Allahabad High Court
Harsh Singhal And Another vs State Of U.P. And 3 Others on 30 January, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. : 2024:AHC:14192 Reserved on : 19.01.2024 Delivered on : 30.01.2024 Court No. - 6 Case :- WRIT - C No. - 32439 of 2023 Petitioner :- Harsh Singhal And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sumit Daga,Mayank Kumar Agrawal Counsel for Respondent :- C.S.C.,Deepak Rana,Jagdish Prasad Mishra,Nitin Sharma,Prashant Kumar Hon'ble Rohit Ranjan Agarwal,J.
1. The petitioners before this Court are son and daughter-in-law of respondent no. 4, Smt. Nita Singhal who had moved an application under Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred as 'Act of 2007') before respondent no. 3 seeking Rs.30,000/- as maintenance and eviction of petitioners from the property in question being residential House No. 73, Dwarikapuri, New Mandi, District- Muzaffarnagar which was allowed by order dated 12.06.2023 and the appeal filed against the said order having been dismissed by respondent no. 2 vide order dated 06.09.2023.
2. Facts leading to the present case, are that Late Surendra Kumar Singhal, father of petitioner no. 1 and husband of respondent no. 4 apart from petitioner no. 1 has two daughters namely Smt. Ritu Goyal and Smt. Rima Singhal. Late Surendra Kumar Singhal and respondent no. 4, Nita Singhal jointly purchased the property in question through two sale-deeds, first sale-deed was executed by one Dharam Pal Singhal in regard to 88.24 square meter of House No. 73 on 05.03.2008, while the second sale-deed was executed by Smt. Sundana on 10.03.2008 for an area of 88.24 square meter. Thereafter, respondent no. 4 on 11.04.2012 purchased the entire share of Late Surendra Kumar Singhal through a registered sale-deed. As quarrel broke between petitioners and Late Surendra Kumar Singhal, an application was moved before Chief Judicial Magistrate by Surendra Kumar Singhal on 16.02.2013. A public notice was also published in newspaper on 18.03.2013 wherein Late Surendra Kumar Singhal had made public declaration that he has no concern with petitioners. A registered Will was executed by Late Surendra Kumar Singhal on 24.07.2014 bequeathing all his movable and immovable property in favour of his wife, Nita Singhal, respondent no. 4.
3. Due to misbehaviour and ill-treatment of petitioners, respondent no. 4 moved an application under Section 23 of the Act of 2007 claiming maintenance @ Rs.30,000/- per month and also sought eviction of petitioners from the property in question. The said application was contested by petitioners and an objection was moved. A stand was taken that respondent no. 4 was not the owner of property in question and it was Late Surendra Kumar Singhal. Further, it was stated that property which was purchased was out of the joint family proceeds and Late Surendra Kumar Singhal did not have the power to execute the sale-deed. Moreover, petitioner no. 1 had one-fourth share in the house. It was also stated in the objection that respondent no. 4 was very rich and has crores of rupees, and after the death of her husband, she has sold quite a number of properties. She is also doing trading of shares and is running the business of wholesale medicines in the name of M/s. Vasudev Traders. It was also stated in para 15 that soon a partition suit will be filed before civil court. Respondent no. 3 by order dated 12.06.2023 allowed the application of respondent no. 4 and directed for eviction of petitioners from the property in question. Aggrieved by the said order, an appeal was preferred by petitioners before respondent no. 2 who dismissed the appeal on 06.09.2023. Hence, the present writ petition.
4. Learned counsel for petitioners submitted that there was no transfer of property of respondent no. 4 to petitioners, and it was after giving up the claim for maintenance, the application has been moved for eviction from property which is not maintainable. According to him, Section 23(1) speaks about transfer of property of senior citizens, which can be declared void and children can be asked to pay maintenance in lieu of transfer under Section 23(2), however, in this case there was no transfer of property.
5. He then contended that Section 23 does not postulate for dispossession or eviction of children from property and the Tribunal has no power to pass such order. Reliance has been placed upon the decision of co-ordinate Bench of this Court in case of Krishna Kumar vs. State of U.P. and others, Writ-C No. 35884 of 2019, decided on 18.08.2023; Division Bench judgment of Patna High Court rendered in case of Ravi Shankar and another vs. State of Bihar and others, LPA No. 907 of 2023 in Civil Writ Jurisdiction Case No. 7851 of 2022, decided on 03.01.2024 and also upon the decision of Punjab & Haryana High Court rendered in case of Simrat Randhawa vs. State of Punjab and others, CWP No. 4744 of 2018, decided on 23.01.2020.
6. Learned counsel emphasised that though rules have been framed under Section 32 of the Act of 2007 by State Government but it does not empower for eviction. He then contended that a partition suit has already been filed by petitioners claiming one-fourth share in the property. According to him, the property in question was purchased out of funds of HUF and respondent no. 4 had only one-fourth share in the property. He then contended that no Letter of Administration or Probate has been obtained by respondent no. 4 to the alleged Will dated 24.07.2014 executed by Late Surendra Kumar Singhal in favour of respondent no. 4. The genuineness and validity of Will is questionable and is doubtful. According to him, the Will till date has not been proved as per Indian Succession Act. It was further contended that no sale-deed was presented as evidence or annexed or any inquiry was made before the orders were passed. He then contended that petitioner no. 2 had filed a case under the provision of Protection of Women from Domestic Violence Act, 2005 before the court at Muzaffarnagar on 14.12.2023 and has relied upon the decision of Apex Court in case of S. Vanitha vs. Deputy Commissioner, Bengaluru Urban District and others, (2021) 15 SCC 730 and judgment of Division Bench of this Court in case of Shivani Verma vs. State of U.P. and others, Writ-C No. 16743 of 2023, decided on 25.05.2023. Lastly, it was contended that it is only the civil court who has jurisdiction to order eviction and Section 9 of C.P.C. provides court to try all civil suits unless barred. Property rights are of civil nature and are covered by Explanation- I of Section 9 of C.P.C. Therefore, the Tribunal had no jurisdiction to order eviction. Reliance has been placed upon the decision of Apex Court in case of Sau Rajani vs. Sau Smita and another, 2022 SCC OnLine SC 1016.
7. Learned counsel appearing for respondent no. 4 submitted that respondent no. 4 is the owner in possession of property in question. Further, husband of respondent no. 4 in the year 2013 was ill treated by petitioners which led to moving an application before Chief Judicial Magistrate, Muzaffarnagar on 16.02.2013. Moreover, a public notice was also published on 18.03.2013. According to him, after the death of Late Surendra Kumar Singhal, the property was recorded in the name of respondent no. 4. He then contended that maintenance was sought from petitioners but the same was not paid and thus the prayer for maintenance as well as eviction was made under Section 23 of the Act. In the objection filed by petitioners they have not admitted to pay maintenance to respondent no. 4 and thus in the light of provisions of the Act of 2007 as well as the rules framed thereunder, the orders have been rightly passed by respondent nos. 2 and 3.
8. I have heard rival submissions made by counsel for the parties, and find that petitioners through this writ petition have basically raised issue to the effect that proceeding under Section 23 of the Act initiated by respondent no. 4 for eviction was not maintainable on the ground that no way eviction order could be passed by authorities under the Act, moreover once the suit for partition is pending before civil court and petitioner having one-fourth share in the property.
9. Before adverting to decide the question raised, a cursory glance of the salient features of the Act of 2007 is necessary for better appreciation of the case.
10. The Act of 2007 was enacted with objects and reasons that traditional norms and values of Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals 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. Though the parents can claim maintenance under the Code of Criminal Procedure. 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents.
11. Section 2(b) defines "maintenance" which includes provision for food, clothing, residence and medical attendance and treatment. Section 2(f) defines "property" which means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property.
12. Section 3 provides for the overriding effect which are inconsistent with the other enactment. Section 4 speaks about the maintenance of parents and senior citizens. Section 5 provides remedy to the parents and senior citizens for making application for maintenance under Section 4 before the Tribunal. Section 7 speaks about the constitution of maintenance Tribunal by State Government which has to be notified in the Official Gazette for each sub-division. Sub-Section (2) of Section 7 provides that such Tribunal shall be presided over by an officer not below the rank of Sub-Divisional Officer of a State.
13. Section 8 provides that proceedings initiated before the Tribunal will be summary in nature, but sub-Section (2) of Section 8 gives all power of Civil Court to Tribunal for the purpose of taking evidence on oath and of enforcing of attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed. Section 9 provides for the passing of the maintenance order.
14. Chapter V of the Act of 2007 provides for the protection of life and property of senior citizen. Section 23 provides for transfer of property to be void in certain cases. Provision of Section 23 is extracted hereasunder:-
"(1). Where any senior citizen who, after the commencement of this Act, has 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.
15. Section 27 of the Act bars the jurisdiction of Civil Court in respect of any matter to which any provision of this Act applies. Further, Section 32 empowers the State Government to make rules for carrying out the purpose of the Act.
16. The State Government in exercise of the power conferred under Section 32 of the Act of 2007 framed Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 (hereinafter called as 'Rules of 2014') which was notified on 24.02.2014 in the State of U.P. Chapter II of Rules of 2014 provided for maintenance Tribunal. Rule 5 provides for procedure for filing an application for maintenance, and its registration. Rule 6 provides for preliminary scrutiny of the application, while Rule 7 provides that once the Tribunal is satisfied on the points mentioned in sub-Rule (1) of Rule 5, notice shall be issued to each person against whom an application for maintenance has been filed. Sub-Rule (5) of Rule 7 gives the Tribunal all powers of Civil Court. Rule 15 provides for maximum maintenance allowance which can be granted by Tribunal. Chapter V of the Rules provides for the duties and powers of District Magistrate. Sub-Rule (2)(i) of Rule 21 provides that it is the duty of District Magistrate to ensure that life and property of senior citizens of district are protected and they are able to live with security and dignity. Chapter VI deals with protection of life and property of a senior citizen.
17. In the instant case, it is an admitted position to both the parties that three sale-deeds were executed in the year 2008 and 2012. Through two sale-deeds, the property in question was purchased jointly by respondent no. 4 along with her husband Late Surendra Kumar Singhal in the year 2008. Thereafter, Late Surendra Kumar Singhal executed the sale-deed in favour of respondent no. 4 of his share in the property in question, in the year 2012.
18. Respondent no. 4 had become the absolute owner in possession of residential House No. 73, Dwarikapuri, Muzaffarnagar. It was after the death of her husband that respondent no. 4 had moved application under Section 23 of the Act of 2007 not only claiming maintenance but also sought eviction of petitioners from the house in question. In the objections filed by petitioners they have not agreed to pay the maintenance to respondent no. 4 as claimed by her, but the proceedings were hotly contested with series of objections that petitioner no. 1 was having right in the property in question on the ground that the said property was purchased from the proceeds of HUF funds. Moreover, he had one-fourth share in the property. It was further claimed in the objections that petitioner no. 1 was going to file a partition suit.
19. There has been specific averment in the objections that respondent no. 4 was quite rich and she had sold number of properties of her husband and she does trading of shares and is running a wholesale medicines business in the name of M/s. Vasudev Traders. The petitioners never admitted their liability to pay maintenance and came out with a specific case that respondent no. 4 was having sufficient means to maintain herself and there was no need for awarding maintenance.
20. The very object of the Act of 2007 is for providing maintenance to the parents and senior citizens. The definition of term "maintenance" not only includes provision for food, clothing but also includes residence and medical attendance and treatment.
21. Petitioners before this Court have never admitted of their liability and willingness to provide maintenance and support to respondent no. 4, and had only objected to the proceedings which have been initiated under Section 23 of the Act. The partition suit was filed by petitioner no. 1 after filing of the objections to the maintenance application. As an afterthought, during pendency of the writ petition, petitioner no. 2 had filed a case on 14.12.2023 against respondent no. 4 under the provisions of Protection of Women from Domestic Violence Act, 2005.
22. Now, adverting to deal with the issue raised from petitioners side, I find that matter relating to maintainability of the application for maintenance and order of eviction under Section 23 is no more res integra and the Apex Court while dealing with the benefit of Section 23(1) and 23(2) in case of S. Vanitha (supra) had clearly clarified the distinction between sub-Section (1) and sub-Section (2) of Section 23 of the Act. His Lordship, Dr. D.Y. Chandrachud, C.J.I. held that in keeping with the salutary public purpose underlying the enactment of the legislation, the expression "transfer' would include not only the absolute transfer of property but also transfer of a right or interest in the property. The expression "transfer" not having been defined specifically by legislation, it must receive an interpretation which would advance the beneficent object the purpose of its provisions. Sub-section (2) of Section 23 speaks of the enforcement of the "right to receive maintenance" which is more comprehensive in its nature, than merely enforcing an order for maintenance passed under Section 9 of the Act. Relevant paras 23 and 24 are extracted hereasunder:-
"23. On the other hand, sub-section (2) of Section 23 envisages a situation where a senior citizen has a right to receive maintenance out of an estate. Where such a right exists, the right of maintenance can be enforced where the estate or a portion of it, is transferred against a transferor who has notice of the right; or if the transfer is gratuitous. The right however cannot be enforced against a transferee for consideration and without notice of the right. Now, sub-section (1) of Section 23 envisages a situation where the transfer of property is by the senior citizen. This is evident from the language of sub-section (1), namely, "where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property...". On the other hand, sub-section (2) of Section 23 does not confine itself to a transfer by a senior citizen, unlike sub-section (1). Sub-section (2) uses the expression "such estate or part thereof is transferred". Where a senior citizen has a right to receive maintenance out of the estate and any part of it is transferred, sub-section (2) permits the enforcement of the right to receive maintenance out of the estate against a transferee with notice or against a gratuitous transferee. Sub-section (2), in other words, may cover a situation where the transfer of the estate (in which a senior citizen has a right to maintenance) is by a third party, in which event, the provision provides the right to enforce the claim of maintenance against such transferee (other than those transferees for consideration or without notice of the pre-existing right). Arguably, the language of sub-section (2) is broad enough to also cover a situation where the transfer is by the senior citizen, in which event the transferee with notice of the right; or a gratuitous transferee, can be made subject to the enforcement of the right against the transferred estate.
24. Another distinction between sub-section (1) and sub-section (2) of Section 23 must also be noticed. Under sub-section (1), where a transfer has been made by a senior citizen subject to the condition that the transferee will provide for basic amenities or physical needs of the transferor and if there is a failure of the transferee to fulfil the condition, two consequences follow : (i) the transfer of property shall be deemed to have been made by fraud or coercion or under undue influence; and (ii) the transfer shall, at the option of the transferor, be declared to be void by the Tribunal. The deeming consequence which is provided for in sub-section (1) is not incorporated in sub-section (2). Sub-section (2), in contradistinction, stipulates that the right to receive maintenance can be enforced against a gratuitous transferee or a transferee with notice of the pre-existing right of a citizen to receive maintenance out of an estate notwithstanding who is the transferee of the estate. In keeping with the salutary public purpose underlying the enactment of the legislation, the expression "transfer" would include not only the absolute transfer of property but also transfer of a right or interest in the property. This would also be in consonance with the provisions of Section 2(f) which defines the expression "property" to include "rights or interests in such property". The expression "transfer" not having been defined specifically by the legislation, it must receive an interpretation which would advance the beneficent object and purpose of its provisions. Sub-section (2) of Section 23 speaks of the enforcement of the "right to receive maintenance" which is more comprehensive in its nature, than merely enforcing an order for maintenance passed under Section 9 of the Act.
23. Thus, the argument raised from petitioners side that an order for eviction cannot be passed under Section 23 holds no ground as the power to order eviction is implicit in the provision guaranteeing right to receive maintenance out of estate and the enforcement of that right.
24. In S. Vanitha (supra), the Apex Court has found that "Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection."
25. In the instant case, respondent no. 4 had sought maintenance by moving necessary application before maintenance Tribunal but petitioners instead of coming forward for maintaining their mother objected to the said proceedings and did not attempt to pay any amount. The Tribunal was well within its jurisdiction to proceed for the eviction of petitioners on the ground that the property in question was solely acquired by respondent no. 4.
26. Reliance placed upon the decision in case of Krishna Kumar (supra), Ravi Shankar (supra) and Simrat Randhawa (supra) are distinguishable from the present set of case, as in the instant case there has been a denial on the part of petitioners to pay maintenance and instead a counter claim has been raised in the form of one-fourth share in the property for which the parties later on proceeded to file partition suit.
27. The argument raised as to the power of Tribunal not to order eviction of petitioners in view of there being no provision under the Rules of 2014, this Court finds that the argument so made is totally misplaced especially in view of Chapter V and Chapter VI of Rules of 2014 which provides for protection of life and property of senior citizens, coupled with the fact that Act of 2007 under Section 23 provides for the transfer of property to be void in certain circumstances, which has been dealt in extenso by Apex Court in case of S. Vanitha (supra).
28. Lastly, an attempt was made from the petitioners side that petitioner no. 2 had initiated proceedings under Domestic Violence Act, 2005 on 14.12.2023 against respondent no. 4 and as such the judgment rendered in S. Vanitha (supra) and Shivani Verma (supra) would come to rescue is highly misplaced. The case of S. Vanitha is totally distinguishable in the present case as proceedings under the Domestic Violence Act, 2005 were initiated during the pendency of the above writ petition before this Court.
29. In S. Vanitha (supra), the property in question was in the name of husband of appellant and she had claimed accommodation in her matrimonial home and the same was transferred by her husband in favour of his father and thereafter it was transferred in the name of mother-in-law. The Apex Court found that competing remedy available under the Domestic Violence Act, 2005 could not be precluded and the protection was to be given to appellant therein.
30. However, in the instant case, the proceedings under the Domestic Violence Act, 2005 having been initiated subsequent to the filing of the present writ petition, benefits of S. Vanitha (supra) cannot be extended to petitioner no. 2.
31. This Court finds that the basic object with which this Act has been enacted would be frustrated if due consideration is given to subsequent proceedings initiated by petitioner no. 1 in respect to filing of partition suit after moving of maintenance application and filing of application under Domestic Violence Act, 2005 by petitioner no. 2 after the filing of the writ petition.
32. Both the petitioners have not come up with a case for providing maintenance to respondent no. 4 till this stage. The very purpose of the Act is to provide speedy and inexpensive remedy to parents, senior citizens who are neglected and left unattended by their children. The perusal of the application moved by respondent no. 4 for maintenance clearly reveals that it was for maintenance as well as eviction from the premises in question. Once there has been denial from petitioners side to maintain respondent no. 4 and pay her maintenance, the authorities were left with no option but to exercise power under Section 23 and proceed with eviction of petitioners.
33. Considering the facts and circumstances of the case, this Court finds that no case is made out for interference by this Court in the orders passed by appellate Tribunal as well as the Tribunal on the application made for maintenance by respondent no. 4.
34. The writ petition fails and is hereby dismissed.
Order Date :- 30.01.2024 V.S.Singh