Karnataka High Court
Sri M Vara Prasad Reddy vs Smt Ramakka on 30 September, 2024
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NC: 2024:KHC:40602
WP No. 1132 of 2020
C/W WP No. 2780 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 1132 OF 2020 (GM-RES)
C/W
WRIT PETITION No. 2780 OF 2020 (GM-RES)
IN WP No. 1132/2020
BETWEEN:
1 . SRI M. VARA PRASAD REDDY,
AGED ABOUT 44 YEARS,
S/O LATE HANUMA REDDY,
RESIDING AT No.102,
GANGOTRI ENCLAVE,
22ND MAIN ROAD,
RAGAVENDRA LAYOUT,
PADMANABHANAGAR,
BENGALURU-560 070.
Digitally signed ...PETITIONER
by VALLI
MARIMUTHU (BY SRI NISHANTH A. V., ADVOCATE)
Location: High
Court of AND:
Karnataka
1. SMT. RAMAKKA,
W/O LATE RAMAIH,
RESIDING AT: ARAHALLI VILLAGE,
UTTARAHALLI HOBLI,
BENGALURU-560 061.
2. SRI R. SHUBAKAR,
AGED ABOUT 52 YEARS,
S/O LATE RAMAIAH,
RESIDING AT: ARAHALLI VILLAGE,
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NC: 2024:KHC:40602
WP No. 1132 of 2020
C/W WP No. 2780 of 2020
GURAPPA VATARA,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BENGALURU-560 061.
3. SRI NAGARAJU,
AGED ABOUT YEARS,
S/O LATE RAMAIAH,
RESIDING AT: ARAHALLI VILLAGE,
GURAPPA VATARA,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BENGALURU -560 061.
4. SRI PRAMOD,
AGED MAJOR,
S/O SRI MADESH,
RESIDING AT: U. KURUPARAHALLI,
NAGAMANGALA POST,
DENKANIKOTE TALUK,
KRISHNAGIRI DISTRICT,
TAMIL NADU STATE-635113.
5. SMT. PAVITRA,
AGED MAJOR,
W/O SRI SUNIL KUMAR,
D/O SRI MADESH AND LATE RATNAMMA,
RESIDING AT: U. KURUPARAHALLI,
NAGAMANGALA POST,
DENKANIKOTE TALUK,
KRISHNAGIRI DISTRICT,
TAMIL NADU STATE-635 113.
6. SMT. RENUKA,
AGED ABOUT 47 YEARS,
W/O RAJU,
RESIDING AT No.44/2,
N. NYATHAPPAL LAYOUT,
ARAKERE VILLAGE,
BANNERGHATTA ROAD,
BENGALURU-560 068.
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NC: 2024:KHC:40602
WP No. 1132 of 2020
C/W WP No. 2780 of 2020
7. SMT. PADMA,
AGED ABOUT 45 YEARS,
W/O SRI N. MANJUNATH,
RESIDING AT No.102,
5TH CROSS, GROUND FLOOR,
JAYANAGAR COMFORT APARTMENT,
LIC COLONY, JAYANAGAR 1ST BLOCK,
BENGALURU-560 011.
8. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB DIVISION,
BENGALURU-5600061.
...RESPONDENTS
(BY SMT. RAKSHITHA D.J., ADVOCATE FOR R2; SRI S.H. RAGHAVENDRA, AGA FOR R8;
SMT. S.B. LAKSHMI, ADVOCATE FOR R4 TO R7; SRI S. NAGARAJA, ADVOCATE FOR R1 & R7 (ABSENT); R3 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 18.12.2019 PASSED IN CASE BY THE R-8 VIDE ANNEXURE-A WITH RESPECT OT THE COMPOSITE PROPERTY.
IN WP No. 2780/2020 BETWEEN:
SRI. R. SHUBAKARA, AGED ABOUT 51 YEARS, S/O LATE RAMAIAH, RESIDING ATHOUSE No.813, POORNAPRAJNA LAYOUT, 32ND CROSS, AREHALLI, SUBRAMANYAPURA POST, BENGALURU-560061.
...PETITIONER (BY SMT. RAKSHITHA D. J., ADVOCATE) -4- NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 AND:
1 . THE CHAIRMAN, TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS AND THE ASSISTANT COMMISSIONER, BENGALURU SOUTH SUB-DIVISION BENGALURU-560098.
2 . SMT. RAMAKKA, AGED ABOUT 70 YEARS, W/O LATE RAMAIAH, C/O SRI VAJRAPPA, AREHALLI VILLAGE, SUBRAMANYAPURA POST, UTTARAHALLI HOBLI, BENGALURU-560061.
3 . SRI.R.NAGARAJU, MAJOR IN AGE, S/O LATE RAMAIAH, RESIDING AT AREHALLI VILLAGE, GUNDAPPANA VATARA, SUBRAMANYAPURA POST, UTTARAHALLI HOLBI, BENGALURU-560061.
4 . SRI.PRAMOD, MAJOR IN AGE, S/O SRI. MADESH, RESIDING AT U.KURUPARPALLI, NAGAMANGALA POST, DENKANIKOTE DISTRICT, KRISHNAGIRI DISTRICT, TAMILNADU-635113.
5 . SMT. PAVITHRA, MAJOR IN AGE, W/O SRI.SUNIL KUMAR, D/O SRI.MADESH AND -5- NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 SMT LATE.RATHNAMMA, RESIDING AT U.KURUPARPALLI, DENKANIKOTE TALUK, KRISHNAGIRI DISTRICT, TAMILNADU-635113.
6 . SMT. R.RENUKA, MAJOR IN AGE, W/O RAJU, AT No.44/2, N.NYATHAPPAL LAYOUT, AREKERE VILLAGE, BANNERGHATTA ROAD, BENGALURU-560068.
7 . SMT. R.PADMA, MAJOR IN AGE, AT No.102, 5TH CROSS, GROUND FLOOR, JAYANAGAR COMFORT APARTMENT, LIC COLONY, JAYANAGAR 1ST BLOCK, BENGALURU-560011.
...RESPONDENTS (BY SRI S.H. RAGHAVENDRA, AGA FOR R1; SRI S. NAGARAJA, ADVOCATE FOR R2 & R7 (ABSENT); SMT. S.B. LAKSHMI, ADVOCATE AND SRI SHIVAKUMAR M., ADVOCATE FOR R4 TO R6; R3 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.12.2019 PASSED BY THE R-1 - ASSISTANT COMMISSIONER, THE CHAIRMAN, TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZEN AND BENGALURU SOUTH SUB-DIVISON, BENGALURU VIDE ANNEXURE-C TO THE WRIT PETITION.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: -6-
NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND C.A.V. ORDER Heard Sri Nishanth A.V., learned counsel for the petitioner, Smt. Rakshitha D.J., learned counsel for respondent No.2, Smt. S.B. Lakshmi, learned counsel for respondents Nos.4 to 7 Sri S.H. Raghavendra and learned Additional Government Advocate for respondent No.8 in W.P.No.1132/2020;
Smt. Rakshitha D.J., learned counsel for the petitioner, Sri S.H. Raghavendra, learned Additional Government Advocate for respondent No.1, Smt. S.G. Lakshmi and Sri M. Shivakumar, learned counsels for respondent Nos.4 to 6 in W.P.No.2780/2020.
Sri S. Nagaraja, learned counsel appearing for respondent Nos.1 and 7 in W.P. No.1132/2020 and respondent Nos.2 & 7 in W.P.No.2780/2020 remained absent.
Respondent No.3 in both the petitions is served and unrepresented.-7-
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2. The parties are referred according to their ranks in W.P.No.1132/2020 for convenience.
3. W.P.No.1132/2020 and W.P.No.2780/2020 arise out of common order dated 18.12.2019 in Case No.MSC/SC/CR/17/2019-20 passed by the Assistant Commissioner, Bengaluru South Sub-Division, Bengaluru.
4. Respondent No.1 is mother, respondent No.2 and 3 are sons and respondent Nos.4 to 7 are other family members. The private respondents entered into a partition dated 24.01.2014. Based on the partition, respondent Nos.1 to 7 entered into a Joint Development Agreement (JDA) with the petitioner on 24.01.2014. Respondent No.1 affixed her signature as witness to the JDA. The land in question is Survey No.20/2 situated in Arahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. The parties have executed General Power of Attorney in favour of the petitioner/builder dated 24.01.2014. -8-
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5. The smaller piece and parcel of the land in Sy.No.20/2 is amalgamated by the competent authority, thus forming composite property.
6. The petitioner under the JDA constructed residential apartment "Siri Life Style" in the composite property after sanction by the competent authority. The petitioner has sold various apartments in favour of prospective buyers under registered sale deed in the year 2019.
7. Respondent No.1 filed petition under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'Act'). The petitioner was not a party before the Assistant Commissioner. The parties to the partition deed and JDA were respondents in the petition under Section 23 of the Act. The Assistant Commissioner allowed the petition by order dated 18.12.2019. While ordering maintenance of Rs.5,000/- per month by each of the children, the Assistant Commissioner declared the partition deed in respect of -9- NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 Sy.No.20/2A of Arahalli Village to an extent of 15 guntas as null and void.
8. Sri Nishanth A.V., learned counsel for the petitioner would submit that the respondents have entered into partition deed dated 24.01.2014. On the same day, all the respondents entered JDA with the petitioner/builder. Respondent No.1 is party to the partition deed. Respondent No.1 has further affixed her signature as witness to the JDA. Learned counsel submits that when the petitioner refused to fulfill the illegal demands of the respondents, a petition under Section 23 of the Act is filed before the Assistant Commissioner by suppressing the JDA and in collusion.
8.1 Learned counsel further submits that the petitioner was a necessary party before the Assistant Commissioner. The private respondents have intentionally not arrayed the petitioner as a party to the proceedings before the Assistant Commissioner. The Assistant Commissioner without application of mind and without examining the
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 records, by ignoring the JDA and further sale deeds executed in relation to the flats has declared the partition deed as null and void. The provisions of the Act are not applicable when third-party interest is created. 8.2. Learned counsel further submits that the provisions of the Act are not applicable for the transfer of property under partition among the members of the family. There is no condition in the partition deed to maintain respondent No.1 by her children. Even if so, as third- party interest is created, the Assistant Commissioner committed an error in entertaining the petition under Section 23 of the Act.
8.3 Learned counsel for the petitioner relies on the judgment of this Court in the case of Nanjundappa S/o K.M.Karibasappa and another vs. State of Karnataka and others (AIR 2019 Kar. 76) and in Jayashankar vs. The Assistant Commissioner and others (W.A.No.339 of 2023).
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9. There is no representation on behalf of respondent Nos.1 and 7.
10. Learned counsel for respondent No.2 submits that when other members of the family have failed to provide maintenance to respondent No.1, the order of the Assistant Commissioner directing maintenance and declaring the partition deed as null and void is justified. 10.1 Learned counsel for respondent No.2 relies on the judgment of the Hon'ble Apex Court in the case of Sudesh Chhikara Vs. Ramti Devi and another (2022 SCC Online SC 1684) and the judgment of this Court in the case of Smt.Lakshmamma and another Vs. Sri.M.K.Thimmegowda and others (W.P.No.11991/2021 c/w W.P.No.6142/2021).
11. Learned counsel for respondent Nos.4 to 7 would support the impugned order.
12. Sri S.H. Raghavendra, learned Additional Government Advocate appearing for respondent No.8-
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 Assistant Commissioner submits that the welfare of senior citizen is a paramount consideration. The children reside separately after the partition. The children have failed to maintain and take care of the well-being of the senior citizens. The Assistant Commissioner is justified in ordering maintenance and declaring the partition deed null and void.
13. Respondent No.2 in W.P.No.1132/2020 and petitioner in W.P.No.2780/2020 submit that the order impugned passed by the Assistant Commissioner is without notice to Respondent No.2/petitioner and in violation of principles of natural justice.
14. Considered the rival contentions of learned counsels for the parties and perused writ papers.
15. The respondents entered a partition under a registered partition deed dated 24.01.2014. Respondent No.1 was allotted Rs.2,00,000/- in lieu of her right in the subject matter of the partition deed. The transfer of the
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 scheduled properties is under partition deed. The respondents' family members entered JDA with the petitioner under the registered JDA dated 24.01.2014. Respondent No.1 affixed her signature as a witness. The petitioner has developed the property by constructing an apartment. The constructed flats have been sold in favour of third parties.
16. In the backdrop of the facts stated above, the point that arises for consideration of this Court is, " Whether Section 23 of the Act is applicable when the transfer of property is under partition followed by JDA and further sale deeds in favour of third parties."
17. It is relevant to refer to the judgment of the Co- ordinate Bench of this Court in the case of Nanjundappa (supra), wherein this Court held that partition is a redistribution or adjustment of pre-existing rights among co-owners/coparceners resulting in a division of lands or other properties jointly held by them into different lots or
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 proportions and delivery thereof to the respective allottees. It is held that the provisions of Section 23(1) of the Act are not attracted to partition deeds.
The Division Bench of this Court in the case of Jayashankar (supra) held that unless the deed of transfer imposes a condition that the transferee shall provide basic amenities and physical needs to the senior citizen-transferor to be abided by and in the event such condition is not abided by, then Section 23 (1) of the Act is attracted.
The Hon'ble Apex Court in the case of Sudesh Chhikara (supra) held that the twin conditions that, the transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and the transferee refuses or fails to provide such amenities and physical needs to the transferor should exhaust and satisfied to attract Section 23 of the Act. The condition to provide basic amenities and basic physical needs to the senior
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 citizen is the sine qua non for applicability of Section 23(1) of the Act.
The Co-ordinate bench of this Court in the case of Lakshmamma (supra) considered the applicability of Section 23 of the Act regarding the partition deed. This Court held that partition deed cannot be questioned in proceedings under Section 23 of the Act, which are absent.
In the case of Dhariyappagouda Patil vs. State of Karnataka (WP No.101705/2024), this Court held that Section 23 of the Act does not apply when a third-party interest is created in the property in question.
18. If the law laid down in the above-referred judgment is applied to the case at hand, the order of the Assistant Commissioner is not sustainable.
19. Respondent No.1 has received her share in the property through the value of money. Respondent No.1, accepting Rs.2,00,000/- in lieu of her share in the immovable property, has relinquished her right in favour
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 of other family members. Respondent No.1 has questioned the partition deed before the Assistant Commissioner. The Assistant Commissioner has annulled the partition deed dated 24.01.2014. Given the judgment referred to supra, Section 23 of the Act does not apply to partition deeds.
20. Respondent No.1 has affixed her signature to JDA as a witness. Respondent No.1 having consciously allowed the creation of third party interest in the property in question, filing an application under Section 23 of the Act can only be held to be an abuse of process of law. As held by the Hon'ble Apex Court and the Division Bench of this Court supra, there is no condition in any of the transfer deeds to provide basic amenities and basic physical needs to respondent No.1 by any of the parties. The twin conditions are mandatory to attract Section 23 of the Act, which are absent.
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21. One more important aspect relevant to be noticed is that under JDA, the petitioner has developed flats and sold them in favour of the prospective buyers through different registered sale deeds. The third-party interest is created not only on the land but also on the flats constructed thereon.
22. The Assistant Commissioner by declaring the partition deed as null and void under Section 23 of the Act, not only mis-interpreted himself on applicability of the Act, but also the action is overreached.
23. If Section 23 of the Act is to be made applicable to the present facts scenario, it would lead to an absurd irreversible situation wherein the Assistant Commissioner would declare the rights created in favour of third parties as null and void. Such action is unintended. It is a settled legal position that the validity of any registered document creating right in favour of third parties shall be adjudicated before the Civil Court. If the property wherein third-party interest is created is allowed to be adjudicated under
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 Section 23 of the Act, it would confer unintended power and jurisdiction and also create another forum vesting the adjudication of title, which is exclusively within the domain of the Civil Court.
24. The present case is a classic example of abuse of process as provided under the Act, which should result in exemplary costs. The Court considering the age of senior citizen, levy of cost is viewed leniently.
25. In view of the above-referred decision and the legal position, the order of the Assistant Commissioner is not sustainable.
26. In backdrop of the above discussion and the reasoning, the following, Order
i) W.P.No.1132/2020 and W.P.No.2780/2020 are allowed.
ii) The impugned order dated 18.12.2019 in Case No.MSC/SC/CR/17/2019-20 passed by the
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NC: 2024:KHC:40602 WP No. 1132 of 2020 C/W WP No. 2780 of 2020 Assistant Commissioner, Bengaluru South Sub- Division, Bengaluru, is hereby quashed to the extent declaring the partition deed dated 24.01.2014 as null and void.
iii) No order as to cost.
Sd/-
(K. V. ARAVIND) JUDGE MV List No.: 1 Sl No.: 1