UNION OF INDIA AND ANOTHER Vs. LAXMAN SHAMBU KULAM
LAWS(BOM)-2017-4-13
HIGH COURT OF BOMBAY (AT: STATE)
Decided on April 05,2017

Balasaheb S/O. Gulabrao Salunke Appellant
VERSUS
Anil S/O. Raosaheb Deshmukh And Ors. Respondents

JUDGEMENT

- (1.) This writ petition is filed challenging Exhibit P1 order issued by the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act'). Petitioner is the daughter of the 3rd respondent. It is contended by the learned counsel for the petitioner that the 3rd respondent, who is having three children, had gifted her properties to her children, including the petitioner. The petitioner was assigned 23 cents of property retaining the 3rd respondent's right to take the benefits and right of residence in the tharawad building situated in the property. Thereafter, the 3rd respondent was staying with the petitioner. Subsequently, in the year 2012, the 3rd respondent assigned a further extent of 10 cents of property by Exhibit P5 settlement deed in favour of the petitioner. On 3.8.2013, the 4th respondent, who is the brother of the petitioner, took the 3rd respondent to his house. Thereafter, M.C.C.No.73 of 2013 was filed under the Act before the 2nd respondent at the instigation of the 4th respondent alleging that though the petitioner was assigned 41 cents of property on condition that she will look after the 3rd respondent, the petitioner ousted the 3rd respondent from the house and is refusing to look after the mother. The 2nd respondent passed Exhibit P1 order dated 12.12.2013 directing the petitioner to pay an amount of Rs.500/- to the 3rd respondent as monthly maintenance and also to re-convey the 10 cents of property covered under Exhibit P5 settlement deed No.3530/2012. The said order which is one purportedly recorded on agreement is under challenge in this writ petition.
(2.) Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for respondents 3 and 4.
(3.) Learned counsel for the petitioner contended that Exhibit P1 order issued by the 2nd respondent is liable to be struck down as it does not satisfy the statutory requirements contemplated under the Act. The complaint was filed by the 3rd respondent before the 2nd respondent only at the instigation of the 4th respondent, it is submitted. It is contended that the petitioner was not served with a copy of the complaint at the time of hearing or at the conciliation meeting and it is only after receipt of Exhibit P1 that the petitioner has applied for a copy of the complaint filed by the 3rd respondent and she was served with the same. It is further contended that the petitioner was not given an opportunity to file reply to the complaint. Learned counsel for the petitioner submitted that when the petitioner appeared before the conciliation officers on 12.12.2013, she was directed to sign on some papers so as to submit a report to the 2nd respondent. It is also submitted that the 3rd respondent, who is aged 74 years and capable of managing her affairs was pictured as incompetent and illiterate and her thumb impression was affixed in Exhibit P2 complaint. It is submitted that as per Section 23 of the Act, in order to declare a transfer of immovable property by a senior citizen to be void, two conditions should be satisfied; 1) the transfer should be subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and 2) the transferee should have refused or failed to provide such amenities and physical needs. It is also submitted that the procedure adopted by the 2nd respondent is illegal and arbitrary. It is specifically contended by learned counsel for the petitioner that the property has been transferred by the 3rd respondent to the petitioner only on love and affection and not on a condition that the petitioner shall provide the basic amenities and basic physical needs to the 3rd respondent. Since the petitioner considers that it is her duty to look after and maintain 3rd respondent, she is not challenging the portion of Exhibit P1 order to the extent it directs payment of Rs.500/- per month as maintenance.;


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