Ateeq Ahmed Rafiq Ahmed v. Akhtarunnisa Rafiq Ahmed and Ors

JUDGMENT:

¶1Heard Mr. Bubna, learned counsel appearing for the Petitioner and Mr. Sawant, learned AGP for the Respondent-State.

¶2The challenge in the present Writ Petition is to the legality and validity of the Order dated 12th June 2023 passed by the learned Presiding Offcer, Senior Citizens Maintenance Tribunal @ Sub-Divisional Offcer, Malegaon (for short "the Tribunal") under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ("said Act").

¶3By the impugned Order dated 12th June 2023 of the learned Tribunal, inter alia, Petitioner and his three brothers have been directed to pay an amount of Rs.2,000/- per month to Respondent No.1-mother, and also by the said Order, Gift Deeds dated 17th December 2018, 10th August 2018 executed by deceased husband of the Respondent No.1 were directed to be cancelled and name of the Respondent No.1 was directed to be entered into the record of said plots.

¶4In the present Writ Petition, challenge is only to Clause Nos.4 and 5 of the impugned Order dated 12th June 2023 passed by the learned Tribunal. It is signifcant to note that the said direction to pay monthly maintenance of Rs.2,000/- is not challenged in the present Writ Petition. The learned Presiding Offcer has held that the Gift Deeds were executed by the father on the condition that the Petitioner would maintain the mother and, therefore, passed the impugned direction.

¶5It is the contention of Mr. Bubna, learned counsel appearing for the Petitioner that the Respondent No.1-mother is residing with him and he is maintaining her and, therefore, the learned Tribunal has committed the jurisdictional error.

¶6The Supreme Court, in the decision of Sudesh Chhikara v. Ramti Devi & Anr1 has inter alia held that when a senior citizen parts with his or her property executing a gift deed or a release deed, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such 2022 SCC OnLine SC 1684 transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in Sub-Section (1) of Section 23 are attached to a transfer, the existence of such conditions must be established before the Tribunal. The relevant discussion is to be found in paragraphs 11 to 16, which read as follows : "11. We have given careful consideration to the submissions. Before dealing with the factual aspects, it is necessary to advert to the legal aspects. The Sub-Divisional Magistrate acting as the Maintenance Tribunal under the 2007 Act has invoked the power under Section 23 to declare that the subject release deed was void. The 2007 Act has been enacted for the purposes of making effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India. The Maintenance Tribunal has been established under Section 7 to exercise various powers under the 2007 Act. Section 8 provides that the Maintenance Tribunal, subject to any rules which may be framed by the Government, has to adopt such summary procedure while holding inquiry, as it deems ft. Apart from the power to grant maintenance, the Tribunal exercises important jurisdiction under Section 23 of the 2007 Act which reads thus: "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 infuence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5."

(emphasis added)

¶12Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise". For attracting sub-section (1) of Section 23, the following two conditions must be fulflled: a. The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and b. the transferee refuses or fails to provide such amenities and physical needs to the transferor.

¶13If both the aforesaid conditions are satisfed, by a legal fction, the transfer shall be deemed to have been made by fraud or coercion or undue infuence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.

¶14When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal.

¶15Careful perusal of the petition under Section 23 fled by respondent no.1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of respondent no.1) would provide the basic amenities and basic physical needs to respondent no.1. Even in the impugned order dated 22nd May 2018 passed by the Maintenance Tribunal, no such fnding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was fled by the appellant that the petition was fxed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor – senior citizen is sine qua non for applicability of sub-section (1) of Section 23. In the present case, as stated earlier, it is not even pleaded by respondent no.1 that the release deed was executed subject to such a condition.

¶16We have perused the counter affdavit fled by respondent no.1. Even in the counter, it is not pleaded that the release was subject to such a condition. It is merely pleaded that the appellant had no intention to take care of her mother. Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfed. Unfortunately, the High Court has not adverted to the merits of the case at all." (Emphasis added) Thus, it is clear that the Supreme Court has clearly held that the condition that the transferees shall provide the basic amenities and basic physical needs to the transferor need not be expressly stated in the transfer deed and the same can be established by the senior citizen.

¶7In the present case, in paragraphs 3, 6, 7 and 8 of the Application fled before the Tribunal, it is specifcally stated that the Petitioner and other sons are not looking after the Respondent No.1-mother, who is a senior citizen of 85 years. The said relevant paragraphs 3, 6, 7 and 8 are set out herein below :-ß3-xSjvtZnkj ;kauh vtZnkjkps irhpk vktkji.kkpk xSjQk;nk ?ksÅu fn-15-10-2019 ps vxksnj o`/nkidkGkr vktkjh vlrkauk R;k dkGkr loZ feGdrh xSjvtZnkj vfrd vgsen jfQd vgsen o xSjvtZnkj ua-3 rs 4 ;kauh oMhyksikthZr feGdr gMi dsysyh vkgs R;kapk rif'ky [kkyhy izek.ks@& oMhyksikthZr feGdrhpk rif'ky %& 1-losZ uacj 40@v] IykWV ua-10] {ks=QG 209-0040 pkS-eh-xSjvtZnkj dz-2 ;kauh Lor%ps ukaokus d:u ?ksrysyh vkgs-2-xV dzekad o mifoHkkx 39@2@43 gh oMhyksikthZr feGdr 'kCchj vgsen jfQd xSjvtZnkj ua-4 ps ukos dsyh vkgs-3-e-u-ik-gíhrhy ekSts ekysxkao losZ uacjh 40@v] IykWV ua-9] 209 pkS-eh-ykach :anhpk gk IykWV o feGdr ua-2 ;kauh Lor%ps ukaokus d:u ?ksryh vkgs-6-ojhy feGdrhe/kqu xSjvtZnkj ;kauh csdk;nsf'kji.ks vtZnkjkyk ?kjkrwu gqldkowu ykoys vlqu vUuoL= fnys ukgh R;keqGs vtZnkjkus lh-vkj-ih-lh-dz-125¼1½ vUo;s vtZ nk[ky dsyk rks U;k;izfo"B vkgs-7-ojhy feGdrh xSjvtZnkj ;kauh vkiY;k Lor%ps ukokus dsY;keqGs xSjvtZnkj ua-1 o 2 ;kauh feGdrh gMi dj.;kps d`R; dsY;keqGs vtZnkjkph miklekj gksr vkgs-8-vtZnkjkph o;ksekukus izd`rh fBd jkgr ukgh o osGksosGh vkS"k/kksipkjkpk [kpZ ykxrks-xSjvtZnkj gs vtZnkj fgl izR;sdh 30]000@& :i;s vUuoL=] fuokjk ;kLkkBh ykxrkr o lnjgq jDde ns.;kph xSjvtZnkj ;kaph ,Sir vkgs-Þ (Emphasis added) The English translation of the above is set out herein below : "3. The Non-applicant has taken disadvantage of the illness of the Applicant's husband and while he was ill during his old age prior to the date 15.10.2019, the Non-applicant Atique Ahmed Rafque Ahmed and the Non-applicant No. 3 to 4 have grabbed all the ancestral properties during the said period. The particulars thereof are as under :-Particulars of the Ancestral properties:-

¶1The Non-applicant No.2 has got transferred the property bearing Survey No. 40/A, Plot No.10, Area 209.0040 sq.mt. to his own name.

¶2The ancestral property bearing Gat No. and Sub-division No. 39/2/43 has been got transferred to the name of Non-applicant No.4 - Shabbir Ahmed Rafque.

¶3The Non-applicant No.2 has got transferred the plot bearing Survey No.40/A, Plot No.9, adm. 209 sq.mt. in length and width, situated at village Malegaon within the limits of Municipal Corporation to his own name.

¶6The Non-applicant has driven out the applicant from the house and from the above-mentioned properties unlawfully and has not even given alimony and therefore, the Applicant has fled application under section 125(1) of the Cr.P.C. which is still pending before the Hon'ble Court.

¶7As the Non-applicants have got transferred the aforesaid properties to their own names and as the Non-applicant No. 1 and 2 have committed acts of grabbing the properties, the Applicant is starving.

¶8The Applicant is not keeping well due to old age and expenses are required to be incurred for medical treatment from time to time. The Non-applicants are required to pay Rs. 30,000/- each for food, clothes and shelter and the Non-applicants are in a position that they can afford the same." (Emphasis added)

¶8The present Petitioner by fling a reply, has denied the said contention and his brothers have also fled reply. It is signifcant to note that all the brothers, including the Petitioner have raised technical pleas. It is further signifcant to note that, in the present case, the Respondent No.1 has fled an evidence affdavit stating that she has not been given even food or medicine. In the evidence affdavit, she has stated her age to be 73 years.

¶9This Court by Order dated 4th September 2023, directed the Secretary, District Legal Services Authority, Nashik to depute two Para-Legal Volunteers to visit the premises in question, where Respondent No.1, who is a senior citizen aged 85 years is residing, and it has been directed that the report regarding physical and mental condition as well as overall living condition of Respondent No.1 be submitted to this Court. Accordingly, two Para-Legal volunteers working with the District Legal Services Authority as well as the Taluka Legal Services Authority were deputed and they fled a report dated 7th September 2023. The said report, inter alia, states as follows : ßizfroknh dz-01 g;k ekufld o 'kkfjjhd pkaxY;k vkgsr-g;k lnj [kksyhr ,dV;k jkgrkr-R;kauk xqM?;kpk vktkj vkgs-rlsp R;kauk ch-ih-P;k xksG;k pkyq vkgsr-R;kauk ,dq.k 12 eqys vkgsr-R;kiSdh 05 eqys o 07 eqyh vkgsr-eksBh eqyxh lkfgnk tso.k cuoqu vk.kqu nsrs-eqys pkSd'kh o ns[kHkky djr ukghr-R;kapk 4 uacjpk eqyxk ch-ih-P;k xksG;k vk.kqu nsrks-jkgR;k ?kjkoj o brj ?kjkaoj tsFks brj eqys jkgrkr R;koj 5 uacjP;k eqykus ek>s lg ek>s loZ eqys o eqyh vls ,dq.k 13 t.kkaps ukaos ykoys vkgsr- ? kjkrhy loZ lkeku] lalkj ek>k vkgs-T;k ?kjkr eh jkgrs rs ?kj ek>s irhps vkgs vls lkafxrys-rlsp ek>s ygku 5 uacjpk ;kus gk;dksVkZr nkok nk[ky dsyk vkgs-gs eyk nql&;k O;DrhdMqu ekxhy vkB fnolkiqohZ letys-eyk O;ofLFkr ,sdq ;srs-Þ (Emphasis added) The English translation of the above report is set out herein below: "Defendant No.1 is mentally and physically sound. She resides alone in the said room. She is suffering from knee-ailment. Further, she is taking tablets for the issue of her blood-pressure. She has in all 12 children. Of them, 05 are sons and 07 are daughters. Elder daughter by name Sahida cooks and brings meal for her. Sons do not look after and maintain her. Her number four son brings tablet for blood pressure and gives it to her. Number fve son has got entered names of my all sons and daughters including myself, thus in all 13 persons, to the residential house and other houses where other children are residing. All house-hold things and articles in the house belong to me. It is told that the house wherein I reside is of my husband. Further, my younger, number fve son has fled a suit before the Hon'ble High Court and I have learnt about this, eight days ago, from another person. I am able to hear properly."

¶10It is shocking that the Respondent No.1 is a senior citizen aged 85 years, having 12 children i.e., fve sons and seven daughters and not a single child is taking care of her. One daughter, Sahida, gives food and one son provides medicine. The Respondent No.1 is suffering from various ailments. Thus, it is clear that this is a case where not only it is the allegation of the Respondent No.1-mother that the Petitioner is not maintaining her, but she has stated the same in her Application fled before the leaned Tribunal and also in her evidence affdavit. The same is also mentioned in a report fled by two Para-Legal Volunteers.

¶11Mr. Bubna, learned counsel appearing for the Petitioner is not in a position to deny the contentions raised in an evidence affdavit as well as in the report of Para-Legal Volunteers. The learned Presiding Offcer on the basis of material on record, has observed that the Petitioner is not maintaining her. Perusal of the Application fled under the said Act by the Respondent No.1 and her Evidence Affdavit shows that there is suffcient compliance of twin conditions as contemplated under Section 23 of the said Act.

¶12As per the settled legal position, jurisdiction under Articles 226 and 227 is to be exercised sparingly.

¶13It is a settled legal position that the power under Article 227 of the Constitution of India is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors2. Supervisory jurisdiction is not to correct every error of fact or even a legal faw. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or fagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is to be exercised sparingly in appropriate cases and that such discretionary relief must be exercised to ensure that there is no miscarriage of justice3.

¶14Therefore, this is not a case where, interference by this Court under Articles 226 and 227 of the Constitution of India is warranted.

¶15Accordingly, the Writ Petition is dismissed with a cost of Rs.10,000/-. The said cost to be paid to the Respondent No.1 within a period of three months from today.

[MADHAV J. JAMDAR, J.]

(1972) 1 SCC 898 ; AIR 1954 SC 215 ; AIR 1951 Cal 193

(2022) 4 SCC 181

Arjun IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10792 OF 2023 Ateeq Ahmed Rafq Ahmed …Petitioner V/s. Akhtarunnisa Rafq Ahmed & Ors. …Respondents _______________________________________________________________ Mr. N. R. Bubna, for the Petitioner. Mr. P. G. Sawant, AGP, for the Respondent-State. _______________________________________________________________ CORAM : MADHAV J. JAMDAR, J. DATED : OCTOBER 13, 2023