Gauhati High Court
Page No.# 1/24 vs The State Of Assam And 2 Ors on 18 November, 2025
Page No.# 1/24
GAHC010135292025
2025:GAU-AS:15570
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3504/2025
JOY BRATA KUNDU AND ANR
S/O- JIBAN KRISHNA KUNDU.
R/O- T.R. PHUKAN ROAD, WARD NO.2, DHUBRI TOWN, P.O. AND P.S.-
DHUBRI,
DIST.- DHUBRI(ASSAM), PIN-783301.
2: DEBABRATA KUNDU
S/O- JIBAN KRISHNA KUNDU.
R/O- T.R. PHUKAN ROAD
WARD NO.2
DHUBRI TOWN
P.O. AND P.S.- DHUBRI
DIST.- DHUBRI(ASSAM)
PIN-783301
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY ITS SECRETARY , DEPARTMENT OF SOCIAL JUSTICE
AND EMPOWERMENT, PIN-781006, ASSAM.
2:JIBAN KRISHNA KUNDU.
S/O- LATE JANENDRA CHANDRA KUNDU.
R/O- T.R. PHUKAN ROAD
WARD NO.2
DHUBRI TOWN
P.O. AND P.S.- DHUBRI
DIST.- DHUBRI
ASSAM
PIN-783301.
3:MAINTENANCE TRIBUNAL
DHUBRI
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SUB-DIVISION
DHUBRI
ASSAM
PIN-78330
-BEFORE-
HON'BLE MR. JUSTICE RAJESH MAZUMDAR
Advocate for the petitioner(s) : Mr. Mr. S. Sahu
Advocate for the respondent(s) No.1 : Ms. R.M Deka, Govt. Adv., Assam
Advocate for the respondent(s) No.2 : Ms. R. Choudhury
Date on which judgment was reserved : 07.11.2025
Date of pronouncement of judgment : 18.11.2025
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT & ORDER (CAV)
(Rajesh Mazumdar, J.)
Heard Mr. S. Sahu, learned counsel for the petitioners and also heard
Ms. R. Choudhury, learned counsel for the respondents.
2. This writ petition has been filed under Article 226 of the
Constitution of India, being aggrieved by the order dated 30.05.2025
passed by the Presiding Officer, Maintenance Tribunal, Dhubri Sub-
Division, Dhubri whereby the petitioners and their family members have
been directed to vacate the premises of the respondent No.2 by removing
of their belongings and to deliver peaceful possession to the respondent
No.2 within 20 days from passing of the order.
3. Notice in this case was issued on 25.06.2025 and the impugned
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order was kept in abeyance. The respondent No.2 having received the
notice, entered appearance and filed an application for
vacation/modification/alteration of the order dated 25.06.2025. Affidavit in
opposition to the interlocutory application was filed by the writ petitioners.
On the Interlocutory Application being listed along with the writ petition
for consideration, the counsel for the parties submitted that the writ
petition may be taken up for disposal. The counsel for respondent No. 2
had prayed that permission may be granted to refer to the contents of the
interlocutory application to support the case of respondent No. 2 as no
affidavit-in-opposition had been filed by the respondent No. 2 but the
contents of the interlocutory application would suffice to answer the writ
petition and the same was also supported by an affidavit. The permission
was granted and the writ petition was taken up for hearing.
4. The matter was heard at length on 07.11.2025 and the contesting
parties submitted their written argument in the matter. The case was
reserved for judgment on 07.11.2025.
FACTS OF THE CASE
5. The respondent No.2 is admittedly the owner of a building
standing on a plot of land measuring 15 Lechas covered by Dag No.1955
of Patta No. 741 in Dhubri Town. The petitioner No.1 & 2 had been
residing along with the respondent No.2 in the said building.
6. The respondent No.2 had filed an application under section 7 of
the Maintenance and Welfare of Parents and Senior Citizens Act 2007
(hereinafter referred to as the Act of 2007) praying for eviction of the
petitioners along with their family members from the room occupied by
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them on the 1st Floor of the property owned by the respondent No.2. On
notice being issued, the petitioners herein entered appearance and on
13.03.2024 filed an application before the District Commissioner Dhubri
requesting him to transfer the case from the Court to another competent
court. On the case being transferred, the petitioner No.1 & 2 filed another
application dated 30.12.2024 since the matter was transferred back to the
original court. Finally, the petitioners herein filed their written statement in
the matter and the case was disposed of by an order dated 30.05.2025.
The Tribunal came to a finding that the respondent No.2 is entitled to the
benefits under the Act of 2007 and accordingly, the respondent No.2 was
held entitled to evict the opposite party from the self-acquired premises.
Coming to a finding that the petitioners herein who are the sons of
respondent No.2 had harassed the respondent No.2 from time to time, the
petitioner No.1 & 2 and their family members were directed to vacate the
premises of the respondent No.2 within 10 days from the date of issue of
the order. Being aggrieved, this writ petition has been preferred by the
petitioners.
SUBMISSION ON BEHALF OF THE PETITIONERS
7. Mr. S. Sahu, learned counsel for the petitioners has submitted
that the learned Tribunal has not recorded any reason as to why it came
to a conclusion that the allegation made in the application preferred by
the respondent No.2 were found to be true. In the absence of any reason
being recorded by the learned Tribunal, the learned counsel submits that
the impugned order suffers from perversity and therefore, deserves the
interference by this Court.
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8. The learned counsel for the petitioner has submitted that the
learned Tribunal did not have the jurisdiction to pass the order of eviction
in the present case without deciding as to whether the respondent No.2
had the right to receive maintenance out of the property belonging to him.
By referring to section 5 of the Act of 2007 and also referring to the
provision of section 4 of the Act of 2007, the learned counsel appearing
for the petitioners submits that it is only a senior citizen who is unable to
maintain himself from his own earning or property owned by him who
shall be entitled to maintain the petition under section 5 of the Act. The
learned counsel for the petitioners has submitted that the respondent
No.2 earns an amount of Rs. 37050/- per month from his monthly pension
for maintenance. According to the learned counsel for the petitioners,
since the maintenance amount referred to in the Act of 2007 is not
exceeding Rs. 10,000/- p.m, the respondent No.2 could not have
approached the Tribunal under the provision of the Act of 2007.
9. The learned counsel for the petitioners has submitted that
although the provision of section 23 of the Act of 2007 empowers the
learned Tribunal to pass an order of eviction, however, exercise of such
power by the Tribunal would be subject to fulfillment of two conditions,
firstly, when there is a conditional transfer of the property from the senior
citizen to his child/children and secondly, when the senior citizen has the
right to receive maintenance out of the property owned by him.
Elaborating his argument, he has submitted that for the learned Tribunal
to be empowered to issue an order of eviction, the first condition required
to be fulfilled is that the senior citizen must have transferred property to
his children on a condition that the children would maintain him. In the
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present case, argues the learned counsel, there is no transfer of property
from the senior citizens/parent to his children. He therefore submitted that
the Tribunal had erred in exercising the power when the basic requirement
had not been fulfilled.
Elaborating the other limb of his argument, the learned counsel for the
petitioners has submitted that the right to receive maintenance out of the
property owned by the senior citizen and the right to receive
proceeds/profit out of the property owned by him are two separate
concepts.
10. The learned counsel for the petitioners thereafter submits that
only in cases where a senior citizen/parent is earning less than Rs.
10,000/- that such a person can be held to be a person who is not able to
maintain himself but in the present case, the respondent No.2 has
admitted income of Rs. 37050/- as pension which means he is earning
more than 3.7 times of the amount stipulated in the Act. The learned
counsel for the petitioners has submitted that since respondent No.2 is
earning more than the maximum maintenance provided for in the Act of
2007, the property concerned is not connected to his right to receive
maintenance. Rather, it is apparent that the respondent No.2 is trying to
assert the right to receive proceeds/profit out of the property owned by
him and in such circumstances, the learned Tribunal would not be the
appropriate forum to adjudicate on the case. Rather, it is for the Civil
Court to adjudicate the issue.
11. The learned counsel for the petitioners has placed reliance in the
case of Smti. S. Vanitha -versus- Deputy Commissioner Bengaluru
Urban District & Others, reported in AIR 2021 SC 177 where at
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paragraph-16 & 17, the Apex Court had held that the power of issuing
eviction order is vested in the Maintenance Tribunal only when the two
conditions provided for in section 23 of the Act of 2007 are fulfilled.
12. On a query being made by the Court regarding the right of the
petitioners to occupy the immovable property of their father despite his
resistance and in the face of the allegations raised by him, the learned
counsel for the petitioners had submitted that in the present case, the
respondent No.2 had allowed the petitioners to reside in the premises and
with such possession itself is a right recognized and protected by the
Court of law. He has referred to section 110 of the Evidence Act (now the
section 113 of BSA) which provides that possession of immovable property
gives a presumption of ownership. He has also referred to the judgment of
the Hon'ble Apex Court rendered in the case of Namburi Basava
Subrahmanyam -versus- Alapati Hymavathi & Ors. reported in AIR
1990 SC 2220. He has further submitted that the principle behind the
Specific Relief Act also gives protection to trespassers in spite of the
owner's true title. The learned counsel then referred to the case of
Krishna Ram Mahale (dead) by his LRs. -versus- Mrs. Shobha
Venkat Rao reported in AIR 1989 SC 2097 to submit that even
possession by a trespasser is protected and one cannot be evicted without
following the due procedure of law.
13. Concluding his arguments, Mr. S. Sahu, learned counsel for the
petitioners has submitted that the permission for possession which was
allowed by the father has turned into an adverse possession in the year
2012, inasmuch as, the father has specifically stated that the dispute
between the parties arose long back in the year 2012 and now in the year
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2025, more than 12 years has lapsed. The learned counsel for the
petitioners has submitted that the petitioners had perfected a perfect title
by virtue of adverse possession on the land. He submits that therefore,
the impugned order passed by the learned Tribunal on 30.05.2025 in DMJ
88/2019/36 dated 18.01.2024 deserves to be set aside and interfered
with.
Submissions made on behalf of respondent No.2
14. Ms. R. Choudhury, learned counsel for the respondent No.2 has
stated that in the year 2005, the respondent No.2 had stood as a
guarantor for loan taken from the State Bank of India, when the petitioner
was unable to repay the loan, the respondent No.2 herein took a loan of
Rs. 1,50,000/- from one Amit Acharjee and also managed some amount of
his own and handed over the same to the petitioners to clear the entire
outstanding loan amount due to the bank. Thereafter, two persons had
entered into the land of the respondent No.2 illegally and started to
dismantle a part of the 1st Floor of the property of the respondent No.2,
and with the interference of the Officer-in-Charge Dhubri Police Station
and other authorities, the trespassers were stopped as they were illegal
demolition carried out by the trespasser. On a verification made by the
respondent No.2 on the Online portal of Dharitree Assam, it was revealed
that the name of the petitioner had been substituted by the name of Amit
Acharjee and the other two trespassers. On making other enquiry from
the Right to Information, the petitioner was informed by the Municipal
Board Dhubri that there was a Sale Deed bearing No. 274/255 of 2016
having Registration No. 3103 dated 07.09.2022 whereby it was shown that
the two trespassers who tried to demolish the property of the petitioner
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were shown to have obtained the Sale Deed from Amit Acharjee. It
appears that the signature in the Sale Deed was forged in some of the
pages and it was found to be executed on 08.02.2016, a day when the
respondent No. 2 was in Siliguri with regard to his treatment. The
respondent No.2 therefore, had to initiate several litigations against his
own children where on some occasions the children sought apology and
the matter was settled while on other occasions, the matter is under
investigation. There are also instances where the petitioners or their
family members had lodged Ejahar against the respondent No.2 on false
and fabricated grounds only to harass him.
15. The learned counsel for the respondent No.2 submits that there is
a constant threat to the respondent No.2 for ill-treatment and misbehavior
by the petitioners and their family and that at a the stage where the
petitioner ought to have maintained the respondent No.2, they have
neglected to do so and had resorted to torturing the respondent No.2 both
physically and mentally.
16. The learned counsel has submitted that the eviction order issued
by the Tribunal is in accordance with the observation made by Courts that
such orders are at times necessary and expedient to ensure maintenance
and protection of senior citizens or parents and that such eviction would
be an incident of the enforcement of the right to be maintained and to
protection. The learned counsel for the respondent No.2 had referred to
the judgment passed by the Delhi High Court in Ashish Ramdev &
Another -versus- State (WP(C) No. 7554/2022) to impress that the
Tribunal would be entitled to enforce the benefits of senior citizens Act of
2007 and to pass an order of eviction protecting old parents from
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harassment from the hand of the son and his family when the senior
citizens complain of failure to maintain and harassment by the children or
their family. The learned counsel has also referred to the order passed by
the Delhi High Court in its judgment dated 18.07.2018 passed in WP(C)
No.6952/2018, Smti. Darshana -versus- Government of NCT, reported
in 2018 (258) DLT 624, Vinay Varma vs Kanika Pasricha, reported
in 2019 (265) DLT 211 and Sunny Paul -versus- State of NCT of
Delhi reported in 2018 (253) DLT 410, where it was held that a senior
citizen would be entitled to evict his son, daughter or legal heir from his
self-acquired property. The learned counsel has submitted that the
legislation for protecting senior citizens deserves to be given a liberal
interpretation and in circumstances like the present case, where the
harassment of the respondent No. 2 is apparent at the hands of his sons
and their family, it is in the interest of justice that the perpetrators are
required to vacate the self-acquired property of the senior citizen. She has
accordingly prayed that the writ petition be dismissed and that the order
passed in favour of respondent No. 2 requiring the petitioners to vacate
the premises be upheld.
REPLY ON BEHALF OF THE PETITIONERS:
17. The learned counsel for the petitioners, in reply to the contentions
raised for the respondent No. 2 has submitted that in the case of
Darshana (supra), the Court had referred to the Rules framed by the
Government of NCT, Delhi, whereas in Assam there is no such rules. He
has submitted that the Court had upheld the orders of the Maintenance
Tribunal in the cases relied upon by the respondent No.2 only because the
Rules were not under challenge. He has submitted that in any case, in
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case of any discrepancy between the law laid down in the case of S.
Vanitha by the Apex Court and the law laid down by the High Courts, the
ruling of the Apex court has to prevail.
DISCUSSION AND CONCLUSION
18. In order to adjudicate the rival contentions, it is necessary to note
certain key aspects of the matter. In the case at hand, it is not in dispute
that the respondent No. 2, who is a senior citizen drawing pension,
claimed eviction of the petitioners from his self-acquired property. The
petitioners do not assert that they are maintaining respondent No. 2,
rather it is their assertion that the respondent No.2 can maintain himself
with the pension drawn by him. The issue which demands an answer in
the present litigation is 'whether the respondent No. 2 can claim
protection as envisaged in provisions of Section 23 of the Protection of
Senior Citizens Act, 2007 to evict his children, when there is no positive
assertion that he had legally "transferred" the property to his children
without consideration and without any promise of being maintained by
them?' In the opinion of this Court, the answer is in the positive. The
reasons are elaborated in the following paragraphs.
19. In the case of Vinay Varma (supra), the Delhi High Court had the
occasion to consider as to how the objectives and provisions of two Acts,
namely the Protection of Women From Domestic Violence Act, 2005
(hereinafter referred to as the DV Act) and the Maintenance And Welfare
of Parents And Senior Citizens Act, 2007 (hereinafter referred to as the
PSC Act) are to operate, considering the overlapping nature of the
relationships which they seek to govern. It was observed that both were
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special statutes. Though the daughter-in-laws' rights to residence and
roof over her head is extremely important, equally important is the right of
a parent to enjoy their own property and earn income out of the property.
The Court had formulated certain guidelines which can be followed in
order to strike a balance between the PSC Act and DV Act. For a ready
reference, the paragraphs found relevant by this Court are quoted below:
"3. The conundrum gets more complex with the enactment of the PSC Act
which permits senior citizens and parents to take proceedings for removal
of their children from the house which exclusively belongs to them under
the definition of `maintenance".
4. There are several categories of disputes which have arisen between
parents/in-laws/children. The first category of cases are ones in which the
parents/in-laws have developed acrimony either with the son and
daughter-in-law jointly and/or individually resulting in the parents/in-laws
seeking the right of exclusive residence either in the form of possession
and injunction or seeking eviction of the son/daughter-in-law. The second
category of cases are also those where there is a rift between the son
and the daughter-in-law and either in collusion with the son or otherwise,
an attempt is made to evict the daughter-in-law. In most cases, the son
i.e. the husband either simply does not appear in the proceedings or
refuses/fails to provide maintenance to the wife. Further, in some cases it
is noticed that the son is in collusion with the parents and leaves the
residence of the parents only in order to enable his parents to evict the
daughter-in-law. In the third category of cases, the son has actually
moved out of the residence and lives in a different residence. However,
the daughter-in-law refuses to move from the residence of the in-laws due
to a lack of alternate accommodation or otherwise.
46. However, later decisions of various High Courts have, while giving
divergent opinions on the concept of "shared household", followed one
uniform pattern in order to protect the daughter-in-law and to provide for a
dignified roof/shelter for her. The question then arises as to whether the
obligation of providing the shelter or roof is upon the in-laws or upon the
husband of the daughter-in-law i.e., the son. Some broad guidelines as
set out below, can be followed by Courts in order to strike a balance
between the PSC Act and the DV Act:
1. The court/tribunal has to first ascertain the nature of the relationship
between the parties and the son's/daughter's family.
2. If the case involves eviction of a daughter in law, the court has to also
ascertain whether the daughter-in-law was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be
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permitted to seek eviction of the son/daughter-in-law or daughter/son-in-
law from their premises. In such circumstances, the obligation of the
husband to maintain the wife would continue in terms of the principles
under the DV Act.
4. If the relationship between the parents and the son are peaceful or if
the parents are seen colluding with their son, then, an obligation to
maintain and to provide for the shelter for the daughter-in-law would
remain both upon the in-laws and the husband especially if they were
living as part of a joint family. In such a situation, while parents would be
entitled to seek eviction of the daughter-in-law from their property, an
alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the parents then the parents
would be entitled to seek unconditional eviction from their property so that
they can live a peaceful life and also put the property to use for their
generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/children,
then if the son's family was living as part of a joint family prior to the
breakdown of relationships, the parents would be entitled to seek
possession from their daughter-in-law, however, for a reasonable period
they would have to provide some shelter to the daughter-in-law during
which time she is able to seek her remedies against her husband."
(the emphasis is ours and because it has a direct relevance to the
present case)
20. The Division Bench of the High Court of Punjab And Haryana, in
Letters Patent Appeal No. 1007 of 2013 (O&M) titled Justice Shanti
Sarup Dewan, Chief Justice (Retired) & Anr. -Versus- Union
Territory, Chandigarh & Ors. {Decided on 26/09/2013} had the
occasion to adjudicate a dispute similar to the one at hand. The relevant
paragraphs are quoted herein below:
"35. What is the right of respondent No. 7 and his family members to
insist on occupying a portion of the house of appellant No.1 especially
when the sale-deed is registered in the name of appellant No.1 in his
individual name? Merely stating that it is a joint Hindu family property
would not suffice. In order to establish that the property belongs to joint
family, it must be established that a joint family had a sufficient nucleus at
the time of its acquisition. (P. S. Sairam and another V.P.S.Rama Rao
Pisey and others (2004) 11 SCC 320). Leave aside the corpus, it is not
even alleged that the funds other than the individual funds of appellant
No.1 were utilized to purchase the plot at Chandigarh. Respondent No. 7
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could not have even alleged so as he actually received a self acquired
plot at Panchkula from appellant No.1 by way of gift while daughters of
appellant No.1 received one plot each in Karnal. Other than the oblique
motive to grab the property at Chandigarh and keep possession of the
same against the wishes of the owner, there can be no other reason.
Infact, it was quite clear during the course of arguments that not only
respondent No. 7 wants to deprive the appellant No.1 to deal with his
property as per his wishes but wanted to grab the whole property for
himself denying the share of his sisters.
37. It cannot be said that in such a situation, where respondent No. 7 was
at best living with the permission of his parents, which permission stands
long withdrawn, the appellants and more specifically appellant No.1
should be compelled to knock the door of the civil court and fight a legal
battle to obtain exclusive possession of the property. This would defeat
the very purpose of the said Act which has an overriding effect qua any
other enactment in view of Section 3 of the said Act. Infact, the Civil Court
has been precluded from entertaining any matter qua which jurisdiction is
vested under the said Act and specifically bars granting any injunction.
Respondent No. 7 is thus required to move out of the premises to permit
the appellants to live in peace and civil proceedings can be only qua a
claim thereafter if respondent No. 7 so chooses to make in respect of the
property at Chandigarh but without any interim injunction. It is not the
other way round that respondent No. 7 with his family keeps staying in the
house and asking the appellants to go to the Civil Court to establish their
rights knowing fully well that the time consuming civil proceedings may
not be finished during the life time of appellant No.1. Infact, that is the
very objective of respondent No. 7.
38. Though it is not directly relevant but it is not even as if respondent no.
7 is without a roof over his head as he is a beneficiary of a gift from his
father-appellant No.1 of a plot which was sold, smaller plot purchased
and constructed upon and the house is lying vacant. What can be a
greater travesty of justice in this situation where respondent No. 7 insists
that he will not stay in his own house built by him lying vacant, but insists
on staying with his parents who do not want him or his family to live with
them. We don't have the slightest of hesitation in coming to a conclusion
that all necessary directions can thus be made under the said Act to
ensure that the appellants live peacefully in their house without being
forced to accommodate respondent No. 7.
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(the emphasis is ours and because it has a direct relevance to the
present case)
21. The Gujarat High Court in the case of Jayantram Vallabhdas
Meswania -versus- Vallabhdas Govindram Meswania (Special Civil
Application No. 13954 of 2012, Decided on 18.10.2012) has held as
follows:
"12. It emerges from the statement of objects and reasons that the
Legislature has, by enacting the Act, addressed the need arising from the
unfortunate plight which many elderly persons and senior citizens have to
suffer on account of declining joint family system and rise of micro
families as well as on account of economic compulsion of the family
where man and wife have to work full time.
12.1 The Legislature has noted that "...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 lack of physical and financial support ...and there
is need to give more attention to the care and protection of older
persons..."
12.2 While explaining the object behind the enactment of the Act, the
Legislature has clarified that, "the Bill proposes to cast an obligation on
the persons who inherit the property of their aged relatives to maintain
such aged relatives... "The Legislature has also emphasized in the
statement of objects and reasons, that, "The Bill further proposes to
provide better medical facilities to the senior citizens and provisions for
protection of their life and property."
12.3 Therefore, the provisions under the Act, including the provisions
under Section 23 of the Act have to be examined and interpreted in light
of the object of the Act and so as to advance the object of the Act. The
Act aims at providing protection, inter alia, to the life and property of
elderly persons and also to provide for better medical facilities and to
ensure physical and financial support.
12.4 The term "maintenance" is defined, under Section 2(b) and it
includes provision for food, clothing, residence and medical attendance
and treatment.
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12.5 The Legislature has consciously defined the said term so that the
said expression "maintenance" and/or the terms "medicine" or "medical
facility" are not understood or interpreted in narrow sense but are given
wider scope. The term "maintenance" is defined so as to include not only
food, clothing or residence or medicine but also medical treatment as well
as attendance.
12.6 Likewise, while defining the term "property" the Legislature has,
under Section 2(f), provided that the term "property" means property of
"any kind" and that the said term includes "rights or interests in such
property". Therefore, when any issue as regards "maintenance" of
parents and/or senior citizen arises it must be construed keeping in focus
the object of the Act and intention of the Legislature viz. it aims at
providing better medical facilities (including attendance and treatment),
protection of their life and property, to protect them from emotional
neglect and lack of physical and financial support and to set-up proper
mechanism to ensure that the said objects are achieved by simple,
inexpensive and speedy system.
12.7 After assigning wider meaning and scope to the terms like
"maintenance", "parent", "property", the Act, through Section 4, provides,
inter alia, that senior citizen or parent/parents who is unable to maintain
himself from "his own earning" or is unable to maintain himself "out of the
property owned by him" will be entitled to make an application under
Section 5 against one or more of his children (who are not minor) or even
against a relative (in case of childless senior citizen). Section 4 of the Act
further prescribes that the obligation of the children or the relative to
maintain parent or senior citizen extends to needs of such citizen so that
he may lead a normal life. Thus, the right to claim maintenance under the
Act is not restricted against biological or adopted children/grandchildren
but it is also extended, in specified cases, against relative/s as well.
Moreover, the obligation is not restricted to provide bare minimum
maintenance but the Act imposes obligation to provide all "needs of such
citizen so that they may live a normal life", and to also provide food,
clothings, residence, medical attendance and treatment. The expression
"normal life" carries widest possible meaning & scope and implies at least
similar standard and quality of life which he enjoyed earlier.
12.8 When a parent or a senior citizen is not able to maintain himself
from his own earning or out of his property, he can make an application
under Section 5 of the Act to claim maintenance. While, the term
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"property" is defined under the Act, the expression or the term "earning" is
not defined under the Act. The term "property" includes not only movable,
immovable, tangible or intangible property but also includes right or
interest in such property.
12.9 Thus, while construing the provisions under the Act, more
particularly the provisions under Section 5, Section 9, Section 10, Section
12, Section 20, Section 23 and Section 24, the said provisions are
required to be construed and given effect so as to ensure that the children
or relative provides maintenance to such senior citizen as contemplated
by the Act.
12.10 Sub-section (4) of Section 4 also prescribes that any person who is
in "possession" of the property of such senior citizen or any person who
would inherit the property of such senior citizen shall maintain such senior
citizen.
12.11 The key-word in the provision is "in possession of the property".
Hence, if children or relative who is/are "in possession" of property (as
defined under Section 2(f) which includes rights or interests in such
property) of a senior citizen or if the children or relative are going to inherit
property (rights or interests in such Property) then such children or
relative are statutorily obliged to maintain the parent/senior citizen and
provide for his/their food, clothing, residence, medical attendance and
treatment and their needs so that they can lead a normal life.
13. In present case, the petitioner son of the respondent, is, undisputedly,
"in possession" of property of the respondent.
14. It, however, appears that respondent's children are not taking
sufficient care and are not providing proper and sufficient maintenance for
the respondent and that therefore so as to maintain himself the
respondent needs sufficient earning/income whereby he can maintain
himself and provide for his own food, clothing, medical attendance and
treatment, etc. Therefore, the respondent asked the petitioner to
handover the possession of the part of the premises (property) wherein
the petitioner is staying with his wife. However, the petitioner declined to
handover the possession of the part of the premises which is in his
possession. In view of such conduct and action of the petitioner the
respondent was compelled to file the application wherein the authority
passed the impugned order. It appears that in his application the
respondent requested the authority to take appropriate measures as per
Section 23 so as to get the possession of the part of the premises. The
Page No.# 18/24
petitioner opposed the application and has now challenged the impugned
orders on the ground that the same are beyond the scope and purview of
Section 23. Emphasis is placed on the expression "transfer of property" in
the said provision. It is claimed that the respondent has not transferred
the property in his favour and therefore the provision would not be
applicable and could not have been invoked.
14.1 However, the petitioner conveniently overlooks the provision under
Section 4 of the Act. Sub-section (1) of Section 23 provides, inter alia, that
where a senior citizen has transferred by way of gift or otherwise, his
property, subject to the condition that the transferee shall provide basic
amenities and physical needs to the transferor then the transfer may be
declared void if the transferee refuses or fails to provide such amenities.
Sub-section (2) of Section 23 provides, inter alia, that where a senior
citizen has right to receive maintenance out of an estate which is
transferred, the right to receive maintenance may be enforced against the
transferee provided that the transfer is not made for "consideration".
14.2 As mentioned above, it is not in dispute that the petitioner is in
possession and occupation of part of the property/premises.
14.3 It is also not in dispute that the petitioner is "in possession of
property" without consideration.
14.4 It also does not appear to be in dispute that as an elder son of the
respondent the petitioner also would inherit right/interest in the property.
15. The question which, therefore, arises is whether the term "transfer" in
Section 23 of the Act should be construed so as to mean only actual
transfer of ownership and title or the said expression should be
construed, having regard to the object of the Act and the provisions under
Section 2(b), 2(d), 2(f;), 2(h) and Section 4, so as to also include
possession of the property as well.
15.1 It is noticed earlier that sub-section (4) of Section 4 provides, inter
alia, that any person who would inherit the property (which includes right
or interest in such property) and is "in possession of property" shall
maintain such senior citizen which includes the needs of such senior
citizen to lead normal life.
15.2 Having regard to the object of the Act and the intention of the
legislature, there is no reason or justification or indication to restrict the
meaning and scope of the term "transfer" so as to mean only "actual
transfer of title and ownership" and to exclude "possession of property"
from the purview of Section 23 and/or from the term "transfer" employed
Page No.# 19/24
in Section 23 of the Act.
15.3 There is no provision in the Act to suggest or to indicate that the
said term carries very narrow, and literal meaning so as to mean only
actual transfer of title and ownership and the concept of possession,
which is recognized by the Act particularly under Section 4 of the Act, has
to be kept out.
15.4 On overall consideration and having regard to the provision under
Sections 2(b), 2(d), 2(f), 4 and the object of the Act, the said term should
receive wider meaning so as to include possession/occupation of
property, as well. The said concept is already recognised, accepted and
internalised by the Act vide Section 4 of the Act.
15.5 It is not in dispute that the property is in name of the respondent and
he has the right to receive maintenance i.e. income/earning from the said
property.
15.6 In view of the said provisions, the term "transfer of property" should
receive wide and liberal construction so as to include an act of allowing
possession and/or occupation of premises or part of the premises
provided, of course, the possession is not allowed for consideration
(including rent).
15.7 Sub Section (2) of Section 23 contemplates a situation where the
transferor has right to receive maintenance from such property then such
transferor can enforce the right to receive maintenance from the
transferee.
15.8 For the purpose of the said provision the transferee would mean
person who is allowed possession and/or occupation of the
premises/property or part of the premises/property from which the
transferor i.e. the owner of the premises/property can, otherwise, receive
income/earning i.e. maintenance.
15.9 The provisions under Section 23 of the Act cannot be, and need not
be, read in isolation or by divorcing the said provision from other
provisions, particularly Section 4 of the Act read with Section 2(b), 2(f),
2(g) & 2(h) of the Act.
16. It emerges from the record that the respondent needs the property to
maintain himself since the petitioner, the respondent's son, does not
seem to be taking sufficient and proper care of the respondent. It
emerges that the respondent needs to generate earning/income (e.g.
rent) from the said part of premises i.e. to receive maintenance from the
said part of premises so as to maintain himself. He, therefore, asked the
Page No.# 20/24
petitioner to handover the possession of the property in view of
petitioner's failure or refusal to properly maintain him. However, the
petitioner seems to have declined to handover the possession of the part
of the property which compelled the respondent to prefer the application
before the authority constituted under the Act. The competent authorities
have, after considering the relevant facts, directed the petitioner to
handover the possession of the part of the property/premises which is in
his possession.
17. In view of the foregoing discussion and the scope and purview of the
provisions under Section 23 read with Section 4 of the Act and having
regard to the object of the Act, the impugned orders and the direction to
handover the possession of the property to the respondent cannot be said
to be without jurisdiction or beyond the scope of Section 23 read with
Sections 4, 2(b), 2(d) and 2(f) of the Act. The impugned direction,
therefore, cannot be faulted."
22. Recently in the case of Kamalakant Mishra -Versus- Additional
Collector & Others, Decided On : 12-09-2025 and reported in 2025
SCC (On Line) (SC) 2077, the Apex Court has held
"7. The framework of the Act clearly notes that the law was enacted to
address the plight of older persons, for their care and protection. Being a
welfare legislation, its provisions must be construed liberally so as to
advance its beneficent purpose. This Court on several occasions has
observed that the Tribunal is well within its powers to order eviction of a
child or a relative from the property of a senior citizen, when there is a
breach of the obligation to maintain the senior citizen. In the present case,
despite being the respondent has acted in breach of his statutory
obligations in not allowing the appellant to reside in the properties owned
by him, thereby frustrating the very object of the Act. High Court fell in
error in allowing the writ petition on a completely untenable ground."
23. The references made in the foregoing paragraphs leave no doubt
in the mind of this Court that the conclusion arrived at in the present case
also finds in approval by different Courts, all vested with collateral powers
to interpret provisions of Statutes. The issues raised by the learned
counsel for the petitioners have been answered by more than one Court,
Page No.# 21/24
each rejecting reasonings similar to the ones raised in the present petition.
This Court does not find any reason to disagree with the judgments
referred to in the previous paragraphs and therefore agrees in principle.
24. The only aspect raised by the petitioner which may require an
answer now is as to whether the judgments, which this Court has found to
be highly persuasive and have been referred to in the foregoing
paragraphs, run contrary to the judgment of the Apex Court passed in
S.Vanitha (supra). To answer this issue, let this Court refer to the facts of
the case in S.Vanitha (supra) as reflected in the order of the Apex court.
In the words of the Apex Court:
"It is necessary to recapitulate that the situation in the present case
is that the eviction was sought of the daughter-in-law, i.e. the
appellant. The land, where the house has been constructed, was
originally purchased by the son of the applicants who are seeking
eviction of their daughter-in-law. The son had purchased the
property a few months before his marriage to the appellant. He had
subsequently transferred the property by a registered sale deed to
his father and the fact that it was for the same consideration after
the lapse of several years is of significance. The father, in turn,
executed a gift deed in favor of his spouse. The appellant has
asserted that she had been living in the house, as her matrimonial
residence, until the application was filed. Her spouse has
(according to her) deserted her and their minor daughter and left
them in the lurch. The electricity to the premises was disconnected
for non-payment of dues. Their daughter has sought admission to
an engineering degree course however her father-Fourth
respondent has not provided any financial support. The transfers
which took place cannot be viewed in isolation from the context of
the on-going matrimonial dispute which has taken place."
25. Thus, it is apparent that the facts in the case of S.Vanitha
(supra) are quite distinguishable from the facts of the present case.
Moreover, just prior to recording the facts of the case, the Apex, had
observed as follows:
"The Tribunal under the Senior Citizens Act 2007 may have the
Page No.# 22/24
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 granted only after adverting to the competing
claims in the dispute."
In the case at hand, the Tribunal has adverted to the competing claims in
the dispute and this Court has also noticed that the petitioners, instead of
claiming that they have been diligent in providing maintenance to the
respondent No.2, have asserted that the respondent No.2 is capable of
maintaining himself from his pension. This Court notices that the
respondent No. 2 is surviving on his pension and it is only reasonable to
assume that the respondent No. 2 is surviving at half of his income which
he drew prior to his retirement. The Courts have settled that "normal life"
as enunciated in the PSC Act implies at least similar standard and quality
of life which he enjoyed earlier (vide Jayantram Vallabhdas Meswania
(supra). Thus, it stands to reason that the respondent No. 2 would yet be
entitled to earn an income from his property in order to maintain a 'normal
life'. The Apex Court in the case of S. Vanitha (supra) did not have the
occasion to consider and therefore did not answer the question as to
whether the term "transfer" in Section 23 of the Act should be construed
to mean only actual transfer of ownership and title or the said expression
should be construed, having regard to the object of the Act and the
provisions under Section 2(b), 2(d), 2(f;), 2(h) and Section 4, to also
include possession of the property as well. In such circumstances, this
Court has no hesitation to accept the answer given that "there is no
reason or justification or indication to restrict the meaning and scope of
the term "transfer" so as to mean only "actual transfer of title and
Page No.# 23/24
ownership" and to exclude "possession of property" from the purview of
Section 23 and/or from the term "transfer" employed in Section 23 of the
Act." by the Gujarat High Court in Jayantram Vallabhdas Meswania (supra),
which also appeals to reason.
Since the judgment of the Apex Court was delivered on a separate set of
facts and also since the questions answered by the judgments under
reference were not in consideration of the Apex Court, this court is of the
view that the said judgments do not run counter to the judgment of the
Apex Court.
26. One more aspect of the matter deserves mention. It had been
submitted on behalf of the petitioners that no rules, as have been framed
by the Government of NCT, Delhi, have been framed in the State of
Assam. The said statement has been found to be misleading, inasmuch
as, not only the Assam State Maintenance and Welfare of Parents and
Senior Citizens Rules, 2012 have been framed by the Governor in exercise
of power conferred under section 32 of the Maintenance and Welfare of
Patents and Senior Citizen Act, 2007 (Act No. 56 of 2007), but the same
have also been published vide Notification No. S.W.D.130/2010/170, 27 th
September 2012. In any case, the authority of the Tribunal to direct
eviction of children, from the self-acquired property of the parent, in the
event the children fail to maintain the parent, is traceable to the provisions
of the PSC Act, 2007 itself and reference to the non-publication of Rules
by the petitioner, even if taken at its face value, would not affect the
conclusions arrived at by this Court.
27. The reference by the learned counsel for the petitioner to rights
created in favor of the petitioner by adverse possession, the reference to
Page No.# 24/24
Section 110 of the Evidence Act and the reference to the provisions of
Specific Relief Act and the protection afforded by law to a trespasser are
found wholly irrelevant in the context of the present case and are noted
only to be rejected.
28. In conclusion, this writ petition is found devoid of merit and is
accordingly dismissed. The order dated 30.05.2025 passed in petition No.
R-7837 by the Presiding Officer, Maintenance Tribunal, Dhubri Sub-
Division, Dhubri directing the petitioners and their respective families to
vacate the premises of the respondent No.2 by removing their belongings
and to deliver peaceful possession to the respondent No. 2 is upheld. The
time of 20 days granted by the Tribunal to vacate and hand over
possession shall stand extended for a period of 20 days from the date of
this order.
29. The respondent No. 2 shall be entitled to costs, quantified at Rs.
25,000/-, to be borne by the petitioners, with joint and several liability and
to be paid within 20 days from the date of this order.
30. Writ petition stands dismissed.
Dorothy Digitally
by Dorothy
signed
Tabassu Tabassum
Gayotri JUDGE
m Date:
2025.11.21
Gayotri 11:49:03 +05'30'
Comparing Assistant
