Karnataka High Court
Sri Jayashankar vs The Assistant Commissioner on 3 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 12226 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 12226 OF 2020 (GM-RES)
BETWEEN:
SRI JAYASHANKAR
AGED ABOUT 58 YEARS,
RESIDING AT NO.20,
MADURYA, 1ST MAIN, 1ST CROSS,
2ND STAGE, BHARAT NAGAR,
BEL LAYOUT,
VISWANANEEDAM POST,
NEAR ANUPAMA HOSPITAL,
BENGALURU RURAL,
BENGALURU - 91.
...PETITIONER
(BY SRI.AMITH XAVIER C., ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K
Location: HIGH
1. THE ASSISTANT COMMISSIONER
COURT OF NORTH TALUK,
KARNATAKA
THE PRESIDENT, THE MAINTENANCE
AND WELFARE OF PARENTS AND
SENIOR CITIZENS TRIBUNAL
NORTH SUB-DIVISION,
BENGALURU - 01.
2. SRI LATE K.V.NANJAPPA
SINCE DEAD LRS BROUGHT AS BELOW
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WP No. 12226 of 2020
2(a) SRI K.N.PRAKASH,
S/O LATE K.V.NANJAPPA,
AGED ABOUT 62 YEARS,
R/AT NO.57,
6TH CROSS,
SHAKTHI GANAPATHI NAGARA,
BASAVESHWARANAGARA,
BENGALURU - 79.
2(b). SRI K.N.LOKESH
S/O LATE K.V.NANJAPPA,
AGED ABOUT 60 YEARS,
KANANOORU VILLAGE,
KUDUR HOBLI,
RAMANAGARA DISTRICT.
2(c). SMT.KAIVALYA
D/O LATE K.V.NANJAPPA,
AGED ABOUT 70 YEARS,
W/O T.S.SACHIDANANDA,
R/A NO.1214, 8TH B CROSS,
YALAHANKA SATELLITE TOWN,
BENGALURU.
2(d). SMT.KOMALA
AGED ABOUT 67 YEARS,
D/O LATE K.V.NANJAPPA,
R/A HEGGAVADIPURA VILLAGE,
CHAMRAJNAGAR TALUK AND DISTRICT.
2(e). SMT.ANNAPURNA
D/O LATE K.V.NANJAPPA,
AGED ABOUT 64 YEARS,
W/O T.C. SADASHIVAIAH,
R/AT "POORNA SHIVA KRUPA",
GIRINAGAR,
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WP No. 12226 of 2020
KYATHASANDRA,
TUMAKURU.
2(f). SMT.K.N.PRAMEELA
AGED ABOUT 57 YEARS,
D/O LATE K.V.NANJAPPA,
W/O S.B.PALANETRA,
R/AT NO.79, 3RD MAIN,
5TH CROSS, 1ST STAGE,
BEML LAYOUT,
BASAVESHWARA NAGAR,
BENGALURU - 79.
...RESPONDENTS
(BY SRI.B.V.KRISHNA, AGA FOR R1;
SMT.USHA PRAKASH, ADVOCATE FOR
SRI J.PRAKASH, ADVOCATE FOR 2(a)
SRI S.YATHIRAJ, ADVOCATE FOR R2(b)
R2(e) AND R2(f) SERVED - UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY THE R-1 IN
IMPUGNED ORDER DTD.6.1.2014 VIDE ANNEXURE-A AND ETC.,
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 06.01.2014 passed by respondent No.1 - the Assistant Commissioner, whereby the Assistant Commissioner -4- WP No. 12226 of 2020 annuls the Gift Deed that is made in favour of the petitioner executed by one Sri. K.V. Nanjappa.
2. Heard Sri. Amith Xavier C., learned counsel appearing for the petitioner, Sri. B.V. Krishna, learned AGA appearing for respondent No.1, Smt. Usha Prakash, learned counsel appearing for respondent No.2(a) and Sri. S. Yathiraj, learned counsel appearing for respondent No.2(b).
3. Brief facts, that leads the petitioner, to this Court in the subject petition, as borne out from the pleadings, are as follows:
The petitioner is the son of one Sri. K.V. Nanjappa and respondents Nos.2(a) to 2(f) are either the wife or the other children of K.V. Nanjappa. Sri. K.V. Nanjappa on 28.01.2014, executes a Gift Deed in favour of the petitioner qua the schedule property. The Gift Deed was executed on the condition that the petitioner would permit the father to stay in the house and also take care of him.
4. It is alleged that the petitioner did not take care of the father and he had to leave the house to reside with the elder son one K.N. Prakash. After the father was allegedly driven out -5- WP No. 12226 of 2020 of the house by the petitioner, the father registers a complaint before the Assistant Commissioner on 11.11.2014, barely after 9 months after execution of the Gift Deed. The Assistant Commissioner by his order after issuing notice and hearing the petitioner, passes an order on 06.01.2014, annulling the Gift Deed and directing revenue entries to be changed, back to the name of the donor - the father, on the reasons rendered in the order that is passed on 06.01.2014. Though the order is passed on 06.01.2014, the writ petition is preferred on 12.02.2020, close to 6 years after the passage of the said order.
5. Learned counsel appearing for the petitioner, Sri. Amith Xavier C., would contend that the Assistant Commissioner ought to have issued notices to all the members of the family, hear all of them and then pass orders; the Gift Deed though contained a condition that he would take care, he had never shown any disregard to such conditions, it was the father on his own volition, moved out of the house and began to stay with K.N. Prakash, his elder son. It is at his insistence, the complaint was filed before the authorities. He would submit that even now if all the members of the family would come together, the issue can be resolved.
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6. On the other hand, learned counsel representing respondent No.2(a), Smt. Usha Prakash would vehemently refute the submissions to contend that the Gift Deed did contain a condition that he would take care and he has neglected the father and therefore, the complaint was maintainable and the complaint is rightly answered by the Assistant Commissioner. The learned counsel would submit that though the order is passed 6 years ago, it is challenged only to harass the respondents, as the order passed by the Assistant Commissioner is already implemented, she would seek dismissal of the petition.
7. I have given my anxious consideration to the respective submissions made by the learned counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute. One Sri. K.V. Nanjappa, father of the present petitioner, husband of respondent No.2(c), and the father of respondent Nos.2(a) to 2(d) and 2(f) executes a Gift Deed on 28.01.2014. Since the entire issue now springs from the Gift Deed, conditions -7- WP No. 12226 of 2020 stipulated in the Gift Deed becomes germane to be noticed and it reads as follows:
"µÉqÀÆå ï ¸ÀévÀÛ£ÀÄß £À£Àß SÁ¸Á ªÀÄUÀ£ÁzÀ ²æà dAiÀıÀAPÀgï DzÀ ¤£ÀUÉ ¤£Àß ªÉÄð£À ¦æÃw ªÀÄvÀÄÛ ªÀĪÀÄvɬÄAzÀ ºÁUÀÆ £À£Àß fêÀ£ÉÆÃ¥ÁAiÀÄzÀ ¸À®ÄªÁV F ¢ªÀ¸À zÁ£À¥ÀƪÀðPÀªÁV PÉÆnÖgÀÄvÉÛãÉ. ¤Ã£ÀÄ £À£Àß ªÀAiÀĸÁìzÀAvÀºÀ PÁ®zÀ°è ¤£Àß ªÀÄ£ÉAiÀÄ°èAiÉÄà ElÄÖPÉÆAqÀÄ £À£ÀߣÀÄß ¸ÁQ ¸À®Ä» ªÀiÁqÀÄwÛgÀĪÀÅzÀjAzÀ ºÁUÀÆ E£ÀÄß ªÀÄÄAzÉAiÀÄÆ ¸ÀºÁ EzÉà jÃw £À£ÀߣÀÄß £ÉÆÃrPÉƼÀÄîwÛÃAiÉÄ JA§ £ÀA©PɬÄAzÀ ¤£ÀUÉ F ¢ªÀ¸À zÁ£À ¥ÀƪÀðPÀªÁV µÉqÀÆå ï ¸ÀévÀÛ£ÀÄß §gɹPÉÆqÀÄwÛzÉÝãÉ. E£ÀÄß ªÀÄÄAzÉ ¸ÀzÀj ¸ÀéwÛUÉ PÀlÖ¨ÉÃPÁzÀ PÀAzÁAiÀÄ ªÀUÉÊgÉAiÀÄ£ÀÄß ¤Ã£Éà ¥ÁªÀw ªÀiÁrPÉÆAqÀÄ ²æà dAiÀıÀAPÀgï DzÀ ¤£Àß ºÉ¸ÀjUÉ SÁvÉ ªÀUÁð¬Ä¹PÉÆAqÀÄ EzÀgÀ°è zÉÆgÉAiÀħºÀÄzÁzÀ ¤¢ü, ¤PÉëÃ¥À, d® vÀgÀÄ ¥ÁµÀuÁ¢ü CµÀÖ¨sÉÆÃUÀ vÉÃd¸ËªÀÄåPÀÆÌ ªÀÄvÀÄÛ J Áè ªÀåªÀºÁgÀ ZÀvÀĵÀÖAiÀÄUÀ½UÀÆ ¤ÃªÉà ¸ÀA¥ÀÆtð ºÀPÀÄÌ G¼ÀîªÀ£ÁVzÀÄÝ ¸ÀÄR¢AzÀ ¤£Àß EµÁÖ£ÀĸÁgÀ C£ÀĨsÀ«¹PÉÆAqÀÄ ºÉÆÃUÀvÀPÀÌzÁVgÀÄvÀÛzÉ."
The Gift Deed is unequivocal, in observing that the property is gifted to the petitioner on the condition that he was taking care of the donor, at that point in time and shall also take care of the father throughout his lifetime. The condition being breeched, allegedly, a complaint comes to be registered before the Assistant Commissioner, barely after 9 months, after registration of the Gift Deed.
9. The reason behind registration of the complaint is that the petitioner has allegedly driven the father out of the house, after such execution. The petitioner admitted that the father was not residing in his house, when the proceedings were pending before the Assistant Commissioner, but is residing with his elder son one K.N. Prakash, on such admission inter alia. The Assistant Commissioner found that there was a -8- WP No. 12226 of 2020 breach of conditions of the Gift Deed. The order of the Assistant Commissioner insofar as it is germane, reads as follows:
"12. The complainant - the father of the respondent himself has approached this Tribunal and filed the present complaint stating that he was under the care and welfare of his elder son Sri.K.N.Prakash and only one year back, his younger daughter Smt.Prameela has forcibly taken him to the house of the respondent and he lived there for about one year and during that period, the respondent has misrepresented and taken to the Taluk Office and later taken to the office of the Sub- Registrar situated within the same compound and has got registered the alleged Gift Deed in his favour without any consent or knowledge of the complainant. The respondent has also admitted that now the complainant is residing in the house of his elder brother K.N.Prakash. If at all, if the complainant was residing in the house of the respondent since from several years, what are the reasons for the complainant to shift is residence to his elder son K.N.Prakash with whom the respondent is having several disputes. Further, why the respondent has not made any attempts to take his father to his house since from all these months. The attitude of the respondent creates doubts about his intention with regard to the maintenance of his father.
13. Further, the said Gift Deed was executed on 28-01-2014 and the complaint is filed on 11-11-2014. On perusal of the said Gift Deed dated 28-01-2014 alleged to have been executed by the complainant in favour of the respondent shows that the complainant - the K.V.Nanjappa had put his Thumb impression on the registered document but at the time of filing the present complaint, the said K.V.Nanjappa has put his signature as the complainant and also has put his signature on the order sheet in the present complaint. When the complainant - the father of the respondent is capable of subscribing his signature to any document, what was the necessity of putting his Thumb impression on the alleged Gift Deed and this creates serious doubts about the consent and knowledge of the complainant with regard to -9- WP No. 12226 of 2020 the execution of the said Gift Deed in favour of the respondent.
14. Further, even though the respondent has undertaken to take care of maintenance and welfare of the complainant under the alleged Gift Deed dated 28-01-2014 and also undertaken while filing his objections to the present complaint, the attitude and conduct of the respondent creates doubts about his intention. The paramount object of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 is that the maintenance and welfare of the parents and senior citizens has to be protected. In the present complaint, there is no dispute that the properties which are subject matter of the said Gift Deed were belonged to the complainant and the respondent has also not denied the same. On due enquiry, I am of the view that the respondent has failed and neglected to take care of his father's maintenance and welfare despite being got transferred all the properties of the complainant in favour of the respondent under the said Gift Deed.
15. Section 23(1) of the Act provides that "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 as void by the Tribunal". In this represent case, in view of the above mentioned facts and the observations made, I opine that the said Gift Deed dated 28-01-2014 has to be declared as void.
In view of the above mentioned facts and the observations made, I proceed to pass the following:
ORDER In view of the powers conferred under section 23(1) of the Maintenance and Welfare of Parents
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and Senior Citizens Act 2007, I hereby declare that the Gift Deed dated 28-01-2014, vide document No.MGD-1-06960/2013-2014, stored in C.D.No.MGDD 194, registered in the office of the Sub-Registrar, Magadi, in respect of the properties (1) in survey No.99/3 measuring 0-26 guntas and survey No.99/4 measuring 2 acres 18 guntas totally 3 acres 04 guntas, situated at Kananuru village, Kuduru Hobli, Magadi Taluk, Ramanagara District and (2) in survey No. 130/10 measuring 0-32 guntas, situated at Kananuru village, Kuduru Hobli, Magadi Taluk, Ramanagara District.
The Tahasildar, Magadi Taluk, Magadi is hereby directed to take steps to cancel the said Gift Deed dated 28-01-2014, vide document No.MGD-1- 06960/2013-2014, stored in C.D.No.MGDD 194, registered in the office of the Sub-Registrar, Magadi and effect the mutation and revenue entries in respect of the above mentioned properties in the name of Sri.K.V.Nanjappa - the complainant herein."
(Emphasis added) The order clearly observes that the petitioner herein has admitted that the father is not residing with him, but with one K.N. Prakash, the elder brother. The Assistant Commissioner further records that the attitude of the petitioner in not taking back the father to his house would create doubt about his intension with regard to maintenance of his father, as the condition in the Gift Deed was that he would take care during the lifetime of the father. The said order is passed on 06.01.2014. The order is challenged after 6 years.
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WP No. 12226 of 2020
10. A perusal at the memorandum of the writ petition does not indicate a spec of explanation for inordinate delay of 6 years in challenging the order passed. In the interregnum, the father dies in the year 2017. The petition, appears to have been filed only to frustrate the rights of the respondents after death of the father. Therefore, the petition suffers from want of bonafides as well.
11. In the light of the aforesaid unequivocal facts and the order of the Assistant Commissioner not suffering from any illegality. I do not find any warrant to interfere with the order passed by the Assistant Commissioner.
12. Learned counsel appearing for respondent No.2(a) submits that all the entries are changed in the name of the legal representatives of Sri. K.V. Nanjappa i.e., respondent Nos.2(a) to 2(f), on implementation of the order passed by the Assistant Commissioner. The submission is placed on record.
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WP No. 12226 of 2020
13. For the aforesaid reasons, the petition lacking in merit, stands dismissed.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 13