Bombay High Court
Rahul S/O Suryabhanji Kapse And Another vs Smt. Ramabai Wd/O Suryabhanji Kapse And ... on 5 February, 2020
Author: Manish Pitale
Bench: Manish Pitale
1/4 wp7654.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 7654 OF 2019
Shri. Rahul S/o Suryabhanji Kapse and anr.
vs.
Smt. Ramabai wd/o Suryabhanji Kapse and anr.
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Office Notes, Office Memorandum of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders
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Shri. G. I. Deepwani, counsel for petitioners. Shri. Deoul Pathak, counsel for respondent No.1.
CORAM : MANISH PITALE J.
DATED : 05/02/2020 In this writ petition, while issuing notice on 20/11/2019, this Court had referred to Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It was also recorded that the petitioners have stated in the writ petition itself that they are willing to maintain the respondent No.1. This Court granted interim relief in favour of the petitioners, subject to the petitioners not creating any third party rights in the property in question.
2. The learned counsel for respondent No.1 has raised objection to the very maintainability of the writ petition by the referring to Section 16 of the said Act. It is pointed out that although it is stated in the said provision that a senior citizen or a parent could file an appeal against an order passed by the Tribunal, before the Appellate Tribunal constituted under Section 15 of the said Act, there are judgments holding the field laying down the proposition that the words "any aggrieved ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 22:53:07 ::: 2/4 wp7654.19 party" need to be read into section 16 of the said Act to provide an opportunity not only to the aggrieved senior citizen or a parent, but the contesting party to also file an appeal.
3. It is further submitted that the petitioners cannot rely upon Section 23 of the said Act to assert that since there is no specific clause in the gift deed in the present case that the same has been executed by respondent No.1, subject to the condition that the petitioner No.1 would provide basic amenities and basic physical needs to the respondent No.1, as per the position of law laid down by the Kerala High Court in a series of judgments and Division Bench judgment of the Punjab High Court, it has been laid down that such a condition if orally pleaded before the Tribunal would be sufficient to invoke jurisdiction under Section 23 of the Act by the Tribunal to declare such a gift deed void, in a situation where the transferee fails to provide basic amenities and basic physical needs to the transferor.
4. The said position of law is disputed by the learned counsel appearing for the petitioners by inviting attention of this Court to Section 23(1) of the said Act. It is contended that in the ordinary course registered gift deed would to be challenged before the Civil Court, which would have the power to set aside such a document, but the aforesaid provision gives this power to the Tribunal constituted under the provisions of the said Act and since such special power is granted to the ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 22:53:07 ::: 3/4 wp7654.19 Tribunal under the aforesaid provision, it has to be read strictly and a specific condition must be present as a clause of the gift deed to indicate that the transferee was obliged to provide basic amenities and basic physical needs to the transferror, as a condition for execution of such a gift deed.
5. This Court is of the opinion that the said contention raised on behalf of the petitioner deserves consideration.
6. Hence, Rule. Rule made returnable on 23/04/2020.
7. Taking into consideration the interim order passed by this Court on 20/11/2019, and the willingness shown by the petitioners in the writ petition about maintaining and taking care of respondent No.1, it is necessary to impose the following conditions on the petitioners during pendency of the present writ petition.
(a) The direction given by this Court in order dated 20/11/2019, that the petitioners shall not create any third party rights in the property in question, shall continue to operate during the pendency of the writ petition.
(b) Since the respondent No.1 is presently residing with her sister, as also the fact that the petitioners have expressed willingness to maintain the respondent No.1, during the pendency of the ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 22:53:07 ::: 4/4 wp7654.19 writ petition the petitioners shall pay sum of Rs.2000/- p.m. to the respondent No.1.
Respondent No.1 may inform her bank account number to the petitioners for facilitating disbursal of the aforesaid amount.
(c) If the respondent No.1 desires to reside in the property in question, the petitioners shall not create any obstructions.
(d) In the event, the respondent No.1 starts residing in the property in question along with petitioners, the above mentioned condition imposed on the petitioner to pay sum of Rs.2000/- to respondent No.1 shall cease to operate.
(d) It is made clear that apart from refraining from obstructing the respondent No.1 from residing in the property in question, if the respondent No.1 does start residing in the said property, the petitioners will ensure that basic amenities and physical needs are provided to respondent No.1 during pendency of the writ petition.
8. Liberty is reserved to the respondent No.1 to approach this Court in case of any inconvenience faced by her.
JUDGE KOLHE/P.A. ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 22:53:07 :::