[Senior Citizens Act] Bombay High Court upholds eviction of son and his wife from the premises of mother; Directs son to pay maintenance

Bombay High Court: In a petition filed by the son challenging the order passed by the Sub Divisional Officer, Eastern Suburbs, Mumbai Suburban District, Senior Citizens Welfare Tribunal directing them to pay Rs. 25,000/- monthly maintenance allowance to respondent 3-mother from August 2022 and vacate and hand over the possession of the said flat to Mother, a Division Bench of S.V. Gangapurwala and R.N. Laddha, JJ., upheld the eviction order and modified the order regarding the maintenance amount. The modified order mentioned the maintenance to be paid at Rs. Rs. 10,000/- per month.

Petitioner 1 is the son and petitioner 2 is daughter-in-law whereas respondent 3 is the mother and respondent 4 is the deceased father. The property in question is Flat no. 604, Siddhi Apartments, Tilak Road, Ghatkopar (East), Mumbai. A complaint was filed by the mother before SDO, Senior Citizen Welfare Tribunal which thereby directed the petitioners to pay Rs 25000 monthly maintenance allowance and hand over the possession of the property to the mother. Assailing this, present petition was filed.

Counsel for petitioner submitted that the flat in question is not independent, and the same is merged in flats owned by the petitioners and there is no separate entrance to this flat. It was further submitted that the amount of maintenance of Rs. 25,000/- per month granted by the Tribunal is beyond jurisdiction because the maximum amount of maintenance can be granted under Section 9 is Rs. 10,000/- only.

The Court, on perusal of property documents noted that the said flat originally belonged to Mother and her deceased husband and after the demise of the husband , the said flat stands in the name of Mother. Moreover, the family MOU document dated 26-08-2009 records that the property in question is out of the scope of arbitration.

The Court further noted that the proposition that the Tribunal under the Senior Citizens Act, 2007, have the authority to order eviction if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. However, this remedy can be granted only after adverting to the competing claims in the dispute.

Placing reliance on Dattatrey Shivaji Mane v. Lilabai Shivaji Mane, 2018 SCC OnLine Bom 2246, and the Family Settlement Deed, the Court opined that the whole estate of late Gamanlal Mehta be transferred to Mother, being his widow to be held by her absolute property.

Thus, the Court directed son and his wife to vacate and hand over the possession of the flat in question to the mother and remarked that the son and his wife should have, with honour, allowed the mother to stay in the said flat.

On the point of maintenance challenge, the Court noted that sub-Sections (2) and (3) of Section 4 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, mandate that it is the obligation of the children or relatives to maintain a senior citizen or parent to the extent that the senior citizen or parent may lead an everyday life. Section 2(f) of 2007 Act, defines property as property of any kind, whether movable or immovable, ancestral, or self-acquired, tangible, or intangible, and includes rights or interest in such property.

However, the Court modified the impugned order considering sub-Section (2) of Section 9 of Senior Citizens Act, 2007 and directed the petitioners to pay monthly maintenance of Rs.10,000/- to the mother as opposed to Rs, 25,000 as ordered by the Tribunal.

[Hemant Gamanlal Mehta v. State of Maharashtra, 2022 SCC OnLine Bom 4236, decided on 20-10-2022]

Advocates who appeared in this case :

Mr. Pradeep Thorat a/w Mr. Rohan Kadam, Yohann Cooper, Aniesh Jadhav and Vedanshi Shah i/by Mr. Bipin Joshi for the Petitioners;

Mr. Dinesh Purandare a/w Ms. Mahek A. Kamdar, Mr. Rashmin;

Jain and Mr. Hiren Chokshi i/by Kanga and Co. for Respondent 3 and 4;

Mr. Abhay L. Patki, Addl. Government Pleader a/w Mr. M. A. Sayed, AGP for the State;

*Arunima Bose, Editorial Assistant has put this report together.