Karnataka High Court
Sri. N. Rajanna vs State Of Karnataka on 5 October, 2023
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NC: 2023:KHC:36102
WP No. 49822 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 49822 OF 2017 (GM-RES)
BETWEEN:
SRI. N. RAJANNA
S/O. LATE NARASIMHAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.684,
DASAPPANNA PALYA VILLAGE,
CHIKKABANAVARA POST,
BENGALURU-560 090.
...PETITIONER
(BY SRI. JAYKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI. KUMARA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY SECRETARY,
REVENUE DEPARTMENT,
VIDHANA SOUDHA,
BENGALURU-560 001.
Digitally
signed by 2. THE TRIBUNAL
SUMA
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR
Location:
HIGH CITIZEN AND ASSISTANT COMMISSIONER,
COURT OF BENGALURU NORTH DIVISION,
KARNATAKA
BENGALURU.
3. SRI. CHIKKASONNAPPA
S/O. LATE KEMPANNA,
AGED ABOUT 88 YEARS,
R/AT NO.18, CQAL EXTENSION,
SAHAKARANAGARA POST,
BENGALURU-560 092.
SINCE HE IS DEAD,
REP BY HIS LRS
3(a) SRI. RAMANNA
S/O SRI. LATE CHIKKASONNAPPA
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NC: 2023:KHC:36102
WP No. 49822 of 2017
AGED ABOUT 65 YEARS,
BY AGE MAJOR,
NO.18, CQAL EXTENSION,
NEAR GANESH TEMPLE,
SAHAKARANAGARA POST,
BENGALURU-560 092.
3(b) SMT. KEMPAMARI
D/O SRI. LATE CHIKKASONNAPPA
W/O SRI. ASWATHAPPA
AGED ABOUT 62 YEARS,
3(c) SMT. JANAKAMMA
D/O SRI. LATE CHIKKASONNAPPA
W/O SRI. HANUMANTHAPPA
AGED ABOUT 59 YEARS,
3(d) SMT. CHANDRAMMA
D/O SRI. LATE CHIKKASONNAPPA
W/O SRI. CHANDREGOWDA
AGED ABOUT 56 YEARS,
3(e) SMT. MAMATHA
D/O SRI. LATE CHIKKASONNAPPA
W/O SRI. NARAYANASWAMY
AGED ABOUT 51 YEARS,
ALL R/ATT 305, 1ST CROSS,
BYATARAYANAPURA,
SAHAKARANAGARA POST,
BENGALURU-560092.
4. SRI. KALYANAKUMAR
S/O. RAMANNA,
AGED ABOUT 34 YEARS,
5. SRI. RAJANIKANTH
S/O. RAMANNA,
AGED ABOUT 31 YEARS,
R4 & R5 R/AT NO.305, 1ST CROSS,
BYATARAYANAPURA,
SAHAKARANAGARA POST,
BENGALURU-560 092.
...RESPONDENTS
(BY SRI. RAHUL CARIAPPA, ADDITIONAL GOVERNMENT ADVOCATE
FOR RESPONDENT NOS.1 AND 2;
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NC: 2023:KHC:36102
WP No. 49822 of 2017
NOTICE SERVED ON RESPONDENT NOS.4 AND 5;
SRI. CHOKKA REDDY, ADVOCATE FOR LEGAL REPRESENTATIVES OF
DECEASED RESPONDENT NO.3 I.E. RESPONDENT NOS.3(a) TO 3(e)
(ABSENT))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 06.10.2017 PASSED BY THE 2ND
RESPONDENT IN CASE NO.MSC/CR/82/2016-17 AT ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged an order passed by the respondent No.2 dated 06.10.2017 in Case No.MSC/CR/82/2016-17 cancelling the gift deed dated 11.11.2013 executed by the respondent No.3 (since deceased) in favour of respondent Nos.4 and 5 concerning the land bearing Sy.No.60/9 measuring 1 acre 4 guntas situated at Shettigere village, Jala Hobli, Bengaluru Taluk and directing the Tahsildar to take steps to intimate the concerned Sub- Registrar, Gandhinagar to cancel the gift deed and consequent sale deed in favour of the petitioner herein.
2. The respondent No.3 was the owner of the land bearing Sy.No.21/12, measuring 11 guntas situated at -4- NC: 2023:KHC:36102 WP No. 49822 of 2017 Byatarayanapura village, Yelhanka Hobli, Bengaluru North Taluk and Sy.No.60/9, measuring 1 acre 4 guntas situated at Shettigere village, Jala Hobli, Bengaluru North Additional Taluk. The respondent No.3 executed a gift deed dated 11.11.2013 conveying the aforesaid two properties to the respondent Nos.4 and 5. Consequent thereto, the revenue records stood transferred to the names of the respondent Nos.4 and 5. The respondent Nos.4 and 5 being the lawful owners of the aforesaid properties, conveyed the land bearing Sy.No.60/9 of Shettigere village to the petitioner herein in terms of a sale deed dated 10.08.2016. Soon thereafter, the respondent No.3 filed O.S.No.7713/2016 before the City Civil Judge, Bengaluru, for a declaration that the gift deed dated 11.11.2013 and the consequent sale deed dated 10.08.2016 as illegal, null and void and for consequential relief of perpetual injunction.
3. During the pendency of the said suit, the respondent No.3 initiated proceedings under Section 23 of the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 for cancellation of the gift deed dated 11.11.2013 and the consequent sale deed dated 10.08.2016. The respondent No.3 thereafter again filed O.S.No.82/2017 before -5- NC: 2023:KHC:36102 WP No. 49822 of 2017 the Civil Judge, JMFC, Devanahalli for perpetual injunction restraining the petitioner and the respondent Nos.4 and 5 from interfering with his possession. It is stated that the title of the respondent Nos.4 and 5 was acknowledged and confirmed by the sons and daughters of the respondent No.3 in terms of a deed of confirmation dated 17.02.2014 and 24.02.2014. Consequent to which, the respondent Nos.4 and 5 had conveyed the land bearing Sy.No.60/9 of Shettigere village to the petitioner on 10.08.2016. It is contended that the respondent No.2 without noticing the fact that there is no covenant contained in the gift deed that the respondent Nos.4 and 5 had to maintain the respondent No.3, committed an error in canceling the gift deed and consequent sale deed in favour of the petitioner. It is also contended that the respondent No.2 selectively ordered cancellation of the gift deed and sale deed in respect of the land bearing Sy.No.60/9 of Shettigere village, while no observation is made regarding the cancellation of the gift deed in respect of land bearing No.21/12 of Byatarayanapura village. It is therefore, contended that the impugned order passed by the respondent No.2 is without any basis and is not justified.
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4. The learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court in the case of Sudesh Chhikara vs. Ramti Devi and another [AIR Online 2022 SC 1357] and contended that the Hon'ble Apex Court had considered the aforesaid question and had held as follows:-
"14. Careful perusal of the petition under Section 23 filed by respondent No.1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of respondent No.1) would provide the basic amenities and basic physical needs to respondent No.1. Even in the impugned order dated 22nd May 2018 passed by the Maintenance Tribunal, no such finding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was filed by the appellant that the petition was fixed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor - senior citizen is sine qua non for applicability of sub-section (1) of Section 23. In the present case, as stated earlier, it is not even pleaded by respondent No.1 that the release deed was executed subject to such a condition."-7-
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5. The learned counsel for the petitioner therefore, contended that unless there is a condition mentioned in the gift deed that the respondent Nos.4 and 5 are bound to maintain the respondent No.3, the respondent No.2 would not be clothed with the jurisdiction to entertain a petition for canceling gift deed and the consequent sale deed. Therefore, he reiterated the contention urged in the writ petition and contended that the impugned order passed by the respondent No.2 is liable to be set aside on short ground mentioned above.
6. The learned counsel for the respondent No.3(a) to
(e) has remained absent. Therefore, this Court did not have the benefit of his submission.
7. Be that as it may, a perusal of the gift deed does not show that the gift deed was subject to the condition that the respondent Nos.4 and 5 should maintain the respondent No.3. It is undisputed that the respondent Nos.4 and 5 are the grandchildren of the respondent No.3 and that the respondent No.3 had children from whom he could claim maintenance. Thus, so long as the gift deed executed by the respondent No.3 is unconditional and there is no stipulation that the respondent -8- NC: 2023:KHC:36102 WP No. 49822 of 2017 Nos.4 and 5 were bound to maintain the respondent No.3, the respondent Nos.4 and 5 would be the absolute owners of the property bearing Sy.No.60/9 of Shettigere village and therefore, the respondent No.2 could not have exercised the jurisdiction under the provisions of The Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 to cancel the gift deed and consequent sale deed in favour of the petitioner. As rightly contended by the learned counsel for the petitioner, the Hon'ble Apex Court in the case of Sudesh Chhikara, supra, has rightly held that when a senior citizen parts with his/her property, by executing a gift or release deed, the existence of a condition that the Donee shall maintain must be established before the Tribunal. Except the self-serving statement of the respondent No.3 that there was a condition in the gift deed, there was nothing to justify the claim of the respondent No.3. Therefore, unless there is a provision in the gift deed requiring the respondent Nos.4 and 5 to maintain the respondent No.3, the respondent No.2 would not get the jurisdiction to entertain a petition under Section 23 of the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 and cancel the registered instrument of gift and the -9- NC: 2023:KHC:36102 WP No. 49822 of 2017 consequent sale deed executed by the respondent Nos.4 and 5 in favour of the petitioner.
8. In that view of the matter, this petition is allowed. The impugned order dated 06.10.2017 passed by the respondent No.2 in Case No.MSC/CR/82/2016-17 is set aside. Consequently, the gift deed executed by the deceased - respondent No.3 in favour of the respondent Nos.4 and 5 and consequent sale deed executed by the respondent Nos.4 and 5 in favour of the petitioner are declared to be valid.
9. However, this will not come in the way of the Civil Court independently deciding the validity of the gift deed in O.S.No.7713/2016.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 29