High Court
Case Details
Court No. - 39 Case :- WRIT - C No. - 8634 of 2022 Petitioner :- Bharti Gupta Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Pratik Chandra Counsel for Respondent :- C.S.C.,Sushil Kumar Shukla Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Rejoinder afÏdavit filed by the learned counsel for the petitioner is taken on record. Heard learned counsel for the parties and perused the record. The petitioner herein is the daughter-in-law of the respondent No.4 and sister-in-law of the respondent No.5. She is aggrieved by the order dated 3.1.2021 passed by the Additional City Magistrate, Civil Lines, Meerut on an application under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 moved by the respondent No.4. As per the statements made in the application itself, the respondent No.4 has two sons and two daughters. The husband of the petitioner was elder son of the respondent No.4 and the respondent No.5 is the younger one. It is stated in the application that the husband of the applicant/respondent No.4 had died on 30.11.2018 and the elder son namely Pankaj, husband of the petitioner, met an unfortunate untimely death due to Covid-19 on 17.1.2021. The younger son of the applicant/respondent No.4 is residing in the village along with his family. It is further stated by the applicant/respondent No.4 that after death of her elder son, the petitioner herein is trying to take illegal possession of the house-in-question by throwing away the applicant in collusion with her brother and other family members. She had started torturing the applicant/respondent No.4 and on account of her attitude, the younger son of the applicant had left the house and started living in the village. It was further stated that while her elder son was admitted in the hospital, younger son had looked after him and the petitioner herein i.e. her daughter-in-law had tortured both the respondent Nos. 4 and 5 by all possible means after death of the elder son of the respondent No.4. The prayer was made that since it was a self acquired property of the husband of the applicant/respondent No.4, the petitioner herein being daughter-in-law should be evicted out of the house. In reply to the said application, the petitioner herein had categorically stated that she has two daughters who are receiving education at Meerut. After the death of her husband, she is coping financially and mentally with great difÏculty and at this moment, an application for eviction has been filed by her mother-in-law in connivance with her brother-in-law namely the respondent No.5 herein. It is stated that the application seeking eviction of the petitioner has been moved by the respondent No.4 at the behest of respondent No.5 without any valid reason. It is then stated that the original owner of the house-in-question namely, father-in- law of the petitioner had died on 30.11.2018 intestate, i.e. without leaving any Will in favour of the applicant and as per Section 10 of the Hindu Successions Act, both the sons of the original owner including his wife i.e. applicant/respondent No.4 became joint owners of the property being heirs of Class I in the Schedule. After untimely death of the elder son, his wife and children namely the petitioner herein along with her daughters is entitled to live in the house-in- question which was self acquired property of her father-in-law. In any case, the respondent No.4 cannot be said to be an absolute owner of the property-in-question and, moreover, looking to the plight of the petitioner, she cannot be thrown out of the house where she is living since after her marriage. It is categorically stated that the house- in-question is the matrimonial home of the petitioner herein and the petitioner is residing in the house-in-question for more than 21 years, her elder daughter being aged about 21 years old. Testing this submission of the learned counsel for the parties, having perused the impugned order passed by the respondent No.3 namely the Additional City Magistrate, Civil Lines, Mandal Meerut, District Meerut, we may note that the only finding returned by respondent No.3 for directing the eviction of the petitioner from the house-in- question is that the petitioner has no right to live in the house which was the self acquired property of her father-in-law, without consent of the applicant i.e. respondent No.4 herein, her mother- in-law. Further finding returned by respondent No.3 that the petitioner herein is illegally occupying the house-in-question suffers from a serious error of law. It would be unjustified to evict the petitioner who has occupied the house-in-question on account of her marriage with the son of the applicant/respondent No.4 herein who unfortunately met an untimely death. From the statement of the applicant/respondent No.4 in the application moved under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, it is evident that the petitioner herein is residing in the house-in- question for a long time. As regards the allegations of dispute between the petitioner and respondent No.5 namely the younger son of the applicant/respondent No.4, the said issue has no concern in so far as the matter pertaining to the Senior Citizens Act, 2007. From the perusal of the material on record, it is evident that the respondent No.4- mother-in-law has devised a novel method in connivance of her younger son i.e. respondent No.5, to evict her daughter-in-law and her two grand-daughters from the house-in- question where they are living for a long time and claiming their right being wife and daughter of the co-sharer/elder son of the respondent No.4. Further, the order passed by the respondent No.3 for eviction of the petitioner and her two daughters from the house-in-question is without any finding of any act of alleged atrocities committed by the petitioner on the applicant, her mother-in-law. It is further relevant to note here that the issue relating to transfer of ownership of the house-in-question in favour of the respondent No.4, as alleged by her in the application filed under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and the claim of the petitioner and her daughters about being co-sharers of the house-in-question and their right to live in the house-in-question, is subject matter of consideration in the Original Suit No. 878 of 2021, which was filed by the petitioner on 19.8.2021 wherein both the respondent Nos. 4 and 5 have been arrayed as defendants. A further perusal of the rejoinder afÏdavit filed today shows that the interim injunction dated 31.3.2022 has been passed by the Civil Court in favour of the petitioner and her two daughters, as against the respondent Nos. 4 and 5 herein, noticing that despite the service of notice of summons, they did not appear before the Court concerned. For the aforesaid, it is open for the respondent Nos.4 and 5 to appear in the pending suit and seek vacation of the order or appropriate relief by filing a counter claim in the pending suit. However, having perused the material placed on record and noticing the manner in which the eviction of the petitioner has been sought from her matrimonial house after the death of her husband by moving an application under Section 22 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, we find that the order dated 3.12.2021 passed by the respondent No.3 is wholly without jurisdiction. The same, therefore, cannot be sustained and is hereby set aside. It is open for the parties to contest their claims in the pending suit. Accordingly, the present writ petition is allowed. It goes without saying that any observation made by this Court herein above will not come in the way of the parties in the pending proceeding before the Civil Court, which has to be decided independently. Order Date :- 2.8.2022 Kamarjahan Digitally signed by KAMARJAHAN ANSARI Date: 2022.08.05 10:55:16 IST Reason: Location: High Court of Judicature at Allahabad