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Judgment
Heard.
Rule. Rule made returnable forthwith. Heard finally with the consent of parties.
The present petition challenges order dated 13.05.2024 passed by the Collector/District Magistrate and Senior Citizens Maintenance Appellate Tribunal, Nagpur, as also order dated 17.07.2023 passed by the Sub-Divisional Officer and Senior Citizens Maintenance Tribunal, Nagpur, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Facts, as can be seen from the petition, are as under:
The petitioner herein is the father of respondent Nos. 1 to 3. He filed an application under Section 5 of the said Act before the Competent Authority on the ground that the respondents herein, being his sons, are not maintaining the senior citizen, i.e., their father. Therefore, a relief regarding the partition deed executed between them be declared as null and void was prayed for. After the respondents putting their appearance and filing reply, the Competent Authority, vide order dated 17.07.2023, passed an order thereby partly allowing the application. The authority further directed that in view of the observations made by the said authority in the order impugned, the petitioner herein, i.e., the senior citizen/ father, would be at liberty to reside with any of the respondents. It was further directed that since there is a partition deed executed between the parties, respondents/sons were directed to remit an amount of Rs.5,000/- each in the bank account of the petitioner for his medical expenses.
Being dissatisfied and aggrieved by the said order, the petitioner chose to file an appeal under Section 16 of the said Act before the Appellate Authority. The said authority, vide its order dated 13.05.2024, rejected the appeal and maintained the order of the first authority. Both these orders are the subject matter of challenge in the present petition.
I have heard Shri Kadu, learned Counsel for the petitioner. He draws my attention to Section 23 of the said Act and states that the said provision empowers the maintenance Tribunal to declare the transfer of property to be void in certain circumstances as enumerated under the said section. It is his submission that both the authorities have failed to appreciate the said fact that there was a registered partition deed wherein it was specifically averred that the respondents herein would be under a legal and moral obligation to maintain the son. He adds that there is an averment in the application that a serious harassment has been meted out to the petitioner, and therefore, it is his submission that it was obligatory upon the authority to declare the partition deed as null and void in view of the provisions of Section 23. He relied on judgment of this Court reported in 2018 (6) Mh.L.J. 681, Dattatray Shivaji Mane vs. Lilabai Shivaji Mane and others, further judgment of this Court in 2020 (5) Mh.L.J. 605, Nayana Sudhir Shah and others vs. Sudhir Premji Shah and others, as also judgment reported in 2022 (1) Mh.L.J. 511, Ashish Vinod Dalal and others vs. Vinod Ramanlal Dalal and others.
Per contra, Mr. Chawhan, learned Counsel appearing for the respondent Nos. 1 and 2 counters the submissions made by the learned Counsel for the petitioner. He again draws my attention to Section 23 of the Act and states that the wordings as occurring in that section gift or otherwise, would not take into its sweep a partition deed as held by the Hon'ble Apex Court in the judgments which is being referred to by me in the subsequent paragraphs. He also states that the nature of the property, it being ancestral, joint family, or self-acquired, was specifically disputed, and therefore, it was not open for the authority to adjudicate upon the same. He, therefore, supports the impugned orders.
Rival contentions fall for my consideration.
Before proceeding further, it would be apposite to reproduce Section 23 (1) for the sake of brevity.
“Section 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.”
A bare perusal of the said Section 23 would reveal that a limited power is granted to the Tribunal only in the event of an averment in the transfer deed that the basic amenities and basic physical needs are not provided, and then there is a deeming fiction which provides that if such a fact is proved, it would be presumed that the deed in question is tainted by fraud or coercion. Only in that event, the Tribunal is empowered to declare the said transfer as void and not beyond that.
I cannot be oblivious of Section 8 of the said Act which provides for summary procedure in case of inquiry. The said section provides that in holding any inquiry under this statute, the Tribunal will have all powers of a Civil Court for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and compelling the discovery and production of documents. It is thus clear that Section 8, if read in juxtaposition with Section 23, would make the legislative scheme clear. It is more than well settled that the Act, i.e., the Maintenance and Welfare of Parents and Senior Citizens Act, is brought on the statute book with an avowed object so that the senior citizens are not put to harassment. The controversy in the present matter has to be decided on the above-referred facts.
Mr. Chawhan, learned Counsel for respondent Nos. 1 and 2 places reliance on a judgment of the Hon'ble Apex Court in Subh Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, reported in 2009 (9) SCC 689, and more particularly, Paragraph Nos. 5 and 6 thereof, which are reproduced as under for the sake of better understanding.
“5."Partition" is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
6.A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/ coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
He also relies on a judgment of the Hon'ble Apex Court in Sudesh Chhikara vs. Ramti Devi and another, reported in 2022 SCC OnLine 1684, wherein the Hon'ble Apex Court, dealing with the scheme of Section 23, has held that Sub-section (1) of Section 23 would cover all kinds of transfer as is clear from the use of expression 'by way of gift or otherwise'. It has further went on to held that if only both the aforesaid conditions, i.e., the transfer being conditional on a condition of providing basic amenities and the refusal of the transferee to provide such basic amenities, then only the transfer shall be deemed to have been made by fraud or coercion. It is, therefore, clear that Section 23 operates in a very limited spectrum.
A beneficial reference can also be had as relied by the learned Counsel for the respondent, Mr. Chawhan, to judgment of the Karnataka High Court in Writ Petition Nos. 36601/2017 & 42708-709/2017, Sri. Nanjundappa S/o K.M. Karibasappa and another vs. State of Karnataka and others, in which in Paragraph No. 9, it is held as under:
“9.The issues, which arises for consideration in the instant petition are: firstly, whether the expression 'transfer or otherwise' would include partition as well having regard to object of the Act, secondly whether the Act would apply in respect of the transaction which has taken place before commencement of the Act. In the light of the aforesaid well settled principles with regard to statutory interpretation if Section 23(1) of the Act is perused, it is axiomatic that there has to be a transfer by way of gift or otherwise by a senior citizen after the commencement of the Act. The concept of partition has a well settled legal connotation. Partition is a redistribution or adjustment of pre existing rights among co owners/coparceners resulting in a division of lands or other properties jointly held by them into different lots or proportions and delivery thereof to the respective allottees. The effect of such a division is that joint ownership is terminated and the respective shares of the parties vest in them in severalty. The separation of a share is a species of partition. [SEE: 'SHUBH KARAN BUBNA VS. SITA SARAN BUBNA', (2009) 9 SCC 689]. The partition by no stretch of imagination can be treated to be a transfer and can be said to be covered under the expression 'otherwise'. Therefore, the provisions of Section 23(1) of the Act, in the fact situation of the case are not attracted as the parties had entered into a partition deed on 24.01.1998 and 28.04.2008. The provisions of the Act do not apply in respect of a transaction entered into by a senior citizen prior to commencement of the Act as Section 23(1) clearly applies to a situation where a senior citizen transfers the property by way of gift or otherwise after the commencement of the Act. Therefore, the provisions of the Act in any case cannot be made applicable in respect of partition deed dated 24.01.1998. So far as partition deed dated 28.04.2008 is concerned the same is not covered within the meaning of section 23(1) of the Act as it is not a transfer. It is well settled rule of statutory interpretation that a Judge must not alter the material of which the Act is woven but he can and should iron out the creases [See: 'SEEFORD COURT ESTATES LTD. VS. ASHER', (1949) 2 All.E.R.155]. the Supreme Court cited a passage from 'MAGOR & ST. MELLONS RDC VS. NEW PORT CORPORATION', (1951) 2 All ER 839, in 'BANGALORE WATER SUPPLY AND SEWERAGE BOARD VS. A. RAJAPPA', AIR 1978 SC 548 which reads: "The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but even if they are, the power & duty of the Court to travel outside them on a voyage of discovery are strictly limited". [See: Principles of Statutory Interpretation, Justice G.P. Singh 13th Edition Page 73]”
If the contentions and the material placed on record is examined in the backdrop of aforesaid circumstances, it is very clear that Section 23 ipso facto would not come into operation and would come into play only when the twin conditions are satisfied. In the present case, the nature of the property, as stated supra, is seriously disputed. Even though a feeble attempt has been tried to be made out by Mr. Kadu that the person who has sworn an affidavit regarding the nature of the property being ancestral one has then taken a somersault and chosen to file an affidavit contrary to what has been stated, the fact remains that the nature of the property is being seriously disputed.
In that event of the matter, outright entitlement of the petitioner by resorting to Section 23 of the said Act, in my view, is not correct. As can be seen from the judgment of the Competent Authority and as confirmed by the Appellate Authority, both the authorities have balanced equities inasmuch as it has granted liberty to the petitioner father to reside at the residence of any of the sons, as also directed them to remit an amount of Rs. 5,000/-each towards his medical expenses.
As far as judgments relied upon by Mr. Kadu, learned Counsel for the petitioner, is concerned, and more particularly the judgment of Dattatrey Mane (supra), the proposition in the said judgment cannot be disputed, but in the said matter, the facts were entirely different. In the said matter, neither a partition nor a gift deed was set up, and in that context, the scheme of the Act has been discussed. The said judgment, therefore, is not applicable. As far as judgment of Nayana Sudhir Shah (supra) is concerned, the same also is on the general scheme of the Act. As far as judgment of Ashish Vinod Dalal (supra) is concerned, in the said matter, the property was gifted, which fact would have a relevance in the present matter and furthermore, in the said judgment in Paragraph No. 12, as far as facts are concerned, it has been recorded that the property in question is not an ancestral property. Here, it is not the present case. The nature of the property being seriously disputed, the summary mechanism as provided under the said Act would not come to aid of the petitioner.
In that view of the matter and in view of the fact that concurrent findings of facts are recorded, no interference is called in supervisory jurisdiction. Petition is rejected. No order as to costs. Rule discharged.