Chetana Gopinath vs Mrs. Shyamala Shivshankar Thakar ...
2022 Latest Caselaw 8107 Bom

                                                                                   WP-9296-22.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
  by BHARAT
  DASHARATH
  PANDIT
                                         CIVIL APPELLATE JURISDICTION
  Date:
  2022.08.20
  17:45:12 +0530                      WRIT PETITION NO. 9296 OF 2022

                     Chetana Gopinath                              .... Petitioner.
                           V/s
                     Mrs. Shyamala Shivshankar
                     Thakar & Anr.                                 ..... Respondents.
                     ---
                     Ms. Shilpa Nagori for the Petitioner.
                     Ms. Rita Abraham for Respondent No.1.
                     Ms. Madhubala Kajle 'B' Panel Counsel for the State-Respondent No.2.
                     ---
                                      CORAM: NITIN W. SAMBRE, J.

                                           DATE:     AUGUST 20, 2022

                     P.C.:-

                     1]       Challenge in the Petition is to the order dated 18/5/2022 passed

by Respondent No.2 under the provisions of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred

to as the "said Act" for the sake of brevity).

2] Facts necessary for deciding the Petition are as under:-

3] Shivshankar, father of the present Petitioner, was married to

Shyamala i.e. Respondent No.1 to the Petition. Petitioner and

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Manisha are daughters blessed out of aforesaid wedlock. Shivshankar

alleged to have executed registered Will in favour of Respondent No.1-

wife, thereby bequeathing property viz Flat in relation to which

Respondent No.1 initiated proceedings for summary eviction of the

Petitioner. The said proceedings were decided against the Petitioner

vide order impugned dated 18/05/2022 passed by Respondent No.2-

Tribunal. As such, this Petition.

4] Counsel for the Petitioner while questioning the order

impugned, would urge that the Will executed by deceased father

Shivshankar in 1997 is a subject matter of Testamentary Suit No.166

of 2016. In the said Testamentary Suit, claim of the Petitioner is that

of being entitled to share in the property i.e. Flat, as it is claimed that

said property was purchased out of joint family earnings. Drawing

support from the judgment of the Apex Court in the matter of Smt. S.

Vanitha vs. The Deputy Commissioner, Bengaluru Urban District and

Ors delivered in Civil Appeal No.3822 on 15/12/2020 contentions are,

there exists a composite dispute in relation to property in question,

having regard to the aforesaid proceedings in the form of

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Testamentary Suit and the claim of the Petitioner. In such an

eventuality, it is claimed that the order impugned is not sustainable

and is liable to be quashed and set aside, as entitlement of the

Petitioner in law to the suit property is sub judice in the aforesaid suit.

Counsel would then urge that the Petitioner is a single mother and is

residing with Respondent No.1-mother since long. It is claimed that

Respondent No.1-mother is being looked after by the Petitioner and

her son which fact is not digested by other daughter viz Manisha. As

such, Respondent No.1 initiated proceedings at the behest of said

daughter so as to oust the Petitioner. It is further claimed that

Respondent No.1-mother is getting pension and as such she cannot

claim that she is entitled to the suit property or eviction of the

Petitioner.

5] While countering the aforesaid submissions, Counsel for

Respondent No.1 would urge that Petition is liable to be dismissed for

non-joinder of necessary party as other daughter Manisha who was

non-applicant/Respondent No.1 before the Tribunal is not impleaded.

As such, according to her, claim that proceedings are initiated at the

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behest of Manisha by Respondent No.1 cannot be looked into. Further

contentions are, property in question was purchased by deceased

Shivshankar out of his independent earnings and it being his self

acquired property, he has every right to bequeath the same in favour

of Respondent No.1. It is further claimed that Petitioner has not

initiated any suit for partition and possession.

6]    I have appreciated aforesaid contentions.



7]    Fact remains that Respondent No.1 initiated proceedings before

Respondent No.2 for eviction on the ground of cruelty being practiced

by the Petitioner and her son. The allegations against the Petitioner in

the proceedings moved by Respondent No.1 are that the Petitioner and

her son are ill-treating Respondent No.1-mother and son of the

Petitioner has tried to assault Respondent No.1. Fact remains that suit

property i.e. Flat No.4, Varun - 1 A-Wing, Raheja Township, Malad

(East), Mumbai consists of only one bedroom. Petitioner appears to

be married, having a grown up son who is informed to be around 22

years of age. It is also brought on record that Petitioner has

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independent source of earning, whereas Respondent No.1 is relying on

family pension which she receives after the death of her husband.

8] Certain circumstances are narrated in the Application before

Respondent No.2-Tribunal as regards violent behaviour of the son of

the Petitioner. A specific instance of 01/10/2021 wherein son of the

Petitioner has tried to physically assault in a violent way to

Respondent No.1 is also brought to the notice of police authorities of

which, rightly so, Tribunal has taken note of.

9] The material brought on record before the Tribunal, conduct of

grown up son of the Petitioner and the fact that she has an

independent source of income has rightly prompted the Tribunal to

hold that Respondent No.1 was treated by the Petitioner and her son

with cruelty.

10] As regards issue of summary eviction of the Petitioner is

concerned, it has to be noted that Respondent No.1 is aged about

more than 88 years. Petitioner has also crossed her age of 50 years

and has an independent source of income. She has company of her

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son. As stated hereinabove, suit property consists of only one bed-

room and it will be difficult to accommodate the Petitioner and her

son who has treated Respondent No.1 with cruelty in the very same

property.

11] Merely because Testamentary Suit is pending, that by itself will

not give any leverage to the Petitioner to claim continuation in the suit

property. Rather, it was open for the Petitioner to file a suit for

partition and separate possession as it is claimed that she has share in

the suit property.

12] Fact that Petitioner is contesting Testamentary Suit sufficiently

reflects difference of opinion between the Petitioner and Respondent

No.1 which also fortifies the claim of the Respondent No.1.

13] In the aforesaid backdrop, Tribunal, in my opinion, was justified

in passing the order of eviction of the Petitioner from the suit property.

Reliance placed by the Counsel for the Petitioner on the judgment of

the Apex Court in the case of Smt. S. Vanitha, cited supra, in my

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opinion is misplaced for the reason that facts in the said case were

based on pendency of proceedings under the Prevention of Domestic

Violence Act, whereas in the case in hand, Petitioner has neither

initiated nor facing any proceedings but for Testamentary Suit, by

virtue of her claim to contest the Will executed by her deceased father

in favour of Respondent No.1 - mother. Apart from above, another

sister Manisha was party before the Tribunal being Respondent No.1

who is not impleaded in the present proceedings. Fact remains that in

the absence of she being party before this Court, contentions of

malafides on the part of Respondent No.1 in initiation of proceedings

cannot be gone into.

14] In this backdrop, in my opinion, no case for grant of relief is

made out. Petition as such fails and same stands dismissed.

( NITIN W. SAMBRE, J. )