Bombay High Court
Shivaji Sambhaji Jagtap And Ors vs Janabai Sambhaji Jagtap And Anr on 12 December, 2022
Bench: Amit Borkar
6-WP-3276-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3276 OF 2022
Shivaji Sambhaji Jagtap and Ors. ... Petitioners
V/s.
Janabai Sambhaji Jagtap and Ors. ... Respondents
Mr. Mahesh V. Rawool for petitioners.
Mr.Vrushali U. Kabare for respondent No.1.
Mr. R.M. Pethe, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 12, 2022
P.C.:
1. The petitioner is challenging the judgment and order dated
12th August, 2022 passed by the Sub-Divisional Magistrate, Thane,
under the provisions of Maintenance and Welfare of Parents and
Senior Citizen Act, 2007 directing the petitioner to hand over
possession of the property which was the subject matter of the
application.
2. According to the petitioner, the respondent No.1 is the
mother of petitioner No.1. The respondent No.1 is a senior citizen.
The respondent No.1, therefore, filed an application before the
designated authority under the provisions of the Maintenance and
Welfare of Parents, Senior Citizens Act, 2007 under Sections 23(1)
and 24 read with Rule 20 of Maharashtra Maintenance and
Welfare of Parents and Senior Citizens Rules, 2010. The
respondent No.1 claimed exclusive ownership over the property in
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dispute. According to respondent No.1, she had been forcibly
dispossessed by the petitioner. According to her though the
property in dispute is owned by her, she is forced to take shelter in
the property owned by others.
3. The application was contested by the petitioners stating that
the property in question is joint family property. According to the
petitioners, initially the property was purchased by the father of
the petitioners and in redevelopment scheme, the property in
dispute has been allotted in favour of respondent No.1. According
to the petitioners they are maintaining respondent No.1. There is
no cause of action for filing the application as there are no specific
pleadings regarding denial of maintenance by the petitioners.
4. The designate authority under the Act by judgment and
order dated 31st December, 2019 allowed the application of
respondent No.1 and directed petitioners to hand over possession
of Flat No.1226, Ground Floor, Sukh Shanti, Bonkode, Kopar
Khairane, Navi Mumbai. The said judgment and order is the
subject matter of the present proceeding.
5. The learned advocate for the petitioner submitted that the
property in dispute is the joint family property of the petitioners
and respondent No.1 and, therefore, the application before the
designated authority was not maintainable. He submitted that
from 2001 to 2022 petitioner had been residing with her daughter
voluntarily. He submitted that the petitioners are maintaining the
respondent No.1.
6. Per contra, the learned advocate for respondent No.1
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submitted that the allotment of property in redevelopment scheme
confers ownership right on the respondent No.1 and, therefore, the
application under Section 23(1) of the Act is maintainable. She
invited my attention to the definition of maintenance. She
submitted that it is due to harassment as pleaded in the
application, the respondent No.1 was construed to file such
application.
7. Having considered the submission on behalf of both the
sides, I am of the opinion that the designated authority was right
in passing order of eviction against the petitioner. The fact that the
property in dispute has been allotted in favour of the respondent
No.1 is not in dispute. According to the petitioner, the property in
dispute before redevelopment was joint family property. Therefore,
allotment in favour of respondent No.1 was for on behalf of joint
family property. From the documents on record it appears that
property in dispute was in the name of respondent No.1 before the
implementation of the redevelopment scheme. According to the
petitioners, father had purchased the property in dispute in the
name of respondent No.1, hence subsequent allotment was in her
favour.
8. Having considered the scheme of the Act, in my opinion, in
summary proceedings the designated authority cannot conclusively
decide title over the immovable property. It is for the Civil Court to
decide ownership of the property. The conclusion drawn by the
designated authority that the respondent No.1 is exclusive owner
of the property is based on the earlier sale-deed.
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9. The next submission made on behalf of the petitioners is that
there are no pleadings that the petitioners are not maintaining the
respondent. At this stage, it is profitable to refer to the definition
of 'maintenance' as defined in Section 2(b) of the said which reads
as under :
"2(b) "maintenance" includes provisions for food, clothing
residence and medical attendance and treatment."
On perusal of the definition, it is clear that the said definition
is inclusive. The term 'maintenance' is defined in the Act includes
provision for food, clothing, residence, medical attendance and
treatment.
10. The case pleaded by the respondent No.1 is that in spite of
she being owner of the property she is constrained to take shelter
in the property not owned by her is sufficient to maintain her
claim for eviction of the persons who are not owners of the
property. Therefore, in my opinion, the order of eviction passed by
designated authority does not suffer from illegality.
11. The next submissions made on behalf of the petitioners is
that the respondent No.1 disposed of another room owned by the
father by filing false affidavit. In my opinion, said contention is of
no assistance in the present proceedings as the scope of present
proceedings is to decide whether the applicant is the owner and
the respondents have no rights of ownership.
12. The learned advocate for the petitioner relied on the
judgment of the Apex Court in Sudesh Chikara Vs. Ramti Devi and
Anr in Civil Appeal No.174 of 2021 decided on 6 th December,
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2022. On perusal of the facts in the said judgment, it is clear that
the senior citizen had executed a release deed in favour of her
daughter. There was no mention in the lease deed regarding
promise by transferee to provide basic needs or amenities as
promised. In that context, the Apex Court held that the conditions
enumerated in paragraph No.12 of the said judgment are
condition precedent before declaring the transfer as void. In the
facts of the present case, it is common ground that there is no
transfer of title by senior citizen in favour of family member and,
therefore, the said judgment is of no help to the petitioner.
13. For the above reasons, I find that the impugned order is
neither perverse nor results into miscarriage of justice.
14. It is made clear that the observations made in the present
judgment are only for the purposes of adjudicating the rights of
the parties arising out of the order passed by the designated
authority and same would not preclude the petitioners from
raising their grievance before appropriate forum to establish their
title.
15. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
