The Allahabad High Court recently held that orders under the Maintenance and Welfare of Parents and Senior Citizens Act cannot be issued in cases for handing over the possession of a particular part of the undivided ancestral property and the authorities also do not have the right to divide the property.
The Division Bench of Justice Surya Prakash Kesarwani and Gautam Chowdhary passed this order while hearing a petition filed by Jaiprakash Tiwari.
The application/ complaint dated March 13, 2021 submitted before the District Magistrate, Prayagraj, under Section 22(1)(3) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read with Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3 of Uttar Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules, 2014.
In this petition, the petitioner has alleged that in the village Abadi, there is an ancestral house which was owned by his father and is now occupied by him and his two brothers who all are residing in the same house and each brother has a share of 14 x 20 sq. ft. in the said house. But his brothers are trying to encroach over his share.
The Petitioner in the complaint dated March 13, 2021 has prayed for protection of his life and property and to give him possession over that portion of the property which has been encroached by his brothers.
According to the Petitioner, since no action has been taken by the District Magistrate, Prayagraj on his aforesaid complaint dated March 13, 2021, therefore the petitioner has filed the Petition praying for the aforenoted reliefs.
Counsel for the Petitioner submitted that life and property of the Petitioner be protected and he be put in possession of that portion of the property which falls in his share.
Additional Chief Standing Counsel submitted on the basis of instructions that the said property was inspected by the authorities and on June 17, 2021 action under section 107 /116 Cr.P.C. was taken so as to ensure that breach of law and order does not take place.
He further submitted that the disputed property is an ancestral one in which the Petitioner and his two brothers have undivided shares and partition has not yet taken place.
“We have carefully considered the submissions of Counsel for the parties and we find that an action under section 107/116 Cr.P.C. has already been taken by the State‐ respondents”, the Court observed.
The Court held that,
So far as the contention of the Petitioner that he be put in possession in a particular portion of the disputed property is concerned, we find that such a matter shall not be covered by the provisions of Section 22(1) of the Act, 2007 read with Rule 21(2)(i) Rule 21(1) Sub-Rule 2 and 3 of the U.P. Rules, 2014. Such a dispute is pure and simple a dispute of share and possession of the disputed property which can be decided in a partition suit.
“For the reasons aforestated, we do not find any good reason to grant relief as sought by the Petitioner, inasmuch as the Act, 2007 does not confer power to the Authorities to decide partition dispute and share of parties in an immovable property. Admittedly, the disputed property is an ancestral property in which the parties have an undivided share.
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Thus, the Petitioner cannot ask for mandamus to the Authority under the Act, 2007 to put him in possession in a particular portion of the disputed property. Therefore, no mandamus as prayed, can be issued,” the Court ordered.
“With the aforesaid observations and without expressing any opinion on the merits of the claim of the Petitioner, the Petition is dismissed leaving it open for the Petitioner to avail such remedy as may be available to him under law,” the Court said.