of 2007 is
beneficial legislation. The scope under Section 23 of the Act of 2007 can
be enlarged and the Tribunal can hold an inquiry as to who had provided
funds for purchase of flat by way of agreement to sell on 22.1.1999, what
was the age of the petitioner on 22.1.1999 and when he was married,
what were his resources, what were the resources of his wife to purchase
the flat. In case, the funds were provided by the father and the mother
in the year 1999, out of love and affection, the petitioner and his wife
cannot become ungreatful to the parents. By extending widest
interpretation to Section 23 read with Section 4 of the Act of 2007, this
Court is of the view that the Tribunal should have held an inquiry
compelling the petitioner and his wife to return sale consideration of the
flat to the parents so that they can survive with dignity.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
ORDER
S.B. Civil Writ Petition No. 12314/2013
Deepak Sharma vs. State of Rajasthan & Ors.
Dated: 20th April, 2016.
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Citation:AIR 2016 Raj 188
Deepak Sharma son of Hanuman Prasad Sharma and Pushpa
Devi Sharma, has approached this Court to assail the order dated
6.3.2013 passed by the Maintenance Tribunal, constituted under The
Maintenance and Welfare of Parents and Senior Citizen Act, 2007
(hereinafter to be referred as 'the Act of 2007'). Vide impugned order
(Annexure-3) dated 6.3.2013, the Tribunal had awarded Rs.2,500/- per
month as maintenance to the respondents no. 3 and 4, parents of the
petitioner.
In the present case, parents are nursing a grievance that the
present petitioner by way of design, obtained power of attorney from the
seller Vijay Laxmi Mathur, even though, entire amount of sale
consideration was paid by the parents and by virtue of said power of
attorney transferred Flat No.FF-129, JDA Colony, Jhalana Dungari in the
name of Smt. Nirmala Sharma, wife of the petitioner.
Old parents who have spent their life long savings not only
for rearing the children, have made a complaint that on 22.1.1999, the
respondent no.2 Hanuman Prasad Sharma purchased the above said flat
for his wife Pushpa Devi Sharma from Vijay Laxmi Mathur. Agreement to
sell, original papers of the flat including allotment letter, letter of
possession were handed over to the respondent no.3, father of the
petitioner. It is stated that they blindly trusted their son and reposed
faith in him and as a result thereof he had obtained on 4.6.2009 power of
attorney from Vijay Laxmi Mathur and by using the said power of
attorney, the petitioner had transferred the flat in the name of his wife.
Sum and substance of the complaint of the respondent nos. 3 and 4 is
that the petitioner instead of transferring the flat in the name of
mother, on the basis of power of attorney which father had obtained for
him, exploiting fiduciary relationship had transferred the flat in the
name of his wife. Hence, parents allege that their son ignored the
mother and preferred his wife, daughter-in-law of the respondent nos. 3
and 4.
To borrow the words of Sanjay Krishna Kaul, J. in the
judgment rendered in Justice Shanti Sarup Dewan, Chief Justice
(Retired) and another versus Union Territory, Chandigarh and others,
2014 (14) RCR (Civil) 656, “The filial affections of a father have cost
him dearly in the twilight years of his life!”
What has been stated above has been culled from the
Annexure-1, copy of the application filed by the respondent no.3
Hanuman Prasad Sharma, before Maintenance Tribunal, constituted
under Section 7 of the Act of 2007.
In the application (Annexure-1), father respondent no.3
stated that after the flat was transferred by their son in the name of
daughter-in-law, the petitioner and his wife started to abuse and
humiliate parents and they were subjected to indecent behaviour. In the
application following prayers were made:-
(vernaculars omitted)
The petitioner filed the reply (Annexure-2). In the reply, the
petitioner stated that the mother has already filed a civil suit. It is
further stated in the reply that in the civil suit his mother has admitted
that they had provided financial assistance to all the three sons. The
Sub-Divisional Magistrate No.2, Sanganer being Tribunal awarded
Rs.2,500/- as maintenance to the parents. Against the same, the
petitioner filed an appeal. The said appeal was not entertained and was
rejected. It was held that within the meaning of Section 16 (1) of the Act
of 2007, right of appeal is not available to the petitioner.
Mr. Anurag Shukla, the learned counsel for the petitioner
contended that the application was filed by the respondent nos. 3 and 4
just to gain possession of one of the earlier disputed flat and whereas the
Act of 2007, has only been enacted for maintenance and welfare of
parents and senior citizen of society and thus, the prayer made by the
parents was liable to be rejected, as they could not urge for transferring
the possession of the property. It has been further canvassed that the
Tribunal without there being any specific prayer for maintenance, could
not award maintenance to the parents. It is stated that flat in question is
self acquired property of Smt. Nirmala Sharma wife of the petitioner,
hence, claim of the respondent no.3 and 4 is misplaced. The learned
counsel for the petitioner has further submitted that his father had
retired from service and is getting Rs.15,000/- as pension and also
Rs.5,000/- as rent from a parental house and furthermore, father is also
having two houses in the posh colony at Jaipur. It is further stated that
the petitioner is unemployed. The learned counsel has further submitted
that the complaint filed by the parents was motivated and filed at the
behest of two brothers of the petitioner.
Section 27 of the Act of 2007 specifically states that no civil
court shall have jurisdiction in respect of any matter to which any
provision of this Act applies and no injunction shall be granted by any
civil court in respect of anything which is done or intended to be done
by or under this Act.
Section 23(1) of the Act of 2007 specifically state that 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. Section 23(2) further states that 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.
Having heard the learned counsel for the petitioner, this
Court is of the view that the Act of 2007 is not without teeth. To provide
speedy redressal of grievance, the Act vests powers in the Tribunal to
make any transfer of the property void. The petitioner as per his own
averment in the application is unemployed. Nothing has been stated
regarding source of income of the petitioner. On 22.1.1999, an
agreement to sell and other papers were executed by Vijay Laxmi
Mathur. The petitioner and his wife were not possessed of the funds to
pay the sale consideration, noted in the agreement to sell. The
respondent no.3 Hanuman Prasad Sharma has specifically stated that he
had purchased the flat for his wife Pushpa Devi Sharma, and possession
was handed over to him and the original agreement to sell and other
original documents like allotment letters, letter of possession are with
Hanuman Prasad Sharma. Thus, it is discernible that the father in old age
being not able to move here and there, had asked the seller to execute
power of attorney in favour of his son.
In the present case, attorney has cheated the person who
had provided funds for execution of the agreement to sell. Scope of
Section 23 of the Act of 2007 cannot be restricted as the Act of 2007 is
beneficial legislation. The scope under Section 23 of the Act of 2007 can
be enlarged and the Tribunal can hold an inquiry as to who had provided
funds for purchase of flat by way of agreement to sell on 22.1.1999, what
was the age of the petitioner on 22.1.1999 and when he was married,
what were his resources, what were the resources of his wife to purchase
the flat. In case, the funds were provided by the father and the mother
in the year 1999, out of love and affection, the petitioner and his wife
cannot become ungreatful to the parents. By extending widest
interpretation to Section 23 read with Section 4 of the Act of 2007, this
Court is of the view that the Tribunal should have held an inquiry
compelling the petitioner and his wife to return sale consideration of the
flat to the parents so that they can survive with dignity.
However, since parents have not challenged the order passed
by the Tribunal, this Court shall rest the matter, where it is.
Relief to be granted by the Tribunal in a beneficial
legislation enacted for maintenance and welfare of parents cannot be
dependent upon the prayer made in the application. In the present
application, it has been specifically stated that wife of
applicant/respondent no.3 is having Arthritis in hands and other joints of
the body. She is unable to cook food for herself and the husband. Thus,
maintenance awarded by the Tribunal in favour of the parents is too
meager. A pensioner requires additional amount to supplement his day to
day living. Old parents have to maintain standard of life which they were
having when one of them was in service. A father who has given his life
long savings to settle the son cannot be denied fruits of earning by the
son, merely because he is getting pension.
It goes without saying that relations between the parties are
strained and acrimonious.
A Division Bench of Punjab and Haryana High Court in
Paramjit Kumar Saroya vs. The Union of India and another, 2014 AIR
(Punjab) 121, noted objects and reasons of the Act of 2007 as under:-
“The very statement of objects and reasons of the said
Act has referred to the traditional norms and values of
the Indian society which laid stress on providing care for
the elderly, but due to the withering of the joint family
system, a large number of elderly are not being looked
after by their family. It is observed that ageing has
become a major social challenge and there is a need to
give more attention to the care and protection for the
older persons. It is perceived that the procedure for
claiming maintenance under the Code of Criminal
Procedure, 1973 (hereinafter referred to as the Cr.P.C.)
is time consuming as well as expensive and, thus, the
need to have a simple, inexpensive and speedy provisions
to claim maintenance for the parents.”
As is apparent, traditional norms and values of Indian Society
cast a duty upon son to look after parents. It is not a social obligation but
day to day idiom in the life of an Indian. Idioms 'मल@ कल दध
न
' 'दध कल कजर
न ' cannot
be ignored. The idioms are ingrained in blood and veins of Indian progeny
by inculcating values in the son from day he is born.
Taking totality of circumstances, there is no merit in the
present petition and the same is dismissed. This Court uphold the
quantum of maintenance. Since father is earning pension, the order
passed by the Tribunal is modified to the extent that the entire amount
of maintenance provided by the Tribunal shall be paid to the respondent
no.4 Pushpa Devi Sharma, mother of the petitioner.
(KANWALJIT SINGH AHLUWALIA), J.
No comments:
Post a Comment