and his family members to insist on occupying a
portion of the house of appellant No.1 especially
when the sale-deed is registered in the name of
appellant No.1 in his individual name? Merely stating
that it is a joint Hindu family property would not
suffice. In order to establish that the property
belongs to joint family, it must be established that a
joint family had a sufficient nucleus at the time of its
acquisition. (P. S. Sairam and another V. P.S.Rama (P. S. Sairam and another V. P.S.Rama
Rao Pisey and others (2004) 11 SCC 320). Leave Rao Pisey and others (2004) 11 SCC 320)
aside the corpus, it is not even alleged that the funds
other than the individual funds of appellant No.1
were utilized to purchase the plot at Chandigarh.
Respondent No. 7 could not have even alleged so as
he actually received a self acquired plot at
Panchkula from appellant No.1 by way of gift while
daughters of appellant No.1 received one plot each
in Karnal. Other than the oblique motive to grab the
property at Chandigarh and keep possession of the
same against the wishes of the owner, there can be
no other reason. In fact, it was quite clear during the
course of arguments that not only respondent No. 7
wants to deprive the appellant No.1 to deal with his
property as per his wishes but wanted to grab the
whole property for himself denying the share of his
sisters.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 27152 of 2015
Date of Decision : 23.12.2015
Prem Kumar .
Versus
Krishan Kumar Sharma and others .
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
This is an avoidable and unfortunate litigation
between son and father. Challenge in the instant writ petition
is to order dated 07.10.2014 (Annexure P-5) passed by
respondent No. 3 and order dated 30.04.2015 (Annexure P-9)
passed by respondent No. 4.
I had the occasion to deal with almost the identical
dispute in Ashwinder Singh and another vs. Bhagwant Singh
and another, 2014(3) R.C.R. (Civil), 906. It would be apposite to .
reproduce relevant paragraphs:-
“This unfortunate regular second appeal is a
poignant reminder of decaying social values and
traditions in our country. The case is telltale story of
how children have become detached in today's
commercialized world and are making attempts to
throw out their aged parents from the property
which the parents have acquired during their lifetime.
It is perfect example of children becoming
insensate towards parents/senior citizens.
“Maatru Devo Bhava” (revere your mother as
God) and “Pitro Devo Bhava” (revere your father
as God) is a well-known proverb.
2. On page 1200 of Sri Guru Granth Sahib, Sri
Guru Ram Dass has written that “KAAHAY POOT
JHAGRAT HA-O SANG BAAP / JIN KAY JANAY
BADEERAY TUM HA-O TIN SIO JHAGRAT PAAP//” ( O
son, why do you argue with your father? It is a sin to
argue with the one who fathered you and raised
you.).
3. The above words of prudence guide us that we
have to treat our parents as God. Modernization,
technological advancement and social liability have
changed our life-style and values. Sadly, our bent of
mind and responsibility towards parents has
degenerated. We have forgotten about Sharavan
Kumar, who placed his blind parents in two baskets
and carried the baskets on his shoulder to various
places of pilgrimage. We have also forgotten the
duties of a son towards aged parents. We have
completely given up our ancient traditions when
parents were most revered and respected.”
Over the years the law has become more
complicated and more involved in the different areas of
people's lives. Sometimes the law appears to be meddling and
intrusive particularly in family disputes and private life. There
has to be a balance between people's right to live and the
right of the law to intervene on behalf of the society. The
balance between the needs of society and people's individual
rights applies to families too.
Family has been the dominating institution, both in
the life of the individual and in the society. It is a basic,
cohesive and integral unit of larger social system. We are
seeing rapidly changing family scenario. Our children will
always be our children. The parents believe in trial and error
principles so far children are concerned. Even though parents
do all right things for children specifically children and their
families, but many a times, children feel that they are not being
treated equally and this results into tearing break ups which is
very anguishing for the parents. This happens when tension
rises beyond bearable level. At this stage, there is a need for
trained therapist practicing in this field. When efforts to effect
compromise/settlement fail, can there be any good reason to
keep cause of trouble under the same roof? Introspection by
one and all can play a pivotal role in brushing aside the
differences and bringing back the peace and harmony in the
family. Everyone should analyze what his/her heart says.
Parents and children should think calmly and not on the basis
of pure emotion before drawing a line in the sand, one should
be fully convinced that his/her actions are not based on anger
or fear. The idea of fate exists in all human cultures, and was
developed as a way of dealing with difficult decisions those
make us uncomfortable. We invoke fate to say, it is out of my
hand now, there is nothing I can do. When no positive results
are in sight only then parents should ask the children politely
but firmly to pack things and leave the house.
What expectations are the legitimate in the
relationship between adult children and elderly parents?
It is a larger issue and can be examined by the
sociologists. Though parents want to maintain their
independence and do not expect much from adult children as
children expect from them, parents also hope that children will
be there for them when called upon particularly in the evening
of their life. Often parents lay less emphasis upon physical and
financial support, however at least, expect emotional support
of children and grand children.
Brief facts of the case are that respondent No. 1-
Krishan Kumar Sharma son of Tilak Ram Sharma filed an
application under the provisions of Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (hereinafter referred to
as the “Act”) before respondent no. 3 for payment of monthly
maintenance allowance to the tune of `20,000/- from the
petitioner and respondent No. 2 and for eviction of the
petitioner and respondent No. 2 from House No. 24673, Haji
Rattan Link Road, Bhangu Hospital, Bathinda to the effect that
he is 70 years of age. He has two sons, namely, Prem Kumar
(petitioner herein) and Madan Lal Sharma(respondent No. 2
herein) and one daughter. His wife had died about 10 years
ago and House No. 24673 is his self acquired property, which
he had to purchased about 45 years ago. The petitioner has
occupied this house. Likewise, he is owner of a Chemist shop,
which has also been occupied by the petitioner. Now, he has
grown old and his body organs do not work property and he is
leading a life of penury and starvation. Vide order dated
07.10.2014 (Annxure P/5), the Sub Divisional Magistrate,
Bathinda allowed the application by following observations:-
“The record on the file was considered very well.
The petitioner is quite old and now he's not in a
position to work for livelihood. Therefore, it is
ordered that respondent No. 1 Prem Kumar shall
pay maintenance amount to the tune of `2000/- per
month and respondent No. 2 Madan Lal Sharma
shall pay `3000/- every month to the petitioner. It is
also ordered that this amount be paid to the
petitioner up to 05
th
day of every month.”
Against that order, petitioner preferred an appeal
before District Magistrate, Bathinda, who vide order dated
30.04.2015 (Annxure P/9) passed the following order:-
“4. That the respondent was summoned on
receiving the application and the file of the case of
the lower court was also summoned. Dated
31.03.2015, the appellant Shri Krishan Kumar
Sharma and the respondents were heard and the
summoned record was perused. The appellant
repeated the points raised in the application. The
respondents stated that they are ready and willing
to maintain their father, however, they can not pay
the maintenance amount. Therefore, keeping in
view the age, illness and the medical expenses, the
amount ordered by the Presiding Officer
Maintenance Tribunal (SDM0, Bhatinda under the
Maintenance and Welfare of Parents and Senior
Citizen Act, 2007 is enhanced. The appeal is
accepted and the respondent No. 1 Prem Kumar is
ordered to pay `3000/- per month and likewise the
respondent No. 2 shall pay `4,500/- per month to
the appellant. In case, they do not deposit the
amount, the appellant can submit application under
Section 11 of the Act before the Maintenance
Tribunal. A copy of this order be sent to the Sub
Divisional Magistrate, Bhatinda/District Social
Welfare Officer, Bhatinda, the appellant and the
respondents for compliance of the order. The file be
consigned to the record room Bhatinda after doing
the needful.”
Hence, instant writ petition.
I have heard learned counsel for the petitioner and
perused the record.
Learned counsel for the petitioner vehemently
contended that the impugned order passed by the District
Magistrate is sketchy and cryptic and is not sustainable in the
eyes of law.
Hon'ble Division Bench of this Court in Justice Shanti
Sarup Diwan, Chief Justice (Retired) & another Vs Union
Territory, Chandigarh & others, 2014 (5) R.C.R. (Civil) 656 has
examined the scheme of the Act and almost identical issue.
“28. SCHEME OF THE ACT SCHEME OF THE ACT SCHEME OF THE ACT -
In order to appreciate and answer the aforesaid
questions in the context of the factual matrix, it is
necessary to analyze the relevant provisions of
the said Act. The Statement of Objects and
Reasons set out that the traditional norms and
values of the Indian Society which lay stress on
providing care for elderly getting diluted due to
the withering of the joint family system, the elders
are facing emotional neglect and lack of physical
and financial support. Thus, aging has become a
major social challenge and despite the provisions
of the Code of Criminal Procedure, 1973 for
maintenance, it was deemed necessary that there
should be simple, inexpensive and speedy
provisions to claim maintenance for the parents.
The Act is not restricted to only providing
maintenance but cast an obligation on the persons
who inherit the property of their aged relatives to
maintain such aged relatives. One of the major
aims was to provide for the institutionalization of a
suitable mechanism for the protection of 'life and
property of older persons'.
29. Section 2 contains the definitions and clause
(f) defines 'property' as under:-
Definitions:- In this Act, unless the context Definitions
otherwise requires:-
a) xx xx xx
b) xx xx xx
c) xx xx xx
d) xx xx xx
e) xx xx xx
f) “Property" means property of any kind,
whether movable or immovable, ancestral or
self acquired, tangible or intangible and includes
rights or interests in such property."
The aforesaid would thus show the definition of
property within the meaning of the Act is wide and
comprehensive with the object of securing the
interest of the elders. This is to be read along with
Section 6 which makes the provisions of the said Act
to have overriding effect notwithstanding anything
inconsistent therewith contained in any enactment
other than the said Act including any instrument
having effect under any other Act.
30. Chapter-II of the said Act deals with the
maintenance of parents and senior citizens while
Chapter-IV deals with the medical care. However,
since the appellants before us are claiming neither,
we are not delving these provisions in any detail.
The relevant Chapter-V provides for protection of life
and property of senior citizens. Section 21 provides
for measures of publicity, awareness etc. for welfare
of senior citizens, while Section 22 provides for the
Authorities who may be specified for implementing
the provisions of the said Act. Section 22 reads as
under:-
"22. Authorities who may be specified for Authorities who may be specified for
implementing the provisions of this Act
(1) The State Government may, confer such
powers and impose such duties on a District
Magistrate as may be necessary, to ensure that
the provisions of this Act are properly carried out
and the District Magistrate may specify the officer,
subordinate to him, who shall exercise all or any of
the powers, and perform all or any of the duties,
so conferred or imposed and the local limits within
which such powers or duties shall be carried out
by the officer as may be prescribed.
(2) The State Government shall prescribe a
comprehensive action plan for providing
protection of life and property of senior citizens."
Thus what is envisaged is both protection of life and
protection of property through a comprehensive
action plan.
31. In order to prevent interference by
Civil Courts qua any action taken in furtherance of
the provisions of the said Act, Section 27 bars the
jurisdiction of the Civil Courts, especially in respect
of injunction. Section 27 of the said Act reads as
under:-
"27. Jurisdiction of civil courts barred 27. Jurisdiction of civil courts barred
No Civil Court shall have jurisdiction in respect of
any matter to which any provision of this Act
applies and no injunction shall be granted by any
Civil Court in respect of anything which is done or
intended to be done by or under this Act."
32. Sub Section (1) of Section 32 of the
said Act requires the State Government to make
rules for carrying out the purposes of this Act which
in turn would imply that the same inter-alia provides
for protection of life and property of senior citizens
under clause (f) of sub section (2) of section 32 of
the said Act.
33. The major grievance made by the
appellants in the context of the aforesaid provisions
thus is that there is failure to make statutory rules in
terms of Section 32, as envisaged aforesaid, by the
Chandigarh Administration which itself compelled
the appellants to approach this Court under Articles
226/227 of the Constitution of India.
34. In the context of the aforesaid
discussion about the provisions of the Act, now we
proceed to analyze two crucial questions referred to
aforesaid:-
Question No. (i):- Question No. (i):
The stand of respondent No. 7 before the Court is
not that there was any contribution given by him for
acquisition of the plot at Chandigarh. It is also not his
say that the property is an inherited property. The
registered document of title is also in favour of only
appellant No.1. In fact, out of his own earnings,
appellant No.1 gifted the plot to respondent No. 7 as
well as two other plots to his daughters. There is just
a bald statement that the property at Chandigarh is
joint Hindu family property. The failure, which has
been attributed to Administration of Union Territory,
Chandigarh, is qua the provisions of Section 32 read
with Section 22 of the said Act. There are rules
required to be made by a notification in the official
gazette for carrying out the purposes of the Act
under sub section (1) of Section 32 of the said Act.
These Rules without prejudice to the generality of
the powers, inter-alia are to provide for
implementation of the provisions of the said Act
under sub section (1) of Section 22 (clause (e) of sub
section (2) of Section 32) and a comprehensive
action plan for providing protection of life and
property to senior citizens under sub section (2) of
Section 22 (Clause (f) of sub section (2) of Section
32). No such Rules have been notified. The grievance
thus being made is that in the absence of the Rules
there is no effective procedure for the protection of
life and property of senior citizens and issuing a
notification by the Social Welfare Department dated
20.08.2013 constituting a Special Cell qua the life
and property to be protected under section 22 (2) of
the Act would not suffice. In fact sub section (1) of
Section 22 of the said Act requires the State
Government to confer powers and impose duties on
a District Magistrate to ensure that the provisions of
the Act are properly carried out. There has to be thus
an enforcement mechanism set in place especially
qua the protection of property as envisaged under
the said Act. When we examine it from the context of
the problem at hand, this is absent.
35. What is the right of respondent No. 7
and his family members to insist on occupying a
portion of the house of appellant No.1 especially
when the sale-deed is registered in the name of
appellant No.1 in his individual name? Merely stating
that it is a joint Hindu family property would not
suffice. In order to establish that the property
belongs to joint family, it must be established that a
joint family had a sufficient nucleus at the time of its
acquisition. (P. S. Sairam and another V. P.S.Rama (P. S. Sairam and another V. P.S.Rama
Rao Pisey and others (2004) 11 SCC 320). Leave Rao Pisey and others (2004) 11 SCC 320)
aside the corpus, it is not even alleged that the funds
other than the individual funds of appellant No.1
were utilized to purchase the plot at Chandigarh.
Respondent No. 7 could not have even alleged so as
he actually received a self acquired plot at
Panchkula from appellant No.1 by way of gift while
daughters of appellant No.1 received one plot each
in Karnal. Other than the oblique motive to grab the
property at Chandigarh and keep possession of the
same against the wishes of the owner, there can be
no other reason. In fact, it was quite clear during the
course of arguments that not only respondent No. 7
wants to deprive the appellant No.1 to deal with his
property as per his wishes but wanted to grab the
whole property for himself denying the share of his
sisters.
36. In Ganduri Koteshwaramma and Ganduri Koteshwaramma and
another Vs. Chakiri Yanadi and another 2011(9) SCC
788 it has been held by the Supreme Court that in 788
view of the amendment of Section 6 of the Hindu
Succession Act, 1956, a daughter is entitled to share
in the ancestral property and is a co-parcener as if
she had been a son w.e.f. 09.09.2005. Daughter of a
co-parcener becomes a coparcener by birth in her
own rights and liabilities in the same manner as the
son. The only exception carved out is that where the
disposition or alienation has taken place before
20.12.2004 and where testamentary disposition of
property has been made before the said date.
37. It cannot be said that in such a
situation, where respondent No. 7 was at best living
with the permission of his parents, which permission
stands long withdrawn, the appellants and more
specifically appellant No.1 should be compelled to
knock the door of the civil court and fight a legal
battle to obtain exclusive possession of the property.
This would defeat the very purpose of the said Act
which has an over- riding effect qua any other
enactment in view of Section 3 of the said Act. In
fact, the Civil Court has been precluded from
entertaining any matter qua which jurisdiction is
vested under the said Act and specifically bars
granting any injunction. Respondent No. 7 is thus
required to move out of the premises to permit the
appellants to live in peace and civil proceedings can
be only qua a claim thereafter if respondent No. 7 so
chooses to make in respect of the property at
Chandigarh but without any interim injunction. It is
not the other way round that respondent No. 7 with
his family keeps staying in the house and asking the
appellants to go to the Civil Court to establish their
rights knowing fully well that the time consuming
civil proceedings may not be finished during the life
time of appellant No.1. In fact, that is the very
objective of respondent No. 7.
38. Though it is not directly relevant but it
is not even as if respondent no. 7 is without a roof
over his head as he is a beneficiary of a gift from his
father-appellant No.1 of a plot which was sold,
smaller plot purchased and constructed upon and
the house is lying vacant. What can be a greater
travesty of justice in this situation where respondent
No. 7 insists that he will not stay in his own house
built by him lying vacant, but insists on staying with
his parents who do not want him or his family to live
with them. We don't have the slightest of hesitation
in coming to a conclusion that all necessary
directions can thus be made under the said Act to
ensure that the appellants live peacefully in their
house without being forced to accommodate
respondent No. 7.”
Learned counsel for the petitioner has failed to point
out any illegality or perversity in the impugned orders.
Dismissed.
December 23, 2015. (PARAMJEET SINGH)
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