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2016 DIGILAW 549 (RAJ)

Deepak Sharma v. State of Rajasthan

2016-04-20

KANWALJIT SINGH AHLUWALIA

body2016
ORDER : Kanwaljit Singh Ahluwalia, J. 1. Deepak Sharma son of Hanuman Prasad Sharma and Pushpa Devi Sharma, has approached this Court to assail the order dated 6.3.2013 passed by the Maintenance Tribunal, constituted under The Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (hereinafter to be referred as 'the Act of 2007'). Vide impugned order (Annexure-3) dated 6.3.2013, the Tribunal had awarded Rs. 2,500/- per month as maintenance to the respondent Nos. 3 and 4, parents of the petitioner. In the present case, parents are nursing a grievance that the present petitioner by way of design, obtained power of attorney from the seller Vijay Laxmi Mathur, even though, entire amount of sale consideration was paid by the parents and by virtue of said power of attorney transferred Flat No. FF-129, JDA Colony, Jhalana Dungari in the name of Smt. Nirmala Sharma, wife of the petitioner. 2. Old parents who have spent their lifelong savings not only for rearing the children, have made a complaint that on 22.1.1999, the respondent No. 2 Hanuman Prasad Sharma purchased the above said flat for his wife Pushpa Devi Sharma from Vijay Laxmi Mathur. Agreement to sell, original papers of the flat including allotment letter, letter of possession were handed over to the respondent No. 3, father of the petitioner. It is stated that they blindly trusted their son and reposed faith in him and as a result thereof he had obtained on 4.6.2009 power of attorney from Vijay Laxmi Mathur and by using the said power of attorney, the petitioner had transferred the flat in the name of his wife. Sum and substance of the complaint of the respondent Nos. 3 and 4 is that the petitioner instead of transferring the flat in the name of mother, on the basis of power of attorney which father had obtained for him, exploiting fiduciary relationship had transferred the flat in the name of his wife. Hence, parents allege that their son ignored the mother and preferred his wife, daughter-in-law of the respondent Nos. 3 and 4. 3. To borrow the words of Sanjay Krishna Kaul, J. in the judgment rendered in Justice Shanti Sarup Dewan, Chief Justice (Retired) and another v. Union Territory, Chandigarh and others, 2014 (14) RCR (Civil) 656, "The filial affections of a father have cost him dearly in the twilight years of his life" 4. 3 and 4. 3. To borrow the words of Sanjay Krishna Kaul, J. in the judgment rendered in Justice Shanti Sarup Dewan, Chief Justice (Retired) and another v. Union Territory, Chandigarh and others, 2014 (14) RCR (Civil) 656, "The filial affections of a father have cost him dearly in the twilight years of his life" 4. What has been stated above has been culled from the Annexure-1, copy of the application filed by the respondent No. 3 Hanuman Prasad Sharma, before Maintenance Tribunal, constituted under Section 7 of the Act of 2007. 5. In the application (Annexure-1), father respondent No. 3 stated that after the flat was transferred by their son in the name of daughter-in-law, the petitioner and his wife started to abuse and humiliate parents and they were subjected to indecent behavior. In the application following prayers were made:- ^^1- esjs iq= ds f[kykQ vko';d dkuwuh dk;Zokgh dh tkosA 2- esjh iRuh Jherh iq"ik nsoh dks edku dk dCtk fnyokus dh d`ik djsA 3- eqdnes esa [kpZ dh xbZ jkf'k $ Vsa'ku ls eqfDr dh jkf'k $ xqtjk HkRrk $ vFkok edku dh orZeku dher fnykus dh d`ik djsA 4- nhid 'kekZ ls ;g iwNk tk, dh mlus edku uaΠ,Q & 129 dh izkIrh esa fdruh jkf'k [kpZ dh gSA esjh 70 o"khZ; iRuh ds gkFkksa esa] tksMks esa ges'kk nnZ jgrk gS og esjs vkSj vius fy, jksVh cukus esa Hkh vleFkZ gS jkst nfy;k@f[kpM+h ij gh fuHkZj jguk iM+rk gSA** 6. The petitioner filed the reply (Annexure-2). In the reply, the petitioner stated that the mother has already filed a civil suit. It is further stated in the reply that in the civil suit his mother has admitted that they had provided financial assistance to all the three sons. The Sub-Divisional Magistrate No. 2, Sanganer being Tribunal awarded Rs. 2,500/- as maintenance to the parents. Against the same, the petitioner filed an appeal. The said appeal was not entertained and was rejected. It was held that within the meaning of Section 16(1) of the Act of 2007, right of appeal is not available to the petitioner. 7. Mr. Anurag Shukla, the learned counsel for the petitioner contended that the application was filed by the respondent Nos. The said appeal was not entertained and was rejected. It was held that within the meaning of Section 16(1) of the Act of 2007, right of appeal is not available to the petitioner. 7. Mr. Anurag Shukla, the learned counsel for the petitioner contended that the application was filed by the respondent Nos. 3 and 4 just to gain possession of one of the earlier disputed flat and whereas the Act of 2007, has only been enacted for maintenance and welfare of parents and senior citizen of society and thus, the prayer made by the parents was liable to be rejected, as they could not urge for transferring the possession of the property. It has been further canvassed that the Tribunal without there being any specific prayer for maintenance, could not award maintenance to the parents. It is stated that flat in question is self acquired property of Smt. Nirmala Sharma wife of the petitioner, hence, claim of the respondent Nos. 3 and 4 is misplaced. The learned counsel for the petitioner has further submitted that his father had retired from service and is getting Rs. 15,000/- as pension and also Rs. 5,000/- as rent from a parental house and furthermore, father is also having two houses in the posh colony at Jaipur. It is further stated that the petitioner is unemployed. The learned counsel has further submitted that the complaint filed by the parents was motivated and filed at the behest of two brothers of the petitioner. 8. Section 27 of the Act of 2007 specifically states that no civil court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Act. 8. Section 27 of the Act of 2007 specifically states that no civil court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Act. Section 23(1) of the Act of 2007 specifically state that 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 influence and shall at the option of the transferor be declared void by the Tribunal. Section 23(2) further states that 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. 9. Having heard the learned counsel for the petitioner, this Court is of the view that the Act of 2007 is not without teeth. To provide speedy redressal of grievance, the Act vests powers in the Tribunal to make any transfer of the property void. The petitioner as per his own averment in the application is unemployed. Nothing has been stated regarding source of income of the petitioner. On 22.1.1999, an agreement to sell and other papers were executed by Vijay Laxmi Mathur. The petitioner and his wife were not possessed of the funds to pay the sale consideration, noted in the agreement to sell. The respondent No. 3 Hanuman Prasad Sharma has specifically stated that he had purchased the flat for his wife Pushpa Devi Sharma, and possession was handed over to him and the original agreement to sell and other original documents like allotment letters, letter of possession are with Hanuman Prasad Sharma. The respondent No. 3 Hanuman Prasad Sharma has specifically stated that he had purchased the flat for his wife Pushpa Devi Sharma, and possession was handed over to him and the original agreement to sell and other original documents like allotment letters, letter of possession are with Hanuman Prasad Sharma. Thus, it is discernible that the father in old age being not able to move here and there, had asked the seller to execute power of attorney in favour of his son. 10. In the present case, attorney has cheated the person who had provided funds for execution of the agreement to sell. Scope of Section 23 of the Act of 2007 cannot be restricted as the Act of 2007 is beneficial legislation. The scope under Section 23 of the Act of 2007 can be enlarged and the Tribunal can hold an inquiry as to who had provided funds for purchase of flat by way of agreement to sell on 22.1.1999, what was the age of the petitioner on 22.1.1999 and when he was married, what were his resources, what were the resources of his wife to purchase the flat. In case, the funds were provided by the father and the mother in the year 1999, out of love and affection, the petitioner and his wife cannot become ungrateful to the parents. By extending widest interpretation to Section 23 read with Section 4 of the Act of 2007, this Court is of the view that the Tribunal should have held an inquiry compelling the petitioner and his wife to return sale consideration of the flat to the parents so that they can survive with dignity. 11. However, since parents have not challenged the order passed by the Tribunal, this Court shall rest the matter, where it is. 12. Relief to be granted by the Tribunal in a beneficial legislation enacted for maintenance and welfare of parents cannot be dependent upon the prayer made in the application. In the present application, it has been specifically stated that wife of applicant/respondent No. 3 is having arthritis in hands and other joints of the body. She is unable to cook food for herself and the husband. Thus, maintenance awarded by the Tribunal in favour of the parents is too meager. A pensioner requires additional amount to supplement his day-to-day living. She is unable to cook food for herself and the husband. Thus, maintenance awarded by the Tribunal in favour of the parents is too meager. A pensioner requires additional amount to supplement his day-to-day living. Old parents have to maintain standard of life which they were having when one of them was in service. A father who has given his lifelong savings to settle the son cannot be denied fruits of earning by the son, merely because he is getting pension. 13. It goes without saying that relations between the parties are strained and acrimonious. 14. A Division Bench of Punjab and Haryana High Court in Paramjit Kumar Saroya v. The Union of India and another, AIR 2014 P & H 121, noted objects and reasons of the Act of 2007 as under: "The very statement of objects and reasons of the said Act has referred to the traditional norms and values of the Indian society which laid stress on providing care for the elderly, but due to the withering of the joint family system, a large number of elderly are not being looked after by their family. It is observed that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. It is perceived that the procedure for claiming maintenance under the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is time consuming as well as expensive and, thus, the need to have a simple, inexpensive and speedy provisions to claim maintenance for the parents." 15. As is apparent, traditional norms and [values of Indian society cast a duty upon son to look after parents. It is not a social obligation but day-to-day idiom in the life of an Indian. Idioms ^ekW dk nw/k* ^nw/k dk dtZ* cannot be ignored. The idioms are ingrained in blood and veins of Indian progeny by inculcating values in the son from day he is born. Taking totality of circumstances, there is no merit in the present petition and the same is dismissed. This Court uphold the quantum of maintenance. Since father is earning pension, the order passed by the Tribunal is modified to the extent that the entire amount of maintenance provided by the Tribunal shall be paid to the respondent No. 4 Pushpa Devi Sharma, mother of the petitioner.