Bombay High Court
Dhirumal P Karnani vs State Of Maharshtra And Ors on 6 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
16-ASWP-325-2023.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 325 OF 2023
Dhirumal P Karnani ...Petitioner
Versus
State of Maharashtra & Ors ...Respondents
Mr Mayur Khandeparkar, with Apurva Manwani, Minal
Chandnani, Sumeet Gemnani & Zoheb Merchant, i/b JS
Chandnani, for the Petitioner.
Mrs AA Purav, AGP, for the State.
Mr Monish Bhatia, for Respondent No.4.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 6th April 2023
PC:-
1. The Petitioner is the father of the 3rd Respondent and father-
ARUN
in-law of the 4th Respondent. The Petitioner is aggrieved in part by
RAMCHNDRA
SANKPAL
an order of 7th October 2022 by the Chairman of Senior Citizen
Digitally signed
by ARUN
RAMCHNDRA
SANKPAL
Welfare Tribunal constituted under the Maintenance and Welfare of
Date: 2023.04.06
18:15:48 +0530
Parents and Senior Citizens Act 2007. By that order, the Petitioner
was awarded maintenance of Rs. 10,000/- per month but prayer
clauses (c) and (d) which impugned certain Deeds of Gift were not
considered and not dealt with. The approach taken was that this was
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16-ASWP-325-2023.DOC
the remit of a Civil Court and that the Petitioner should file a civil
suit.
2. We believe the law in this regard is well-settled including by a
recent judgment of the Supreme Court in Sudesh Chhikara v Ramti
Devi & Anr.1 The question of whether or not the Deed is subject to a
condition is always a matter of fact and of evidence to be proved.
Section 23 of the Act was completely overlooked. The condition can
never be presumed to be absent. This does not divest the tribunal of
taking up these issue and allowing parties to place their respective
cases before the tribunal constituted specifically for that purpose. In
fact, 11 to 14 of the Petition specifically aver that the Gift Deed of
the commercial shop was conditional, and that the condition was
not met or was breached. That would require an adjudication under
Section 23.
3. The contentious property is a commercial shop. There was a
partition wall put up by Respondents Nos. 3 and 4. It has been
removed under directions of the Tribunal. Both Petitioner and
Respondents Nos. 3 and 4 claim to be running their respective
business from different parts of the same shop. The purpose of the
Act is not to protect children against parents, but the other way
around. If the Petitioner is running his business in the shop he is
entitled to do so without interference from Respondents Nos. 3 and
4 against whom there is also a finding for maintenance. The Deed of
Gift, until adjudicated, cannot make that kind of a difference
because after all it is the father who is the donor and the Deed of
1 (2022) SCC OnLine SC 1684.
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16-ASWP-325-2023.DOC
Gift itself is predicated on the premises belonging to the father in
the first place. The business is that of a Home Decor provisioning
store.
4. We are now told for the first time that the 3rd Respondent has
by yet another Deed of Gift transferred of the very property to his
wife, the 4th Respondent. Neither Respondents Nos. 3 and 4 will
effect any further transfers. The second Gift Deed is supposed to
have September 2022. Prima facie this only fortifies our view that
urgent relief is required until the Tribunal decides the question of
the Gift Deed following the directions set out below.
5. We do not want any further controversy on site. We now take
the liberty of appointing the Court Receiver as the Receiver of the
premises in question namely, Basement, Ground, first and second
floor of Unit No. 7, Sheet No. 48, Plot Nos. 9 and 14, Sector 6-A,
Furniture Bazar, Ulhasnagar, District Thane. The Court Receiver
will put is board inside the premises in an inconspicuous spot. The
Court Receiver will appoint the Petitioner as his only agent in
respect of the entire shop without payment of royalty or a security
deposit. The Petition will have to put the Receiver funds for the
routine amount required. This is to be done by Monday, 10th April
2023. The Receiver will proceed to take symbolic possession of the
premises, tomorrow itself, 7th April 2023. This is without prejudice
to the rights and contentions of Respondents Nos. 3 and 4.
6. The Receiver will attend the premises on 7th April 2023,
11.00 am. The 3rd Respondent will be entitled to be present only in
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the presence of the Court Receiver to identify his belongings so that
these can be inventoried. The 3rd Respondent will identify the
goods that he claims are his with sufficient proof of ownership or
title to those goods.
7. Until the Receiver takes possession there is an injunction
against all parties from creating any third party rights, parting with
possession or put it anyone else in possession of the premises.
8. Application No. 10 of 2022 is restored to the file of the
Chairman/President of the Senior Citizens Welfare Tribunal. The
matter is restored for the limited purpose of prayer clauses (c) and
(d) which relate to a Gift Deed dated 29th November 2020
registered under No. 1452 of 2020 and the prayer clause (c) for
possession of the premises in question covered by that Gift Deed.
9. If the order of the Tribunal is against the Petitioner in regard
to the Gift Deed, it will not be acted on for a period of three weeks
thereafter to permit the Petitioner to approach this Court.
10. All contentions before the tribunal in regard to the restored
Petition and prayer clauses (c) and (d) are also expressly kept open.
11. The rest of the order is not disturbed.
12. We request the tribunal to dispose of the Application at his
earliest convenience.
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16-ASWP-325-2023.DOC
13. In view of this order that has become necessitated only after
the disclosure was made in Court, we will not dispose of the Petition
today but list it high on board, on Tuesday, 11th April 2023 for the
Court Receiver's report.
(Neela Gokhale, J) (G. S. Patel, J)
6th April 2023
