Karnataka High Court
Sri Nagendra vs The Tribunal on 14 February, 2023
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WP No. 33563 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION NO.33563 OF 2018 (GM-RES)
BETWEEN:
SRI NAGENDRA
S/O. LATE MUNIRAJ JAIN
AGED ABOUT 39 YEARS,
#130/1, ULSOR ROAD,
BANGALORE - 560 042. ... PETITIONER
(BY MISS. PRASANNA K., ADVOCATE FOR
SRI CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. THE TRIBUNAL,
THE MAINTENANCE AND WELFARE OF THE
PARENTS AND SENIOR CITIZENS,
ASSISTANT COMMISSIONER,
PUTTUR SUB-DIVISION,
PUTTUR - 574 201
DAKSHINA KANNADA.
2. THE TAHSILDAR,
Digitally signed by BELTHANGADY TALUK
MAHALAKSHMI B M
BELTHANGADY - 574 212.
Location: HIGH
COURT OF
KARNATAKA 3. SMT. SUMANAJI
C/O. LATE M. MUNIRAJ JAIN
PADLADY HOUSE AND POST
LAILA VILLAGE,
BALTHANGADY TALUK - 574 212
D.K. ... RESPONDENTS
(BY SRI N. KUMAR, ADVOCATE FOR R-1 & R-2;
SRI M. SUBRAHMANYA BHAT, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
IN M.C.CR (HN) 25/2017-18, DATED 23.03.2018 PASSED BY
RESPONDENT NO.1 VIDE ANNEXURE-A.
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WP No. 33563 of 2018
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner, who is son of the 3rd respondent is assailing the order dated 23.03.2018 in Case No.M.C.CR (HN) 25/2017-18 passed by the 1st respondent whereby, the petition filed by the 3rd respondent under the provisions of Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'Senior Citizens Act' for short) for cancellation of settlement deed dated 19.10.2006 and seeking maintenance of Rs.30,000/- per month was allowed in part and the registered settlement deed executed entered into between the petitioner and 3rd respondent stood cancelled.
2. The brief facts of the case are that:
The father of the petitioner died on 10.11.2001 leaving behind his wife-3rd respondent, son-petitioner and his sister, who is not a party to this proceeding. It is stated that the 3rd respondent-mother of the petitioner continued to look after the affairs of the family and also the agricultural activities.-3- WP No. 33563 of 2018
The 3rd respondent executed the registered settlement deed dated 19.10.2006, by which 1.12 acres was given to the petitioner, 1.55 acres of land to his sister and the 3rd respondent retained the other properties. It is also stated that the 3rd respondent had also filed a suit in O.S. No.45/2017 for declaration that the registered settlement deed executed on 19.10.2006 is void and fraudulently obtained by the petitioner and the said suit is pending consideration between the parties.
3. Pending suit, the 3rd respondent filed the petition before the 1st respondent-Assistant Commissioner under the provisions of Senior Citizens Act seeking maintenance of Rs.30,000/- per month and for cancellation of the registered settlement deed dated 19.10.2006. The Assistant Commissioner by order dated 23.03.2018, cancelled the registered settlement deed. Aggrieved by which, the present petition is preferred by the petitioner.
4 Heard the learned counsel for the parties at lis and perused the material on record.
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5. Ms. Prasanna K., learned counsel appearing on behalf of Sri Chandranath Ariga K., learned counsel for the petitioner would contend that the 3rd respondent has executed the registered settlement deed on 19.10.2006, prior to the Senior Citizens Act coming into force. The said Act came into force on 31.12.2007 and therefore, the 3rd respondent cannot invoke the provisions of the Senior Citizens Act which provides the senior citizens to invoke this Senior Citizens Act, if the transfer is made subsequent to the Act coming into force and would contend that the same is prospective in nature and not retrospective. Therefore, the learned counsel would contend that the impugned order dated 23.03.2018 passed by the 1st respondent invoking Section 23(1) of the Senior Citizens Act is liable to be quashed.
6. Per contra, Sri P. Subrahmanya Bhat, learned counsel for the 3rd respondent-mother of the petitioner would justify the order passed by the 1st respondent- Assistant Commissioner and would contend that the -5- WP No. 33563 of 2018 registered settlement deed is obtained by the petitioner by fraud and coercion. Learned counsel would also submit that taking into consideration the statement and the objects of the Senior Citizens Act the 1st respondent-Assistant Commissioner has rightly passed the order in favour of the 3rd respondent. Accordingly, learned counsel would submit that this Court could not interfere with the order passed by the Assistant Commissioner. Learned counsel would fairly submit that O.S.No.45/2017 is pending consideration which has been filed by the 3rd respondent seeking declaration that the registered settlement deed executed on 19.10.2006 is void and fraudulently obtained by the petitioner.
7. Having heard learned counsel for the parties and on perusing the material on record, the point that arises for consideration is:
"Whether the Assistant Commissioner is justified in canceling the registered Settlement Deed executed on 19.10.2006, which was executed prior to the commencement of the Senior Citizens Act, which was enacted on 31.12.2007?"-6- WP No. 33563 of 2018
8. The undisputed fact is that the registered settlement deed was executed on 19.10.2006 in favour of the petitioner and the Senior Citizens Act came into force in the year 2007.
9. Before adverting to the submissions made by learned counsel for the parties, it is relevant to consider the provisions of Section 23 of the Senior Citizens Act, which reads as under:
"23. Transfer of property to be void in certain circumstances.--(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if -7- WP No. 33563 of 2018 the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5."
(underlining by me)
10. A perusal of Section 23 of the Act would depict that if any senior citizen, after commencement of the Act transfers his property by way of gift or otherwise, then this Act could be enforced. The main criteria for invoking Section 23 of the Senior Citizens Act is that the settlement deed should have been executed after the commencement of the said Act, in the present case the registered settlement deed has been executed on 19.10.2006 i.e., prior to the date of commencement of the Act. In light of the same, the Senior Citizens Act invoked by the 3rd respondent is not maintainable. Accordingly, the point framed for consideration is answered in favour of the petitioner and this Court is of the considered view that the writ petition needs to be -8- WP No. 33563 of 2018 allowed and the order of the Assistant Commissioner needs to be set-aside.
11. For the reasons stated above, this Court pass the following:
ORDER i. The writ petition is allowed.
ii. The impugned order dated 23.03.2018 passed in Case No.M.C.CR (HN) 25/2017-18 passed by the 1st respondent is hereby set-aside and the petition filed by the 3rd respondent before the 1st respondent
-Assistant Commissioner is not maintainable.
iii. It is needless to observe that the parties are at liberty to urge their contentions in the suit in O.S.No.45/2017 which is pending consideration between the parties.
iv. All the contentions of the parties are kept open to be urged in the suit O.S.No.45/2017.
No order as to costs.
Sd/-
JUDGE MBM