Bombay High Court
Sheetal Devang Shah vs Presiding Officer Of The ... on 6 May, 2022
Bench: S.S. Shinde, R.P. Mohite-Dere
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Digitally signed
MINAL by MINAL
SANDIP PARAB
SANDIP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date:
PARAB 2022.05.06
12:40:03 +0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.3323 OF 2019
Sheetal Devang Shah )
Age : 47 years, Occ : Fashion Designer )
& Teacher, currently not working )
Presently residing at Saprem, Plot No.20, )
3rd Juhu Scheme, Vile Parle (West), )
Mumbai - 400 056 ) ... Petitioner
Vs.
1. Presiding Officer of the Maintenance and )
Welfare of Parents and Senior Citizens )
ADDRESS : 9th Floor, Administrative )
Building, Bandra East, Mumbai - 400 051 )
2. Nalini Mahendra Shah )
Age : 77 Years, Occupation: Widow )
Presently residing at Saprem, Plot No.20, )
3rd Juhu Scheme, Vile Parle (West) )
Mumbai - 400 056 )
3. Deleted )
4. Devang Mahendra Shah )
Age: 47 Years, Occupation: Businessman )
Presently residing at Saprem, Plot No.20, )
3rd Juhu Scheme, Vile Parle (West), )
Mumbai - 400 056. ) ... Respondents
Ms. Yasmin Tavaria a/w. Mr. Anand Poojary, Ms. Nikita Pawar and
Mr.Bhushan Kanchan i/b. S. I. Joshi & Company for the Petitioner.
Mrs. Jyoti Chavan, AGP for Respondent No.1-State.
Mr. Vivek Kantawala a/w. Mr. Amey Patil i/b. Vivek Kantawala & Co. for
Respondent No.2.
Mr. P. R. Yadav for Respondent No.4.
Mr. Umesh Birari, Sub-Divisional Officer, Mumbai Western Suburbs.
CORAM : S. S. SHINDE &
REVATI MOHITE DERE, JJ.
Reserved on : APRIL 27, 2022
Pronounced on: MAY 6, 2022
1/32
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JUDGMENT :
. This Bench has been specially constituted to hear the petitioner's
aforesaid petition and other petitions, by the Hon'ble Chief Justice. Both
the members of this Bench preside over their respective Benches and have
to disturb their regular boards, to assemble only for these matters.
1.1. On 27th April 2022, we heard the learned counsel for the parties from
4:30 p.m. to 7:00 p.m. and closed the matter for orders.
1.2. This Writ Petition under Article 226 of the Constitution of India is
filed by the petitioner thereby taking an exception to the order dated
16.08.2019 passed by respondent No.1 - Presiding Officer of the
Maintenance and Welfare of Parents and Senior Citizens' Tribunal (for
short 'Tribunal').
1.3. The only substantive prayer in the petition reads as under:-
ii. That this Hon'ble Court be pleased to call for the
records and proceedings from the Respondent No.1 and after
perusing the legality and propriety of the impugned order dated
16.08.2019 passed by the Respondent No.1, this Hon'ble Court
be pleased to issue a Writ of Certiorari and/or any other
appropriate Writ, order or direction under Article 226 of the
Constitution of India and quash and set aside the impugned
order dated 16.08.2019 passed by the Respondent No.1 at
Exhibit-A;
2. During the pendency of this petition, the Division Bench of this
Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ.), by order dated
18.09.2019, directed thus,
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"5.(c) Since it is stated that the Petitioner may be
dispossessed tomorrow and by using force, we direct that until
further orders of this Court, the operative direction No.3
which directs the Petitioner to hand over vacant and peaceful
possession of the premises to her in-laws be not acted upon or
implemented."
2.1. The aforesaid direction / interim order is in force till date.
3. Background facts leading to the filing of this petition are as
under:-
3.1. Respondent No.1 / non-applicant has passed the order (impugned
in the present petition) in the proceedings instituted by Smt. Nalini
Mahendra Shah - respondent No.2 herein and her husband - Mahendra
Shah. Since during the pendency of the present writ petition, husband of
respondent No.2 died, with the permission of the Court, his name has
been deleted from the array of the respondents. Respondent No.4 -
Mr. Devang Shah is the husband of the petitioner as also the son of
respondent No.2. Present petitioner - Ms. Sheetal Shah is the daughter-
in-law of respondent No.2 and respondent No.3 (deleted).
4. For the sake of convenience, parties shall be referred to by their
names and not by their status before the Tribunal or this Court.
5. Nalini Shah and her husband Mahendra Shah filed the application
No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal
constituted under the provisions of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. Briefly stated contentions of the
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applicants therein viz., Nalini Shah and Mahendra Shah, were as under:-
a. that, they are staying at Saprem, Plot No.20, 3 rd Road, Juhu
Scheme, Vile Parle (West), Mumbai - 400 056 (hereinafter
referred to as the 'residential premises').
b. Devang Shah is the only son of Nalini Shah and Mahendra
Shah and Sheetal Shah is their daughter-in-law. They all are
residing in the aforesaid residential premises.
c. Nalini Shah is the housewife and her husband Mahendra
Shah (deceased) was employed in the renowned business of
diamond and diamond jewellery at Opera House. Mahendra
Shah retired from the said business in the year 2016 and he
had no other residential premises, save and except the
residential premises at Saprem, Plot No.20, 3 rd Road, Juhu
Scheme, Vile Parle (West), Mumbai - 400 056.
d. Devang Shah is the employee of Supergems India Private
Limited and Sheetal Shah is working as a fashion designer.
Both of them are receiving handsome salary.
e. the aforesaid residential premises is in the name of
Mahendra Shah and Nalini Shah.
f. It was alleged that Sheetal Shah and Devang Shah are
unable to look after Nalini Shah and Mahendra Shah and
from last one year, they are not looking after necessities of
life of Nalini Shah and Mahendra Shah. From January -
February 2017 till the filing of the application, they were
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harassed in the said residential premises though they are the
owners of the said house. Sheetal Shah and Devang Shah,
both, are torturing Nalini Shah and Mahendra Shah,
physically as well as mentally.
g. Nalini Shah is suffering from asthma, vergio, back pain and
leg pain.
5.1. In the aforesaid background, facts and circumstances, the said
application was filed by Nalini Shah and her husband Mahendra Shah.
6. From a perusal of the original record summoned from the office
of respondent No.1 before whom the proceedings were instituted by
Nalini Shah and Mahendra Shah, it appears that various criminal
complaints have been filed by both of them before the police authorities
thereby making serious allegations, particularly against Sheetal Shah.
The tenor of the said allegations is that Sheetal Shah and her husband
Devang Shah have made their life miserable and there is a continuous
physical and mental torture / harassment to them in their old age and that
too in their own house.
7. Respondent No.1, before whom the application was filed by
Nalini Shah and Mahendra Shah, had issued show cause notice to
Sheetal Shah and Devang Shah.
8. Pursuant to the said notice, Sheetal Shah filed her detailed reply
with annexures contending therein, that she has also filed various
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criminal complaints for physical and mental harassment by her mother-
in-law and father-in-law i.e., Nalini Shah and Mahendra Shah
respectively, to her and her two children. It appears that to the said
complaints, Sheetal Shah had also annexed petition filed by her before
the Family Court, the orders passed thereon and the other proceedings
initiated by her, under the Protection of Women from Domestic Violence
Act, 2005.
8.1. Sheetal Shah also stated in her reply that the application filed by
Nalini Shah and Mahendra Shah suffered from suppression of important
facts. She, therefore, prayed for rejection of the application at the
threshold. It is stated that the residential premises in question is a joint
household where Nalini Shah, Mahendra Shah, Devang Shah and her
two precious children are residing. The said residential premises is the
part of Navyug Co-operative Housing Society Limited. Mahendra
Shah's father namely, P. G. Shah had procured the said residential
premises and after his and his wife's death, the said residential premises
are in the joint ownership of the remaining members. It is stated that
Devang Shah has been paying rent towards the said residential premises.
It is further stated that Mahendra Shah and Devang Shah are working
together in the family business of Diamond Trading and Jewellery
(Ridham and Co.), share trading and land estate and that they have
concealed these facts.
8.2. It is alleged in the said reply that Mahendra Shah and Devang
Shah have transacted in shares to the tunes of several crores and traded
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in diamonds under the name of Sheetal Shah without her knowledge or
approval. It is further alleged that Nalini Shah, Mahendra Shah and
Devang Shah have committed grave economical crimes against her.
There are further allegations made in the said reply against Nalini Shah,
Mahendra Shah and Devang Shah.
8.3. There is a reference to the proceedings instituted by Sheetal Shah
under the Protection of Women from Domestic Violence Act, 2005. It is
alleged that in the said pending proceedings, her husband Devang Shah
and his advocates have been forging her signatures. There are other
allegations made against her husband - Devang Shah. Along with the
written statement and various documents, the photographs showing the
incidents occurred in and around the house and the injuries suffered by
Sheetal Shah as also the medical certificates to that effect have been
annexed. It is stated that at the relevant time, Nalini Shah and Mahendra
Shah were residing permanently in Lonavala. However, the said fact has
been suppressed by Nalini Shah and Mahendra Shah in their application
filed before the Tribunal. It is stated that the residential premises is a
HUF (Hindu Undivided Family) property, and that Nalini Shah and
Mahendra Shah have permanently moved to Lonavala and Mahendra
Shah, at the relevant time, moved the petition before the High Court that
he be declared as co-owner of the residential premises in question,
which proves beyond doubt that Mahendra Shah was not the co-owner
of the said residential premises, till the date of filing of proceedings
before the High Court, seeking such a declaration.
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9. Since Sheetal Shah has filed a very detailed reply to the said
proceedings, we may refer to the said reply, the averments in the
application and documents placed on record by the parties in the said
proceedings instituted before the Tribunal as and when we deem it
necessary.
10. Respondent No.1 - Tribunal allowed the aforesaid application
filed by Nalini Shah and Mahendra Shah and directed Sheetal Shah and
Devang Shah together to pay Rs.25,000/- (Rupees Twenty Five
Thousand only) per month to Nalini Shah and Mahendra Shah for their
maintenance, subsistence and medical expenses by depositing the said
amount in the bank accounts of Nalini Shah and Mahendra Shah.
Sheetal Shah and Devang Shah were directed to handover the possession
of the entire residential premises to Nalini Shah and Mahendra Shah in a
very peaceful manner within 15 days from the date of receipt of the
order. Devang Shah and Sheetal Shah were directed to make separate
arrangement for their accommodation elsewhere. It was further observed
that if Devang Shah and Sheetal Shah failed to implement the order on
their own, Nalini Shah and Mahendra Shah were at liberty to contact the
police station immediately for execution of the order.
11. Being aggrieved by the said order, the present writ petition is
filed.
12. Ms. Yasmin Tavaria, learned counsel appearing for Sheetal Shah
submitted that Section 2(a) of the Maintenance and Welfare of Parents
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and Senior Citizens Act, 2007 (hereinafter referred to as the 'Senior
Citizens Act') defines the category of persons under the caption
'children' which would include son, daughter, grandson and grand-
daughter but does not include a minor. It is submitted that a bare perusal
of the said provision would make it clear that Sheetal Shah, who is a
daughter-in-law of Nalini Shah and Mahendra Shah, is not covered
under the said definition, and therefore, she is not liable to pay
maintenance to Nalini Shah. It is submitted that the proceedings
instituted by Sheetal Shah are pending before the Family Court at
Bandra, which are the substantive proceedings in which an order is
passed, directing Devang Shah or his servants, agents or any other
person on his behalf not to prevent Sheetal Shah to enter the matrimonial
house, her stay in the bed-room in which she is residing and using the
kitchen. Learned counsel invites our attention to the said order dated
03.09.2019 passed by the Family Court.
12.1. It is submitted that the order impugned in the petition was
received by Sheetal Shah on 05.09.2019 though the said order was
passed on 16.08.2019. Section 8 of the said Act sets out the procedure to
be followed in case of enquiry. Sub-clause (2) clearly indicates that the
Tribunal shall have all the powers of a civil court for the purpose of
taking evidence on oath and of enforcing the attendance of witnesses. It
is submitted that though the Tribunal framed the issues, the findings
recorded are without any evidence on record.
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12.2. It was submitted that Nalini Shah was not having any right
to move the Tribunal and that she was not having any right to evict
Sheetal Shah from the residential premises. Divorce proceedings are still
pending and Family Court has passed order on 03.09.2019 thereby
directing Devang Shah not to prevent Sheetal Shah from entering the
matrimonial house. She submitted that interim orders speak of the
immense wealth of Devang Shah and his parents.
12.3. It is submitted that the Tribunal closed the matter for order
on 16.04.2019. However, the order was passed in the month of August,
2019, after several months and after Mahendra Shah, father-in-law of
Sheetal Shah had expired. It is submitted that the Division Bench of this
Court (Coram : S. C. Dharmadhikari and G. S. Patel, JJ.) has stayed the
order passed by the Tribunal.
12.4. It is further submitted that Nalini Shah and Mahendra Shah
have submitted documents under oath before the Tribunal to the effect
that the matrimonial residence i.e., the residential premises will be
inherited by Devang Shah, after the death of Mahendra Shah.
12.5. It is submitted that the entire case papers filed by Nalini
Shah and Mahendra Shah in the Tribunal, has been annexed to the
petition. The property nomination letter duly accepting Devang Shah as
a nominee is also annexed. The R.T.I. (Right to Information) copy of the
same is also annexed to the additional compilation of documents. The
same is signed by Nalini Shah under oath before the Tribunal, whereby,
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it is stated that the Society had accepted the nomination declaration
approving Devang Shah as a sole nominee of Mahendra Shah (since
deceased) for the right, title and interest in the share certificate of Plot
No.20 in Navyug Society. She submitted that the eviction orders against
Sheetal Shah were rightfully stayed.
12.6. It is submitted that Devang Shah neither filed a reply before
the Tribunal nor did he oppose the relief claimed by Nalini Shah and
Mahendra Shah, and that Nalini Shah and Devang Shah are acting in
collusion with a common intention of causing and ousting Sheetal Shah
from her matrimonial house, despite the fact, that substantive
proceedings i.e., divorce proceedings were pending before the Family
Court at Bandra, in which Sheetal Shah had succeeded in getting interim
orders against Nalini Shah and Devang Shah, thereby, preventing them
from evicting Sheetal Shah from the matrimonial house. It is submitted
that Nalini Shah and Mahendra Shah have a property in Lonavala and
they were residing there permanently, before they arrived at the
matrimonial house. She submitted that Devang Shah and his mother
Nalini Shah have deputed bouncers, who are residing in the said
residential premises and they have assaulted and abused Sheetal Shah
and her sons making their lives, living hell.
12.7. Ms. Tavaria, learned counsel invites our attention to the
compilation of documents to demonstrate that Nalini Shah and
Mahendra Shah are / were residing in the house at Lonavala. The
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photographs of the said house in Lonavala, which according to Sheetal
Shah is approximately 4000 sq.ft., are placed on record along with the
compilation. She also invites our attention to a copy of the ration card at
Annexure-K and submits that the names of Sheetal Shah and her sons
have been mentioned in the ration card. It is submitted that Devang Shah
has transferred huge amount in the account of Nalini Shah.
12.8. Learned counsel invites our attention to the written
submissions, which are placed on record and submits that the said
residential premises wherein Sheetal Shah and her sons are residing, is a
HUF property, and that Devang Shah is holding on to all the wealth,
bequeathed to her two sons from the Will of late Mahendra Shah. She,
therefore, prays that the petition deserves to be allowed.
13. Mr. Vivek Kantawala, learned counsel appearing for Nalini Shah
invites our attention to the list of dates and events mentioned in the
written submissions, which are placed on record and submits that there
is continuous mental and physical harassment to Nalini Shah and
Mahendra Shah (prior to his death) by Sheetal Shah and her husband
Devang Shah, that Sheetal Shah and Devang Shah, in collusion started
harassing Nalini Shah and her husband Mahendra Shah, from the year
2017-18, and that they have made the life of Nalini Shah miserable and
have created a situation, wherein Nalini Shah cannot live peacefully in
her own house.
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13.1. It is submitted that the order of the Family Court was
passed in the absence of Nalini Shah as the proceedings before the said
Court were between the husband and wife i.e., Devang Shah and Sheetal
Shah respectively, and therefore, the said order is not binding upon
Nalini Shah. It is submitted that Sheetal Shah had suppressed the fact,
that proceedings were pending against her, before the Senior Citizens
Forum in the Family Court. She also remained absent on couple of dates
of hearing before the said Forum though she was duly served. He
submitted that a perusal of the impugned order passed by the Tribunal
would show that the proceedings were properly served upon Sheetal
Shah and Devang Shah, however, Devang Shah chose not to file a
written statement, whilst, Sheetal Shah filed a detailed written statement.
The impugned order under issue No.1 states that the law that has been
promulgated is for the purpose of taking care of the senior citizens who
cannot look after themselves. The impugned order further proceeds to
record that Sheetal Shah has been unable to furnish any proof that the
senior citizens are doing business. Hence, on the basis of preamble of
the said Act, a finding is recorded against issue No.1, taking into
consideration the age of the senior citizens and their inability to earn, is
substantiated.
13.2. He submitted that with regard to issue No.2, the Tribunal
has observed that atrocities that have been meted out to the senior
citizens from February 2018 and various complaints made to the police
authorities. Cross-complaints filed before the police authorities, establish
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the disputes and the atrocities have been recognized by the Tribunal and
have been reproduced in the impugned order under issue No.2. He
submitted that the impugned order recognizes the relationship between
Devang Shah and Sheetal Shah, and recognizes the demeanour of
Sheetal Shah, at the time of arguments. Learned counsel submits that the
Tribunal has also recognized that the plea of the senior citizens living in
Lonavala, has not been substantiated with any proof and thus proceeded
to give an affirmative finding against issue No.2.
13.3. Mr. Kantawala submitted that the Tribunal also recognized
the powers vested in it under Section 23 of the said Act and considered
the plea of Sheetal Shah who had "a claim in future time" on the
property, which even assuming for the sake of argument would be a
submission, then it is necessary to note that such right to Sheetal Shah
only devolves to her husband Devang Shah, whose eviction also has
been sought by Nalini Shah and Mahendra Shah.
13.4. He submitted that the preamble for the promulgation of the
Senior Citizens Act, was on the basis that a noticeable trend was seen in
the society where traditional norms and values of providing care for the
elderly was given a go-by. In particular, widows were compelled to
spend their sunset years all alone and were exposed to emotional and
physical as well as financial neglect which caused the imbalance in the
social sphere. Though there are other provisions available, the Bill,
which proposed the Senior Citizens Act, was with an endeavour to cast
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an obligation on persons who inherit property to maintain such aged
senior citizens. The preamble of the said Act was also on the touchstone
of proper medical facility and protection to the life and property of
senior citizens. Hence, to achieve such objectives, the promulgation of
the Maintenance and Welfare of Parents and Senior Citizens Act, 2007
was brought into force on and from 29.12.2007.
13.5. Mr. Kantawala submitted that the said Act, is an Act with
summary procedure. At various levels, there has been a contention raised
as to would it be appropriate to carry out a summary procedure without
leading evidence. The submissions on various quarters of leading
evidence itself vitiates the purpose and objects of the said Act. The
purpose and object of the said Act was not to make people who are in
their 70's and 80's to lead evidence, to cross-examine or to be cross-
examined and wait endlessly for years to come for finality of such
proceedings. The purpose and object of the said Act was only to aid
"sunset years of senior citizens as otherwise if this procedure was to be
followed then the Civil Courts were already equipped with such
mechanizms." However, to give speedy disposal, the objective of the
Act, was to carry out proceedings in a summary manner. Moreover, legal
representation is not permitted before proceedings under the said Act,
which in itself shows that mere pleading and appropriate averments as
well as supporting documents and submissions are only necessary for
the purposes of passing orders in a summary manner under the said Act.
He submitted that the Tribunal is a creature of the statute, hence like the
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DRT and CEGAT, the Tribunal is to only decide on issues in a summary
manner. In support of these submissions, he relied upon the judgment of
the Division Bench of this Court (Coram: G. S. Patel and Madhav J.
Jamdar, JJ.) in the case of Shweta Shetty Vs. State of Maharashtra
decided on 25.11.2021 in Writ Petition (L) No.9374 of 2020, and more
particularly paragraph 18 thereof, relevant portion thereof reads thus,
"18. ... We do not believe that it is the statutory intent
that the harassment towards Senior Citizens should continue
while the Tribunal is flooded or inundated with some evidence
or the other only to prolong or delay matters. The one thing
that Senior Citizens do not have the benefit or luxury is of
time. It is not on their side, and every days delay before a
Tribunal like this hurts Senior Citizens exponentially more
than the younger generation. ..."
13.6. He submitted that the judgment in Shweta Shetty (supra)
also dealt with the issue as to whether an eviction is contemplated under
the Senior Citizens Act? The said judgment also deals with an imaginary
claim over a property and proceeds to confirm the views as were decided
in the case of Ashish Vinod Dalal & ors. Vz. Vinod Ramanlal Dalal &
Ors. decided in Writ Petition No.2400 of 2021 by this Court on
15.09.2021. In essence, the Division Bench whilst taking the view which
originated from a case in Delhi High Court in the case of Sunny Paul
vs. State of NCT of Delhi, in paragraph 23 of the judgment passed by
this Hon'ble Court, simplifies and substantiates as under;
a. A Senior Citizen has a right to approach the Tribunal;
b. A Senior Citizen has to only establish through pleadings
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and appropriate documents that the Senior Citizen is a
victim of harassment, exploitation, neglect, physiological
disturbances, [physiological means and all possible facets
to safeguard their physical and mental health as is
recognized under Section 4 (sub section 2) and Section 4
(sub section 3)]. The concept of normal life under these
provisions would have a deeper meaning which stems out
from the fundamental right of livelihood which is
guaranteed under Article 21 of the Constitution of India.
The statement and objects reflects in the intention behind
the legislation which also requires a suitable mechanism for
protection of life and property of older persons and thus
invocation of the Senior Citizens Act is the remedy for
seeking a relief on the basis of which the statute provides.
14. To substantiate his submission that under Section 23 of the Act, a
senior citizen can seek eviction, he relied upon the following
judgments:-
a] Dattatrey Shivaji Mane Vs. Lilabai Shivaji Mane, Writ
petition (St.) No.10611 of 2018 decided on 18.07.2018;
b] S. Vanitha Vs. Deputy Commissioner, Bengaluru Urban
District and others, Civil Appeal No.3822 of 2020 [arising
out of SLP (C) No.29760 of 2019] decided on 15.12.2020;
c] Ashish Vinod Dalal and others Vs Vinod Ramanlal Dalal
and others, Writ petition No.2400 of 2021 decided on
15.09.2021;
d] Shefali Sanjiv Patel and another Vs. Jyotiben Manubhai
Patel and another, Writ petition No.2441 of 2021 decided on
14.10.2021;
e] Shweta Shetty (supra).
15. Mr. Yadav, learned counsel appearing for Devang Shah has
tendered across the Bar submissions on behalf of the petitioner, which is
taken on record.
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15.1. He submits that Sheetal Shah has filed the present Petition
against the impugned order passed by the Tribunal on an application
filed by Nalini Shah and Mahendra Shah under the said Act. Devang
Shah is a formal party because there is no any prayer in the Petition
against Devang Shah.
15.2. Learned counsel further submits that Devang Shah is the
son of Nalini Shah and Mahendra Shah and the husband of Sheetal Shah.
Devang Shah married Sheetal Shah in the year 1994 and during the first
24 years of marriage, there was no NC / complaint against each other, in
any other Court of law or in any police station. Suddenly, in May 2018,
Sheetal Shah lodged an FIR with the Juhu Police Station and
subsequently, filed a Domestic Violence Case, in the Andheri
Metropolitan Magistrate Court, which was subsequently transferred to
the Family Court at Bandra, Mumbai. He submits that the family
disputes started between Sheetal Shah and Devang Shah for reasons best
known to Sheetal Shah only and that she had deliberately implicated his
mother in false cases in various forums and started harassing him and his
family.
15.3. It is submitted that Devang Shah is ready to vacate the
premises as per the Tribunal's order alongwith Sheetal Shah. After
passing of the order by the Tribunal, Sheetal Shah started harassing his
mother Nalini Shah physically and mentally, therefore, various NCs are
lodged by his mother against Sheetal Shah and he is a witness for that. It
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is further submitted that Sheetal Shah has been deliberately damaging
and destroying Devang Shah's parent's house, threatening Nalini Shah to
the extent that since over 3 years Devang Shah and Nalini Shah are
dependent on outside food and cannot even cook in the kitchen due to
the harassment caused by Sheetal Shah.
15.4. It is submitted that, after passing of the order by the said
Tribunal, Sheetal Shah became aggressive and has broken doors,
windows and glasses of the property; switches and furniture items have
been stolen by her and loose electric wires are hanging with risk of fire.
It is further submitted that Sheetal Shah goes to the extent of getting and
breaking eggs in the house, to hurt their sentiments as they are Jains by
religion, and that they do not get or have eggs, being pure vegetarians.
Continuously threats are being given by Sheetal Shah to Nalini Shah,
with an intent to harass her and eventually grab her property.
15.5. It is submitted that Devang Shah is sandwiched between
Sheetal Shah and Nalini Shah and Devang Shah is ready to vacate the
house along with Sheetal Shah to bring some peace to his family and
safeguard the life of his aged mother - Nalini Shah. He further submits
that there is no way Nalini Shah can stay with Sheetal Shah in her own
house and Devang Shah would not like to take any chance for any
further crime to be committed by Sheetal Shah, who was violent on
many occasions earlier. It is submitted that father of Devang Shah, late
Mahendra Shah passed away on 08.08.2019 succumbing to harassment
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by Sheetal Shah and therefore, Devang Shah does not want to lose his
mother, with an undignified death in her own house.
15.6. It is submitted that Devang Shah is a law abiding citizen
and he is ready to vacate the premises as per the Tribunal's order. He
once again submits that there is no any substantive prayer made in the
petition against Devang Shah.
16. We have heard learned counsel appearing for respective parties at
length. With their able assistance, we have carefully perused the
pleadings and the grounds taken in the petition along with the annexures,
the order passed by the Tribunal, written submissions filed by the
counsel for Sheetal Shah, Nalini Shah and Devang Shah, original record
summoned from the office of respondent No.1 and the judgments cited
across the Bar.
17. Though various contentions are raised by the parties, touching
various proceedings pending before various Forums and also the
criminal cases filed against each other, we deem it appropriate to confine
the adjudication of the present petition keeping in view the substantive
prayer therein and the issues dealt with and answered by the Tribunal.
18. Before we proceed to discuss the issues considered and answered
by the Tribunal and the correctness of the impugned order passed by the
Tribunal, it would be apt to make reference to the statement of objects
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and reasons for bringing the said Act / legislation into force. The
statement of objects and reasons stated in the preamble of the Act reads
as under:-
" 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.
Be it enacted by Parliament in the Fifty-eighth Year of
the Republic of India as follows:-
Statement of Objects and Reasons.- Traditional norms
and values of the Indian society laid stress on providing care
for the elderly. However, due to withering of the joint family
system, a large number of elderly are not being looked after by
their family. Consequently, many older persons, particularly
widowed women are now forced to spend their twilight years
all alone and are exposed to emotional neglect and to lack of
physical and financial support. This clearly reveals that ageing
has become a major social challenge and there is a need to give
more attention to the care and protection for the older persons.
Though the parents can claim maintenance under the Code of
Criminal Procedure, 1973, the procedure is both time-
consuming as well as expensive. Hence, there is a need to
have simple, inexpensive and speedy provisions to claim
maintenance for parents.
2. The Bill proposes to cast an obligation on the persons
who inherit the property of their aged relatives to maintain
such aged relatives and also proposes to make provisions for
setting-up oldage homes for providing maintenance to the
indigent older persons.
The Bill further proposes to provide better medical
facilities to the senior citizens and provisions for protection of
their life and property.
3. The Bill, therefore, proposes to provide for:-
(a) appropriate mechanism to be set up to provide
need-based maintenance to the parents and senior citizens;
(b) providing better medical facilities to senior
citizens;
(c) for institutionalisation of a suitable mechanism
for protection of life and property of older persons;
(d) setting up of oldage homes in every district."
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19. In Section 2 (a), "children" is defined and includes son, daughter,
grandson and grand-daughter but does not include a minor. Section 2(b)
defines "maintenance" to include provisions for food, clothing,
residence and medical attendance and treatment. Section 2(d) defines
"parent" to mean father or mother whether biological, adoptive or step
father or step mother, as the case may be, whether or not the father or the
mother is a senior citizen. Section 2(f) provides for definition of
"property" to mean the property of any kind, whether movable or
immovable, ancestral or self-acquired, tangible or intangible and
includes rights or interests in such property. Section (g) defines
"relative" to mean any legal heir of the childless senior citizen who is
not a minor and is in possession of or would inherit his property after his
death. Section 2(h) defines "senior citizen" to mean any person being a
citizen of India, who has attained the age of sixty years or above; As per
Section 2(j), "Tribunal" means the Maintenance Tribunal constituted
under section 7 and under Section 2(k), "welfare" means provision for
food, health care, recreation centres and other amenities necessary for
the senior citizens.
20. The important section is Section 3, which reads as under:-
"3. Act to have overriding effect.- The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any enactment other than this Act, or in
any instrument having effect by virtue of any enactment other
than this Act."
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20.1. Section 3 would make it abundantly clear that the provisions of
this Act shall have overriding effect on the provisions of any other Acts,
which are inconsistent with the provisions of the said Act.
21. There is a provision under Section 4, which states about
maintenance of parents and senior citizens, which reads as under:-
"4. Maintenance of parents and senior citizens.- (1) A senior
citizen including parent who is unable to maintain himself from
his own earning or out of the property owned by him, shall be
entitled to make an application under section 5 in case of--
(i) parent or grand-parent, against one or more of his
children not being a minor;
(ii) a childless senior citizen, against such of his
relative referred to in clause (g) of section 2.
(2) The obligation of the children or relative, as the case may
be, to maintain a senior citizen extends to the needs of such
citizen so that senior citizen may lead a normal life.
(3) The obligation of the children to maintain his or her parent
extends to the needs of such parent either father or mother or
both, as the case may be, so that such parent may lead a normal
life.
(4) Any person being a relative of a senior citizen and having
sufficient means shall maintain such senior citizen provided he
is in possession of the property of such citizen or he would
inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to
inherit the property of a senior citizen, the maintenance shall
be payable by such relative in the proportion in which they
would inherit his property."
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22. In Section 5, there is a provision for filing the application for
maintenance. The said application can be filed taking recourse to Section
4 of the said Act by a senior citizen or a parent, as the case may be, or if
he is incapable, by any other person or organization authorized by him
or the Tribunal may take cognizance suo motu. In Section 6, jurisdiction
and procedure has been mentioned. Section 8 provides for summary
procedure in case of inquiry. For the purpose of such enquiry, sub-
section (2) of section 8 states that "The Tribunal shall have all the
powers of a Civil Court for the purpose of taking evidence on oath and
of enforcing the attendance of witnesses and of compelling the discovery
and production of documents and material objects and for such other
purposes as may be prescribed; and the Tribunal shall be deemed to be a
Civil Court for all the purposes of section 195 and Chapter XXVI of the
Code of Criminal Procedure, 1973 (2 of 1974)."
23. Section 9 speaks about the order for maintenance. Section 16
provides for appeals. However, such appeal can be filed by any senior
citizen, or a parent, as the case may be, aggrieved by an order of a
Tribunal within sixty days from passing such order. Section 19 provides
for establishment of oldage homes. Section 20 provides for medical
support for senior citizens. Section 21 provides for measures for
publicity, awareness, etc. for welfare of senior citizens. Section 22
provides for authorities, who may be specified for implementing the
provisions of the Act. Section 23 provides for transfer of property to be
void in certain circumstances.
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24. The said Act has been enacted with a laudable object to provide
for more effective provisions, for the maintenance and welfare of parents
and senior citizens, as guaranteed and recognized under the Constitution
and other Statutes. In the light of the aforementioned statement of
objects and reasons, so also the provisions recorded hereinabove, we
proceed to consider whether the Tribunal, while passing the impugned
order, has framed appropriate issues and answered the same keeping in
view the provisions of the Act and the Rules thereunder, so also the
documents and materials placed on record.
25. The Tribunal framed the following four issues of enquiry, which
are as under:-
"1) Are the applicants capable of supporting themselves
and meeting their basic needs ?
2) Is there any evidence that the respondent is not taking
proper care of the applicant and is causing mental and
physical harassment to the applicants?
3) Can the request made by the applicant be accepted?
4) What will be the orders?"
26. The Tribunal, after adverting to the contentions raised by the
parties and documents placed on record, observed that at the relevant
time, applicant No.1 - Nalini Shah was 77 years old and applicant No.2 -
Mahendra Shah was 79 years old. It is also observed that the said
applicants are not in a position to work. The Tribunal observed that
though it is contended by Sheetal Shah, that Nalini Shah is having share
trading business and also Mahendra Shah has business of diamond and
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jewellery, Sheetal Shah has not submitted any evidence before the
Tribunal to that effect. It is further observed, that even if the said
contention of Sheetal Shah is accepted, in that case also, considering the
age of Nalini Shah and Mahendra Shah, it cannot be said that they are
capable of supporting themselves from their own earnings. It is also
observed that the family members viz., Devang Shah and Sheetal Shah
should treat Nalini Shah and Mahendra Shah with kindness,
consideration and respect and that they should provide them basic
necessities for a peaceful life. It is also observed that the kindness,
consideration and respect cannot be bought with money. It is the
responsibility of Devang Shah and Sheetal Shah being son and daughter-
in-law of Nalini Shah and Mahendra Shah to pay attention to the daily
needs of the applicants and to try their best to meet those needs. Nalini
Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal
Shah for their daily necessities, mental support and care and accordingly,
issue No.1 is answered in the affirmative.
27. Upon perusal of the original record of the proceedings instituted
by Nalini Shah, we are in respectful agreement with the said
observations made by the Tribunal while answering issue No.1 except to
the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah)
alongwith Devang Shah, liable to pay maintenance.
28. We have carefully perused the observations made by the Tribunal
while answering issue No.2 i.e., whether there is any evidence that
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Shetal Shah is not taking proper care of Nalini Shah and Mahendra
Shah and is causing mental and physical harassment to them. We have
no doubt in our mind, that the observations made and the findings
recorded by the Tribunal, that Sheetal Shah and Devang Shah are not
taking proper care of the applicants and causing mental and physical
harassment to Nalini Shah and Mahendra Shah, are in consonance with
the documents on record. We have also carefully perused the various
complaints filed by Nalini Shah and Sheetal Shah, and we find that there
is no peace and harmony in the house. There is unrest and also there is a
mental and physical harassment to the old aged parents of Devang Shah.
While exercising writ jurisdiction, it is not desirable to undertake
exercise of disputed questions of fact, and more particularly, when we
find that the observations / findings recorded by the Tribunal, while
answering issue No.2, that Sheetal Shah and Devang Shah in the said
application are causing mental and physical harassment to Nalini Shah
and Mahendra Shah, are made keeping in view the material placed on
record.
29. The Tribunal, while discussing issue No.3 i.e., "Can the request
made by the applicant be accepted?", has made reference to various
documents placed on record by the parties and in particular documents
in relation to the said residential premises wherein, the parties are
residing, and has reached a conclusion, that the residential premises is in
the name of Mahendra Shah, who has inherited the same, from his
parents. The Tribunal has also considered the effect of giving such
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property as a gift by Mahendra Shah to Devang Shah and after adverting
to the provisions of Section 23 of the said Act, which provides for
protection of life and property of senior citizens and as such, has
correctly reached the conclusion, that the applicants' (Nalini and
Mahendra Shah) request for exclusion of Devang Shah from the suit
property can be granted. It would be relevant to reproduce hereinbelow
the provisions of Section 23(1) of the said Act, which reads as under:-
"23. Transfer of property to be void in certain circumstances.-
(1) Where any senior citizen who, after the commencement of
this Act, has transferred by way of gift or otherwise, his
property, subject to the condition that the transferee shall
provide the basic amenities and basic physical needs to the
transferor and such transferee refuses or fails to provide such
amenities and physical needs, the said transfer of property shall
be deemed to have been made by fraud or coercion or under
undue influence and shall at the option of the transferor be
declared void by the Tribunal."
30. The Tribunal, ultimately concluded, that Sheetal Shah and Devang
Shah are not taking proper care of Nalini Shah and Mahendra Shah, but
are causing mental and physical harassment to them. As already
observed, the age of Nalini Shah and her husband Mahendra Shah was
77 and 79 years respectively, at the relevant time, when they preferred
the application. It is brought on record by the parties, that during the
pendency of the petition, Mahendra Shah died. At present, Nalini Shah,
wife of Mahendra Shah, is aged about 82 years. On couple of dates of
hearing before us, she attended Court proceedings sitting on a wheel
chair, that itself shows, that she is certainly dependent upon Sheetal
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Shah and Devang Shah for physical and mental support.
31. After answering the issues framed, the Tribunal accepted the case
of Nalini Shah and Mahendra Shah and directed Devang Shah and
Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five
Thousand only) per month to Nalini Shah and Mahendra Shah for their
maintenance, subsistence and medical expenses, by depositing the said
amount, in the bank accounts of Nalini Shah and Mahendra Shah.
32. We have reservations about such direction to Sheetal Shah to pay
maintenance amount to Nalini Shah. As already observed, in Section
2(a), 'children' include son, daughter, grandson and grand-daughter and
there is no reference to the daughter-in-law. Be that as it may, upon
perusal of the original record, we do not find a single document showing
the earnings of Sheetal Shah. In that view of the matter, the Impugned
Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/-
alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah,
cannot be legally sustained. However, so far direction given to Devang
Shah to pay the said maintenance amount to Nalini Shah, the same is
legally sustainable.
33. The Tribunal has directed Devang Shah and Sheetal Shah to
handover the possession of entire residential premises i.e., Saprem, Plot
No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai - 400 056 to
Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner.
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In our opinion, said direction given by the Tribunal is legally and
factually sustainable, in as much as, when the application was decided
by the Tribunal, the subject property stood in the name of husband of
Nalini Shah, namely, Mahendra Shah. Relying upon the various
documents placed on record including criminal complaints and other
materials, the Tribunal has correctly reached a conclusion, that there is a
continuous mental as well as physical harassment to Nalini Shah and
Mahendra Shah (since deceased).
34. In that view of the matter, we are of the opinion that the view
taken by the Tribunal, after adverting to the material placed on record, is
legally as well as factually sustainable. Therefore, we confirm the order
passed by the Tribunal except the direction to Sheetal Shah to pay jointly
with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and
Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is
quashed and set aside. However, as already observed, the son of Nalini
Shah namely, Devang Shah is obliged to pay the said maintenance
amount to Nalini Shah.
35. The Tribunal in clause (3) of the operative order has observed
that, within 15 days from the date of receipt of the order, Sheetal Shah
and Devang Shah shall handover the entire possession of the residential
premises in question, to Nalini Shah and Mahendra Shah (deceased) in a
peaceful manner and at the same time, observed that Sheetal Shah and
Devang Shah, should make separate arrangements for their own
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accommodation elsewhere. Keeping in view the said direction, we are of
the opinion that Devang Shah, being the husband of Sheetal Shah is
obliged to provide separate accommodation to Sheetal Shah and her sons
elsewhere.
36. With the above observations, we dismiss the writ petition.
37. Rule is discharged accordingly.
38. Since the interim relief is operating till date, we deem it
appropriate to grant further six weeks' time to the petitioner, to act in
compliance with the directions contained in clause (3) of the operative
part of Tribunal's order i.e. Sheetal Shah and Devang Shah should hand
over the entire possession of the residential premises in question, to
Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has
also directed Sheetal Shah and Devang Shah to make separate
arrangements for their own accommodation elsewhere. As already
observed in para 35 hereinabove, Devang Shah (respondent No.4), being
husband of Sheetal Shah and thus guardian of two sons is legally obliged
to provide them accommodation befitting his status, income and assets.
39. The observations made hereinabove, are restricted to adjudication
of the present proceedings and will have no bearing on the proceedings
pending between the parties and the orders passed therein, by the
appropriate courts of competent jurisdiction or forum provided under the
Statute.
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40. All concerned parties to act upon ordinary copy of this order duly
authenticate by court Sheristadar.
(REVATI MOHITE DERE, J.) (S. S. SHINDE, J.)
Minal Parab
