Patna High Court
Smt. Nirmala Sinha vs The State Of Bihar Through The District ... on 8 January, 2025
Author: Partha Sarthy
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.528 of 2024
In
Civil Writ Jurisdiction Case No.17149 of 2023
======================================================
Smt. Nirmala Sinha W/o Late Lalit Lal, resident of House No. 19, Montessori
School Lane, Boring Road, P.S.-Srikrishna Puri, District-Patna.
... ... Appellant/s
Versus
1. The State of Bihar Through The District Magistrate Patna.
2. The District Magistrate, Patna cum Presiding Officer, Appellate
(Maintenance), Tribunal, Patna.
3. The Chairman, Maintenance Tribunal cum Sub Divisional Officer, Patna
Sadar, District-Patna.
4. Deputy Superintendent of Police, Sachivalaya, Patna.
5. The Officer in-Charge, Sri Krishna Puri Police Station, Patna.
6. Anil Prakash, son of Late Lalit Lal, Resident of the Eastern Side of the 2nd
Floor, House No. 19, Montessori School Lane, Boring Road, P.S.-Sri
Krishna Puri, Distt-Patna.
7. Sunita Sinha, wife of Anil Prakash, Resident of the Eastern Side of the 2nd
Floor, House No. 19, Montessori School Lane, Boring Road, P.S.-Sri
Krishna Puri, District-Patna.
8. Prakash Abhishek, son of Anil Prakash, Resident of the Western Side of the
2nd Floor, House No. 19, Montessori School Lane, Boring Road, P.S.-Sri
Krishna Puri, District-Patna.
9. Arun Prakash, son of Late Lalit Lal, Resident of the Eastern Side of the
Ground Floor, House No. 19, Montessori School Lane, Boring Road, P.S.-
Sri Krishna Puri, District-Patna.
10. Sangita Sinha, Wife of Arun Prakash, Resident of the Eastern Side of the
Ground Floor, House No. 19, Montessori School Lane, Boring Road, P.S.-
Sri Krishna Puri, District-Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rupesh Kumar, Advocate
Ms. Neha Narayan, Advocate
Ms. Laxmi Kumari, Advocate
Mr. Nishant Sinha, Advocate
For the Respondent/s : Mr. Saroj Sharma, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
2/16
Date : 08-01-2025
1. Heard learned counsel for the appellant and learned
counsel for the State of Bihar.
Re: I. A. no. 1 of 2024
2. The instant interlocutory application has been filed
by the appellant praying for condoning the delay of 17 days in
filing of the instant appeal.
3. It is submitted by learned counsel for the appellant
that against the order dated 28.3.2024, while the limitation
expired on 27.4.2024, the appeal was filed after a delay of 17
days ie on 14.5.2024. It was submitted that the delay was not
intentional. In fact, the appeal is in time taking into
consideration the date of uploading of the judgment.
4. Having heard learned counsel for the parties and
taking into consideration the contents of the petition, the Court
is satisfied that the appellant has made out a case for
condonation of delay. The delay is condoned.
5. I. A. no. 1 of 2024 is allowed.
Re: LPA no. 528 of 2024
6. The instant appeal has been preferred by the writ
respondent no.6-appellant against the judgment dated 28.3.2024
whereby the learned Single Judge was pleased to allow CWJC
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
3/16
no.17149 of 2023 filed by the writ petitioners-respondent nos. 6
to 10 and set aside the order dated 25.8.2023 passed by the
Collector-cum-District Magistrate, Patna in Maintenance of
Parents Appeal Case No. 03/2020-21.
7. The subject matter of the property in dispute is a
four storey house bearing House No. 19 in Montessori School
Lane, Boring Road under Police Station Sri Krishna Puri in the
town of Patna.
8. The husband of the writ respondent no.6-appellant
Late Lalit Lal had three sons and two daughters namely Anil
Prakash (writ petitioner no.1), Arun Prakash (writ petitioner
no.4), Amar Prakash, Arti Prakash and Jyoti Prakash. The writ
petitioner nos. 2 and 3 happen to be the wife and son of Anil
Prakash while the writ petitioner no.5 is the wife of Arun
Prakash. As a result of dispute between the parties, the writ
petitioner nos. 1 and 4 filed Title Partition Suit no.179/2019 on
16.7.2019
in the Court of learned Sub Judge-I, Patna against
their father Sri Lalit Lal and others praying therein for a
preliminary decree of partition with respect to their 2/6 share
(1/6 each) in property described in Schedule-1 to Schedule-5 of
the plaint and for other reliefs. It may be mentioned here itself
that Schedule-3 of the plaint in the title suit is the House no.19
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
situated at Patna in Montessori School Lane, the subject matter
of the instant case.
9. It is the case of the writ petitioners that Amar
Prakash got the writ respondent no.6 to file Case no. 72/2019
before the Sub Divisional Officer, Patna Sadar-cum-Chairman,
Tribunal. The case of the writ respondent no.6 was that the
house was constructed out of the personal earnings of her
husband. As the writ petitioners were continuously fighting, as
such it was prayed that they be evicted from the said house so
that the writ respondent no.6 along with her husband can live
peacefully in the self-acquired house of her husband. Notices
were issued in the said case to the writ petitioners who filed
their response. By order dated 14.3.2020, the Chairman,
Tribunal-cum-Sub Divisional Officer, Patna Sadar was pleased
to observe that the contesting parties were mother and son and
the dispute between them related to the house at Patna. He
observed that it was not appropriate for the writ respondent no.6
to stop the supply of water over a family dispute. As such, the
writ respondent no.6 was directed to provide uninterrupted
supply of water to the writ petitioners and so far as evicting her
sons from the house in question is concerned, she can move the
appropriate Court for the reliefs.
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
10. The writ respondent no.6 preferred CWJC
no.3335 of 2021 and also filed Tribunal Appeal no.3/2020-21.
By order dated 22.1.2022, the Collector-cum-District
Magistrate, Patna was pleased to decide the appeal filed by writ
respondent no.6 holding the property in question to be a self-
acquired property of the husband of writ respondent no.6 and
directing the writ petitioners to handover possession of the
house to the writ respondent no.6.
11. The writ petitioners moved this Court against the
order dated 22.1.2022 by filing CWJC no.3753 of 2022. By
order dated 10.3.2022, this Court was pleased to stay the
operation of the impugned order. By order dated 31.7.2023,
observing that several vital aspects had not been taken into
consideration by the Collector-cum-District Magistrate, Patna
while passing the order dated 22.1.2022, this Court set aside the
said order and remanded the matter back for fresh adjudication
after hearing the parties.
12. It is on remand that the order dated 25.8.2023 was
passed in Tribunal Appeal no. 3/2020-21 declaring the property
in question to be a self-acquired property of the husband of the
writ respondent no.6. The writ petitioners moved this Court
against the order dated 25.8.2023 by filing CWJC no. 17149 of
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
2023 which was allowed by the learned Single Judge by his
order dated 28.3.2024 and the order dated 25.8.2023 of the
Collector-cum-District Magistrate, Patna in Appeal Case no.
3/2020-21 was set aside. It is against this judgment dated
28.3.2024 that the instant appeal has been preferred.
13. It is submitted by learned counsel for the appellant
that the learned Single Judge committed an error in setting aside
the order dated 25.8.2023 directing the writ petitioners to
handover possession to the writ respondent no.6. Referring to
the judgment in the case of S. Vanitha vs. Deputy
Commissioner, Bengaluru Urban District & Ors. [(2021) 15
SCC 730] it was submitted that the Hon'ble Supreme Court has
also held that eviction order can be given in section 23(1) of the
Maintenance and Welfare of Parents and Senior Citizens Act,
2007 ('the Senior Citizens Act' in short). It was submitted that
the learned Single Judge did not consider the objective of the
Senior Citizens Act and thus the judgment dated 28.3.2024 was
fit to be set aside. It was further submitted that the learned
Single Judge failed to appreciate the continuous criminal record
and the atrocities against the writ respondent no.6-appellant and
passing of the judgment dated 28.3.2024 has legalised the act of
trespass. The writ respondent no.6 is an old widow aged about
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
82 years. In the facts of the case, the order of the learned Single
Judge be set aside and the order impugned in the writ
application dated 25.8.2023 of the Collector-cum-District
Magistrate, Patna in Appeal Case no. 3/2020-21 directing the
writ petitioners to handover possession to the writ respondent
no.6 be restored.
14. Heard learned counsel for the appellant and
perused the material on record.
15. As stated above, the property which is the subject
matter of dispute in the instant case is a four storey house
situated at Patna Montessori School Lane in the town of Patna.
The parties to the case are members of the family of one Lalit
Lal. While the writ respondent no.6 happens to be his widow,
the writ petitioner no.1 and 4 are his two sons. The other three
children of Late Lalit Lal namely Smt. Arti Prakash, Amar
Prakash and Smt. Jyoti Prakash are not parties to the case.
16. It transpires that Anil Prakash and Arun Prakash
filed Title Partition Suit no. 179/2019 on 16.7.2019 in the Court
of learned Sub Judge-I, Patna praying for partition of the
scheduled properties to the extent of their 2/6 share and for
other reliefs. The scheduled properties contained in Schedule
nos. 1 to 5 included the house in question fully described in
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
Schedule-3 of the plaint. As a result of dispute in the family, the
writ respondent no.6 filed Case no. 72/2019 under the Senior
Citizens Act stating therein that two of her sons who are writ
petitioners herein along with their wives are always fighting
over money. As such, she has filed the application that order
should be passed by the authority to evict them from the house
in question which has been constructed from the self earned
money of her husband so that the applicant (writ respondent
no.6) can live peacefully therein with her husband. By order
dated 14.3.2020, the Case no. 72/2019 was disposed of by the
Chairman, Tribunal Committee-cum-S.D.O., Patna Sadar
observing that supply of water cannot be stopped over family
dispute. The writ respondent no.6 was directed to continue
uninterrupted supply of water and it was further observed that so
far as eviction of the writ petitioners are concerned, the party
can approach the competent Court for the said relief. An appeal
was filed by the writ respondent no.6 which was registered as
Tribunal Appeal Case no. 3/2020-21. The learned Collector-
cum-District Magistrate, Patna was pleased to set aside the
appeal by his order dated 22.1.2022 directing the writ
petitioners to vacate the house in question and to handover
possession of the same to the writ respondent no.6. On the said
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
order being challenged by the writ petitioners in CWJC no.3753
of 2022, the writ application was allowed, the order dated
22.1.2022 was set aside and the matter was remanded back to
the Collector-cum-District Magistrate, Patna for fresh
adjudication after hearing the parties. On the matter being
remanded back, after hearing the parties, the Collector-cum-
District Magistrate, Patna was pleased to pass order dated
25.8.2023 in Appeal Case no.3/2020-21 declaring the house to
be a self-acquired property of the husband of the writ
respondent no.6, which he had bequeathed by a Will in favour
of the writ respondent no.6. It was further ordered that the writ
petitioners vacate the house and handover possession to the writ
respondent no.6.
17. The order dated 25.8.2023 of the Collector-cum-
District Magistrate, Patna passed on remand was challenged by
the writ petitioners in CWJC no. 17149 of 2023.
18. The learned Single Judge taking into consideration
the pendency of the title suit as also the judgment of this Court
in the case of Ravi Shankar & Ors. vs. The State of Bihar &
Ors. [2024 (1) PLJR 502 (DB)] was pleased to set aside the
order of the Collector-cum-District Magistrate, Patna dated
25.8.2023.
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
19. It may be noted here that proceedings under the
Senior Citizens Act giving rise to the instant appeal started on
an application having been filed by the writ respondent no.6 on
9.12.2019 praying therein that notice be issued to the opposite
parties (writ petitioners herein), they be evicted from the self-
acquired land and house of the husband of the writ respondent
no.6 so that the writ respondent no.6 and her husband can live
peacefully.
20. On perusal of the prayer made by the writ
respondent no.6 in her application filed under the Senior
Citizens Act it would clearly be evident that the same was not
for maintenance, but only for eviction of the writ petitioners
from the house in question which she claimed to be the self-
acquired property of her husband. It would be important to
remember here that the said house is the subject matter of the
partition suit filed by the writ petitioner nos. 1 and 4, wherein,
the husband of the writ respondent no.6 along his other son and
daughters are defendants.
21. This Court in the case of Ravi Shankar (supra)
while considering the question as to whether eviction could be
ordered under the Senior Citizens Act, considering the judgment
of the Hon'ble Supreme Court in the case of the S. Vanitha
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
(supra) held as follows:-
"13. In considering the issue as to
whether the Tribunal constituted under the
Senior Citizens Act would be empowered to
evict the daughter-in-law from the house in
which she was residing, the Hon'ble Supreme
Court considered the provisions of the Senior
Citizens Act and the provisions of the
Domestic Violence Act so as to harmonize the
same, with a view to avoid any conflict
insofar as the separate proceedings initiated
by the senior citizens and that initiated by
their daughters-in-law. It was found that sub-
section (1) of Section 23 deals with a
situation where the transfer of property with
the specific condition to provide for
amenities and needs of senior citizen Sub-
section (2) envisages a situation where the
senior citizen has a right to receive
maintenance from an estate; which right to
receive maintenance, he/she is deprived of by
reason of a transfer; with notice of such right
or if the transfer is gratuitous. It was held
that sub-section (2); the right to maintenance
from an estate cannot be enforced as against
a transferee for consideration, who does not
have a notice of such right. The transfer
spoken of in sub-section (1) was held
distinguishable from that spoken of in sub-
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
section (2) to the extent of the former
referring to a transfer by the senior citizen
while the latter takes within its ambit not
only a transfer by the senior citizen, but also
a transfer by third party.
14. Looking at sub-section (1), it
was held that when a transfer is made by a
senior citizen subject to the condition that
he/she will be looked after and provided with
basic amenities and physical needs which the
transferor has failed to deliver, then two
consequences follow:-(i) by a fiction the
transfer would be deemed vitiated on
grounds of fraud, coercion or undue
influence, and (ii) at the option of the
transferor the transfer can be declared void
by the Tribunal. Such a deeming fiction is not
incorporated in sub-section (2) and what
would arise from sub-section (2) is the right
to receive maintenance from the transferred
estate, which can be enforced against the
transferee, who is put to notice of such right
or when the transfer was gratuitous. It was
also held that transfer would include not only
the absolute transfer of property but also the
transfer of right or interest in the property.
15. The Hon'ble Supreme Court in
S. Vanitha (supra) while observing that the
Tribunal under the Senior Citizens Act, may
have the authority to order eviction if it is
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
necessary and expedient to ensure the
maintenance and protection of senior
citizens; held that such eviction can only be
an incidence of the enforcement of right to
maintenance & protection which remedy can
be only after adverting to the competing
claims in the dispute. It was in this context
that the fact situation in that case was
recapitulated; of the daughter-in-law being
sought to be evicted from a house originally
purchased by her husband in which they had
been residing as a family, which was
subsequently transferred in the name of the
husband's father and later gifted to his
mother. The woman's right of residence and
the safeguard against domestic violence as
provided in the Domestic Violence Act were
emphasized, in which circumstance there was
a requirement that the claim of the subject
property constituting a 'shared household'
having to be adjudicated under the Domestic
Violence Act. We have to immediately notice
and emphasize that the dictum in S. Vanitha
(supra) does not support the remedy or relief
of an eviction, in the case of a claim of
maintenance from a transferred estate, in
which contingency the remedy is only to
enforce the right of maintenance as against
the transferee.
..................................................
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
35. In the above circumstances, we
cannot find any ground to enable an eviction
by the Tribunal constituted under the Senior
Citizens Act; which we have found can at
best be enforced, only under Section 23(1) of
the Act. In fact, the Hon'ble Supreme Court
in S. Vanitha (supra), only observed that "the
Tribunal under the Senior Citizens Act, 2007
may have the 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 an enforcement of the
right to maintenance and protection.
However, this remedy can be granted only
after adverting to the competing claims in the
dispute" (sic). In the cited case, the aforesaid
observation was in the context of the
daughter-in-law claiming the building in
which she was residing to be a shared
household which sharing is in the context of
the husband and wife sharing the residence,
before the death of the husband. It was to
enable continued residence in the said
building, she had taken the proceedings
under the Domestic Violence Act. As has
been noticed by us it was also observed in S.
Vanitha (supra) that, the proceedings under
the Domestic Violence Act being later to the
application under the Senior Citizens Act
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
would be of little consequence in claiming
the right of a shared household.
...............................................
38. We are of the opinion that there
could be no eviction ordered under the
Senior Citizens Act since the claim is not
under Section 23(1). The claim of the 8th
respondent before the Tribunal under the
senior Citizens Act, if at all coming under
Section 23(2) of the Act, there can only be an
enforcement of the right of maintenance from
the property. An occupation whether it is
permissive or an encroachment would have
the trappings of a transfer, which would
disentitle the owner of the property from the
maintenance by way of rental income
generated from the occupied rooms in the
rest house. We make it clear that the
appellants, as of now, do not have any right
to claim the income from the other rooms in
the rest house nor can they obstruct or cause
harassment to the other occupants of the
rooms; which if complained of to the District
Magistrate, Patna or the Jurisdictional
Station House Officer, the appropriate
authority shall take proper measures to avert
& avoid the same."
22. So far as the facts of the instant case are
concerned, as in the case of Ravi Shankar (supra), here also
Patna High Court L.P.A No.528 of 2024 dt.08-01-2025
neither there was a claim under section 23(1) of the Senior
Citizens Act nor a claim of maintenance. In such circumstance,
as held in the case of Ravi Shankar (supra) there could be no
eviction ordered under the Senior Citizens Act.
23. In the facts and circumstances of the case, the
learned Single Judge rightly allowed the writ application and set
aside the order dated 25.8.2023 passed in Appeal Case no.
3/2020-21 directing eviction of the writ petitioners.
24. The Court finds no merit in the instant appeal and
the same is dismissed.
(Partha Sarthy, J)
K. Vinod Chandran, CJ: I agree.
(K. Vinod Chandran, CJ)
avinash/-
AFR/NAFR
CAV DATE 18.11.2024
Uploading Date 08.01.2025
Transmission Date
