Dismissed

Joy Brata Kundu v. State of Assam and Anr.

Gauhati HC18 May 2026WA/403/2025

Case brief

AI extract

What is this about?

Two sons appealed against eviction from their father's self-acquired house ordered by the Maintenance Tribunal under the Senior Citizens Act, 2007. The High Court held 'transfer' under Section 23 includes permissive occupation, pension sufficiency does not bar relief, and dismissed the appeal, upholding eviction.

What the court decided

AI extract

Joy Brata Kundu Vs State of Assam and Anr. — Property and Title | Gauhati HC (2026)

Page No.# 1/16

GAHC010273262025

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/403/2025

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JOY BRATA KUNDU DIST. DHUBRI

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2: DEBABRATA KUNDU BOTH ARE SONS OF JIBAN KRISHNA KUNDU AND RESIDENTS OF T.R. PHUKAN ROAD WARD NO. 2 DHUBRI TOWN P.O. AND P.S. DHUBRI DIST. DHUBRI ASSAM PIN 78330

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VERSUS

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STATE OF ASSAM AND ANR REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SOCIAL JUSTICE AND EMPOWERMENT, PIN 781006, ASSAM

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2:JIBAN KRISHNA KUNDU

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S/O LATE JANENDRA CHANDRA KUNDU R/O T.R. PHUKAN ROAD WARD NO. 2 DHUBRI TOWN P.O. AND P.S. DHUBRI DIST. DHUBRI ASSAM PIN 78330

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Advocate for the Petitioner : MR. S SAHU, MS A ROY,MS. R BHARGAV,T BHARALI

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Advocate for the Respondent : GA, ASSAM, MR. Z. HUSSAIN(R2),MS. R CHOUDHURY (R2)

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BEFORE

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HONOURABLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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For the Appellants : Mr T. Bharali, Adv.

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For the Respondents : Ms R. Choudhury, Sr. Adv. : Ms. S.E.Murtaza, Adv. : Ms P. Chakraborty, Adv.

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Date on which judgment was reserved : 05.05.2026 Date of pronouncement of judgment : 19.05.2026 Whether the pronouncement is of the operative part of the judgment? : NA Whether the judgment has been pronounced? : Yes

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JUDGMENT & ORDER (CAV)

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(Arun Dev Choudhury, J)

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Heard Mr. T. Bharali, learned counsel appearing on behalf of the appellants. Also heard Ms. P. Chakraborty, learned counsel for the respondent No. 1, and Ms R. Choudhury, learned Senior counsel assisted by Ms. S.E.Murtaza, learned counsel for the respondent No. 2.

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The present intra-court appeal is directed against the judgment and order (CAV) dated 18.11.2025, passed by the learned Single Judge, in WP(C) No. 3504/2025, whereby the writ petition preferred by the present appellants came to be dismissed and the order dated 30.05.2025, passed by the Maintenance Tribunal, Dhubri directing eviction of the appellants from the self-acquired property of their father, namely, respondent No. 2 herein, was upheld.

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The facts are in a narrow compass.

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The respondent No.2 is a senior citizen and the father of the present appellants. He is the admitted owner of the property in question, being a residential building, standing on his self-acquired land situated at Dhubri Town.

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The appellants, who are two sons, along with their respective family members, including their wives, were residing in a portion of the said premises with the permission of the respondent No.2.

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Alleging neglect, harassment and interference with his peaceful enjoyment of the property at the hands of the appellants and their family members, the respondent No. 2 approached the Maintenance Tribunal, Dhubri, seeking eviction of the appellants from the premises.

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The pleadings of the respondent No. 2, before the learned Tribunal, disclose that the dispute was not projected merely as a claim for monetary maintenance, but as a grievance of prolonged physical, mental and emotional harassment, coupled with deprivation of the peaceful enjoyment of his self-acquired property. The respondent No. 2 specifically pleaded that after permitting the appellants and their family members to reside on the 1^st floor of the building out of parental affection, the relationship subsequently deteriorated and the appellants allegedly subjected him to sustained neglect and harassment.

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The respondent No.2 further pleaded before the Tribunal that the dispute had arisen concerning a financial transaction and certain fraudulent property dealings belonging to the respondent No. 2 behind his back, allegedly undertaken by the appellants in collusion with a third party, by forging the signature of the respondent No.2, which, according to him, caused serious

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mental agony and insecurity in his old age. The pleadings also refer to several criminal proceedings, complaints before the police authorities and proceedings before other forums arising out of the dispute between the parties over a prolonged period of time.

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The respondent No. 2 further alleged that despite his advanced age and illness, the appellants neglected to maintain or properly look after him and that he was compelled to live separately, even within the same premises, with a separate kitchen.

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The respondent No.2 also specifically pleaded that he no longer desired the appellants and their family members to continue occupying the premises, and that he had publicly declared the severance of his relationship with them (by declaring them “Tejya Putra”). He accordingly, sought eviction of the appellants and their family members from the 1^st floor portion of the self-acquired property so as to enable him to peacefully enjoy the premises during the evening of his life.

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In substance, it was the case of the respondent No.2 that he desired to live peacefully in his own residence with serious allegations, such as, the three families are residing in the same complex, the respondent No. 2, a 86 years old retired bank employee, is compelled to have a separate kitchen and he has been thoroughly neglected by the appellants; they even refused to give him food and treatment at a time when he was ill, fell down inside his bathroom and got injured; they fradulently transferred/mortgaged his property; tortured him physically and mentally.

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Before the learned Tribunal, the appellants filed a joint written statement.

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In the said written statement, the appellants admitted that the respondent No. 2 is the absolute owner of the scheduled property and that they are residing

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therein.

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The specific defence of the appellants, however, was that the respondent No. 2 had instituted the proceeding under the influence of one of his daughters and that the allegations of harassment and neglect were false, fabricated and exaggerated.

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The appellants contended that they had throughout maintained and looked after the respondent No. 2, and several criminal proceedings instituted by the respondent No. 2 had either been withdrawn or had resulted in their acquittal.

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The appellants further pleaded that certain disputed transactions relating to the sale of a portion of property had been undertaken by the respondent No. 2, himself and that the appellants had merely signed as witnesses in good faith and upon instruction of their father. The appellants also asserted that they had repaid the bank liabilities incurred by mortgaging the property.

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Thus, the defence before the learned Tribunal was not a denial of the title of the respondent No.2 over the property, nor a claim of any independent proprietary right in favour of the appellants, but was, in substance, a denial of the allegations of neglect, harassment and misconduct leveled against them.

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The appellants have not disputed the possession of the property. However, they contend that, even though they desire it, their father has never expressed his intention to take support from them.

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The learned Tribunal, upon consideration of the pleadings, documents and rival contentions of the parties, recorded a categorical finding that the respondent No. 2 is a senior citizen and the admitted owner of the selfacquired property in question and that the appellants were occupying the

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premises only by virtue of permission granted by him .

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The learned Tribunal, further noticed the multiple complaints and proceedings referred to by the respondent No.2 and came to a factual conclusion that the relationship between the parties had irretrievably deteriorated and that continuance of the appellants in the premises was resulting in harassment and disturbance to the peaceful living of the respondent No. 2. The learned Tribunal accordingly, held that the eviction was necessary for securing the safety, dignity and peaceful residence of the senior citizen.

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Significantly, the learned Tribunal also recorded that the appellants failed to establish any independent legal right in the property adverse to the wishes of the respondent No. 2 and therefore, directed the eviction of the appellants and their family members from the 1^st floor portion of the premises.

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Before us, the principal contention advanced on behalf of the appellants is that the respondent No. 2 admittedly receives a pension and possesses sufficient means to maintain himself and therefore, according to the appellants, the provisions of the Maintenance & Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the Act, 2007) could not have been invoked.

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It has further been contended that Section 23 of the Act, 2007 would apply only in cases where there is a formal transfer of property subject to a condition of failure of maintenance and that in the absence of such transfer, the learned Tribunal lacks jurisdiction to direct eviction of the appellants from the property in question inasmuch as the respondent No.2 neither demanded any maintenance nor it is required for having sufficient pensionary income.

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An additional issue has been raised in the present proceeding, though it was not pleaded or raised either before the Tribunal or before the learned Single Judge, that at least the daughters-in-law have right to continue in occupation of the property for the reason that the premises constitute a shared household within the meaning of the provisions of the protection of women from the Domestic Violence Act, 2005 (hereinafter referred to as the Act, 2005).

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The learned Single Judge, upon consideration of the statutory provisions as well as the precedents governing the field, rejected the contentions raised and held that the Act, 2007, is a welfare legislation enacted for the protection of the life and property of senior citizens and therefore, deserves a purposive and liberal construction.

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The learned Single Judge further held that the right to maintenance under the Act, 2007, is not confined merely to monetary assistance, but includes the right of a senior citizen to reside peacefully and with dignity in his own property and that eviction, in an appropriate case, would be an incident of such right.

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It is apposite to record herein that taking note of the controversy, during the present proceeding, this Court on 20.02.2026 interacted with the father and the two sons in the presence of their respective Advocates, including the learned Advocate for the State and requested Ms. P. Chakraborty, learned Advocate for the State and Ms. R. Choudhury, learned Senior Advocate for the respondent No.2, to mediate between the father and sons so that the dispute is resolved, even temporarily.

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We observed that there is a complete lack of communication between the father and sons, even though they stay on the same floor. The father has been unhappy for several years with the conduct of his sons and daughters-

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in-law, who, according to him, have not offered any help when it was required during his climactic period.

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The father is 86 years old and requires constant care and surveillance. Though before us the sons made a promise that they shall mend their ways and shall take care of their father, there is a complete trust deficit between the father and sons. The father does not wish to take even a farthing from his sons and wants them to vacate the self-acquired property and live peacefully.

¶61

The efforts made by the learned Advocates for the parties and this Court at reconciliation did not make any headway in improving the relationship between the father and his two sons; therefore, we proceeded to hear the matter on merit.

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Having heard the learned counsels for the parties and upon careful consideration of the materials available on record, we find ourselves in agreement with the view adopted by the learned Single Judge.

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At the outset, it would be necessary to examine the object, scheme and legislative philosophy underlying the enactment.

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The statement of objects and reasons of the Act, 2007 reflects the growing concern of the legislature regarding the conditions of elderly persons in the changing social structure of the country. The legislature noticed that with the gradual weakening of the traditional joint family system, a large number of elderly persons were being left uncared for and were exposed to emotional neglect, insecurity and lack of physical and financial support.

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The legislature further noticed that many senior citizens were compelled to spend their twilight years in loneliness and distress, despite having children, relatives and property. In the aforesaid backdrop, the Parliament considered

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it necessary to enact a simple, inexpensive and speedy mechanism for the protection of parents and senior citizens.

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The object of the legislature, therefore, is not merely the recovery of a monthly maintenance allowance.

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The statute is fundamentally social welfare legislation intended to secure dignity, peace, and emotional security, as well as the protection of the life and property of senior citizens.

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The Act recognises that neglect of elderly parents is not always financial in nature; emotional harassment, deprivation of peaceful residence, insecurity within one's own house and interference with independent enjoyment of property are equally forms of neglect, which the legislature seeks to remedy.

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The scheme of the Act, 2007, clearly reflects the aforesaid legislative intent.

¶72

Section 2(b) of the Act, 2007 defines the expression ‘ maintenance .’ Significantly, the legislature has employed an inclusive definition and not a restrictive one. The expression maintenance has been defined to include provision for food, clothing, residence, medical attendance and treatment. The inclusion of residence within the definition is of considerable significance and cannot be rendered otiose by adopting a narrow interpretation of financial maintenance.

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The legislature was conscious that for an elderly person, a peaceful residence and the security of shelter are often more important than mere financial support. Thus, ‘ maintenance ’ under the Act, 2007 is not confined to survival alone, but extends to conditions necessary for living with dignity and security.

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Likewise, Section 2 (f) of the Act, 2007 defines ‘ property ’ in the widest

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possible term by providing that ‘ property ’ means property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible, and further, includes rights and interests in such property.

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The legislature, therefore, consciously expanded the meaning of the expression ‘ property’ so as to include not merely title in a strict legal sense, but also rights of occupation, possession, enjoyment and beneficial interest.

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Section 4 of the Act, 2007, creates the substantive statutory obligation.

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Under Sub-section 1 of Section 4 , a senior citizen, including a parent, who is unable to maintain himself from his own earnings or out of the property owned by him, may seek maintenance.

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Sub-section 2 of Section 4 further provides that the obligation of the children or relatives extends to the needs of a senior citizen, so that such a senior citizen may lead a normal life. The “ normal life” employed by the Parliament is again of wide import.

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The legislative intent is clearly that a senior citizen should be able to live peacefully, safely, and with dignity, consistent with a normal standard of living. The concept of “ normal life ” necessarily includes peaceful enjoyment of one's own residence without fear, harassment or compulsion to abandon one's own property.

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In that backdrop, once the jurisdiction of the Tribunal is invoked in relation to the protection of life and property of a senior citizen and the grievance pertains to deprivation of peaceful residence, harassment or inability to live a normal life with dignity, the provisions of the Act, cannot thereafter, be confined to a narrowly financial sense.

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Sub-section 4 of Section 4 is of further importance.

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It provides that any person who is a relative, having sufficient means, and who is in possession of the property of the senior citizen or who would inherit such property, shall maintain such senior citizen. Thus, the statute itself recognises the relevance of a senior citizen's possession and enjoyment of property. The legislative emphasis is therefore not merely on the formal transfer of title, but also on possession and the beneficial enjoyment of the property.

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Section 23 of the Act, 2007, which falls under Chapter V, dealing with the “ Protection of Life and Property of Senior Citizens” , is also required to be understood in the aforesaid statutory context.

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The expression ‘ transfer ,’ employed under Section 23 of the Act 2007, has not been specifically defined under the Act, 2007. The legislature, while defining the expressions, such as ‘ maintenance ’ under Section 2(b) and ‘ property ’ under Section 2(f), consciously refrains from giving any restrictive or technical definition of the expression ‘ transfer .’

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At the same time, Section 2(f) of the Act, 2007 gives an expanded meaning to the expression ‘ property ’ by including the rights and interests in such property. As recorded herein above, the legislative intent, therefore, clearly appears to be to accord a wider and purposive construction to the provisions relating to the protection of the life and property of senior citizens.

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Therefore, Section 23 of the Act, 2007 cannot be read in isolation, divorced from the overall scheme of the Act, 2007.

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The object of the provision of Section 23 is not merely to regulate formal conveyance or transfer deeds in the strict sense known in property law, but to ensure that a senior citizen is not deprived of peaceful possession, enjoyment and beneficial use of his property at the hands of persons who

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are otherwise under a statutory obligation to maintain him.

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At the cost of repetition, it is recorded herein that Section 4 of the Act, 2007, also assumes significance in this context, inasmuch as, the legislature has imposed an obligation not merely upon the transferee in the strict sense, but also upon a person who is in possession of the property of a senior citizen or who would inherit such property.

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Thus, the statutory scheme itself recognises possession, occupation and enjoyment of the property of a senior citizen as legally relevant factors for the purposes of maintenance and protection under the Act, 2007.

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The words ‘ gift ’ or ‘ otherwise ’ occurring in Section 23 further indicate that the Parliament did not intend to confine the operation of the provisions only to the case of formal transfer by registered instruments. The expression ‘ otherwise ’ has necessarily to receive a construction consistent with the object and purpose of legislation.

¶96

The Hon’ble Supreme Court of India in Smt. S. Vanitha – Vs.- Deputy Commissioner, Bengaluru Urban District & Ors. has categorically held that the expression ‘ transfer ’ under the Act, 2007 cannot be interpreted in a narrow or restrictive manner and that the right of ‘ maintenance ’ under the Act, 2007 is broader in nature, eviction being an incident of enforcement of such right of maintenance and protection.

¶97

Therefore, in our estimation, the expression ‘ transfer ’ occurring under Section 23 of the Act, 2007 cannot be confined only to absolute transfer of ownership by way of sale, gift or settlement. Where children or relatives are occupying the property of a senior citizen by virtue of permission or indulgence granted by such senior citizen and such occupation result in deprivation of peaceful enjoyment, dignity or security of the senior citizen,

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such permissive occupation would nevertheless fall within the protective jurisdiction of the learned Tribunal while securing the right of a senior citizen to peaceful possession, residence and enjoyment of property under the statutory scheme of the Act, 2007.

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In the present case, the appellants themselves admit that their occupation originated from permission granted by the respondent No. 2, and they do not assert any independent title adverse to him.

¶101

In our considered opinion, the interpretation sought to be advanced by the appellants is accepted; the object of the legislation would stand frustrated. Any narrow interpretation to the contrary would substantially defeat the object and purpose of the welfare legislation.

¶102

Such an interpretation would mean that even where a senior citizen is compelled to live in fear, insecurity or mental distress within his/her own house because of the conduct of his/her children or relatives, the authorities under the Act, 2007 would remain powerless unless a formal deed of transfer exists. Such a construction would reduce the beneficial legislation into a narrowly technical enactment and defeat the legislative purpose.

¶103

The Act, 2007, is to be interpreted with reference to the realities that compelled the Parliament to enact the legislation. Elderly parents often permit their children to reside in their house not by executing formal, legal documents but by virtue of family arrangements, trust, and affection. If such permissive occupation is later used to deprive the senior citizen of peaceful enjoyment of his/her own property, the statute cannot be interpreted in a manner that leaves the senior citizen remediless under such beneficial legislation, compelling him/her to approach the Civil Court, which admittedly is not simple or inexpensive. Nor can it be termed as “speedy remedy”.

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We are also unable to accept the submissions that a senior citizen receiving a pension is not entitled to invoke the protection of the statute under Section 23 of the Act, 2007. The Act does not require a senior citizen to become penniless or destitute before approaching the authorities under the Act, 2007. Financial sufficiency, by itself, does not ensure peaceful living, emotional security, or a dignified residence. The protection contemplated under the Act, 2007 extends beyond mere economic survival.

¶106

The object of the Act, 2007, being the protection of the life, dignity, residence, and property of senior citizens, the provisions must be given a liberal and purposive construction consistent with the legislative intent.

¶107

In the present case, the factual satisfaction recorded by the learned Tribunal cannot be said to be either perverse or unsupported by the materials available on record. The Tribunal considered the rival pleadings of the parties, including the appellants' defence that they had not neglected the respondent No. 2 and that the dispute arose out of family discord and a property transaction.

¶108

Upon appreciation of the overall materials, the learned Tribunal concluded that the respondent No. 2 was unable to peacefully enjoy his own residence and that the appellants' continued presence in the premises was detrimental to his security and dignity as a senior citizen. Such findings, being essentially findings of facts based on appreciation of materials and concurred by the learned Single Judge, do not warrant interference in intracourt appellate jurisdiction unless shown to be manifestly arbitrary or wholly unsupported by the record, which is not the case herein.

¶109

In the case in hand, the property admittedly belongs to the respondent No. 2. The appellants are occupying the same only because such occupation was permitted by the respondent No.2. Such permissive occupation cannot

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measure into an enforceable right against the wishes and welfare of the true owner, more particularly, when the owner is a senior citizen seeking peaceful enjoyment of his own residence under a beneficial legislation enacted for his protection, alleging mental and physical torture by the children.

¶112

As regards the arguments on the right of “ shared household ,” raised for the first time before us, the Hon’ble Supreme Court in Smt. S. Vanitha (supra) recognised that the competing claims under the Domestic Violence Act, 2005 (hereinafter referred to as the Act, 2005) and the Act, 2007 are required to be harmoniously constituted. However, in the present case, no proceeding under the Act, 2005 has been instituted by the daughters-in-law, at any point in time, claiming any right of residence in the premises in question. No foundation in fact or in law was therefore laid before the authorities so as to enable the adjudication of any competing claim arising under the Act, 2005.

¶113

There is no whisper of allegation of any domestic violence by the daughters-in-law. Therefore, in the absence of any foundational pleadings or proceedings under the Act, 2005, such a contention cannot be permitted to be raised for the first time at the appellate stage, to defeat the protection otherwise available to the respondent No.2 under the Act, 2007.

¶114

While so saying, it is clarified that the present adjudication is confined to the scope of jurisdiction exercisable under the Act, 2007, namely, protection of life, residence, dignity, and the peaceful enjoyment of property by a senior citizen. We have not adjudicated upon any independent civil title, if otherwise available in law, nor upon the validity of any disputed transaction which may be the subject matter of a separate proceeding before a competent forum. The present order proceeds on the admitted position that

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the respondent No. 2 is the owner in possession of the property in question and the appellants are residing therein by permission.

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For the reasons recorded hereinabove, we find no infirmity in the judgment and order dated 18.11.2025, passed by the learned Single Judge in WP(C) No. 3504/2025.

¶118

We find no reason warranting our interference in exercise of an Appellate jurisdiction.

¶119

The writ appeal, accordingly, stands dismissed.

¶120

Interim order, if any, stands vacated.

¶121

However, the appellants are given a liberty to vacate the premises on their own within a period of 90 (ninety) days from today, and if not vacated within the period stipulated, the learned Tribunal shall proceed in accordance with law.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Joy Brata Kundu v. State of Assam and Anr.

Case brief

What is this about?

What the court decided

Joy Brata Kundu v. State of Assam and Anr.

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