Bombay High Court
Abhimanyu Jayesh Jhaveri vs Smt Nirmala Dharmadas Jhaveri And ... on 17 December, 2021
Bench: G. S. Kulkarni
11.WPNos.4650-69162021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4650 OF 2021
Abhimanyu Jayesh Jhaveri ... Petitioner
Versus
Nirmala Dharmadas Jhaveri & Anr. ... Respondents
WITH
WRIT PETITION NO. 6916 OF 2021
Jayesh Dharmadas Jhaveri ... Petitioner
Versus
Nirmala Dharmadas Jhaveri & Anr. ... Respondents
Mr. Kishor S. Patil, Advocate for the Petitioner in WP/4650/2021.
Mr. Amit Sale, Advocate for the Petitioner in WP/6916/2021.
Mr. Hiral Thakkar i/b. Ms. Vimal Sanghavi, Advocate for the Respondent.
CORAM : G. S. KULKARNI, J
RESERVED ON : 2nd DECEMBER 2021
PRONOUNCED ON: 17th DECEMBER 2021
JUDGMENT :-
1 An ordeal of a senior citizen who would be soon in her nineties is
the subject matter of the present proceedings. She says that the harassment
caused to her, by her son and grandson was such that she desired to end her
life. Looking at this case, one would surely perceive the perishing and
deterioration of the family and societal values inherent in our culture, beliefs,
Gaikwad RD 1/19
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ideals and traditions that parents and elders are to be treated with highest
respect, love and empathy. These values appear to have remained eclipsed in
the present case on account of greed for property and money. It is so
disheartening that at such old age when the only expectation of a senior
citizen, from the near and dear ones is of care, concern, affection and love,
instead, what has been returned is harassment, wretchedness, suffering and
abuse.
2 Smt. Nirmala Dharmadas Jhaveri (for short, "grandmother")
respondent No.1, who is 89 years of age is required to defend herself against
her adamant grandson Abhimanyu Jayesh Jhaveri (for short, "Abhimanyu") -
petitioner in the first petition and her own son Jayesh Dharmadas Jhaveri (for
short, "Jayesh") - petitioner in the second petition, in proceedings initiated by
the grandmother under the Maintenance and Welfare of Parents and Senior
Citizen Act, 2007 (for short, "the Act").
3 The Senior Citizen's Tribunal, Mumbai (for short, "the Tribunal")
by the impugned order dated 30th July 2021 has allowed the grandmother's
application filed against Jayesh and Abhimanyu, which is assailed in both
these petitions. On 1st October 2020, the grandmother approached the
tribunal invoking the provisions of the said Act initially claiming
maintenance. The grandmother subsequently filed a second application as
Gaikwad RD 2/19
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seen on page 29 of Abhimanyu's petition setting out the details of her plight.
She stated that she is scared of her son Jayesh as he is using all pressure
tactics to make sure that she gives away all the assets to him, which were
standing in her name and in the name of her late spouse Shri. Dharmadas
Jhaveri. She stated that after her husband passed away on 25 th March 2017,
Jayesh along with his wife Sonal, grandson Abhimanyu and his wife Apeksha
left their own house and came to reside with her, at her residence being Flat
No.A/12, Mahavir Building, 165, Derasar Lane, Ghatkopar (East), Mumbai -
400 077. Prior thereto she was peacefully residing in the said flat along with
her husband (father of Jayesh and grandfather of Abhimanyu). She pleaded
that after Jayesh and Abhimanyu along with their spouses entered her house,
there were continuous arguments and violence as Jayesh pressurized her to
transfer all the assets in her name and in the name of her late husband, solely
in his favour, and not give any share to her two daughters Rashmi and Tanvi,
who also had equal shares in the estate of the grandmother and that of her
deceased husband. She stated that Jayesh had filed a criminal case against
her under the provisions of Section 138 of the Negotiable Instruments Act
before the Court of Metropolitan Magistrate at Vikroli. The grandmother
pleaded that the sole purpose of Jayesh and his family leaving their house
and coming to stay with her was with a motive to secure transfer of all her
assets in his name.
Gaikwad RD 3/19
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4 The grandmother stated that when she refused to succumb to
such pressures and persistence of Jayesh to transfer all the assets in his name,
he started behaving violently, which caused her to leave her own flat and stay
with one of her daughters, Rashmi and her husband Umesh in whom she had
complete faith that they would take care of her including meeting all her
medical needs. She was compelled to leave her house without any
belongings except two pairs of clothes. The grandmother stated that she was
happily living with her daughter Rashmi. She stated that even after she left
her house, the behaviour of Jayesh continued to remain violent and he
started causing distress not only to her life but also to her married daughters.
There were threats from Jayesh of legal actions, civil and criminal against her
daughter and her family which disrupted her living with her daughter
Rashmi. She, therefore, decided that she would go back to her own house so
that Jayesh would not disturb the family members of any of her daughters,
including her daughter Rashmi. The grandmother in her application which
also inter alia dealt with Abhimanyu's reply dated 10 th March 2021, made the
following prayers :
(Official Translation)
"7.At the end, I once again state that from my this complaint,
directions may be given to the Respondent that,
A) The property belonging to me and of my right received by me by
virtue of the Registered Will dated 29/10/2013 of my husband late
Shri. Dharmadas Manilal Zaveri, may be returned to me by them.
B) My house viz. 'Mahavir Niwas' wherein the Respondent is residing
Gaikwad RD 4/19
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alongwith his family at present, stands in my name. They may be
removed from the said house and the said house may be returned
to me.
C) The entire amount standing credited to my account may be
returned to me together with the accounts thereof from the
Respondent.
D) Directions may again be given to the Respondent to return the
entire amount standing credited to the account of my husband
together with the accounts thereof.
E) The entire immovable property given and bequeathed to me by my
husband Late Shri. Dharmadas Manilal Zaveri by virtue of his
Registered Will dated 29/10/2013, may be returned to me. And,
F) The regular maintenance expenses may be given to me as prayed
for in this complaint before the Hon'ble Court, because my
daughters are housewives and hence, they cannot give the amount
for me.
Place:- Mumbai.
Date 16th March, 2021 Nirmala Zaveri
Applicant"
5 Insofar as the legal proceedings are concerned, quite peculiarly,
Abhimanyu has taken an extremely hard adversarial position, asserting his
rights more than what Jayesh - his father can assert. The tenor of his reply
where he calls his grandmother by her name shows the degree of his respect
for her, more particularly when he is enjoying the grandmother's flat. He
responded to the grandmother's plea by filing his reply dated 5 th June 2021
which is to the following effect :
"In connection with Senior Citizen Application No. 23 of 2020 filed by
Smt. Nirmala Dharmadas Jhaveri, in which I am Respondent No.2,
I make my additional submission as under :
Smt. Nirmala Dharmadas Jhaveri is relying on Will dated 29.10.2013
executed by late Dharmadas Manilal Jhaveri. As mentioned in Para-12
of the said Will, the Testator Dharmdas Manilal Jhaveri has
bequeathed the Flat No. A/12, Mahavir Building, 165, Derasar Lane,
Ghatkopar - East, Mumbai - 400 077 to me.
Gaikwad RD 5/19
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Though the said flat was purchased in the name of Smt. Nirmala
Dharamas Jhaveri, it was purchased by Dharmadas M. Jhaveri out of
his own income and Smt. Nirmala Dharmadas Jhaveri did not have
any independent source of income to buy the flat. Thus late
Dharmadas M. Jhaveri was the real owner of the said flat, and as per
Para-12 of the Will dated 19.10.2013, I have become owner of the said
flat after death of Testator Dharmadas M. Jhaveri Smt. Nirmala
Dharmadas Jhaveri has never disputed the Will dated 29.10.2013. On
the contrary she is relying on it. Thus, Smt. Nirmala Dharmadas
Jhaveri has accepted the said Will dated 29.10.2013.
I further say that, though I have become owner of aforesaid Flat No.
A/12, Mahavir Building, 165, Derasar Lane, Ghatkopar - East, Mumbai
- 400077, as Smt. Nirmala Dharmadas Jhaveri is my grandmother (my
father's mother), I don't have objection if she resides in the aforesaid
flat with us.
The present matter is mainly for maintenance claimed by Smt. Nirmala
Dharmadas Jhaveri. However after going through the contents of
aforesaid Will dated 29.10.2013 with assistance of the Advocate few
days ago, I felt it necessary to make it clear that though Smt. Nirmal
Dharmadas Jhaveri is claiming to be owner of the aforesaid flat, in fact
as per Will dated 29.10.2013, not Nirmala Dharmadas Jhaveri, but I
am real owner of the said flat after death of my grandfather
Dharmadas M. Jhaveri. Hence, I am filing this additional submission
before your Honour."
6 Abhimanyu did not stop at this, he filed additional submissions before
the Tribunal dated 30th June 2021, to the following effect:
"In connection with Case No. 23 of 2020 filed by Smt. Nirmala
Dharmadas Jhaveri,
I make my additional submission as under :
I noted that the signatures of Mrs. Nirmala D Jhaveri were
mismatched in all the response filed. Hence, I decided to call and ask
her about the same on 30 th June 2021, at 10:05 AM, on the number
022-24316891. During this conversation, I asked her if she was aware
abuot the matter and the amount that she has demanded in this
Maintenance case. Her response was that she is not aware of the
same.
I would like to bring this on record that Mrs. Nirmala D Jhaveri has
no knowledge of anything -neither the amount demanded in this
Maintenance case, nor about the nature of this case, she does not
know anything. Therefore it shows that the signatures are not her
signatures."
Gaikwad RD 6/19
11.WPNos.4650-69162021.doc
7 The Tribunal considering the rival contentions of the parties has
recorded the following findings which depicts the plight of the
grandmother :-
(Official Translation)
Moreover, during the life time of her husband, the Plaintiff
was residing in the house at A-12, Mahavir Building, Ghatkopar,
alongwith her husband. From the available documents, it is found that
the property in dispute stands in the name of the Applicant. As per the
say of the Plaintiff, after the death of her husband, the Respondent
alongwith his family, forcibly started residing in the said house at
Ghatkopar. During the life time of the Plaintiff's husband, the
Respondent alongwith his family was residing somewhere else. It is
mentioned that due to the harassment from the family of the
Respondent, the Plaintiff left the said house and started residing in the
house of her daughter. The Plaintiff is a senior citizen and she was
residing in the said house since long. The Plaintiff has expressed her
desire to reside in the very house. The Plaintiff has mentioned that
earlier, the Respondent was residing somewhere else but the
Respondent has not given any explanation that he was residing in the
very house. From this, it becomes clear that earlier the Respondent
alongwith his family, was residing somewhere else. Now, the Plaintiff
does not want the Respondent and his family in the said house.
Moreover, the main fact is that the Respondent has mentioned that his
father had executed a Will on the date 20.01.2017 however, the
Respondent has not yet submitted the copy of the said Will dated
20.01.2017 to the Court and therefore, the Court is doubtful about the
same. Moreover, from the available documents, it is found that a
Public Notice was published through Shri S. S. Jain, the Advocate of
Shri Dharmadas M. Zaveri, the husband of the Applicant and father of
Respondent No. 1 that his son i.e. Respondent No. 1 has been
dispossessed from his property and that he shall not have any relation
with him. This Court is of the clear view that in order to see that the
Plaintiff should lead her remaining life contentedly, it would be lawful
to give the possession of the said house by Respondent No. 1 and 2 to
the Plaintiff to reside therein. However, in Civil Appeal Suo Motu PIL
No. 1/2021 filed before the Hon'ble High Court, Mumbai, interim stay
has been granted up to the date 13 th August, 2021 for vacating the
house (implementing the order) due to the spread of COVID-19.
Therefore, this court is of the view that after the stay granted in the
said PIL filed before the Hon'ble High Court, Mumbai, is vacated, it
would be lawful to take action of handing over the possession of the
house by the Tahsildar, Kurla (Mulund).
(emphasis supplied)
Gaikwad RD 7/19
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Being aggrieved by the above order passed by the tribunal
directing eviction of Jayesh and Ahimanyu from the flat, both of them are
before the Court in the present proceedings.
8 At the outset, it needs to be observed that Mr. Amit Sale, learned
Counsel for Jayesh has stated that his client does not have any objection to
vacate the flat and to make way for the grandmother to occupy her own flat.
In my opinion, this is a fair stand. It also reflects a realization on the part of
Jayesh that he would not have any legal right when the flat is belonging to
his mother much less any exclusive right to claim any occupation or
possession of the flat, till the lifetime of his mother. This being the fair
position taken by Jayesh however, an extreme paradox is seen from the terse
and abrupt stand taken by Abhimanyu, which can also be seen from the harsh
tenor of the arguments advanced by Mr. Kishor Patil, learned Counsel
appearing for him. It is difficult to believe the vehemence with which
Abhimanyu, without a semblance of legal right can take a position to oust the
grandmother from the flat and/or assert his right to continue in occupation of
the flat belonging to the grandmother.
9 Abhimanyu is asserting a claim on the basis of a purported Will
dated 29th October 2013 of his grandfather Dharmadas Maniklal Jhaveri to
claim that the said flat has been bequeathed to him. Abhimanyu admits that
Gaikwad RD 8/19
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the flat belonged to the grandmother, however, a spacious plea is taken that
although the flat was purchased in the name of the grandmother by his
grandfather, as the grandmother had no independent source of income,
hence, his grandfather was the real owner who has bequeathed the flat to
him by the purported Will and hence he has become the owner of the flat.
He, however, makes a charitable statement that he would not mind if the
grandmother decides to stay with him. These averments are noted above.
10 Abhimanyu's case has been canvassed with extreme tenacity by
Mr. Patil. Mr. Patil would submit that a further opportunity of hearing ought
to have been granted to his client by the tribunal, for the reason that when
the proceedings were taken up for final hearing by the tribunal, his client was
suffering from COVID-19 and was unable to make his submission. It is thus
the case of Abhimanyu that the impugned order is passed in breach of the
principles of natural justice insofar as Abhimanyu is concerned. In support of
this contention, Mr. Patil has placed reliance on the Judgment of the Hon'ble
Supreme Court in Manohar s/o. Manikrao Anchule versus State of
Maharashtra & Anr.1. This was a case under the Right to Information Act,
2005, wherein the Supreme Court has held that a provision of penalty under
Section 20 of the Act or penal consequences have to be construed strictly
1 2012 (13) SCC 14.
Gaikwad RD 9/19
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while holding that in the adjudicatory process undertaken in such context,
principles of natural justice are required to be recognized and the parties
heard. There can be no quarrel on this proposition. In my opinion, in the
present case, the contention that Abhimanyu was not heard cannot be
accepted inasmuch as he had already filed two written submissions as noted
above. Be that as it may, even if such plea is accepted, on a query made to
Mr. Patil as to what more Abhimanyu wanted to urge before the tribunal by
having an additional opportunity, Mr. Patil is unable to point out any case
other than what was pleaded in the replies filed by Abhimanyu before the
tribunal, and which has been elaborately considered by the tribunal.
11 It is quite clear from the above discussion, that the question
which arises for consideration is whether Abhimanyu on the purported Will of
his grandfather can refuse to vacate the flat in question. The answer to this
question, in my opinion, would be in the negative. Abhimanyu is asserting a
claim in a manner not known to law, for more than one reason. Firstly,
respondent No.1-grandmother is admittedly the owner of the flat in question,
the share certificate in relation to the said flat stands in her name. This flat is
continuously reflected in her income-tax returns as her asset. She is also
paying the maintenance towards the said flat. She has categorically stated
not only in her affidavit before the tribunal but also in the affidavit filed
before this Court, that she is the sole owner of the said flat. She has also
Gaikwad RD 10/19
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stated that Abhimanyu along with other family members, since the demise of
her husband, is taking all possible steps to usurp all her properties which are
worth about 20 Crores. She has categorically stated that till the demise of her
husband, only her husband and herself used to reside in the said premises
and neither Jayesh nor Abhimanyu ever stayed with them. In fact, Jayesh
(Abhimanyu's father) was disowned by her husband by public notice dated
11th June 1985 (page 276 of the paper book), which reads as under :
Public in general are informed that my client Shri Dharmadas M.
Jhaveri has severed all his connections and relations with his son
Jayesh D. Jhaveri. The said Jayesh D. Jhaveri has no right, title or
interest of any nature whatsoever in all or any of the properties of my
client including his firms and my client has no relation or connection
with his aforesaid son of any type and whosoever may deal with him
in any capacity in connection with any matter including any business
transaction or money transaction will be doing so at his own risk and
responsibility.
S.S.Jain,
Advocate for Dharmadas M. Jhaveri,
Shreenath Bhavan, 1st Floor, Room
No.11, 27 Picket Cross Road,
Bombay 400 002.
09/11/6/85.
12 She has stated that the above public notice was issued as Jayesh
used to torture her husband for property. The grandmother has also
contended that Jayesh along with his wife were living in Flat No.8, 2 nd Floor,
Pritam Building, Khushman Co-operative Housing Society, Garodia Nagar,
Ghatkopar (East), Mumbai 400077, which was also purchased in the year
1985 from the funds of her husband. She contends that Jayesh, therefore,
has another residence and so does Abhimanyu, hence, Jayesh and Abhimanyu
Gaikwad RD 11/19
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cannot claim any right whatsoever, to occupy her flat and cause harassment
to her at this old age. She has stated that after the demise of her husband
when she was unwell and was in a vulnerable state, Jayesh and Abhimanyu
took advantage of the situation and under the garb of taking care, foisted
themselves on her, by residing in her flat, solely with the motive to grab the
property. She has set out repeated events of physical harassment and mental
torture which went to such an extent that she attempted to commit suicide.
13 The grandmother has categorically contended that Abhimanyu
has set up a false case on her husband's Will. She contends that as per her
husband's last Will dated 29th October 2013, all his assets were bequeathed to
her and only if she predeceased him the assets would go to Abhimanyu, and
hence, she is the sole beneficiary of all his assets. Such bequeath is of
bungalow No.63 in Rajgad Co-operative Housing Society, Lam Road, Devlali,
Nashik District; business run in the name M/s. Dharmadas M. Jhaveri &
Company; plot of land at East Cotton Depot, Cotton Green Railway Station;
moneys in bank account; shares in DEMAT and all other investments and
residuary assets. She pleaded that her late husband was residing in the
present premises of which she was at all material times the owner and
continues to be so. She is hence, member of the society and her late
husband's name was added as an associate member. It is her categorical
contention that her husband did not have any right to bequeath her assets
Gaikwad RD 12/19
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under his Will.
14 It is thus clear, that if Abhimanyu intends to assert any right on
the flat in question on the basis of any Will of his grandfather, and more
particularly, when such will is admittedly not probated, when the parties are
within the jurisdiction of this Court, Abhimanyu could not have asserted any
right to retain possession or occupation of the grandmother's flat which
independently belonged to her as an owner, which even Abhimanyu does not
deny, except for the Will, which in any case are future rights to be established
in appropriate adjudication. The law in that regard is well settled.
15 In my opinion, this is a classic case where son Jayesh and
grandson Abhimanyu have left no stone unturned to make life of the
grandmother a living hell. She was thrown out of her own house by
sustained physical and mental torture by Jayesh's family. She was required to
take shelter in her daughter Rashmi's house. After she went to the daughter's
house, again Jayesh and Abhimanyu started harassing the grandmother
which caused problems even to the family members of her daughter and
ultimately, the grandmother was constrained to take recourse to the
provisions of the Act. How much a senior citizen, that too who is at the age
of 89, should be harassed for the greed for property ?
16 The object of the Act is to provide for more effective provisions
for the welfare and maintenance of parents and senior citizens as guaranteed
Gaikwad RD 13/19
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and recognized under the Constitution of India and matters connected
therewith. Senior citizens at their advanced age in life become helpless, more
particularly, when confronted with an obnoxious and unpleasant situation,
where greedy and selfish children and relatives intend to exploit the senior
citizens for material gains. Most vulnerable become those senior citizens,
who have movable and immovable properties, earned by them by their hard
work, only to suffer such nightmare and a calamity, being foisted on them by
such selfish and greedy members of the family. It would not be out of place
to state that Courts have witnessed senior citizens knocking the doors of the
Courts throughout the country, praying for reliefs under the Act. It is seen
that when such senior citizens have property and when they become
physically, psychologically and mentally weak and dependent and or they are
in ill health, in such helpless position, the torture, harassment and
depravement to them, from self-centered relatives and family members
commences so as to grab their property. Justice G. S. Patel speaking for the
Division Bench in Sweta Shetti versus State of Maharashtra2 has echoed such
concern in the following words :
"15. .......... Indeed, it is our experience that in this city, and
particularly or most especially amongst the wealthy of this city, senior
citizens and elderly parents are being subjected to all kinds of
harassment and deprivation in their twilight years. In case after case,
we have complaints from senior citizens that their own sons and
daughters are harassing them. In every case, the harassment is an
attempt to somehow grab the senior citizen's property in his or her
2 WP (L) No.9374 of 2020 (Original side), dated 25th November 2021.
Gaikwad RD 14/19
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lifetime without thought spared to the mental or physical health well-
being or happiness of these seniors. The present case is no different.
Mr Shetty says Shweta demands 'her share'. What is her 'share' while
he is alive? She has none. He may indeed give his flat and all wealth
away inter vivos. That is his choice. She cannot prevent him from
doing so. So long as he is alive, Shweta has no 'share' in his property.
16. We are of the considered view that this is not an isolated
experience at all. It is, in fact, a widely noticed trend and it is to
address this evil -- we will not even call it mischief -- that the 2007
Act was brought into force."
17 Now coming to the facts of the present case, the grandmother
who is in desperate need of a shelter i.e. her own house, and to be left free
from torture, being caused to her by Jayesh and Abhimanyu, was justified in
invoking the provisions of the Act. This is a clear case where the
grandmother in the spirit as to what has been provided by Sub-section (3) of
Section 4 of the Act, wishes to lead a normal life. Both Jayesh and
Abhimanyu have not only failed to maintain the grandmother, but also have
caused mental and physical harassment and depravement to her material
needs to the extreme extent that she was thrown out of her own house, only
with an intention to grab the said flat. It is not the case that Jayesh and
Abhimanyu are persons without sufficient means. Jayesh has his own house
which was purchased from his father's income as stated by the grandmother.
Jayesh and Abhimanyu, who are financially well off and well placed, are
torturing the grandmother with the greedy and acquisitive intention to grab
the flat of the grandmother. In a similar situation, considering the provisions
of Sections 4 and 5 of the Act in the case of Ashish Vinod Dalal & Ors. versus
Gaikwad RD 15/19
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Vinor Ramanlal Dalal & Ors. 3, this Court had observed thus :
"8. There is a more fundamental question which needs to be
addressed, namely, whether the parents in the present facts were in
any manner precluded from taking recourse to the provisions of
Sections 4 and 5 of the Senior Citizens Act to enforce the needs of such
senior citizens to lead a normal life. The answer to this question would
certainly be in the negative. The provisions of the Senior Citizens Act
are required to be construed to take within its ambit the maintenance
of the senior citizens which certainly would include all facets of
maintenance as provided for in Section 4 of the Senior Citizens Act,
which would aid the senior citizens to lead a normal life. This certainly
includes the senior citizens asserting rights in respect of 'property', the
meaning of which, is spelt out by section 2(f) of the Act to mean
property of any kind, whether movable or immovable, ancestral or
self-acquired, tangible or intangible and which would include rights or
interest in such property.
9. As provided in sub-section (2) of Section 4, 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, which would certainly take within its ambit a
protection from any harassment and torture meted out by a son or
relative by keeping himself on the premises of the senior citizens. The
intention of the legislature to provide such protection to live a normal
life to the parents is also reflected in the provisions of sub-section (3)
of Section4 which provides that the obligation of the children to
maintain his or her parents extends to the need of such parents either
father or mother or both, as the case may be so that such parents 'may
live a normal life'.Maintenance is also defined in Section 2(b) to
include provision for food, clothing, residence, medical attendance and
treatment. Further Section 3 of the Senior Citizens Act gives an
overriding effect to the provisions of the said Act notwithstanding
anything inconsistent therewith contained in any enactment other
than the said Act.
10. It is thus clear that the intention of the legislature in making
such provisions in the interest of senior citizens, covers a wide
spectrum of the senior citizens rights, which are fundamental to the
their very survival and/or livelihood at their old age. Certainly the
Court's approach cannot be narrow and pedantic in applying the
provisions of the Senior Citizens Act to the grievances of the senior
citizens falling within the ambit of the said Act. A protection from
harassment, exploitation, neglect, psychological disturbances,
psychological needs, and all possible facets to safeguard their physical
and mental health are required to be recognized when sub-section (2)
and sub-section (3) of Section 4 clearly provide that the obligation of
3 2021 SCC OnLine Bom 2976.
Gaikwad RD 16/19
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the children or relatives would be to cater to the needs of the senior
citizens so that they 'live a normal life'. The words "normal life" as
used in these provisions would possess a far deeper and wider concept,
deriving its meaning and having a bearing on the fundamental rights
of livelihood as guaranteed and enjoyed by senior citizens under
Article 21 of the Constitution. Certainly, this would include a right to
prevent themselves from being harassed by children and by relatives.
This is also clearly borne out by the preamble to the Senior Citizens
Act which reads thus:-"An act to provide for more effective provisions
for the maintenance and welfare of parents and senior citizens
guaranteed and recognized under the Constitution and for matters
connected therewith or incidental thereto."
12. This is a classic case where the petitioner nos.1 and 2 intend
to prevent the parents from leading a normal life at their old age of
about90 years. The several legal proceedings between the parties are
the evidence of the feeling of torture and harassment by the parents.
The property in question is not an ancestral property on which the
petitioner no.1 can claim any legal right so as to keep himself on such
property along with his family and foist themselves on the parents
against their wishes by remaining on the property without any legal
rights. This itself is a harassment and/or defeating the parents right to
lead a normal life."
18 The facts of the case are not too different from what was
considered by this Court in Ashish Vinod Dalal's case. In the above
circumstances, the petitioners in the absence of any legal right have failed to
make out any case against the orders passed by the tribunal directing the
petitioners to vacate the flat. The Supreme Court in paragraph 20 of the
Judgment in S. Vanita versus Dy. Commissioner, Bengaluru Urban District &
Ors.4, had held thus :
"20....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 senior citizen or parent.
Eviction, in other words would be an incident of the enforcement of
the right to maintenance and protection. However, this remedy can be
ranted only after adverting to the competing claims in the dispute....."
4 2020 SCC OnLine SC 1023.
Gaikwad RD 17/19
11.WPNos.4650-69162021.doc
19 In so far as the contentions of Mr. Patil, relying on the decision of
Manohar s/o. Manikrao Anchule's (supra), that the principles of natural
justice required a further hearing to be given to Abhimanyu is required to be
stated only to be rejected. There can be no doubt on the position in law that
every party who is before the Court would be heard. However, this is not a
case where Abhimanyu was not heard at all, whereas he has filed repeated
replies/written submissions. In any event, Mr. Patil is completely at a loss to
state as to what further plea could be advanced before the tribunal which was
not already advanced so that it can be said that a prejudice is caused to him.
Abhimanyu's main plea on the basis of his grandfather's Will itself is totally
untenable, as also this was the only case as canvassed by Mr. Patil before this
Court. Such plea which is fundamentally bereft of any foundation in law,
which the petitioner realizes, however, was nonetheless blown out of
proportion.
20 It needs to be noted that although Jayesh has vehemently
contested the proceedings before the tribunal, he has taken a back seat before
this Court and has put forward his son Abhimanyu to assert all vehemence in
assailing the tribunal orders and that too on a feeble plea of the purported
Will of the grandfather, however completely oblivious and in the teeth of the
position in law which would confer complete powers on the tribunal to
safeguard the senior citizens of such harassment, torture and depravement
Gaikwad RD 18/19
11.WPNos.4650-69162021.doc
being foisted by the son and grandson. These situations are required to be
dealt with iron hands as the law would mandate. The Court would part with
this order, with a hope that wiser sense would prevail on the petitioners and
they would show empathy and mercy towards the grandmother so that she is
not required to physically visit any Court as she did for the present
proceedings and toil any further.
21 In the above circumstances, there is certainly no merit in the writ
petitions. Both the writ petitions are dismissed.
22 The petitioners are directed to vacate the grandmother's flat
within ten days from today. In fact, on the date when order was reserved, Mr.
Amit Sale, learned Counsel for Jayesh, who was also present in the Court, on
his instructions, stated that Jayesh would vacate the flat within ten days.
Abhimanyu also now needs to vacate the flat and he shall vacate the same
within ten days from today. Ordered accordingly.
23 This was a fit case to impose costs. I, however, refrain to do so.
24 At this stage, Mr. Sale, learned Counsel for the petitioners prays
for stay of this order. It is surprising that he can make such a prayer when he
had already made a statement before this Court that Jayesh would vacate the
premises within ten days. The prayer for stay is, accordingly, rejected.
(G. S. KULKARNI,J.)
Digitally
signed by
RAJU
Gaikwad RD 19/19
RAJU DATTATRAYA
DATTATRAYA GAIKWAD
GAIKWAD Date:
2021.12.17
15:02:52
+0530
