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Anand Kumar Agarwal And Another vs Ashok Kumar Agarwal on 5 December, 2018

In the High Court at Calcutta

Civil Revisional Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

C.O. No. 3416 of 2018

Anand Kumar Agarwal and another

Vs.

Ashok Kumar Agarwal

For the petitioners : Mr. Pankaj Kumar Mukherjee

For the opposite party : Mr. Bikramaditya Ghosh,

Mr. Avishek Guha

Hearing concluded on : 26.11.2018

Judgment on : 05.12.2018

Sabyasachi Bhattacharyya, J.:‐
The present challenge has been preferred by the petitioners, who are the son and

daughter‐in‐law, respectively, of the opposite party, against an order whereby the Sub‐

Divisional Officer (SDO), Alipurduar, acting as Chairperson of the Alipurduar Maintenance

Tribunal, directed the present petitioners to vacate the suit premises within a month from the

impugned order and allowing the opposite party (the petitioner before the Tribunal) to utilize

the property as per his own will. In the same order, the local police station was directed to

extend all efforts for ensuring the same. Certain ancillary observations were also made in the

impugned order.

2. The opposite party filed an application under The Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (hereinafter referred to as the “Act of 2007”) and made out

a case before the Tribunal that the present petitioners had other properties than the suit

premises and had been running a business from the suit premises, which was allegedly started

by the present opposite party in the name of his wife (the mother of the petitioner no.1). It was

also alleged that the present petitioners were gradually grabbing all properties of the opposite

party and subjected the present petitioners to severe physical and mental torture.

3. The present petitioners, who were opposite parties before the Tribunal, had raised

questions regarding the character of the opposite party, that is, the father of the petitioner no. 1

and had produced certain photographs in that regard. It was further alleged by the petitioners

that the suit property belonged to a Hindu Undivided Family (HUF). The HUF was of Lalchand

and Tarachand, through Karta, late Tara Chand Agarwal. The HUF acquired the suit plot by

paying khajana to the Government of West Bengal and constructed a two‐storied building on a
portion of the suit property, which facts were apparently reflected in the history of the HUF as

explained by late Tara Chand Agarwal, as karta, to the Income Tax Department in the year 1981

and also in the Assessment Order of the Income Tax Department dated May 15, 1981, which

documents were ancient ones.

4. It was further held by the petitioners that the petitioners, along with the mother of the

petitioner no. 1 Smt. Shobha Devi, were co‐parceners in respect of the suit property and had

filed a partition suit along with Smt. Shobha Devi, bearing Partition Suit No. 18 of 2018 on May

15, 2018 against the opposite party in the Court of the Civil Judge (Senior Division), at

Alipurduar.

5. The opposite party, on the other hand, had filed on September 5, 2017 an ejectment

suit against the petitioners before the Civil Judge (Junior Division), at Alipurduar, bearing Title

Suit No. 165 of 2017.

6. Both the suits are still pending before Civil Courts.

7. The opposite party, however, filed the complaint, bearing Petition No. 5 of 2018,

under the Act of 2007, which gave rise to the present revisional application, praying for a

direction on the present petitioners to vacate the suit premises and for a direction on the officer‐

in‐charge of the Jaigaon police station to execute the said order.

8. The petitioners contested such petition by filing a written statement thereto.
9. The further contention of the petitioners is that the petitioners are residing at a portion

of the suit property with their mother, Smt. Shobha Devi and their minor daughter Amaaya

(aged about two years) and minor son Ayushman (aged about four years).

10. It was admitted that the relationship between the present petitioners and their

mother on the one hand, and the opposite party‐father on the other, was strained, but such

strenuous relationship was attributed to the character of the opposite party.

11. It is argued on behalf of the petitioners that the Tribunal did not have the jurisdiction

to pass the order of eviction, primarily on three counts:

i. The Act of 2007 did not confer jurisdiction on the Tribunal to pass an

order of eviction;

ii. The Tribunal did not have jurisdiction to pass any order against the

petitioner no. 2, who is the daughter‐in‐law of the opposite party and did

not fall within the category of either ‘children’ or ‘relative’, as envisaged

by the Act of 2007;

iii. In view of the pendency of the eviction suit as well as the partition suit

before Civil Courts, respectively at the instance of the opposite party and

the petitioners along with Smt. Shobha Devi, the application before the

Tribunal, which was of a summary nature, was not maintainable.

12. Learned counsel for the petitioners cites the relevant sections of the Act of 2007 in

support of his contention, including Sections 2, 4 and 5.
13. Learned counsel for the opposite party argues that there have been judgments by

several Courts to the effect that an order can be passed by the Tribunal even against a daughter‐

in‐law. It is also submitted that in appropriate cases, the Tribunal had the jurisdiction to pass

orders of eviction as well. Learned counsel argues that the pendency of separate suits before the

Civil Courts could not debar the Tribunal from proceeding with an application under the Act of

2007.

14. In support of such contentions, learned counsel for the opposite party cites the

following judgments:

a) 2017 SCC OnLine Del 7451 ‐ [Sunny Paul Anr. vs. State NCT of Delhi Ors];

b) AIR 2013 Guj 160 ‐ [Jayantram Vallabhdas Meswania vs. Vallabhdas Govindram Meswania];

c) AIR 2014 P H 121 ‐ [Paramjit Kumar Saroya vs. The Union of India and another];

d) 2015 SCC OnLine P H 2603 ‐ [Balbir Kaur vs. Presiding Officer‐cum‐S.D.M. of the

Maintenance Welfare of Senior Citizen Tribunal, Pehowa, District Kurukshetra and others].

15. Learned counsel also stresses on the fact that the purpose of the Act of 2007 is to

provide protection of life and property to senior citizens and parents and is wide enough to

encompass all remedies necessary to protect the right of the parents and senior citizens to live a

normal life peacefully and with dignity. As such, it is argued by the opposite party that the

Tribunal was justified in passing the impugned order and was well within its jurisdiction to do

so.
16. It is further argued on behalf of the opposite party that an appeal lay against the

impugned order under Section 16 of the Act of 2007 and as such, the present application under

Article 227 of the Constitution of India was not maintainable.

17. In this context, certain provisions of the Act of 2007 are required to be quoted:

“Maintenance and Welfare of Parents and Senior Citizens Act, 2007:‐

Object: An Act to provide for more effective provisions for the maintenance and welfare of parents and

senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or

incidental thereto.

2. Definitions.‐ In this Act, unless the context otherwise requires,–

(a) “children” includes son, daughter, grandson and grand‐daughter but does not include a minor;

(b) “maintenance” includes provision for food, clothing, residence and medical attendance and
treatment;

(c) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875), is
deemed not to have attained the age of majority;

(d) “parent” means father or mother whether biological, adoptive or step father or step mother, as
the case may be, whether or not the father or the mother is a senior citizen;

(e) “prescribed” means prescribed by rules made by the State Government under this Act;

(f) “property” means property of any kind, whether movable or immovable, ancestral or self
acquired, tangible or intangible and includes rights or interests in such property;

(g) “relative” means any legal heir of the childless senior citizen who is not a minor and is in
possession of or would inherit his property after his death;

(h) “senior Citizen” means any person being a citizen of India, who has attained the age of sixty
years or above;
(i) “State Government”, in relation to a Union territory, means the administrator thereof
appointed under article 239 of the Constitution;

(j) “Tribunal” means the Maintenance Tribunal constituted under section 7;

(k) “welfare” means provision for food, health care, recreation centres and other amenities
necessary for the senior citizens.

… … ….

4. Maintenance of parents and senior citizens.‐ (1) A senior citizen including parent who is unable

to maintain himself from his own earning or out of the property owned by him, shall be entitled to make

an application under section 5 in case of–

(i) parent or grand‐parent, against one or more of his children not being a minor;

(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen

extends to the needs of such citizen so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her parent extends to the needs of such parent

either father or mother or both, as the case may be, so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such

senior citizen provided he is in possession of the property of such senior citizen or he would

inherit the property of such senior citizen:

Provided that where more than one relatives are entitled to inherit the property of a senior citizen,

the maintenance shall be payable by such relative in the proportion in which they would inherit his

property.

5. Application for maintenance.‐ (1) An application for maintenance under section 4, may be made–
(a) by a senior citizen or a parent, as the case may be; or

(b) if he is incapable, by any other person or organisation authorised by him; or

(c) the Tribunal may take cognizance suo motu.

Explanation.‐ For the purposes of this section “organisation” means any voluntary association

registered under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in

force.

(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the

maintenance under this section, order such children or relative to make a monthly allowance for

the interim maintenance of such senior citizen including parent and to pay the same to such

senior citizen including parent and to pay the same to such senior citizen including parent as the

Tribunal may, from time to time direct.

(3) On receipt of an application for maintenance under sub‐section (1) after giving notice of the

application to the children or relative and after giving the parties an opportunity of being heard,

hold an inquiry for determining the amount of maintenance.

(4) An application filed under sub‐section (2) for the monthly allowance for the maintenance and

expenses for proceeding shall be disposed of within ninety days from the date of the service of

notice of the application to such person:

Provided that the Tribunal may extend the said period, once for a maximum period of thirty days

in exceptional circumstances for reasons to be recorded in writing.

(5) An application for maintenance under sub‐section (1) may be filed against one or more persons:

Provided that such children or relative may impaled the other person liable to maintain parent in

the application for maintenance.
(6) Where a maintenance order was made against more than one person, the death of one of them

does not affect the liability of others to continue paying maintenance.

(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the

date of the order, or, if so ordered, from the date of the application for maintenance or expenses of

proceeding, as the case may be.

(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any

such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in

the manner provided for levying fines, and may sentence such person for the whole, or any part of

each month’s allowance for the maintenance and expenses of proceeding, as the case may be,

remaining unpaid after the execution of the warrant, to imprisonment for a term which may

extend to one month or until payment if sooner made whichever is earlier:

Provided that no warrant shall be issued for the recovery of any amount due under this section

unless application be made to the Tribunal to levy such amount within a period of three months from the

date on which it became due.

…. …. ….

16. Appeals.‐ (1) Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal

may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal :

Provided that on appeal, the children or relative who is required to pay any amount in terms of

such maintenance order shall continue to pay to such parent the amount so ordered, in the manner

directed by the Appellate Tribunal:

Provided further that the Appellate Tribunal may, entertain the appeal after the expiry of the said

period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring

the appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal shall, cause a notice to be served upon the

respondent.

(3) The Appellate Tribunal may call for the record of proceedings from the Tribunal against whose

order the appeal is preferred.

(4) The Appellate Tribunal may, after examining the appeal and the records called for either allow

or reject the appeal.

(5) The Appellate Tribunal shall, adjudicate and decide upon the appeal filed against the order of

the Tribunal and the order of the Appellate Tribunal shall be final:

Provided that no appeal shall be rejected unless an opportunity has been given to both the parties

of being heard in person or through a duly authorised representative.

(6) The Appellate Tribunal shall make an endeavour to pronounce its order in writing within one

month of the receipt of an appeal.

(7) A copy of every order made under sub‐section (5) shall be sent to both the parties free of cost.

…. ….. ….

22. Authorities who may be specified for implementing the provisions of this Act.‐ (1) The State

Government may, confer such powers and impose such duties on a District Magistrate as may be

necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate

may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or

any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be

carried out by the officer as may be prescribed.

(2) The State Government shall prescribe a comprehensive action plan for providing protection of

life and property of senior citizens.

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.

(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.

…. ….. ….

27. Jurisdiction of Civil Courts barred.‐ 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.”

18. The following questions fall for consideration in the present matter:

i. Whether an appeal lies at the instance of the children/relatives under

Section 16 of the Act of 2007, rendering an application under Article 227

of the Constitution non‐maintainable?

ii. Whether an order of eviction could be passed under the Act of 2007?
iii. Whether an order could be passed under the Act of 2007 against a

daughter‐in‐law, who was neither a child nor a relative of the applicant?

iv. Whether the Tribunal had jurisdiction to entertain and adjudicate an

application under the Act of 2007, alternatively, whether it was proper for

the Tribunal to proceed with such application, in view of pendency of the

suits for eviction and partition in respect of the self‐same property and

between the same parties, in Civil Courts?

19. While considering the first question, as to maintainability of an appeal, a perusal of

Section 16 of the Act of 2007 reveals that Sub‐Section (1) of the same permits only a senior

citizen or a parent, as the case may be, aggrieved by an order of Tribunal, to prefer an appeal to

the Appellate Tribunal.

20. The first proviso of the said sub‐section stipulates that on appeal, the children or

relatives who are required to pay any amount in terms of such maintenance order shall

continue to pay the amount so ordered.

21. The said provision was interpreted in Paramjit Saroya (supra), by a division bench of

the Punjab and Haryana High Court. It was laid down therein that the only interpretation that

could be given on the said section was that the right of appeal was conferred on both the sides

and it was a case of an accidental omission and not of conscious exclusion by the legislature,

falling under the principle of casus omissus. The principle of purposive interpretation was

adopted to confer the right of appeal on children and relatives as well, since there was no
negative provision in the Act denying such right of appeal to the other parties than the

applicant.

22. The same ratio was followed in Balbir Kaur’s case (supra).

23. However, with deepest respect to the aforementioned judgments, which have

persuasive value on this Court, the language of Section 16 is very clear and confers a right of

appeal only on the senior citizens and parents who take out applications under the Act of 2007.

24. A logic was adopted in the cited judgments, to the effect that the first proviso to Sub‐

Section (1) of Section 16 indicates that children or relative would be required to pay

maintenance despite pendency of an appeal, which was construed to indicate that an appeal

could lie at the instance of the children or relative also, since otherwise there would not arise an

occasion for the first proviso. It was analyzed in the cited judgments that since such a

stipulation would find meaning only if an appeal is preferred by the children or relative, in

which a stay could be prayed for, a right of appeal in favour of such children or relative had to

be read into the provision.

25. A logic was also advanced that it was an instance of casus omissus, since otherwise

the section would have to be declared ultra vires.

26. As to the logic, the proviso does not necessarily mean that it contemplates only an

occasion where stay is sought by the children or relatives, which could only be done in an

appeal preferred by them. It might very well be that the children or relatives, citing an appeal

preferred by the senior citizens or parent and arguing that the latter themselves had challenged
the veracity of the maintenance order, could pray before the Tribunal to stay its hands in respect

of the implementation of such order. As such, the interpretation of the said proviso

contemplating only a scenario where the children/relatives had preferred an appeal, was, with

due respect, fallacious.

27. The other ratio, applying the principle of casus omissus, cannot be resorted to, since

the section itself is clear as to the mandate of the legislature and there is no scope for

interpretation, as there is no ambiguity in the provision of appeal itself. In fact, the object of the

Act of 2007 itself, which provides for “more effective provisions” for the maintenance and

welfare of parents and citizens, itself makes it clear why a provision for appeal was provided

only to the senior citizens and parents. There is no absurdity in the provision itself, rendering it

subject to further interpretation, despite the apparent inequality of opportunity to challenge

between the applicant and the opposite party.

28. Moreover, since there are statutory instances, for example, Order XLIII of the Code of

Civil Procedure, which provide for appeal in case of rejection of an application under Order IX

Rule 13 but does not provide any appeal if such application is allowed. Section 16 is not an

island in isolation and cannot be rendered absurd by judicial interpretation.

29. It is well‐settled that appeal is a creature of statute and unless specifically provided

for, cannot be attributed to any particular category of litigants. In the present case, unlike other

statutes, for example, Sections 96 and 100 of the Code of Civil Procedure or Section 28 of the

Hindu Marriage Act, 1955 the provision for appeal has not been kept open and fluid, to be

interpreted to include all persons aggrieved. Rather, in Section 16 of the Act of 2007, like certain
other provisions of appeal such as Section 374 of the Code of Criminal Procedure, 1973, the right

of appeal has been confined to a particular class of persons. Hence, there is no scope of judicial

interpretation to impose its own sense of justice on the categorical legislative intent as reflected

from Section 16 itself.

30. Thus, with utmost respect to the judicial wisdom of the Courts rendering the cited

judgments, this Court is of the opinion that an appeal is not maintainable at the instance of

children or relatives under Section 16 of the Act of 2007.

31. Moreover, since the children and relatives are not precluded from resorting to the

benefit of judicial review under Article 226/227 of the Constitution of India against an order

passed under Section 5 of the Act of 2007, the doctrine of Ubi Jus Ibi Remedium is not applicable

to the present case as well.

32. As regards the second question, it was held in Sunny Paul (surpa), Jayantram

Vallabhdas Meswania (supra) as well as Balbir Kaur (supra), that an order of eviction can be passed

by the Tribunal under the Act of 2007.

33. Again, with utmost respect to the concerned learned Judges, this Court is of the

humble opinion that such an interpretation would pre‐suppose a bias towards senior citizens

and parents even without looking into the facts and circumstances of the case. Even if we

consider the object of the Act of 2007, “more effective provision for the maintenance and

welfare of parents and citizens guaranteed and recognised under the Constitution and for

matters connected therewith or incidental thereto” could not given such a liberal interpretation
as to include remedies not provided in the Act itself. A birdʹs‐eye view of the statute reveals that

specific remedies are already provided in the statute. Section 5, for example, stipulates orders of

maintenance which may encompass residential rights as well. Section 23, again, provides that

transfers of property by senior citizens could also be declared void in certain circumstances.

34. However, the remedy of eviction has never been provided in any section of the Act

of 2007, although there was no reason why such specific remedy could not be specifically

mentioned in the statute if the legislature so intended. Again, such an interpretation would lend

a colour to the legislation which might not have been a hue intended by the Parliament.

35. Although this opinion might sound improper and socially incorrect, being not in

consonance with the general perspective that children and relatives can be thrown out of the

property of the parents and senior citizens if the latter’s sensitivities are hurt by the former,

such a view would attribute traits of villainy on children and relatives as a class, which would

also be violative of the principles of equality enshrined in Article 14 as well as Article 19 of the

Constitution of India.

36. Contrary to the popular perspective that there could not be bad parents although

there might be bad children, experience shows that there are various cases and circumstances in

which parents and senior citizens can be very rigid and obstinate while the son and the

proverbial daughter‐in‐law can be liberal and cooperative. As such, proceeding on a pre‐

conceived notion of a set social niche for parents and senior citizens on the one hand and

children and relatives on the other, would be partial to say the least and parochial at times.

37. As far as the scheme of the Act of 2007 is concerned, Section 23 is very specific in its

scope and indicates what category of transfers are envisaged therein, by the expression

“transferred by way of gift or otherwise”. Such an expression can only indicate transfers as

contemplated in the Transfer of Property Act, 1882, more so, in the absence of any specific

definition of the term ‘transfer’ in the Act of 2007 itself. The Transfer of Property Act is the

general law operating in the field and has to be resorted to in the context. The said Act of 1882

does not contemplate licence as a mode of transfer. In fact, the line of judgments is well‐settled

as to licence involving no transfer of exclusive title or even rights to the property and being

always subject to the will of the licensor, albeit by due process of law. Since the remedy of due

process of law is already provided in an eviction suit before Civil Courts as well as Sections 5

and 6 of the Specific Relief Act, such a remedy cannot be conferred upon the Maintenance

Tribunal which may not be manned by a judicial person, having specific legal training and

experience to adjudicate legal rights, but by an executive.

38. In the present case, for example, a Sub‐Divisional Officer has usurped the jurisdiction

of a Civil Court despite pendency of two litigations pertaining to the rights in the suit property

before regular Civil Courts. Such an interpretation would take judicial adjudications outside the

purview of the regular judicial hierarchy, which intention is otherwise not explicit from the Act

of 2007, although found to be clearly expressed in certain other statutes like the Arbitration and

Conciliation Act, 1996.

39. Sections 4 and 5, read with Section 2(b), which include residence within the meaning

of maintenance, do not anywhere provide the remedy of eviction to a parent or senior citizen,
although there was no reason why the legislature could not include such relief within the

framework of the statute.

40. Leading a “normal life” could not amount to having a right to evict children or

relatives, that too from a portion of the property which was not originally occupied by the

parents or senior citizens. The obligation of a relative to maintain a senior citizen, “provided he

is in possession of the property of such senior citizen or he would inherit the property of such

senior citizen” cannot stretch its purview to encompass a right to evict, since not provided

specifically in the statute. In fact, the proviso to Section 4(4) of the Act of 2007 makes it even

more explicit that the proportion in which the relative is obliged to maintain the senior citizen

would be in proportion to her/his inheritance of the property, which could not, by any stretch of

imagination, be translated to actual physical possession in terms.

41. As such, a right of eviction could not be read into the Act of 2007 and the Tribunal

was patently without jurisdiction in granting such relief to the present opposite party.

42. As regards the third question which has fallen for consideration, as to whether an

order could be passed against a daughter‐in‐law under the Act of 2007, a composite reading of

the entire provisions of the Act of 2007 does not show that a daughter‐in‐law could be included

within the four corners of the said statute in any manner. A consideration of the definitions of

‘children’ in Section 2(a) and ‘relative’ in Section 2(g), taken together with the definitions of

‘parent’ in Section 2(d) and ‘senior citizens’ in Section 2(h), do not connect daughters‐in‐law

with either of the two in any manner.

43. In fact, Section 4(1) (i) and (ii) of the Act of 2007 categorically classify the rights

envisaged therein and restrict the rights of parents or grand‐parents against the children (not

being minor) and the rights of childless senior citizens only to relatives. Hence, there could not

be any cross‐linking between the parents or grand‐parents and relatives on the one hand and

childless senior citizens with children (which, in any event, is an impossibility) in any manner

whatsoever. Such a cross‐linking would result only in confusion, making the interpretation of

the Act‐in‐question more complex than it was intended to be. As such, since the present

opposite party is not a “childless senior citizen” as envisaged in the Act of 2007, no right could

have been provided in favour of citizen against a daughter‐in‐law, who does not fall within the

category of ‘children’. The question of the daughter‐in‐law being a ‘relative’ under the Act of

2007 does not arise in any event, since she would not inherit the opposite party’s property after

his death as long as the son was living and since the opposite party is not a childless senior

citizen as contemplated in the Act.

44. Since Section 4 defines the yardsticks of application of Section 5 and is the focal point

for distribution of such rights conferred under the Act of 2007, no right could have been

conferred on the opposite party under the Act of 2007 against his daughter‐in‐law. Even if we

give a liberal interpretation to Sections 5 and 23, by no stretch of imagination could those

sections be invoked to grant eviction against a daughter‐in‐law.

45. As far as Section 22 of the Act of 2007 is concerned, the said provision only stipulates

the authorities which may be moved for implementing the provisions of the Act and falls in the
realm of procedural law, merely conferring jurisdiction on fora. Resort cannot be taken to the

said provision to cull out rights not given in the substantive provisions of the statute.

46. Hence, the Tribunal acted without jurisdiction in passing an order of eviction against

the petitioner no. 2, being the daughter‐in‐law of the opposite party.

47. As to the last question in contention, although there is no specific bar in proceeding

with an application under the Act of 2007 despite the pendency of civil matters relating to the

same property, judicial propriety would demand that the Tribunal stayed its hands till the

adjudication of the civil disputes raised between the parties as regards their respective right,

title and interest in respect of the suit property. The opposite party went forum‐shopping in

filing an eviction suit in a regular Civil Court as well as taking umbrage under the Act of 2007

by filing an application under the latter statute as well, despite pendency of a partition suit also,

which will in any event finally determine the rights and liabilities of the parties inter se. Such

rights ought, in all propriety, to be adjudicated by competent civil courts having the required

acumen to decide such rights.

48. Nowhere in the Act of 2007 can one find even an inkling of jurisdiction to decide the

right, title and interest of parties in an immovable property.

49. Only in Section 23 of the Act of 2007 has a power being given to declare a transfer

void in the specific event of the transferee refusing or failing to provide the amenities and

physical needs required by a senior citizen, if so agreed at the time of such transfer.

50. In the present case, there was no finding by the Tribunal or any case being proved on

evidence that there was a condition attached to the possession of the petitioners to provide basic

amenities and physical needs to the opposite party, which is a pre‐condition of an order being

passed under Section 23.

51. Secondly, even if the relationship between the opposite party and the petitioners was

that of licensor‐licensees, the same would not amount to a transfer as contemplated in Section

23 of the Act of 2007, coupled with the definition of transfer in the Transfer of Property Act,

1882, which is the general law operating in the field.

52. Thirdly, in view of the petitioners having specifically claimed to be co‐parceners of

the suit property, which allegedly belongs to a HUF, and since such rights are already subject to

adjudication before competent Civil Courts, the Tribunal acted without jurisdiction in granting

eviction even without adjudicating such rights.

53. An additional component, which has to be factored in, is the residence of two minor

children of the petitioners at the suit premises, who, by definition, could not have been subject

to the Act of 2007, being minors. This apart, the petitioners specifically alleged before all the

fora that the mother of the petitioner no. 1 Smt. Shobha Devi, who is also the wife of the

opposite party and is equally entitled to residence in the suit premises as the opposite party,

both under the Act of 2007 as well as other laws such as the Hindu Adoption and Maintenance

Act and other subsequent acts protecting the rights of women, also resides at the premises‐in‐

question along with the petitioners. The Tribunal acted without jurisdiction in passing an order

of eviction against the petitioners, thereby also evicting the said two minors and Smt. Shobha
Devi, the wife of the opposite party, in effect, without even impleading them as parties. This

was a patent instance of overreach by the Tribunal beyond the jurisdiction conferred on it by

statute.

54. In such view of the matter, the impugned order cannot withstand the scrutiny of

judicial review and ought to be set aside. Accordingly, C.O. No. 3416 of 2018 is allowed on

contest, thereby setting aside the impugned order.

55. However, it is made clear that any observations made in this order will not bind any

of the parties in any other legal proceeding and the Civil Courts, where the partition suit and

the eviction suit as mentioned hereinabove are pending, will be free to proceed independently

in accordance with law to adjudicate the said proceedings without being influenced in any

manner by the present observations. It is also left open for the opposite party, if otherwise

entitled to in law (including the Act of 2007), to claim maintenance.

56. There will be no order as to costs.

57. Urgent certified website copies of this order, if applied for, be made available to the

parties upon compliance with requisite formalities.

( Sabyasachi Bhattacharyya, J. )

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