Children cannot assert legal rights over parents' property during their lifetime, emphasizing the need for legal protection for elderly parents.

ORDER :

G. S. Kulkarni, J.

1.This petition under Article 226 of the Constitution of India challenges an order dated 15 October 2024 passed by the Presiding Officer, Parents and the Senior Citizens Welfare Tribunal, and Sub-Divisional Officer, Mumbai Western Suburbs, directing the petitioner who is the step son of the respondent, Euphemia Hendricks, to vacate the flat in question being Flat No. 201, 2nd Floor, Silver Arc Cooperative Society, Poisar Village, Kandivali (West), Mumbai 400 067 (the “said flat”).

2. On the earlier occasion (on 21 February 2025) when we heard learned counsel for the parties, we passed an order appointing Mr Sivakumar, Additional Prothonotary & Senior Master, High Court Bombay to visit the place where the respondent is presently residing at Bandra, at her sister’s residence and to place on record a report on the health condition of the respondent, as also to ascertain from her, whether the respondent is willing to stay with the petitioner and his fiance Ms Rupali Mhatre at the disputed flat at Poisar, Kandivali, and/or as to what is her real intention. Accordingly, a report has been submitted by Mr Sivakumar, Additional Prothonotary & Senior Master. We have perused the report.

3. The case of the respondent before the Senior Citizens Tribunal against the petitioner was to the effect that the respondent is the joint owner of the said flat with her deceased husband that the respondent never permitted the petitioner to stay in the flat of the petitioner.

4. It is not in dispute that the respondent is an owner of the flat along with her husband Mr. Andrew Hendricks, who passed away in January2022. Thereafter, in February 2022 the respondent is stated to have been removed from the flat. She is in a state of severe ill health and staying with her sister Ms Marian Almeida, who is herself 84 years old. Ms Marian Almeida is present in the Court. She is taking care of respondent including all her medical needs. We have also perused the medical reports she has placed before us on behalf of the respondent and also the medical reports prior to February 2022 tendered on behalf of the petitioner.

5.Considering the facts and circumstances of the case that the Tribunal has passed an eviction order restoring the possession of the respondent’s flat under the Senior Citizens Act, the learned counsel for the petitioner has taken a fair stand. He does not dispute that the flat in question belongs to respondent-stepmother and that per se he would not have any legal right to be asserted qua such flat, much less to assert any right to occupy the said flat.

6. We find that today the position is that the respondent being deprived of her premises/the flat in question, her sister Ms Marian Almeida at Bandra, where the Additional Prothonotary & Senior Master of this Court has visited to ascertain the fact position as per our order dated 21 February 2025.

7.The facts of the case and the position in law appears to be well settled that during the lifetime of the parents, the children (in the present case the step children) cannot assert any legal rights in respect of the property of the parents, so as to claim ownership or possession of the property. It is held in a decisions of this Court, the proper remedy for the petitioner will be to file a suit subject to the rights of the other legal heirs, which cannot be during the lifetime of the respondent-stepmother. In such context in Dinesh Bhanudas Chandanshive vs State of Maharashtra & Ors., 2024 SCC OnLIne Bom 336 : AIR 2024 Bom 136 : (2024) 2 AIR Bom R 757 : (2024) 2 Bom CR 740 a Division Bench of this Court of which one of us (G.S. Kulkarni, J. was a member) in similar circumstances made the following observations:

“1. An unfortunate saga of a mother, who is a senior citizen, requiring to initiate proceedings against her son and his wife, who illegally ousted her from her abode, is the subject matter of the present proceedings.

16. … … … It is most unfortunate that the mother in the twilight y