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Direction To Son and his Wife To Vacate the House on Ill treatment of Parents

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ON THE 15TH DAY OF JUNE, 2019

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR. JUSTICE S. G. PANDIT

WRIT APPEAL NO. 797 OF 2019 (GM-RES)

BETWEEN:

SRI. NARASIMHA MURTHY
SON OF VENKATAPPA,
AGED ABOUT 50 YEARS,
RESIDENT OF LAKKENAHALLY,
HEBBURU HOBLI, TUMKUR TALUK,TUMKUR-572 101. … APPELLANT

(BY SRI. VINOD PRASAD, ADVOCATE)

AND

1. THE ASSISTANT COMMISSIONER
TUMKURU SUB DIVISION
TUMKURU-572 101.

2. SRI. VENKATAPPA
SON OF LATE MUDALAAIAH,
LAKKENAHALLI,
HEBBURU HOBLI,
TUMKURU TALUK,TUMKURU-572 102. … RESPONDENTS

(BY SRI. VASANTH V. FERNANDES HCGP FOR RESPONDENT No.1
SRI. SUNIL KUMAR P. BANGARI, ADVOCATE FOR RESPONDENT No.2)

THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE
APPEAL, SET ASIDE THE ORDER DATED 13/2/2019
PASSED IN WP 4156/2019 [GM-RES] DISMISSING THE
WRIT PETITION AND FURTHER ALLOW THE WRIT
PETITION AS PRAYED.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.04.2019 COMING ON THIS DAY,
S.G. PANDIT J., PRONOUNCED THE FOLLOWING:

JUDGMENT
Aggrieved by the order dated 13.02.2019 passed by the learned Single Judge in Writ Petition No.4156 of 2019 by which the writ petition was dismissed, the writ petitioner is in appeal.

2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India praying to quash order dated 05.01.2019 passed by the 1st respondent – Assistant Commissioner, Tumkuru, and for a direction to the Assistant Commissioner not to vacate the house of the petitioner in Khatha No.152500903800700266 and 77/1 situated at Lakkenahalli, Nagavalli Grama Panchayath, Heggur Hobli, Tumkuru. The petitioner states that the 2nd respondent – Sri Venkatappa, is his father. It is stated that the 2nd respondent has two sons and three daughters and petitioner is his first son. It is stated that the family of the petitioner and the 2nd respondent is a joint family and out of the income derived from the family, 2nd respondent purchased a site in Lakkenahalli Village in the name of his second son L.V. Mudalagiriyappa. Out of the common funds, a house was constructed in the said site bearing No.77/1 in the name of Mudalagiriyappa, wherein the petitioner’s family and his parents are living together. It is stated that due to differences between the petitioner and his younger brother Mudalagiriyappa and the 2nd respondent, the petitioner has filed O.S.No.639 of 2018 on the file of Civil Judge and JMFC at Tumkur, for partition and separate possession including the house property bearing No.77/1 situated at Lakkenahalli, Nagavalli Gramapanchayath, Hebbur Hobli, Tumkuru Taluk.

3. The 2nd respondent – Father, who is aged about 80 years filed complaint before the Senior Citizens Forum, Tumkuru, stating that the petitioner and his wife – Latha are residing with him and they are abusing the 2nd respondent and his wife. Further, the petitioner and his wife have physically assaulted the 2nd respondent and his wife, who are none other than his parents. The assault was so serious that 2nd respondent was taken in an Ambulance for treatment to Vinayaka Hospital, Tumkuru. Thereafter the 2nd respondent filed petition before the 1st respondent – the Assistant Commissioner under Section 24 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (For short ‘the Act’) seeking for a direction to the petitioner to vacate the premises bearing No.77/1, wherein the 2nd respondent and his wife are residing. In the meanwhile, the 2nd respondent on 22.11.2018 had lodged a complaint before the District Superintendent of Police, Tumkuru, against the petitioner and his wife – Latha. The Assistant Commissioner on the petition filed by the 2nd respondent issued notice to the petitioner. The petitioner replied to the said petition on 20.11.2018 stating that the house in question stands in the name of his brother Mudalagiriyappa and he has no problem in looking after his parents and stated that his brother with an ulterior motive to trouble the petitioner has made the 2nd respondent to file the present petition. The Asst. Commissioner issued notice of enquiry and conducted enquiry from 22.12.2018 to 29.12.2018. On enquiry the Assistant Commissioner found that the 2nd respondent and his wife are aged about 80 and 75 years respectively and are residing in the self earned house of their younger son L.V. Mudalagiriyappa and it has come to the notice of the authority that the petitioner, who is the elder son has made his parents to go out of the house, hence he directed the Implementation Officer, Tumkuru, to assist the 2nd respondent to get into the house and to give proper protection to the 2nd respondent and his wife. Aggrieved by the same, the petitioner filed the instant writ petition. The learned Single Judge on hearing the petitioner and the respondents dismissed the writ petition following the judgment passed in Writ Petition No.1171 of 2019 disposed off on 13.02.2019.

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4. Heard the learned counsel for the appellant and learned counsel for the respondents and perused the appeal papers.

5. The learned counsel for the appellant submits that the order of the learned Single Judge is wholly erroneous and the learned Single Judge failed to consider the grounds raised by the petitioner. It is further submitted that the petitioner appellant is ready and willing to look after his parents and he may be permitted to reside in house bearing No.77/1. It is stated that the partition suit is pending and the house in question is purchased out of the income of the joint family and as such he has a right to reside in the said house. He further states that the petitioner has no house of his own and if they are made to vacate from the house in question, they would be on streets. Thus prays to allow the appeal.

6. Per contra, learned counsel for the respondents submits that the learned Single Judge has rightly rejected the writ petition, that the petitioner has no right to reside in the house in question. The house stands in the name of his younger brother Mudalagiriyappa and the parents of the petitioner are residing in the said house. The complaint made by the 2nd respondent would disclose that the petitioner assaulted him and his wife, and they were thrown out of the house.

7. Having heard the learned counsel for the parties and having gone through the appeal papers, we are of the view, that the appellant has not made out any ground to interfere with the order of the learned Single Judge. Admittedly, the house in question that is property bearing No.77/1 situated at Lakkenahalli, Tumkuru, stands in the name of Mudalagiriyappa, the younger son of 2nd respondent. The petitioner is the first son of the 2nd respondent. It is the case of the petitioner that the house in question is constructed out of the income derived from the joint family funds and the suit in O.S.No.639 of 2018 is pending consideration, as such, he has a right to reside in the said house. The 2nd respondent and his wife were residing in house bearing No.77/1, which was constructed by their younger son Mudalagiriyappa, who had arranged residence for his parents. The petitioner, who entered the house later on, started troubling his parents along with this wife. The complaint made by the 2nd respondent to the Senior Citizens Forum, Tumkuru, as well as to the Police discloses that the 2nd respondent was physically assaulted by the petitioner and his wife and also the petitioner abused his parents with abusive language and has thrown them out of the house. It also discloses that the 2nd respondent was taken in ambulance for treatment to Vinayaka Hospital, Tumkuru. The 1st respondent – the Assistant Commissioner, looking into the material on record has rightly come to the conclusion that the 2nd respondent is entitled to reside in the house bearing No.77/1, which stands in the name of his younger son Mudalagiriyappa and also provided police protection to the 2nd respondent and his wife, in exercise of his power under the Act. This Court in Writ Petition No.1171 of 2019 disposed off on 13.02.2019 while dealing with the provisions of the Act has held that the object of the Act is to recognize the rights of the senior citizens or parents to live peacefully and with dignity. In the case on hand also it is the bounden duty of the petitioner to look after the aged parents. The 2nd respondent was residing in the house constructed by his second son Mudalagiriyappa, wherein the petitioner also joined his father. After joining the father at the house built by Mudalagiriyappa, petitioner started troubling his parents instead of looking after his parents. Series of incidents narrated in the complaint would indicate the treatment meted out to parents by the petitioner. The Act, which provides for seeking maintenance for parents and ancillary relief to the parents. The 1st respondent – Assistant Commissioner after affording opportunity to the petitioner has rightly ordered to give protection to the 2nd respondent and directed to make way for the 2nd respondent parents to reside in the house in question.

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The petitioner has no right as on this day on the house in which the respondent No.2/parents are residing. The learned Single Judge relying on order dated 13.02.2019 in W.P.No.1171/2019 has rightly rejected the writ petition on a more or less similar facts. The writ petition No.1171/2019 was filed challenging the order of the Assistant Commissioner directing payment of Rs.10,000/- p.m. for maintenance and to hand over the vacant possession of the residential unit. The learned Single Judge in the said decision relying on several decisions of the Hon’ble Apex Court interpreted the object and purpose of the Act and has held that the Act provides protection of life, liberty and property of elderly persons. Thus we see no reason to differ with the order of the learned Single Judge. The learned Single Judge has rightly rejected the writ petition relying on the decision cited supra. We find no perversity or erroneousness in the order passed by the learned Single Judge. There is no merit in the appeal . Accordingly, the writ appeal is dismissed.

Consequently, I.A.No.1 of 2019 filed for stay does not survive for consideration, the application is dismissed.

Sd/- Sd/-
JUDGE

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