Bombay High Court
Savita Balasaheb Malgunde And Others vs Shankar Bapu Malgunde And Others on 10 September, 2025
2025:BHC-AUG:24154
921-WP-1691-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1691 OF 2022
Savita Balasaheb Malgunde And Others
VERSUS
Shankar Bapu Malgunde And Others
***
• Mr. K. N. Shermale, Advocate for the Petitioners
• Mr. M. R. Khuntwad, Advocate for Respondent Nos. 1 and
• Mr. R. D. Raut, AGP for the Respondent Nos. 4 and
5/State
***
CORAM : R. M. JOSHI, J
DATE : SEPTEMBER 10, 2025
PER COURT :
1. By consent of both sides, heard finally at the
stage of admission.
2. This is one of the example as to how the
provisions of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 (for short 'the Act')
could be misused/abused by the parties. Here in this
case Respondent ("Senior Citizen") has sought
declaration before the said Authority that the judgment
and decree passed in RCS No. 1285/2017 is illegal and
not binding upon the Senior Citizen. The Maintenance
Tribunal accepts the said contention of Senior Citizen
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and declares that judgment and decree passed by
competent Civil Court is illegal and not binding on the
parties, which is highly objectionable order.
3. Though ordinarily it would have been necessary
to direct the Petitioner to prefer an Appeal under
Section 16 of the Act against the order passed by
Maintenance Tribunal, in view of the fact that order
impugned is wholly without jurisdiction and
unsustainable and also clearly on the face of it being
abuse of process of law, present Petition is
entertained.
4. Learned Counsel for the Petitioners submits
that the suit came to be filed bearing RCS No.
1285/2017 wherein a compromise was arrived at between
parties. Pursuant to said compromise, decree came to be
passed. Decree was executed and the name of the
Petitioners were mutated in the revenue record. It is
his further submission that Senior Citizen filed suit
bearing no. 634/2020 seeking declaration that the
decree passed in RCS No. 1285/2017 is illegal and not
binding upon him. It is his further submission that
this suit came to be dismissed and it is thereafter the
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Respondent filed application under Section 23 of the
Act being Application No. 188/2021 before the
Maintenance Tribunal. Along with order of maintenance,
a declaration is sought that the judgment and decree
passed by the competent Civil Court in RCS No.
1285/2017 is illegal and does not bind the Senior
Citizen. He placed reliance on the judgment of
Karnataka High Court in case of Smt Lakshmamma and Anr
vs Sr M. K. Thimmegowda and Others, Writ Petition NO.
11991/2021 (GM-RES), in order to submit that even deed
of partition is not covered by sub-section (1) of
Section 23 of the Act. It is his submission that leave
apart the fact that the issue with regard to the
partition cannot be gone into by the Maintenance
Tribunal, question of entertaining a prayer for
declaration of a decree passed by the competent Civil
Court to be null and void does not arise.
5. Learned Counsel for the contesting
Respondent/Senior Citizen sought to support the
impugned order. It is his grievance that this Court has
directed the Petitioners to pay sum of Rs. 2,000/- per
month, which has not been paid by them.
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6. This contention of learned Counsel for Senior
Citizen is opposed by Counsel for Petitioners by
pointing out the order passed by this Court on
05.08.2025. It is his further submission that the
amount of maintenance directed by Maintenance Tribunal
is used to be paid by money order, however, recently
the Senior Citizen has stopped accepting the same. He,
however, undertakes to pay the said amount, if
directed.
7. Time and again this Court has come across with
the cases wherein the provisions of the Act are
misused. These provisions are considered to be a
shortcut or substitute for substantiating the rights of
the parties, which require adjudication by Civil
Courts. Present case is one of such example. Perusal of
the provisions of the Act indicate that they are aimed
at providing maintenance to senior citizen to lead a
normal life. Appropriate procedure has been provided
for making application under Sections 5 and 6 of the
Act. Mechanism is also in place for the enforcement of
the order of maintenance. It further makes provision
for medical support through State Government. Chapter
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IV of the Act deals with the protection of life and
property of senior citizen. Section 23 enables
Maintenance Tribunal to declare the transfer effected
of properties by senior citizen to be void. Though,
this provision enables such declaration to be given in
case of transfer of gift or otherwise, the term
"otherwise" cannot be construed to cover transfer
effected by the judgment and decree of competent Civil
Court. More particularly, when a compromise decree has
been passed by the Court, the challenge thereto could
be only by way of procedure laid down in the law and
not otherwise. The Maintenance Tribunal in no
circumstances can assume jurisdiction to cause
interference in the judgment and decree passed by the
Civil Court either on merits or even by way of
compromise decree. The Karnataka High Court in case of
Smt Lakshmamma and Anr (supra) has rightly held that
even transfer by way of partition cannot become a
subject matter of challenge in the proceedings under
the Act.
8. Coming back to the facts of the instant case,
admittedly, the suit bearing no. 1285/2017 came to be
decided between the parties therein. There was a
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compromise deed and pursuant to the said compromise, a
decree came to be passed by the competent Civil Court.
Once such decree is passed, unless the said decree is
challenged in accordance with law, the same binds all
the parties.
9. Here in this case, the Senior Citizen has
filed suit bearing no. 634/2020 for declaration of the
said decree to be null and void and not binding upon
them. The suit came to be dismissed for want of
prosecution. It is thereafter the present Application
came to be filed with a novel prayer that the
Maintenance Tribunal to declare a decree passed by the
competent Civil Court to be null and void and not
binding upon the parties.
10. As observed herein above, the entire
provisions of the Act nowhere contemplates any such
power being vested with the Maintenance Tribunal to
grant such relief as prayed by Senior Citizen. The
Maintenance Tribunal, however, in the present case by
passing impugned order has given such declaration,
which is wholly erroneous. This indicates complete non
application of mind on the part of Presiding Officer of
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Maintenance Tribunal. Since the Maintenance Tribunal
has no jurisdiction to give any declaration as done,
the order impugned cannot sustained. This Court is of
the view that since there is non application of mind
and as the order is contrary to the provisions of law,
the entire order deserves to be set aside.
11. In view of above discussion, Petition stands
allowed in terms of prayer clause "B".
12. Needless to say that it is open for the Senior
Citizen to pursue said application before Maintenance
Tribunal on merit and the Maintenance Tribunal is
expected to pass order on merit in respect of grant of
maintenance only. It is clarified that Application to
the extent of declaration sought in respect of the
judgment and decree passed in RCS No. 1285/2017 is
hereby dismissed.
13. Since the order passed by the Maintenance
Tribunal is set aside, all consequences to follow
including the restoration of mutations effected in
favour of the Petitioners.
(R. M. JOSHI, J.)
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