While expressing concern over an increased number of cases where senior citizens and elderly parents are being subjected to all kinds of harassment and deprivation by their children in an attempt to grab their property, the Bombay High Court has asked a daughter to immediately vacate her 94-year old father’s flat in south Mumbai.
In its order, the bench of justice Gautam Patel and justice Madhav J Jamdar says, “Indeed, it is our experience that in this city, and particularly or most especially amongst the wealthy of this city, senior citizens and elderly parents are being subjected to all kinds of harassment and deprivations in their twilight years. In case after case, we have complaints from senior citizens that their own sons and daughters are harassing them. In every case, the harassment is an attempt to somehow grab the senior citizen’s property in his or her lifetime without a thought spared to the mental or physical well-being or happiness of these seniors.”
“The present case is no different. Mr Shetty says Shweta demands ‘her share’. What is her ‘share’ while he is alive? She has none. He may indeed give his flat and all wealth away inter vivos. That is his choice. She cannot prevent him from doing so. So long as he is alive, Shweta has no ‘share’ in his property,” the order says.
Shweta Shetty, a citizen of Germany who holds an overseas citizen of India (OCI) card, had filed the writ petition challenging an order passed by the Welfare Tribunal and deputy collector of Mumbai City on 27 November 2020. The Tribunal had given the order on a complaint by Mahalaba Rampa (MR) Shetty, a resident of Altamount Road in Mumbai. In his complaint, Mr Shetty had said that he did not want his daughter Shweta to remain, occupy or reside in his flat.
The HC observed, “There is no doubt that Mr Shetty is the sole and absolute owner of this flat. There is also no doubt that Shweta has no right of any kind in that flat. Pradeep Thorat (counsel) for Shweta fairly accepts and concedes this position. He accepts that Shweta has not canvassed any independent right to the flat at all.”
In his complaint to the Tribunal, Mr Shetty had stated that he is being continuously harassed and mistreated by Shweta. She was in Germany for some time. She came to India in 2015 and moved into the flat unannounced. Although she was to stay for a short period, she never left. Mr Shetty was 87 years old when she came into the flat.
In his specific allegation, Mr Shetty stated, Shweta began to badger him “for her share of the property” and said that she would leave the flat only after she was given 'her share' and, therefore, he sought relief from the Tribunal 'to evict' Shweta.
Before the High Court, Mr Thorat, the counsel for Shweta, contended that Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 is only an application for maintenance that the Tribunal can entertain. “Mr Shetty’s application was for eviction. Therefore, the Tribunal acted without jurisdiction, apart from the fact that it proceeded on significant procedural illegality,” he contended.
However, the bench did not accept this contention. It says, “The mere use of the word ‘eviction’ is not by itself determinative. To constitute eviction or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition.”
“It is not to foist on senior citizens an imaginary claim over their own property where the claimant has no such right to begin with. The statutory intent is not to limit the rights of senior citizens, but exactly the reverse,” the bench says.
Mr Thorat also requested the HC to allow Shweta to lead evidence. “Somewhat puzzled by this, we inquired of him what evidence she could possibly lead and in support of what contention, once she accepted that she had no legal or legally enforceable right or title to any part of the flat? We found no cogent answer to our query,” the bench noted.
“We do not believe that it is the statutory intent that the harassment to a senior citizen should continue while the Tribunal is flooded or inundated with some evidence or the other only to prolong or delay matters. The one thing that senior citizens do not have the benefit or luxury of is time. It is not on their side, and every day’s delay before a Tribunal like this hurts senior citizens exponentially more than the younger generation.”
“We do not think it is possible to accept a broad proposition of the breadth that Mr Thorat canvasses. It might have been different had Shweta been able to canvass some legal right to the flat, whether as a shared household, a right to maintenance of a married woman or an ownership right derived from ancestral property. She lays claim to none of these. What evidence she could possibly lead and on what aspect of the matter remained unclear to the end. Simply saying evidence is of no use at all,” the order says.
While dismissing the writ petition, the bench of justice Patel and justice Jamdar also mentioned, “...we are mindful of the fact that we are not dealing only with statutory authority or Tribunal. These are actual lives, and our concern is with the life, well-being and health of a senior, one most perhaps in need of our protection and of the protection of this statute.”
The bench then directed Shweta to visit her father’s flat alone and collect only her personal belongings. “She will not remove any other item from the flat. We expect all members of this family to conduct themselves with restraint at that time,” the bench concluded. (WRIT PETITION (L) NO. 9374 OF 2020 dtd 25 November 2021)
In our one case , the Trial Court granted Probate on a Photostat copy of an Unregistered Will.
We went in to appeal in the High Court where our Appeal was uphed
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Must Make Will - Nominee Only Trustee in Most Cases
Nominee ( except in case of shares and most probably , now , in Insurance policies ( please recheck ) - is only a Trustee. Real owner is as per the Will.
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While writing Will , please include these important points.
1 ) Where ever ( Testator ) made Nominations , the Nominee / s would be the sole heirs
2 ) In case , any one of the legatees pre deceases( Testator ) in that case that share would not lapse but would , instead , devolve on the Legal heirs of that Legatee.
3 ) In case any asset , movable or immovable , is not mentioned here or is acquired afterwards would devolve on --------