The central legal point established in the judgment is the entitlement of senior citizens to seek eviction of their children or legal heirs from their property for protection under the Delhi Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and related Rules.

JUDGMENT :

NAVIN CHAWLA, J.

Cav.227/2020 in WP(C) 2761/2020

Since the learned counsel for the respondent Nos.2 and 3 enters appearance on advance notice, the Caveat stands discharged.

CM No.9648/2020 (Exemption) in WP(C) 2761/2020

CM No.9768/2020 (Exemption) in WP(C) 2795/2020

Allowed, subject to all just exceptions.

CM No.9766/2020 in WP(C) 2795/2020

This is an application for appointment of next friend of petitioner. It is prayed that the mother of the petitioner who has no interest adverse to that of the petitioner be appointed as a next friend guardian ad litem.

The prayer made is not opposed.

The application is accordingly allowed and disposed of.

W.P.(C) 2761/2020 & CM No.9647/2020 (Stay)

W.P.(C) 2795/2020 & CM No.9767/2020 (Stay)

1. WP(C)2761/2020 has been filed by the son of the respondent nos.2 and 3, while WP(C)2795/2020 has been filed by the grandson of the respondent nos.2 and 3 through the mother, that is, the wife of the petitioner in WP(C) 2761/2020.

2. These petitions challenge the order dated 20.02.2020 passed by the learned Appellate Tribunal under the provisions of the Delhi Maintenance and Welfare of Parents and Senior Citizens, Rules, 2009 as amended from time to time (hereinafter referred to as the ‘Rules’) in Appeal bearing No. PA/Div. Comm./Appeal No. 30/2018/624-628, ordering eviction of the petitioners from house bearing No.C-117, East of Kailash, New Delhi.

3. The primary contentions of the learned counsels for the petitioner(s) is that the suit property does not belong exclusively to the respondent nos.2 and 3 but is a Hindu Undivided Family (HUF) property, wherein the petitioner also has a share being a co-parcenar.

4. I find no merit in the said contention. The petitioner in WP(C) 2795/2020 had earlier filed a civil suit, being CS(OS) 2223/2013, before this Court, praying inter-alia for a decree of partition, raising same plea. This Court by its judgment and order dated 04.02.2019 was pleased to reject the said plaint under Order VII Rule 11 of Code of Civil Procedure, 1908, inter-alia observing as under with respect to the property in question:

“69. As far as C-117, East of Kailash, New Delhi is concerned, this Court finds that not only the Agreement to Sell and Receipt of payment are in favour of the defendant No. 1's wife, namely, defendant No. 5 but the Conveyance Deed executed by the DDA is also in her favour exclusively. In fact, the said property was purchased by defendant No.5, who is an independent Income Tax Assessee admittedly having rental and business income. On the date of purchase, father of the plaintiffs (defendant No.4) was nine years old

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72. The contention of the plaintiffs that the name of the wife of defendant No.1 was used as benami with regard to C-117, East of Kailash, New Delhi by the defendant Nos.1, 3 and 4 for the benefit of the family and the coparcenary, as envisaged under the exception in Section 4(3) of the Act, 1988, is untenable in law inasmuch as the grandmother of the plaintiffs, i.e. defendant No. 5 being a female could not be a coparcener prior to 2005. In fact, it has been admitted in the plaint that defendant No.5 was not a coparcener in the Hindu Joint family and had no share in it on the date of purchase of the said property. (Para 2(xv) of the plaint).

73. Also, as defendant No. 5 was not a coparcener, the doctrine of blending cannot be invoked with regard to property bearing C-117, East of Kailash, New Delhi........

74. Accordingly, the exception contained in Section 4(3) of the Act, 1988, as it then stood, is not attracted to the present case.

75. Consequently, in view of the Act, 1988, defendant No. 5 is the lawful absolute owner of C-117, East of Kailash, New Delhi, to the exclusion of plaintiffs and the defendant No. 4.

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88. This Court is of the view that the balance of convenience is entirely in favour of the defendant nos. 1 and 5 as they have been out of possession of their own house (C-117, East of Kailash, New Delhi) since 2010. It is pertinent to mention that a