SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ravi Shankar vs The State Of Bihar on 3 January, 2024

IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.907 of 2023
In
Civil Writ Jurisdiction Case No.7851 of 2022

1. Ravi Shankar S/o- Rajeshwar Prasad Roy R/o- G626 Preeti Rest House
Rajendra Nagar overbridge, Permanent address 122, Rental Flat
Kankarbagh, P.S. Kankarbagh.Dist.-Patna.

2. Minu Kumari W/o-Ravi Shankar Resident of G626 Preeti Rest House
Rajendra Nagar over Bridge, Permanent address 122, Rental Flat
Kankarbagh, P.S. Kankarbagh, Dist.-Patna.

… … Appellant/s
Versus

1. The State of Bihar.

2. The District Magistrate, Patna.

3. The Chairman cum Sub Divisional Officer, Patna Sadar.

4. The Senior Superintendent of Police, Patna.

5. The Deputy Superintendent of Police, Patna.

6. The Officer Incharge, Kankarbagh Police Station, Patna.

7. The Officer Incharge, Rajendra Nagar Police Station, Patna.

8. Rajeswar Prasad Roy Son of Sookhil Rai Resident of 122 Rental Flat,
Kankarbagh, P.S. – Kankarbagh. Dist.-Patna.

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Syed Alamdar Hussain, Advocate
Ms. Surya Nilambari, Advocate
For the State : Mr. P.K. Verma, AAG-3
Mr. Sanjay Kumar Ghosarvey, AC to AAG-3
For the Respondent no.8 : Mr. Bindhyachal Singh, Sr. Advocate
Ms. Smriti Singh, Advocate
Mr. Vipin Kr. Singh, Advocate

CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 03-01-2024

Law and morality regulate and control human

behaviour in society. Though complementary, when morality is
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
2/39

infused into legislation, the legislatures have to caution

themselves from overstepping the legal premise and the Courts

have the daunting task of avoiding a judicial overreach hinged

only on popular notions of right and wrong. That parents have to

be looked after by children require no legislative imprimatur but

in deciding property rights, we should be conscious of the

interplay of such rights regulated by various statutes.

2. The order impugned in the appeal is one affirming

the order issued by the Tribunal under the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (hereinafter

referred to as the Senior Citizens Act). The 8th respondent, who

was the father of the first appellant was before the Tribunal

seeking eviction of the 1st appellant his wife-the 2nd appellant,

who were residing in the rest house owned by the 8 th

respondent; the rent received from which is asserted to be the

only income of the 8th respondent.

3. The petitioners in the writ petition, appellants herein,

claimed that the prayers made by the 8th respondent, the

applicant under the Senior Citizens Act, could not have been

made since there was total lack of jurisdiction conferred on the

Tribunal under that Act to evict the son and his family who were

residing in the rest house; a permissive occupation or even if it
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
3/39

is alleged to be a trespass. It was argued by the appellants that

problems arose within the family due to the marriage of the

appellants, solemnized on 14.06.2018, which was not to the

liking of the 1st appellant’s parents. The appellants also

contended that there was no prayer for maintenance made by the

8th respondent, who had sufficient means to look after himself.

The residence of the appellants and their daughter in the three

rooms in the rest house does not in any manner prejudice the 8 th

respondent. The 8th respondent is deprived only of the rent of the

said rooms and he continues to collect the rent from the other 20

residential rooms and 21 shop rooms situated in the very same

building. The appellants also have a case that the rest house is

one purchased by the father, the 8th respondent, from out of the

funds of the joint Hindu family to which they belonged and

there is a partition suit filed by the 1 st appellant; which makes

him a co-owner entitled to reside in the premises.

4. The 8th respondent on the other hand points out

that the first petitioner is well employed and the second

petitioner is a professional, an Advocate, who can look after

themselves and even rent out an accommodation. The 8th

respondent asserted that he and his wife, in their old age, with

multiple ailments, are forced to live in a rented flat and he earns
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
4/39

only a meagre pension, thus being wholly dependent on the

income from the rest house. Allegation is raised that both the

appellants are troublemakers and have been harassing their

parents continuously and now, by occupying three rooms in the

rest house, to which they can raise no valid claim. The rest

house at Kankarbagh, Patna is a self-acquired property of the 8 th

respondent allotted by the Bihar State Housing Board, Patna by

a perpetual lease dated 20.07.1992, in favour of the 8th

respondent. The 1st appellant requested a room for his sole

residence from the 8th respondent, which was permitted, after

which he moved in along with his wife and child and captured

the entire rest house. The specific contention also is that they

captured room no. 209 of the rest house and later on broke the

locks of two more rooms and are residing there illegally.

5. The 2nd appellant is alleged to be a constant

troublemaker, even for her family; having lodged criminal

complaints against her own mother. The 2 nd appellant also

lodged criminal complaints against her in-laws and there is also

a complaint lodged against her by the 8 th respondent. The

partition suit said to have been filed by the 1 st appellant is after

the application filed under the Senior Citizens Act, as a

retaliatory measure. The 2nd appellant has also filed a case under
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
5/39

the Protection of Women from Domestic Violence Act, 2005

(hereinafter referred to as ‘the Domestic Violence Act’). The 8th

respondent and his wife, senior citizens coming within the ambit

of Senior Citizens Act have been deprived of their valuable

property, to recover which they have approached the authority

under the Senior Citizens Act, which is promulgated with a view

to provide a speedy and inexpensive remedy to senior citizens

and to ensure protection of their life and property.

6. Both the parties relied on a number of decisions

and the learned Single Judge passed an elaborate order running

to more than one hundred pages. The learned Single Judge

looked at the preamble of the Senior Citizens Act and the

statement of objects and reasons to find that the enactment was

intended at upholding the traditional norms and values of Indian

society, which emphasizes due care for the elderly especially by

reason of the deteriorating joint family system. The travails of

the aged, converted into a major challenge to the society itself,

is sought to be addressed by the enactment though there are

other enactments enabling maintenance. The provisions of the

Senior Citizens Act and the Bihar Maintenance and Welfare of

Parents and Senior Citizens Rule, 2012, (hereinafter referred to

as the Rules of 2012) were copiously quoted from to emphasize
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
6/39

the simple speedy and inexpensive mechanism brought in for

the protection of life and property of the senior citizens; which

is also a constitutional guarantee emanating from Article 21,

39(A), 41 and 46 of the Constitution of India.

7. On facts it was noticed that admittedly, the 1 st

appellant was given a room in the rest house on his own request

for a few days. The 1st appellant overstayed his welcome and

brought his family to reside with him, as also trespassed into

two other rooms. It was found that the rest house being one

obtained by a perpetual lease, the said property does not fall

within the scope of a family partition. It was held that if the

argument of the appellant’s, that the Tribunal under the Senior

Citizens Act did not have the power to evict a person is

accepted, then the benefit and protection granted to the senior

citizens cannot be effectively provided especially when there is

constant harassment and mental torture by the children. It was

found from the facts that the 8th respondent, who was 73 years

old was being harassed to ‘bits’ (sic) by the appellants and he

cannot be relegated to the civil court to avail the remedy of a

suit for recovery of possession. The nuisance created by the

appellants had to be removed immediately and the Senior

Citizens Act has an over-riding effect especially by virtue of
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
7/39

Seciton 3, which precludes the civil court from exercising

jurisdiction in matters which are covered under the Senior

Citizens Act. The 8th respondent has a right to live in peace and

the mere filing of the title suit, in which there is no interim

injunction obtained, would not enable the appellants to interfere

with his peaceful life. The title suit is belatedly filed wherein

imaginary claims are made with bald allegations. Reliance was

also placed on the decision of the Hon’ble Supreme Court in S.

Vanitha vs. Deputy Commissioner, Bengaluru Urban

District Others, reported in (2021) 15 SCC 730, wherein the

Tribunal under the Senior Citizens Act was found to have the

authority to order an eviction, if it is necessary and expedient to

ensure the maintenance and protection of the senior citizen or

parent; though the facts in the cited decision were found to be

different from the facts of the present case.

8. Various other decisions were also referred to, the

paragraphs from which were profusely extracted, which we

would look at in the course of our findings in the appeal.

Relying on the extensive extracts from S. Vanitha (supra) and

also the decisions of the various High Courts, it was reaffirmed

that the Senior Citizens Act and Rules of 2012 were enacted and

framed to provide simple, speedy and inexpensive mechanism
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
8/39

for the protection of the life and property of the senior citizens,

from imaginary claims foisted on them and their property, by

persons who have no rights to begin with and raise bogus claims

to harass them in their twilight years. Unless there is shown a

legally enforceable civil right and its denial there cannot be a

cloud found on the right of a senior citizen to his/her property,

thus depriving them of its full enjoyment. The measure of

directing the 8th respondent to file a civil suit for recovery of

possession was found to be frustrating the whole purpose and

object of the Senior Citizens Act. Again, reference was made to

Section 3 of the Senior Citizens Act to find the jurisdiction of

the civil court to be curtailed. It was found that the appellant

have to be moved out of the premises for peaceful enjoyment of

the 8th respondent and even if the appellants choose to pursue

the title suit, it can only be continued to its logical conclusion;

and in the context of no interim protection having been granted

there is no question of any interference to the rights of the 8 th

respondent at this stage. The eviction order issued by the

Tribunal was thus affirmed by the learned Single Judge.

9. Before us learned Counsel Shri Syed Alamdar

Hussain argued for the petitioners and learned Senior Counsel

Shri. Bindhyachal Singh countered, for the 8th respondent. Shri.
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
9/39

P.K. Verma, learned AAG-3 appeared for the State, to assist us.

10. The learned counsel for the appellants reiterated

the argument raised before the learned Single Judge, as noticed

in the judgment to impugn it as grossly erroneous. It was

asserted that there is no power of eviction conferred on the

Tribunal by the Senior Citizens Act or the Rules framed in the

State of Bihar. The judgments relied on in the impugned

decision, of the High Court of Delhi were in the specific context

of the rules under Section 32 of the Senior Citizens Act

providing for an eviction. In the present case, there is no scope

for any inquiry under Section 5 of the Senior Citizens Act since

the 8th respondent does not claim any maintenance and on the

other hand asserts in the application filed before the Tribunal

that he does not require any maintenance from the first appellant

herein, who is his son. There is also no claim under Section

23(1) since there is no deed of transfer executed by the 8 th

respondent in favor of the 1st appellant, with or without any

condition that the transfer is made on the undertaking of the 1 st

appellant, the son, to look after his parents in old age. There is

also no transfer under Section 23(2) of the Senior Citizens Act,

of any estate from which the 8th respondent is entitled to

maintenance. The 1st appellant was inducted into the rooms in
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
10/39

the guest house by the 8th respondent himself and is a permissive

occupant. The 1st appellant also has a contention that the estate

was purchased by the 8th respondent using funds of the Hindu

Undivided Family and a title suit is pending on that issue. The

learned Single Judge erred in finding no sustainable claim in the

title suit which had to be agitated in the suit and not in the

summary proceedings before the Tribunal under the Senior

Citizens Act or in a judicial review; which power this Court is

exercising. The 1st appellant being a co-owner is entitled to

occupy the premises of the guest house and he has not deprived

the 8th respondent from the income he obtains as rent from the

other rooms in the guest house; rented out for commercial and

residential purposes. The income obtained by the 8 th respondent

is also subject to any claim of mesne profits the 1 st appellant is

entitled to, in the event of the title suit being decreed in his

favor. However, as of now, since there is no interim order

obtained in the suit, the 1st appellant has not obstructed the

receipt of income by the 8th respondent from the said rooms. The

decisions relied on by the 8th respondent has no application

since the appellants are not staying along with the 8 th respondent

and his wife and there cannot be any complaint of harassment or

physical violence against them. The learned counsel would seek
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
11/39

for setting aside the order of the Tribunal as affirmed by the

learned Single Judge of this Court.

11. Learned Senior Counsel appearing for the

respondent, on the other hand, would contend that both the title

suit and the application filed under the Domestic Violence Act

are misconceived and intended only to defeat the proceedings

before the Tribunal under the Senior Citizens Act. The

provisions of the Act are specifically read out to impress upon

this Court the purpose and intention of the same. The Act

intends to provide protection to the Senior Citizens and their

property to effectuate which, in the present case an eviction is

expedient. The appellants, the son and daughter-in-law of the 8 th

respondent have been continuously harassing the families on

both sides by filing frivolous criminal cases against all and

sundry. The 1st appellant is well employed and so is the 2 nd

appellant, who is a practicing lawyer. The appellants have

sufficient means to look after themselves and there is no reason

to occupy three rooms of a guest house from which the 8th

respondent derives an income. The 8th respondent is a retired

employee and both himself and his wife are living on a meager

pension of Rs. 4089/- and their lives are sustained only by the

rental income from the guest house. The 8 th respondent and his
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
12/39

wife are entitled to seek eviction of the appellants from the

guest house which is the only source of income for their

sustenance, under the Senior Citizens Act, which provides a

speedy and expedient remedy insofar as the protection of the life

and property of senior citizens. The 8th respondent and his wife

have a right to live with dignity, which they are deprived of by

their own son and daughter-in-law. Despite the Senior Citizens

Act not containing an express provision enabling the Tribunal to

pass an eviction order, it is argued that this has to be read in, to

be comprised within the jurisdiction conferred on the Tribunal,

by necessary implication, so as to effectuate the provisions of

the Act. The primary object of Sections 22 and 32 of the Senior

Citizens Act read with the Rules of 2012 is the protection of life

and property of senior citizens by the authorized officers, who

are entitled to take every necessary step to ensure protection of

the life and property of senior citizens. The order of the Tribunal

under the Senior Citizens Act is well within the powers of the

Tribunal under the enactment.

12. Both the parties placed before us a number of

judgments and we would hence, first look at the decision of the

Hon’ble Supreme Court and then of the various High Courts

relied on by the opposing parties. S. Vanitha (supra) is a
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
13/39

decision of the Hon’ble Supreme Court in which the appellant,

the daughter-in-law, was residing in a house originally

purchased by her estranged husband, the 4th respondent, who

later sold it to his father, the 3rd respondent, who gifted it to his

spouse, the 2nd respondent, the mother of the 4th respondent. The

2nd respondent filed a suit seeking a permanent injunction

restraining the appellant from interfering with the possession of

the suit property and while the same was pending, the marriage

of the appellant and the 4th respondent were dissolved, against

which an appeal was filed by the appellant and a separate

proceeding for maintenance was instituted under Section 125 of

the Cr.P.C. It was in this background that the 2 nd and 3rd

respondents invoked the provisions of the Senior Citizens Act

seeking eviction of their daughter-in-law from the suit premises,

an order of maintenance of Rs.15,000/- from the 4 th respondent,

their son, and legal expenses for the proceedings from both the

appellant and the 4th respondent. The 2nd respondent had also

instituted a petition under the Domestic Violence Act claiming

the subject premises as a ‘shared household’.

13. In considering the issue as to whether the Tribunal

constituted under the Senior Citizens Act would be empowered

to evict the daughter-in-law from the house in which she was
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
14/39

residing, the Hon’ble Supreme Court considered the provisions

of the Senior Citizens Act and the provisions of the Domestic

Violence Act so as to harmonize the same, with a view to avoid

any conflict insofar as the separate proceedings initiated by the

senior citizens and that initiated by their daughters-in-law. It

was found that sub-section (1) of Section 23 deals with a

situation where the transfer of property is with the specific

condition to provide for amenities and needs of a senior citizen.

Sub-section (2) envisages a situation where the senior citizen

has a right to receive maintenance from an estate; which right to

receive maintenance, he/she is deprived of by reason of a

transfer; with notice of such right or if the transfer is gratuitous.

It was held that sub-section (2); the right to maintenance from

an estate, cannot be enforced as against a transferee for

consideration, who does not have a notice of such right. The

transfer spoken of in sub-section (1) was held distinguishable

from that spoken of in sub-section (2) to the extent of the former

referring to a transfer by the senior citizen, while the latter takes

within its ambit not only a transfer by the senior citizen, but also

a transfer by a third party.

14. Looking at sub-section (1), it was held that when a

transfer is made by a senior citizen subject to the condition that
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
15/39

he/she will be looked after and provided with basic amenities

and physical needs; which the transferor has failed to deliver,

then two consequences follow :- (i) by a fiction the transfer

would be deemed vitiated on grounds of fraud, coercion or

undue influence and (ii) at the option of the transferor the

transfer can be declared void by the Tribunal. Such a deeming

fiction is not incorporated in sub-section (2) and what would

arise from sub-section (2) is the right to receive maintenance

from the transferred estate, which can be enforced against the

transferee, who is put to notice of such right or when the

transfer was gratuitous. It was also held that transfer would

include not only the absolute transfer of property but also the

transfer of right or interest in the property.

15. The Hon’ble Supreme Court in S. Vanitha

(supra) while observing that the Tribunal under the Senior

Citizens Act, may have the authority to order eviction, if it is

necessary and expedient to ensure the maintenance and

protection of senior citizens; held that such eviction can only be

an incidence of the enforcement of right to maintenance

protection which remedy can be only after adverting to the

competing claims in the dispute. It was in this context that the

fact situation in that case was recapitulated; of the daughter-in-
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
16/39

law being sought to be evicted from a house originally

purchased by her husband in which they had been residing as a

family, which was subsequently transferred in the name of the

husband’s father and later gifted to his mother. The woman’s

right of residence and the safeguard against domestic violence

as provided in the Domestic Violence Act were emphasized, in

which circumstance there was a requirement that the claim of

the subject property constituting a ‘shared household’ having to

be adjudicated under the Domestic Violence Act. We have to

immediately notice and emphasize that the dictum in S.Vanitha

(supra) does not support the remedy or relief of an eviction, in

the case of a claim of maintenance from a transferred estate, in

which contingency the remedy is only to enforce the right of

maintenance as against the transferee.

16. A number of decisions of the various High Courts

have been relied on by the learned Senior Counsel for the 8th

respondent to contend that there is a power implied on the

Tribunal constituted under the Senior Citizens Act to carry out

eviction; which would be in furtherance of the intention of the

statute. The majority of the decisions referred to are of the High

Court of Delhi; in which State we cannot but notice that the

rules framed under the Senior Citizens Act specifically confers
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
17/39

the power of eviction on the Tribunal; which is absent in the

Rules of 2012 framed in the State of Bihar. We also have to

observe at the outset itself that in the majority of the decisions

placed before us, the complaint of the senior citizens who

approached the Tribunal under the Senior Cititzens Act was real

and imminent physical violence and mental torture perpetrated

on them, by their wards and their in-laws; who were residing in

the very same residential building, from which the eviction was

sought.

17. Insofar as the decisions of the Delhi High Court

are concerned, we refer to the Division Bench decision in

Sunny Paul vs. State of NCT of Delhi; 2018 SCC Online Del

11640 which was either followed or reiterated in the other

decisions. There, the senior citizens were concerned with the

maltreatment and harassment perpetrated on them by their two

sons, who also had criminal antecedents. The harassed parents

also for reason of the criminal antecedents of their children had

disowned and dis-inherited them by way of publication taken

out in a newspaper. The issue considered was as to whether a

claim for eviction is maintainable before the Tribunal under

Section 23 of the Senior Citizens Act; that too on allegations of

forcible ouster of the senior citizens, especially in the absence of
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
18/39

a claim for maintenance. It was held that there was nothing in

Section 23 which presupposed an application for maintenance as

a prerequisite for seeking relief of declaring a transfer void. The

provision enabled an application at the option of the transferor,

for reason of basic amenities and physical needs having not

been provided to the transferor, which was the intention behind

the transfer and a condition specifically stated. The Division

Bench relied on an amendment made to the rules under the

Senior Citizens Act in the year 2016, which specifically

empowered the Deputy Commissioner/District Magistrate to

consider an application for eviction of a son, daughter or a legal

heir from a self-acquired property, by a senior citizen on account

of his non-maintenance and ill-treatment, which was again

amended in 2017, expanding the nature of the property and

transfer effected; the scope and ambit of which may not be

relevant for consideration in the present case.

18. In Sandeep Gulati vs. Divisional

Commissioner Ors.; 2020 SCC Online DEL 2517, the son

and grandson of the senior citizens were objecting to the order

of eviction passed from a property against which they

unsuccessfully filed for a decree of partition. Reliance was

placed on Smt. Darshna vs. Govt. of NCT of Delhi judgment
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
19/39

in W.P. (C) No. 6592 of 2018 dated 18.07.2018, wherein

another learned Single Judge held that when there is no right

title and interest in the premises, there cannot be any insistence

on the part of the children that they should be allowed to live

with their parents especially when the very object of the Act was

to allow the senior citizen to live in peace and tranquility. Again

Smt. Darshna (supra) relied on the rules entitling a senior

citizen to seek eviction under the Senior Citizens Act.

19. Aarshya Gulati vs. Govt. of NCT of Delhi

ors.; 2019 SCC Online DEL 8801 was an application filed by

two minor children, the grandchildren represented by their

mother, objecting to an order of remand made by the Divisional

Commissioner in an appeal under the Senior Citizens Act.

Sunny Paul (supra) was relied on to uphold the proceedings

before the Tribunal. Shadab Khairi anr. vs. The State

Ors; 2018 SCC Online DEL 7626 again considered the

question of jurisdiction of the Maintenance Tribunal to order

eviction. The two children who were the appellants were

challenging the order of eviction obtained by their father, the

applicant in a proceeding before the Maintenance Tribunal. The

appellants were occupying different floors of the same building

in which the respondent-father was also living. The respondent
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
20/39

claimed that despite spending considerable amounts for the

separate residence of his sons, the sons resiled from an

undertaking to pay him a monthly sum of Rs. 20,000/-

collectively towards his maintenance and for the day-to-day

requirements of their mother, who was suffering from a

prolonged illness. Again, Sunny Paul (supra) was relied on and

the rule enabling eviction resulted in the dismissal of the appeal

against the order of the learned Single Judge which affirmed the

order of eviction.

20. Saraswati Devi vs. Ganga Ram Sharma anr.;

2023 SCC Online DEL 2093, was another Division Bench

considering a case in which the widowed daughter-in-law was

ordered to be evicted by the Tribunal under the Senior Citizens

Act on an application made by her parents-in-law. Reliance was

placed on S. Vanitha (supra) and after elaborate consideration

of the objective of the enactment, the order of the Maintenance

Tribunal was upheld. The contention regarding the conflict

between the two enactments that is, the Senior Citizens Act and

the Domestic Violence Act, the latter filed by the daughter-in-

law, was negatived finding that the latter case was filed after the

order of the learned District Magistrate under the Senior

Citizens Act. Immediately it has to be noticed that the Hon’ble
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
21/39

Supreme Court in S. Vanitha (supra) held that “the fact that

specific proceedings under the PWDV Act 2005 had not been

instituted when the application under the Senior Citizens Act,

2007 was filed, should not lead to a situation where the

enforcement of an order of eviction deprives her from pursuing

her claim of entitlement under the law” (sic). The finding in

Saraswati Devi (supra) by the Delhi High Court, according to

us is in direct conflict with the dictum in S. Vanitha (supra).

Albeit, in Saraswati Devi (supra) the application under the

Domestic Violence Act was filed after the order of eviction

under the Senior Citizens Act; the adjudication insofar as the

claim of ‘shared household’ would be frustrated by an order of

eviction.

21. Namdeo and anr. Vs. State of Maharastra; W.P.

No. 2035 of 2020 was a case of the husband’s parents obtaining

an eviction order under the Senior Citizens Act against their son

and daughter-in-law. The allegation was that the son had taken

illegal and forceful possession of a part of the self-acquired

property of the father and was continuing there in a manner

causing serious threat to the safety and security of the parents.

There were also allegations of physical assault and obstruction

of visitors including the other children. The son, however, raised
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
22/39

allegations against the father which the learned Judge found is

not expected of a son in the conservative Indian society; to

which observation in a judicial order, we cannot, with due

respect, subscribe to. It was held that in ensuring the peace of

the senior citizen there is no illegality in evicting the children

from the residential house which again was relying on Sunny

Paul (supra) and S. Vanitha (supra).

22. Neeraj Shivkumar Maholay anr. Vs State of

Maharastra a decision of a learned Single Judge of the High

Court of Judicature at Mumbai in CRWP No. 5508 of 2018 and

connected cases again was with respect to eviction of the son

and daughter-in-law from a common household in which they

were residing with the old aged parents. The contention of the

children was also that the eviction sought was not from a self-

acquired property but from an ancestral property. The said

contention was rejected on the ground that the object of the

Senior Citizens Act has to be achieved by all means since it is a

special statute to protect the interest of the senior citizen and

parents to live with peace and dignity. Though, eventually the

property may devolve upon the children through their parents;

the immediate need was to maintain the life, liberty, dignity and

property of the parents.

Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
23/39

23. Anil Kumar Dhiman anr. Vs. The State of

Haryana and Ors. in CRWP No. 1357 of 2019 was the

judgment of a learned Single Judge which commenced with a

quote from Guru Granth Sahib to condemn the callous manner

in which the children treat their aged parents, giving short shrift

to the untold sorrows and miseries suffered by the parents to

rear the very children, who now ignore them and at times

perpetrate torture and harassment on them. Looking at the

Action Plan framed under Section 22 and the elaborate

procedure for eviction, the order passed under the Senior

Citizens Act was upheld resulting in the eviction of the children.

24. We notice that the aforesaid judgment delivered

on 21.09.2021 did not refer to an earlier judgment of the very

same High Court by another learned Single Judge in Simrat

Randhawa vs The State of Punjab And Ors in CWP No.4744

of 2018, wherein again a daughter-in-law was sought to be

evicted by the mother-in-law. The learned Single Judge while

finding the power of eviction to be not available under the

Senior Citizens Act, found the Action Plan to have arbitrarily

introduced the concept of eviction; foreign to the scheme under

the Senior Citizens Act. We extract from the operative portion of

the judgment paragraph nos. (iv) to (viii):-

Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
24/39

(iv) The Action Plan has not been prescribed in the
Rules and to the extent of eviction and thus it is
beyond the powers delegated by Parliament in the
MWPSC Act. The Punjab Action Plan is an
executive order and the District Magistrate does not
possess the power of eviction. The Action Plan is
open to wide abuse of the process of law in the
hands of the executive.

(v) The stand of the Union of India is accepted as
the correct legal position that power of eviction
was not visualized, intended or enacted in the
Parent Act by Parliament nor can be entrusted to
the Maintenance Tribunal.

(vi) The Act did not authorize the State
Government and its officers for executing a
summary procedure for eviction to subvert
substantive rights, disabilities and obligations
under the MWPSC Act and the actionable rights
under the personal civil law, to the peril of the
respondent, where neither maintenance nor neglect
nor transfer of property is involved.

(vii) The Maintenance Tribunal is not an Eviction
Tribunal.

(viii) Eviction can take place only in accordance
with procedure established by law and by reading
in the Act rights to property under Article 300-A of
the Constitution as explained by the Supreme Court
in K.T. Plantation case as a ground of challenge,
that is, the Rule of Law as part of the basic
structure and Separation of Powers albeit there is
no absolute rigidity in the dividing lines of the
three pillars of a democratic republic and the State.

(viii) The MWPSC Act does not provide for relief
of eviction simpliciter, but at best as a
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
25/39

consequential relief under Section 23 of the Act for
void transfers.

25. We cannot but notice that the decisions placed

before us by the learned counsel for the 8th respondent has

emphasized the intention behind the legislation; as justification

for providing measures, which do not find a place in the

enactment itself or the rules framed thereunder. Based merely on

the Preamble and the Statement of Objects and Reasons; we are

of the view that the Tribunal or this Court cannot provide for

measures which are not part of the prescription under the Rules.

As has been held in S.Vanitha (supra) if the application is under

Section 23(1) then there may be a power under the Senior

Citizens Act to carry out eviction of the transferee; which the

appropriate Government could also prescribe under the Rules.

But otherwise we fully agree with the learned Single Judge in

Simrat Randhawa (supra).

26. Chapter-2 of the Senior Citizens Act refers to

maintenance of parents and citizens and Section 4 provides for

persons, who would be entitled to make an application as also

the persons against whom such applications could be filed. The

application for maintenance itself is to be filed under Section 5,

which can be considered in a summary procedure as is provided
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
26/39

under Section 8. Section 11 speaks of enforcement of order of

maintenance. Chapter-2 also constitutes a Maintenance

Tribunal as per Section 7 and an Appellate Tribunal as per

Section 15; by Section 9, provides for the order for

maintenance, by Section 10, provides for alteration and by

Section 13 permits deposit of the maintenance amount and the

award of interest as per Section 14.

27. Protection of life and property of senior citizens

comes under Chapter-5. Section 23 as has been found in S.

Vanitha (supra) has two limbs. By sub-section (1), a transfer by

the senior citizen; with a condition of providing basic amenities

and physical needs, being rendered void at the option of the

transferor on such conditions not being satisfied. Sub-section (2)

provides for protection of the right to receive maintenance from

an estate; transferred with notice of such right or gratuitously,

enforceable as against the transferee. While under sub-section

(1) a transfer made by the senior citizen alone can be declared

void, under sub-section (2) a right to maintenance can be

enforced against a transferee, if the senior citizen has a right to

maintenance from that estate; whoever makes the transfer. We

cannot but observe that under Section 23 (1), if a transfer is

declared void, then it would be frustrating the object of the Act
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
27/39

if a consequent eviction is not made; to which end is the

declaration of law in S. Vanitha (supra). The executive

government has the power to provide for the same in the rules,

in furtherance of the purposes of the Act. The rules as framed in

the State of Bihar does not provide for an order of eviction, if

such a declaration is made by the Tribunal. More pertinent is the

fact that the instant case is not one under Section 23 (1) and it

would not be proper for us to decide whether, even in the

absence of an enabling rule, there could be an order of eviction

based on the lofty and noble motivation with which the statute is

enacted.

28. However, in the context of the transfer of an

estate from which the senior citizen has a right to maintenance,

there is no question of the transfer being declared void or

consequently an eviction from that property, since, what the law

provides is only for enforcement of such right of maintenance

against the transferee; who has obtained the property

gratuitously and even otherwise if such transfer is with notice of

such right of maintenance. We perfectly agree with the cited

decisions of the High Courts that a claim for maintenance is not

a prerequisite for an application under Section 23. Even if the

senior citizen has the wherewithal to look after himself/herself,
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
28/39

if the transfer has been on the condition of provision of basic

amenities and physical needs; which is not confined to the

financial support the elderly expects from his or her ward, the

denial of such basic amenity and physical needs; which words

are to be construed as per the facts arising in each case, would

result in a violation of the condition, thus rendering the transfer

void as one vitiated by fraud, coercion or undue influence, at the

option of the transferor senior citizen.

29. Sub-section (2) does not in the contingency

contemplated, provide for the transfer to be declared void. We

cannot but repeat that Section 32 empowers the State

Government to make rules by notification in the official gazette

for carrying out the purpose of the Act, which again is

protection of the life and property of senior citizens and also

provision for adequate maintenance. As we noticed, in the State

of NCT of Delhi, the rules provide for an eviction of a

son/daughter or legal heir, the vires of which is not under

challenge before us and we would restrain ourselves from

making any observation on that. In any event that power of

eviction, could be exercised when a transfer is declared void,

but not when the transfer of an estate has frustrated the right to

maintenance from it; in which case the right can only be
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
29/39

enforced against the transferee. It is very pertinent that the Rules

of 2012 as framed by the State of Bihar does not provide for an

eviction from the property whether it be under Section 23(1) or

under Section 23(2).

30. As has been held by us, the Act does not vitiate

the transfer itself, under Section 23 (2), merely for reason of an

existing right for maintenance from the estate transferred, as

conferred on a senior citizen. Under sub-section (2) of Section

23 only the right for maintenance from the estate can be

enforced as against the transferee.

31. In the present case, there is no claim for

maintenance in the application made before the Tribunal under

the Senior Citizens Act. There is neither a claim for maintenance

nor a claim for declaring void a transfer of property for reason

of non-provision of basic physical needs and amenities; the

furnishing of which was a condition for the transfer. On facts, it

has to be noticed that the 8th respondent is the father who owns

the building in which now the appellants are residing;

specifically in three rooms out of many. The claim of the 8th

respondent is that he has only a meagre pension and he

maintains himself and his wife; both of whom are afflicted with

old age illness and other ailments, with the income received
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
30/39

from the guest house. Admittedly, there are other rooms in the

guest house which have been rented out and there is no

contention raised that the lessees in the other rooms are not

paying rent to the senior citizen or that the first appellant who is

residing in the property, is forcibly receiving such rent from

others. The 8th respondent has also admitted that he had himself

permitted the residence of the son in one of the rooms and on

such permissive occupation the son has encroached on two other

rooms and also brought his wife and child to stay along with

him. There is no allegation of a real or imminent threat of

physical violence raised against the appellants. However, there

is a claim of frivolous criminal complaints having been filed by

the 2nd appellant against the 8th respondent also under the

Domestic Violence Act.

32. It is in the context of such myriad problems

arising from allegations and counter allegations that we thought

it fit to conduct a mediation. The son wanted to see the father,

which he said was being prohibited by other siblings. We hence

appointed an Advocate Commissioner, in whose presence the

meeting was scheduled, in the hope of the son and father

reuniting. The Advocate Commissioner appointed by us

accompanied the son, when he met the father and she has filed a
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
31/39

report which does not indicate any rapprochement having been

made at the meeting. The parents were bitter about the conduct

of the appellants when they were residing with them and the

various misdeeds alleged, even after they were allowed to

occupy the guest house. The remorse expressed by the 1 st

appellant, failed to pacify the parents who showed no signs of a

reconcilement, is the report of the Advocate Commissioner. We

again persuaded the learned counsel appearing for both the

parties to mediate on the issue. It was also suggested that the

appellants could be allowed to continue in the guest house in the

three rooms and the 2nd appellant would be persuaded to

withdraw all the criminal complaints filed against the aged

parents-in-law. In the present case, we were also of the prima

facie opinion that there is no question of a ‘shared household’

being claimed by the 2nd respondent in the context of there being

no estrangement between the husband and wife and there is no

claim of joint residence in the guest house prior to the present

occupation. The son cannot set up his wife to claim residence in

the shared household, which belongs to the husband’s parents.

We immediately observe that this is only a prima facie

observation since we are not looking at the proceedings under

the Domestic Violence Act; which eventually will have to be
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
32/39

dealt with by the Court in which such application is made.

33. A translated copy of the application is produced

before us and we deem it fit to refer to the contentions raised

briefly. The applicant-8th respondent appearing before the

authority under the Senior Citizens Act is living in a rented flat

allotted to him during his service and he is also the owner and

co-ordinator of the Priti Rest House which is the bone of

contention in the present case. The applicant has three children,

all well settled and the eldest one is looking after the parents.

The second son is working at Bangalore and the third is the 1st

appellant. The youngest son is said to have entered into a love

marriage with the 2nd appellant which was grudgingly accepted

by the parents, despite which, the wife by her unruly behaviour

and nature was a cause of constant harassment. It is not clear as

to whether the youngest son and daughter-in-law were ever

living with the parents, but there is an allegation that they

encroached into the house of the applicant and the rest-house

with the intention of forcibly taking possession of both. It is also

stated that since the younger son was living at the house of the

in-laws, the applicant himself had offered to provide rented

residential accommodation for the son’s family to live in,

despite the fact that both the son and his wife were earning
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
33/39

members. However, even such an offer did not abate the

nuisance created by the youngest son and his wife. It is also

stated that the youngest son complied with the request of the

parents not to live in the house of his in-laws and sought for

residing alone in the rest house for some time before he finds a

separate rented accommodation. The 1st appellant was thus

given one room which led to the various allegations raised in the

application. There is also an allegation of the son and his wife

having created nuisance to the public and lessees of the rest

house.

34. From the allegations raised it is clear that the

son was a permissive occupant though according to the 8 th

respondent it was never intended that he stay in the rest house

with his family and that too, occupy more than one room. The

Advocate Commissioner has spoken about a common residence

with the parents, which as of now is not in existence. The

parents and the son and his family are residing in different

places, the former at a rented accommodation and the latter in

the rest house occupying three rooms; though there is allegation

of harassment and nuisance. The fact that the parents and the

son and his family are not living in one building would not

enable a prayer for eviction. The rest house, which is a separate
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
34/39

building is where the son resides with his family. However, the

claim of the father is that he is unable to maintain himself with

the meagre pension and that he only has the income generated

from the rest house to sustain himself. The said contention is

raised alongside the assertion in the application that the eldest

son, who is living along with the parents in the rental

accommodation, takes care of his old aged parents and arranges

all medical necessities. It has to be pertinently noticed that the

allegation of income from the rest house being the only

sustenance of the 8th respondent, was one ground which did not

find a place in the application. In fact, the specific contention

was that the father was willing to accommodate the son and his

wife in a rental accommodation to ensure that the son does not

live in the house of his wife, along with his in-laws.

35. In the above circumstances, we cannot find any

ground to enable an eviction by the Tribunal constituted under

the Senior Citizens Act; which we have found can at best be

enforced, only under Section 23(1) of the Act. In fact, the

Hon’ble Supreme Court in S. Vanitha (supra), only observed

that “the Tribunal under the Senior Citizens Act, 2007 may have

the authority to order an eviction, if it is necessary and

expedient to ensure the maintenance and protection of the
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
35/39

senior citizen or parent. Eviction in other words would be an

incident of an enforcement of the right to maintenance and

protection. However, this remedy can be granted only after

adverting to the competing claims in the dispute” (sic). In the

cited case, the aforesaid observation was in the context of the

daughter-in-law claiming the building in which she was residing

to be a shared household which sharing is in the context of the

husband and wife sharing the residence, before the death of the

husband. It was to enable continued residence in the said

building, she had taken the proceedings under the Domestic

Violence Act. As has been noticed by us it was also observed in

S. Vanitha (supra) that, the proceedings under the Domestic

Violence Act being later to the application under the Senior

Citizens Act would be of little consequence in claiming the right

of a shared household.

36. In any event, for the present we are not

adverting to the proceedings under the Domestic Violence Act,

which is to be adjudicated by the appropriate Court,

untrammeled by any observation made herein. But it has to be

emphasized that neither is there a claim under Section 23(1) of

the Senior Citizens Act nor is there a claim of maintenance. We

immediately observe that a claim of maintenance would not be a
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
36/39

requirement insofar as an application under Section 23(1) or

even under Section 23(2). Though there is no maintenance

claimed from the 1st appellant, the younger son of the 8 th

respondent and there being no whisper in the application, about

the income from the rest house being the only sustenance of the

aged parents; it cannot but be noticed that the 8th respondent

had rights over the property in which now the 1 st appellant is

staying with his wife and child in three rooms. There is of

course a title suit filed by the 1st appellant, which again would

have to be considered by the appropriate Court. As of now, since

there is no injunction against the exclusive possession of the 8th

respondent, the 1st appellant cannot claim any right of residence

in the building as a co-owner, just as the father, a senior citizen,

cannot seek eviction from the separate residence of the son in a

building owned by him, under the Senior Citizens Act. The son

also cannot claim a right to residence in a building exclusively

owned by the father, by virtue of their relationship alone.

Hence, though the allegation is of a permissive occupation, the

specific contention of the 8th respondent is that he never

intended a continued occupation by the son and that too in more

than one room with his family. The appellants, the husband and

wife also does not controvert the assertion of both of them being
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
37/39

engaged in fruitful occupations, capable of sustaining

themselves with their earnings. In the above circumstances, the

son would be liable to pay the rent for the three rooms he

occupies, to his father.

37. We have specifically stated that we do not

speak on the various proceedings pending cases between the

appellants and the 8th respondent before the various courts;

specifically under the Domestic Violence Act and the title suit in

the civil court. The observations made by us in this judgment

about any proceeding, other than that under the Senior Citizens

Act, are prima facie and would not regulate the adjudication of

such other proceedings. In this context, we also set aside every

such observation made by the learned Single Judge about the

sustainability of the title suit and the efficacy of a petition under

the Domestic Violence Act.

38. We are of the opinion that there could be no

eviction ordered under the Senior Citizens Act since the claim is

not under Section 23(1). The claim of the 8 th respondent before

the Tribunal under the Senior Citizens Act, if at all coming

under Section 23(2) of the Act, there can only be an

enforcement of the right of maintenance from the property. An

occupation whether it is permissive or an encroachment would
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
38/39

have the trappings of a transfer, which would dis-entitle the

owner of the property from the maintenance by way of rental

income generated from the occupied rooms in the rest house.

We make it clear that the appellants, as of now, do not have any

right to claim the income from the other rooms in the rest house,

nor can they obstruct or cause harassment to the other occupants

of the rooms; which, if complained of to the District Magistrate,

Patna or the Jurisdictional Station House Officer, the

appropriate authority shall take proper measures to avert

avoid the same.

39. Insofar as the rental income entitled from the

three rooms occupied by the appellants, we set aside the order of

the Tribunal under the Senior Citizens Act for eviction as also

the decision of the learned Single Judge, and remand the matter

to the District Magistrate, Patna. The District Magistrate, Patna

shall conduct an inquiry as to the reasonable rent that could be

generated from the three rooms occupied by the appellants and

pass an order directing the appellants to pay the same by way of

regular remittances in the account of the 8 th respondent.

We also make it clear that the 8th respondent would be entitled to

approach the civil court for eviction, if so desired, which

proceeding ought be considered in accordance with law; again
Patna High Court L.P.A No.907 of 2023 dt.03-01-2024
39/39

untrammeled by any of our observations; which are confined to

the proceedings under the Senior Citizens Act.

40. The appeal would stand allowed with the above

directions. The parties are left to suffer their costs.

(K. Vinod Chandran, CJ)

Partha Sarthy, J : I agree.

(Partha Sarthy, J)

Aditya Ranjan/-

AFR/NAFR AFR
CAV DATE 03.11.2023.
Uploading Date 03.01.2024.
Transmission Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2024 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation