Delhi High Court
Anurag Sharma & Anr. vs Prem Sharma & Ors. on 27 January, 2015
Author: Rajiv Shakdher
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5277/2013 & CM No.11824/2013
ANURAG SHARMA & ANR ..... Petitioners
Through: Mr. Amit Gaurav, Adv. with
Mr. Anurag Sharma, P1.
versus
PREM SHARMA & ORS ..... Respondents
Through: Mr. Jai Gupta and Ms. Sunita Yadav,
Advs. for R1 & 3.
Mr. Gursharan Singh, Adv. for R9 &
10.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 27.01.2015
1. This is a writ petition which is directed against the order dated
12.7.2013 passed by the Tribunal for Maintenance of Parents and Senior
Citizens (in short the Tribunal) constituted under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 (in short the Act).
2. The petitioner is aggrieved by the impugned order only to the extent
that the Tribunal has directed construction of an external staircase for
accessing the first and the second floor of the property in issue.
3. To be noted, the property in issue is situate at 61, RPS Colony,
Khanpur, New Delhi - 110016.
4. Notice in this petition was issued on 2.9.2013.
W.P.(C) 5277/2013 page 1 of 4
5. The petition was listed before court on 26.8.2013. On that date, a
direction was issued that it be placed before the roster bench. The matter,
thereafter, came up before court on 2.9.2013. On that date, respondents No.9
and 10 were represented by Mr. Gursharan Singh, Advocate. On
02.09.2013, the counsel for the petitioner sought time to place on record the
site plan of the aforementioned property. The court, after hearing the
counsels for the parties, granted an interim stay qua the impugned order in
respect of the directions issued with regard to construction of an external
staircase, and provisioning of a kitchen for use on the upper floors.
6. Today, I am informed that all the respondents have been served.
However, only respondent Nos.1, 2, 9 and 10 are represented. The
remaining respondents, i.e. respondent Nos.3 to 8 are not represented.
6.1 In these circumstances, the said respondents are proceeded ex-parte.
7. In any event, what is clear after hearing counsel for the petitioner as
well as counsel for respondent Nos.1 and 2, is that, respondent Nos.1 and 2
are essentially the only contesting respondents.
8. Counsel for the petitioner, as indicated above, says that while the
petitioners have no difficulty in respondent No.1, who is the mother of the
petitioner No.1, residing on the ground floor of the aforementioned property;
their objection is, as to the direction issued with regard to construction of an
external staircase.
9. The grievance of the petitioners, it appears, emanates from their stand
(though not substantiated before me even on a prima facie basis), that the,
property, in issue is a Hindu Undivided Family (HUF) property, and that, the
Tribunal has not kept in mind, this aspect of matter, while passing the
W.P.(C) 5277/2013 page 2 of 4
impugned order. According to the petitioners, this direction would in effect
result in the property in issue being partitioned.
9.1 On counsel being asked as to how the property was a HUF property,
he said that the petitioners will demonstrate this before a competent court,
which shall return a finding to that aspect.
10. It was then put to the learned counsel for the petitioners as to whether
the direction presently made, could continue to operate till the petitioners,
approach a competent civil court and obtain, the necessary directions, in that
behalf. Counsel for the petitioners submits that the petitioners would be
agreeable to such a direction being passed.
11. It may also be noted that the financial burden of building an external
staircase, as well as, for provisioning a kitchen on the upper floors, as per
the directions of the Tribunal, falls on respondent Nos.2 and 4.
12. To be noted, respondent No.4 is the brother of respondent No.1 and
the uncle of petitioner No.1 and respondent No.2.
13. Counsel for the respondent Nos.1 and 2 is also agreeable to the
directions which I propose to pass hereafter.
14. Accordingly, the writ petition is disposed of with the following agreed
directions:-
(i) The operative directions contained in the impugned order shall
continue to operate subject to the petitioners approaching the competent
civil court, which, needless to say, would be free to rule upon the claim of
the petitioners that the aforementioned property is a HUF property. The
competent civil court will also then, if necessary and, if there is merit in the
petitioners' case, be free to devise an appropriate methodology as prescribed
W.P.(C) 5277/2013 page 3 of 4
in law for partitioning the aforementioned property.
(ii) Till such time, the petitioners approach the competent civil court and
an appropriate order is passed in that behalf, these directions will continue to
bind the parties herein.
(iii) As indicated in the impugned order, respondent Nos.2 and 4 shall bear
the expenses for constructing the external staircase and for provisioning a
kitchen. The needful will, however, be done after obtaining necessary
permissions from the concerned municipal authorities.
15. The writ petition is, accordingly, disposed of.
RAJIV SHAKDHER, J
JANUARY 27, 2015
s.pal
W.P.(C) 5277/2013 page 4 of 4
