NEUTRAL CITATION NO.
2025:MPHC-JBP:3991
1 WA-1705-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 27th OF JANUARY, 2025
WRIT APPEAL No. 1705 of 2023
DILIP MARMAT
Versus
COLLECTOR AND OTHERS
Appearance:
Shri Prateek Jain - Advocate for the appellant.
Shri S.S. Chouhan - Govt. Advocate for the respondents / State.
Shri N.S. Ruprah - Sr. Advocate with Shri Sachin Shukla - Advocate
for respondent No.3.
Appellant-Dilip Marmat is present in person.
JUDGMENT
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
The present writ appeal has been filed seeking following reliefs:-
(i) Allow the appeal by setting side the order dated 02.09.2023
passed by the Hon'ble Single Judge in. WP 22876/2022 and (Annexure
A/1)
(ii) Allow the appeal by setting aside the Order dated 02.05.2022
passed by Respondent No. 2, Sub-Divisional Officer and Order dated
01.08.2022 passed by RespondentNo.1; and
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
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(iii) Any other relief, order or direction, as this Hon'ble Court
deems fit and proper looking to the facts and circumstance of the case
deemed fit and proper, in the interest of justice may please be awarded
along with the cost of the proceedings.
2. The appellant-petitioner is the son-in-law of respondent No.3. He
was married to his deceased daughter. However, in an accident the wife of
appellant died in the year 2018. The appellant is living in the said house as a
permissive occupant and as submitted by learned counsel for the appellant
that he cannot be evicted from the said premises.
3. It is further submitted that in terms of the definition of 'Children' given
in Section 2-A of the Maintenance and Welfare of Parents and Senior
Citizen Act, 2007 (hereinafter referred as 'the Act of 2007'). The appellant
being son-in-law will not fall in the definition of 'Children'. The learned
Tribunal, however, failed to follow the procedure of conciliation before
passing an award. Even 'relative' defined in Section 2(g) of the Act of 2007
will not include the appellant, therefore, appellant being not covered under
the Provisions of the Act of 2007 could not have been subject matter of any
order under the provisions of the Act of 2007.
4. The learned counsel for the appellant further submitted that appellant has
adverse possession over the property. He had contributed towards the
construction of the house and in support of this he has enclosed copy of
bank-statement as Annexure P/3 to demonstrate that a sum of Rs.1,00,000/-
was given in the account of respondent No.3.
5. On the contrary, the case of the respondent No.3 is that firstly the order
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3991
3 WA-1705-2023
is under Section 23 of the Act of 2007 which deals with transfer of property
to be void in certain circumstances. It is not an order under any other
provision. The children will include son-in-law because the definition is not
comprehensive. In fact when property was given to the daughter of the
respondent No.3 then, in a package, the appellant was inducted. The
appellant is not taking care of the senior citizen and on the contrary is
causing nuisance for them as has been mentioned in the application which
was filed by the respondent No.3 before the SDM, M.P. Nagar Circle Bhopal
and on account of that directions for eviction has been given.
6. It is not in dispute that the house was purchased by the respondent No.3
in the year 2007, though appellant's contention is that since he was a labourer
and facility of loan was not available to him, therefore, he had purchased the
house in the name of his father-in-law but that is not borne out from any of
the documents available on record. Moreover, there is no such agreement
brought on record to show that house was purchased in the name of
respondent No.3 because loan facility was not available to the appellant.
7. It is admitted that the appellant never moved any application before the
SDM for initiating conciliation proceedings. On the contrary, when the writ
Court had given an offer to the appellant's counsel to seek instructions that
how much time is required to vacate the property in question, he in the pass-
over round informed the Court that his instructions are that petitioner-
appellant wishes to contest this case and does not wish to vacate it. Though
today counsel for the appellant submitted that matter be posted before the
Mediator, however, the same has been strongly opposed by counsel for the
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3991
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respondent No.3.
8. Learned Single Judge has observed in the impugned order that
provisions contained in Section 2(A) of the Act of 2007 defines 'Children'.
That definition according to the Writ Court is not comprehensive. Only talks
about broader categories to person namely sons, daughter, grand-son and
grand-daughter who are not minor. By implication if the house was given to
daughter and the petitioner-appellant being son-in-law after death of
daughter, will be included in the definition of children and he has a duty to
maintain the senior citizen as defined in Section 2(h) of the Act of 2007. The
Writ Court has further observed that as far as 'relative' is concerned that too
will also not be of any consequence because it is not a matter of childless
senior citizen, therefore, the provisions which are parameteria to decide the
controversy is definition of children and that of senior citizen given
retrospectively in Section 2(a) and 2(h) of the Act of 2007.
9. Regarding contention of learned counsel for the appellant-petitioner, it
is observed that provisions contained in Section 23 of the Act of 2007 will
not be applicable because there was no transfer of property, it is to be
understood that transfer of property is not to be understood in terms of
transfer of immovable property as mentioned in the Transfer of Property Act.
The transfer of property includes permissive transfer or gratuitous transfer in
favour of a person and if the senior citizen is able to demonstrate his need
than that transfer can be declared as null and void in terms of the provisions
contained in Section 23 of the Act of 2007.
10.
10 The learned counsel for the appellant has relied on the judgment of the
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Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
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Supreme Court in the case of Sudesh Chhikara v. Ramti Devi, 2022 SCC
OnLine SC 1684 to submit that in absence of specific condition for
providing maintenance to the transferor, no ground for cancellation of
transfer deed is made out. Reliance placed on the aforesaid case is utterly
misplaced because in the present case, there is no deed of transfer and
therefore, there is no question of any condition in the transfer deed being
there. The Hon'ble Supreme Court in a recent judgment in case of Urmila
Dixit v. Sunil Sharan Dixit, 2025 SCC OnLine SC 2 has held in para-24
thereof that the Tribunal under the Act of 2007 is competent to order eviction
if it is necessary and expedient to ensure the protection of senior citizen. If
the Tribunal under the Act of 2007 does not grant order of possession to the
senior citizen, this would defeat the purpose and object of the Act which is to
provide speedy, simple and inexpensive remedies for the elderly.
11. In view of the above, the Writ Court has rightly observed that when
facts of the case are examined in the light of provisions contained in Section
23 of the Act of 2007, it is evident that respondent No.3 is a retired BHEL
personnel. There is no provision for any regular pension. Pension is granted
through Contributory Provident Fund. The respondent No.3 has categorically
averred that he has responsibility to take care of his wife who is suffering
from paralysis and also of other children and therefore, he needs that
property which was constructed by him, so that he can have a source of
additional income.
12. Undisputedly, the relations of the appellant with respondent No.3 are
not cordial then, mere facet of income cannot be looked into but a peaceful
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
NEUTRAL CITATION NO. 2025:MPHC-JBP:3991
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income giving satisfaction to the owner of the property who happens to be a
senior citizen in another facet which is to be understood and imbibed by
implication while interpreting the provisions of Section 23 of the Act, 2007.
When the whole facts of the case are examined from said prospective, then
there is a senior citizen, he is in need of the property and that need is
bonafide and for peaceful purposes, therefore, petitioner having failed to
establish any of his rights over the property, is not entitled to continue in the
property dehors the orders of the Sub-Divisional Magistrate and the
Collector.
13.
13 In view of the above, the learned Single Judge has rightly dismissed
the writ petition filed by the petitioner-appellant. The eviction order is of
dated 02nd May, 2022, almost three years have been passed but relations
could not be improved, therefore, we hereby direct the appellant-petitioner to
evict the premises within 30 days from today, failing which the SHO
concerned is directed to remove the articles from the said house make
inventory and handover to the respondent No.3. Accordingly, the appeal
stands dismissed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
nks
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 28-01-2025
1:42:51 PM
