Rajasthan High Court - Jaipur
Rakesh Soni S/O Shri Leeladhar Soni vs Smt. Premlata Soni W/O Shri Leeladhar ... on 18 October, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal (Writ) No.920/2019
With
D.B. Civil Misc. Stay Application No.9809/2019
In
S.B. Civil Writ Petition No.15845/2018
1. Rakesh Soni S/o Shri Leeladhar Soni, Aged About 34
Years, By Caste Soni, R/o House No. 984, Tansukh
Srimal Ki Gali, Near Hill Ka Kunwa, Thakur Achrol Ka
Rasta, Chokri Ramchandra Ji, Jaipur.
2. Smt. Anju Devi W/o Shri Rakesh Soni, Aged About 33
Years, By Caste Soni, R/o House No. 984, Tansukh
Srimal Ki Gali, Near Hill Ka Kunwa, Thakur Achrol Ka
Rasta, Chokri Ramchandra Ji, Jaipur.
----Appellants
Versus
1. Smt. Premlata Soni W/o Shri Leeladhar Soni, Aged
About 64 Years, By Caste Soni, R/o House No. 984,
Tansukh Srimal Ki Gali, Near Hill Ka Kunwa, Thakur
Achrol Ka Rasta, Chokri Ramchandra Ji, Jaipur.
2. Leeladhar Soni S/o Late Shri Mangtaram, Aged About
66 Years, By Caste Soni, R/o House No. 984, Tansukh
Srimal Ki Gali, Near Hill Ka Kunwa, Thakur Achrol Ka
Rasta, Chokri Ramchandra Ji, Jaipur.
3. Vikas Soni S/o Shri Leeladhar Soni, Aged About 32
Years, By Caste Soni, R/o House Of Govind Soni,
Motisingh Bhomiyon Ka Rasta, Johari Bazar, Jaipur. At
Present Residing At House No. 984, Tansukh Srimal Ki
Gali, Near Hill Ka Kunwa, Thakur Achrol Ka Rasta,
Chokri Ramchandra Ji, Jaipur
4. Yogita Devi W/o Shri Vikas Soni, Aged About 31 Years,
By Caste Soni, R/o House Of Govind Soni, Motisingh
Bhomiyon Ka Rasta, Johari Bazar, Jaipur. At Present
Residing At House No. 984, Tansukh Srimal Ki Gali,
Near Hill Ka Kunwa, Thakur Achrol Ka Rasta, Chokri
Ramchandra Ji, Jaipur
----Respondents
For Appellant(s) : Mr. R.K. Daga
For Respondent(s) : Mr. Ravindra Singh Shekhawat
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment (Downloaded on 07/06/2021 at 12:01:31 AM) (2 of 12) [SAW-920/2019] Per Hon'ble Mr. Justice Mohammad Rafiq:
18/10/2019 This appeal on behalf of appellants no.1 and 3, Rakesh Soni S/o Shri Leeladhar Soni and Smt. Anju Devi W/o Shri Rakesh Soni, challenges the order dated 02.05.2019 of learned Single Judge, whereby their writ petition filed assailing the order dated 25.05.2018 of the Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, has been dismissed.
Respondents no.1 and 2, namely, Smt. Premlata Soni and Leeladhar Soni, are wife and husband. Appellants no.1 and 2, namely, Rakesh Soni and Smt. Anju Devi are respectively their son and daughter-in-law.
The Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (hereinafter shall be referred to as 'the Tribunal'), on the application filed by the respondents (father and mother) under Section 5 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, directed the appellants (son and daughter-in-law) to handover vacant possession of the house by 30.09.2018 and further restrained them not to torture respondents either mentally, physically or socially.
The respondents filed the said application under Section 5 of the Act of 2007 before the Tribunal against the appellants as also Vikas Soni and Yogita Devi (their another son and daughter-in-law), inter alia, with the pleadings that they are senior citizens and have been residing in their House No.984, Tansukh Shrimal Ki Gali, Near Ghile-ka-Kuwa, Takur Achrol Ka Rasta, Chaukri Ramchandra Ji, Jaipur. It was stated that the (Downloaded on 07/06/2021 at 12:01:31 AM) (3 of 12) [SAW-920/2019] appellants had invested a sum of Rs.11,00,000/- in the business of respondent son Rakesh Soni after his marriage in 2002. The appellants had picked up a quarrel with the respondents. Owing to their quarrelsome nature, they used to abuse the respondents regularly. The appellants as also respondents' another son and daughter-in-law were residing in the house of Govind Soni, who is brother-in-law of appellant Rakesh Soni. The respondents had made a public declaration depriving them of all their movable and immovable properties on 08.09.2005 and driven them out of their house. But the appellant no.1 suddenly came to the respondents on 01.09.2013 and told that since Govind Soni was now selling his house, therefore they should permit him to stay in one part of their house for one or two months and thereafter he would shift to his own personal house in Transport Nagar, which was under construction. The respondents, considering their hardship, permitted the appellants to stay in their house and provided them one room and one kitchen with lat-bath on the first floor of the house. However, there was a sudden change in their behaviour law and they started quarreling with the respondents. The appellant no.2 threatened to drag them in criminal case for demand of dowry and other allegations. It was alleged that appellant no.1 Rakesh Soni has monthly income of Rs.40,000/- from the business of jewellery. The appellants as also respondents' another son and daughter-in-
law subjected to torture the respondents (parents) physically, mentally and even socially. Some times they use to beat the respondents (parents). Prayer was therefore made to direct the appellants as also respondents' another son and daughter-
(Downloaded on 07/06/2021 at 12:01:31 AM)(4 of 12) [SAW-920/2019] in-law not to misbehave and abuse the respondents and not to subject them to beating and any mental or physical cruelty.
Further prayer was made that all the four be directed to provide the respondents (parents) a sum of Rs.20,000/- per month as maintenance for their clothing, food, electricity, water charges and other day-to-day expenses. They be further directed to vacate the unauthorizedly occupied portion of the house of the respondents.
The appellants contested the aforesaid application by filing reply thereto, in which they denied the allegations. The Presiding Officer of the Tribunal made an effort to get the dispute amicably settled between the parties. He even appointed local Commissioner to inspect the house in question.
Ultimately, the Tribunal by judgment dated 25.05.2018 allowed the application directing the appellants to vacate and handover the peaceful possession of the portion of the house to the respondents (parents) by 30.09.2018. That judgment was challenged by the appellants before learned Single Judge by filing writ petition, being S.B. Civil Writ Petition No.15845/2018. The learned Single Judge by impugned judgment dated 02.05.2019 dismissed the writ petition.
Mr. R.K. Daga, learned counsel for the appellants, submitted that the application was filed by the respondents (parents) under Section 5 of the Act of 2007 under which the Tribunal could have granted the prayer for maintenance. The remedy of eviction cannot be availed in the scope of Section 5 of the Act of 2007. If the respondents (parents) wanted to recover possession of the house in question, they ought to have approached the competent civil court. Such relief could (Downloaded on 07/06/2021 at 12:01:31 AM) (5 of 12) [SAW-920/2019] not be granted even under the provisions of Section 23 of the Act of 2007. The learned counsel argued that the appellant no.2 (daughter-in-law) does not even fall within the definition of children given in Section 2(a) and 2(g) of the Act of 2007.
The respondents have remedy of filing civil suit for possession or the suit for mandatory injunction under Section 39 of the Specific Relief Act, 1963.
Mr. Ravindra Singh Shekhawat, learned counsel for the respondents, supported the impugned judgment and submitted that the learned Single Judge was perfectly justified in dismissing the writ petition.
According to the respondents, it is not in dispute that the house in question is self-acquired property of the respondents (parents), who are senior citizens. Appellant no.2 (daughter-
in-law) has even lodged first information report against the respondent no.2 (father-in-law) for offence under Section 354 of the IPC with allegation of outraging her modesty and also threatened him of lodging of first information report for offence under Sections 498A and 406 of the IPC with allegation of misappropriation of her 'stridhan' and jewellery items, which were allegedly in his possession.
The learned Single Judge relied on the judgment of this Court in Smt. Rashmi Saxena Vs. Suresh Praksh Saxena, 2017 (3) WLC (Raj.) 313, as also judgment of Bombay High Court in Dattarey Shivaji Mane Vs. Lilabai Shivaji Mane & Others, Writ Petition No.10611/2018 decided on 26.06.2018 and judgment of Delhi High Court in Sunny Paul Vs. State of NCT of Delhi and Others, LPA 205/2017, decided on 03.10.2018, wherein it was held that the Act of (Downloaded on 07/06/2021 at 12:01:31 AM) (6 of 12) [SAW-920/2019] 2007 has been given an overriding effect in the backdrop of the language employed under Sections 4, 5 and 6 of the Act of 2007, and concluded that the Tribunal constituted under the Act of 2007 has power and jurisdiction to make an order of eviction. The overriding effect of the Act of 2007, in the backdrop of Section 3, further substantiates the plea of the respondents. Learned Single Judge in the impugned judgment relied on the judgment of this Court in Smt. Lalita Kanwar Vs. Sumer Singh Khinchi and Others, S.B. Civil Writ Petition No.412/2019, decided on 16.04.2019, and also reproduced therein para 9, 10 and 11 of the judgment in Smt. Lalita Kanwar, and we would like to reproduce those paras herein also, which read thus:-
"9. A glance of the language employed of Section 4, 5 and 6, of the Act of 2007 and opinion referred to and relied upon by learned counsel for the respondent No. 1 and 2, may not detain this Court for long to conclude that the Maintenance Tribunal constituted under Act of 2007, has power and jurisdiction to make an order of eviction. Act of 2007, has been given overriding effect as would be evident from a perusal of Section 3.
10. In the case of Shadab Khairi & Anr. (supra) while dealing with the question as to whether the Maintenance Tribunal has a jurisdiction to pass an order of eviction while answering it an affirmative reiterating the opinion in the case of Sunny Paul (supra), and on a survey of other opinions in the backdrop of statutory provisions of the Act of 2007, it has been observed that in the house of the parents, son whether married or unmarried has no legal right to live in that house and he can live in that house only at mercy of his parents, up to the time his parents allowed. Merely because the parents allowed residence so long relations were cordial does not mean that the parents were to be forced to bear the burden throughout their life. At this juncture, it will be profitable to take note of the text of para 20 and 21 in the case of Shadab Khairi & Anr. (supra), which reads thus:(Downloaded on 07/06/2021 at 12:01:31 AM)
(7 of 12) [SAW-920/2019] "20. We do not agree. At the outset, we had elaborated on how beneficial legislation in a welfare State demands a liberal interpretation wide enough to achieve the legislative purpose and be responsive to some urgent social demand in a welfare State. The object for which the Act as well as the subject Rules, extracted hereinabove, were brought into force, namely, for the welfare of parents and senior citizens and for protection of their life and property, leave no manner of doubt that the Maintenance Tribunal constituted under the Act has the power and jurisdiction to render the order of eviction.
21. The issue framed hereinbefore is, therefore, decided against the appellants. Before parting, it would be incumbent for us to observe that the appellants have failed to show any rights to continue to occupy the subject property against the wishes of respondent No.3, especially when the latter has complained of ill-treatment and harassment at the hands of the former."
11. In the case of Dattatrey Dhivaji Mane (supra), reiterating the view as to ambit and scope of Section 2 of Act of 2007, in no uncertain terms observed that Section 4 of the Act of 2007, permits an application for eviction of child and grand child, if the condition set out in that provision with respect to other provisions was satisfied."
Similar question was dealt with by this Court in Smt. Rashmi Saxena, supra, and we would like to reproduce paras 9 to 14, relevant for the present purpose, which read thus:-
"I have given my anxious consideration to rival submissions and perused the material on record.
The judgment of the Supreme Court in Smruti Pahariya, supra, on which reliance has been placed on behalf of the petitioner, can be of no help to her in so far as deciding the correctness of the impugned orders is concerned. Besides, the facts in that case were entirely different. Therein the respondent was present on the date of hearing and the matter was adjourned to the next date but thereafter the date was preponed ex-parte in favour of wife and exparte decree was passed. In those facts, the decree was held liable to be set aside. Additionally the court observed that continued consent of husband cannot be presumed from such (Downloaded on 07/06/2021 at 12:01:31 AM) (8 of 12) [SAW-920/2019] absence and the divorce decree passed by presuming consent, was held liable to be set aside. The other two judgments relied on behalf of the petitioner are also distinguishable on facts.
In Promil Tomar, supra, the order impugned therein was also passed on 19.06.2013 by the Presiding Officer, Maintenance Tribunal, Panchkula, exercising powers under Section 23 of the Act of 2007 on the application of respondent therein, a senior citizen. The Presiding Officer allowed the application with direction that respondent (petitioner before the High Court) may reside in house with consent of all stack holders and not otherwise and that they should try to make the good family relations so that every family member may lead the best life. The Tribunal was having paramount obligation to secure the life and property of parents and senior citizen under the provisions and rules of the Act of 2007. The argument of the petitioner before the High Court was that the Maintenance Tribunal, Panchkula, had no jurisdiction or power to interfere in the application under Section 23 of the Act of 2007 with regard to properties, which were not received/inherited by the petitioners from respondent no.5 in terms of Section 23 of the Act.
The Tribunal has no power, authority or execution to order of eviction of the petitioner from the disputed house or to order execution as such and jurisdiction vests only with Civil Court. The High Court, on consideration of statement, objects and reasons and various provisions of the Act of 2007 held that the function of the court is to interpret the statute to ascertain the intent of the legislature. Where the language of the Statute is clear and explicit, the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. It was observed by the High Court as under:-
"I have carefully considered the said contention of learned counsel for the petitioners and I am of the opinion that Section 23(1) of the Maintenance Act provides that "where any senior citizen has transferred by way of gift or otherwise, his property, and the transferee refuses or fails to provide amenities and physical needs, the said transfer of the 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." The transfer by a senior citizen in first part of Section 23(1) of the Maintenance Act could be a gift or otherwise. The property transferred by gift or otherwise would include the transfer of the possession of a property or part of it by a senior (Downloaded on 07/06/2021 at 12:01:31 AM) (9 of 12) [SAW-920/2019] citizen. The word "otherwise" used under Section 23(1) of the Maintenance Act by the legislation would include transfer of ownership, transfer of possession by way of a lease deed, mortgage, gift or sale deed. Even a transfer of possession to a licencee by a senior citizen will also fall under the ambit of Section 23(1) of the Maintenance Act. The word "otherwise" cannot be ignored for the objective of Section 23(1) of the Maintenance Act. In context to the objectives of the Act, "transfer" would mean that transfer of property by senior citizen need not be a gift only but it could be any transfer within the meaning of Transfer of Property Act or would even include transferring of any right of the nature of title or possession. Section 23(1) of the Maintenance Act further provides that if the transfer is subject to a condition that transferee shall provide basic amenities and basic physical needs to the transferor and transferee refused to do so, the transfer of property shall be deemed to have been made by fraud, coercion or undue influence and would be declared so by the Maintenance Tribunal on the option of transferor. A senior citizen who had transferred his right, title or interest to any other person by gift or otherwise (which would include transfer of possession by lease, mortgage or licence) would become void in the event of transferee refusing to provide amenities and physical needs. The said transfer in such circumstances would be termed as fraud and would be void."
In Jayantram Vallabhdas Meswania Vs. Vallabhdas Govindram Meswania - AIR 2013 Guj.160, the Gujarat High Court, while considering the scope of Section 23 (1), observed as follows:-
"14. The question which, therefore, arises is whether the term "transfer" in Section 23 of the Act should be construed so as to mean only actual transfer of ownership and title or the said expression should be construed, having regard to the object of the Act and the provisions under Section 2(b), 2(d), 2(f), 2(h) and Section 4, so as to also include possession of the property as well.........
14.2. Having regard to the object of the Act and the intention of the legislature, there is no reason or justification or indication to restrict the meaning and scope of the term "transfer" so as to mean only "actual transfer of title and ownership" and to exclude "possession of property" from the purview of Section 23 and/or from the term "transfer"
employed in Section 23 of the Act.
(Downloaded on 07/06/2021 at 12:01:31 AM)(10 of 12) [SAW-920/2019] 14.3. There is no provision in the Act to suggest or to indicate that the said term carries very narrow, and literal meaning so as to mean only actual transfer of title and ownership and the concept of possession, which is recognized by the Act - particularly under Section 4 of the Act, has to be kept out........
16. In view of the foregoing discussion and the scope and purview of the provisions under Section 23 read with Section 4 of the Act and having regard to the object of the Act, the impugned orders and the direction to handover the possession of the property to the respondent cannot be said to be without jurisdiction or beyond the scope of Section 23 read with Sections 4, 2(b), 2(d) and 2(f) of the Act. The impugned direction, therefore, cannot be faulted."
The Punjab and Haryana High Court in Manjit Singh, supra, was also dealing with question whether order of eviction could not have been passed by Maintenance Tribunal on application under Section 23 of the Act of 2007, which only deals with issue of maintenance. The High Court, on analysis of the provisions of the Act especially provisions of Section 22(2) read with Section 24 of the Act of 2007, held that there is no iota of doubt that there is provision of eviction in the Act. Even on merits, the Maintenance Tribunal and the Appellate Tribunal found that the house in which the petitioner is residing totally belongs to respondent no.3, who not only purchased but also constructed the same from his own fund and has been held entitled not to retain the petitioner and his family in occupation thereof.
The Supreme Court in S.R. Batra, supra, in the context of the provisions of Sections 17 and 19 of the Protection of Women from Domestic Violence Act, 2005, held that there is no law on matrimonial home in India but as per available law, right to wife can only be as against husband and not against father-in-law, or other relatives including mother-in- law. It was held that mother-in-law's house does not become "shared house hold" only because applicant- wife had shared that house with her husband earlier. For that it has to be a house owned or taken on rent by husband or a house which belongs to joint family of which husband is a member.
The Punjab and Haryana High Court in Jagdev Singh Vs. Paramjit Kaur and Others - CRR No.2937 of 2010 (O&M), decided vide judgment dated (Downloaded on 07/06/2021 at 12:01:31 AM) (11 of 12) [SAW-920/2019] 12.09.2013, was dealing with the case where application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, was filed by respondent no.1. The application was allowed by the Magistrate restraining her husband and father- in-law (petitioner before the High Court) from dispossessing her from 'shared household' except in due course of law. The High Court held that the Domestic Violence Act provides for a higher right in favour of a wife. She not only acquires a right to be maintained but also thereunder acquires a right of residence. The right of residence is a higher right. The said right as per the legislation extends to joint properties in which the husband has a share. The parents of the husband may allow her to live with them so long as their relations with the son are cordial and full of love and affection. But if the relations of the son or daughter-in-law with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce partition. Where the house is self-acquired house of the parents, the son, whether married or unmarried, has no legal right to live in that house. He can live in that house only at the mercy of his parents upto the time the parents allow. Wife has her rights of maintenance against her husband or son/daughters. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes, held the High Court.
Consideration of Section 23, supra, shows that it contains the word "transferred", which is followed by the words "by way of gift or otherwise" and therefore, connotation of the word "otherwise" would cover within its definition. Almost every mode of transfer is involved not necessarily transfer of title and ownership of property alone but also physical possession thereof. In other words, the word "transfer" would also include the transfer of possession. It is trite that when there is doubt about the meaning of a word used in a statute, it has to be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. In the present case, the possession of part of the house holds by respondent was given to the petitioner as licensee, may be at the time when (Downloaded on 07/06/2021 at 12:01:31 AM) (12 of 12) [SAW-920/2019] her marriage with the son of the respondent was subsisting. The fact, however, remains that as of now marriage between two does not subsist and both are strangers to each other. In view of this, the daughter-in-law cannot claim right of residence as against father-in-law, although she can proceed against her husband. This court therefore does not find any error or infirmity in the impugned orders."
In view of above, it has to be held that since word "transferred" in Section 23 is followed by the phraseology "by way of gift or otherwise", therefore the connotation "otherwise" would include every mode of transfer including transfer of possession.
We therefore do not find any infirmity in the approach of learned Single Judge. The appeal is accordingly dismissed.
This also disposes of the stay application.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J //Jaiman// (Downloaded on 07/06/2021 at 12:01:31 AM) Powered by TCPDF (www.tcpdf.org)