Karnataka High Court
Sri. Pramod An vs Smt Indira N on 10 July, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:26551
WP No. 53923 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.53923 OF 2017 (GM-RES)
BETWEEN:
SRI. PRAMOD A.N.
S/O SRI.NAGENDRACHAR A.S.,
AGED ABOUT 38 YEARS
OCCUPATION: SENIOR SOFTWARE
CONSULTANT, INFOSPAN
TECHNOLOGIES PVT LTD.,
JANARDHAN TOWERS, 2ND FLOOR,
BANNERGHATTA ROAD, BILIKAHALLI POST,
BENGALURU - 560 076
ALSO AT: RESIDING AT
NO.43-44, 1ST FLOOR, 2ND MAIN,
3RD STAGE, BINNY LAYOUT,
ATTIGUPPE, VIJAYANAGARA,
BENGALURU - 560 040
Digitally signed by
R HEMALATHA
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA
(BY SRI.J.N.NAVEEN, ADVOCATE)
AND:
1. SMT.INDIRA N
W/O LATE NAGENDRACHAR A S
AGED ABOUT 63 YEARS,
OCCUPATION : NIL,
C/O PRADEEP A N
NO.1047, 17TH CROSS, 1ST STAGE,
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NC: 2024:KHC:26551
WP No. 53923 of 2017
1ST PHASE, CHANDRA LAYOUT
BENGALURU - 560 040
2. SRI.PRADEEP A N
S/O LATE NAGENDRACHAR A S
AGED ABOUT 42 YEARS
OCCUPATION : NIL
NO.1047, 17TH CROSS
1ST STAGE, 1ST PHASE,
CHANDRA LAYOUT
BENGALURU - 560 040
3. THE CHAIRMAN
TRIBUNAL OF MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR
CITIZEN AND ASSISTANT COMMISSIONER
BENGALURU NORTH SUB - DIVISION
BENGALURU - 560002
...RESPONDENTS
(BY SRI.SHIVARAJ N ARALI FOR C/R1.,ADVOCATE
SMT.SAVITHA KULKARNI, HCGP FOR R.3;
R.2 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD 16.11.2017 PASSED BY THE R-3
PRODUCED AT ANNEXURE-G AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2024:KHC:26551
WP No. 53923 of 2017
ORDER
The petitioner challenges the order dated 16.11.2017 passed by respondent No.3 as per Annexure-G, whereby the registered Gift Deed dated 05.03.2014 executed by the petitioner's father was canceled. This cancellation was based on the grounds that the petitioner had not provided basic amenities and physical needs to respondent No.1, who is the mother.
2. The registered Gift Deed was executed by the petitioner's father during his lifetime on 05.03.2014. After his demise, respondent No.1 filed a petition under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('Act, 2007'), stating that the petitioner had failed to provide basic amenities and physical needs, thereby violating the terms and conditions of the transfer. Consequently, respondent No.3 exercised powers under Section 23 of the 'Act, 2007' to annul the Gift Deed and directed the petitioner to pay maintenance of Rs.5,000/- per month. In response, this petition is filed.
3. Learned counsel appearing for the petitioner submits that the Gift Deed did not include a clause obligating the provision of basic amenities and physical needs to the father during his lifetime or to respondent No.1 - the mother. Therefore, in the absence of such a clause, the petition filed under Section 23 of the 'Act, 2007' is not maintainable. In support of this argument, reliance is placed on the decision of the Hon'ble Apex Court in the case of SUDESH CHHIKARA VS. RAMTI DEVI AND ANOTHER.
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4. On the other hand, learned counsel for respondent No.1 argued that although there was no specific clause in the Gift Deed requiring the provision of basic amenities and physical needs to respondent No.1, respondent No.1 has established that the Gift Deed was executed with an implied condition to provide such amenities. As respondent No.1 has proven this before respondent No.3, it is contended that the impugned order is not unlawful. In support of this argument, reliance is placed on the decision of the Division Bench of this Court in W.A.No.573/2022 disposed of on 17.03.2023, and also on the decision of the Hon'ble Apex Court in SUDESH CHHIKARA VS. RAMTI DEVI AND ANOTHER (supra).
5. Further, it is argued that when a Gift Deed is executed out of love and affection, it is inferred that the transferee is obligated to provide basic amenities and physical needs. In support, reliance is placed on the decisions of the High Court of Bombay in ASHWIN BHARAT KHATER AND ANOTHER VS. URVASHI BHARAT KHATER AND ANOTHER, and of the High Court of Madras in MOHAMED DAYAN VS. DISTRICT COLLECTOR, TIRUPPUR DISTRICT AND OTHERS.
6. Having heard the arguments of the learned counsel for the parties:
7. The registered Gift Deed dated 05.03.2014 at Annexure-C indicates that a vacant site measuring 574 square feet -5- NC: 2024:KHC:26551 WP No. 53923 of 2017 was conveyed to the petitioner by his father, out of love, care, and affection. The petitioner's father passed away on 13.09.2014. During his lifetime, the father also executed a Will bequeathing the vacant site to the daughter and mother. It is undisputed that the father also executed a registered Gift Deed in favor of respondent No.2 (the petitioner's brother), conveying the remaining portion of the vacant site.
8. The Division Bench of this Court in W.A.No.573/2024 (supra), in its paragraphs, held that in reference to the decision of the Hon'ble Apex Court in SUDESH CHHIKARA VS. RAMTI DEVI AND ANOTHER (supra), the order passed by the learned Single Judge was consistent with the provisions of Sub-Section (1) and (2) of Section 23 of the Senior Citizens Act, as the Gift Deed dated 23.02.2011 therein did not contain any stipulation that respondent No.3 therein was obligated to maintain the appellant therein.
9. The Hon'ble Apex Court in SUDESH CHHIKARA VS. RAMTI DEVI AND ANOTHER (supra) ruled that effecting a transfer subject to a condition of providing basic amenities and basic physical needs to the transferor - senior citizen is essential for the applicability of Sub-Section (1) of Section 23 of the Act. It further ruled that if the conditions stated in Sub-Section (1) of Section 23 are satisfied by a legal fiction, the transfer shall be deemed to have been made by fraud, coercion, or undue influence. Such a transfer then becomes voidable at the instance of the transferor.
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10. In paragraph No.14, the Hon'ble Apex Court ruled that the conditions mentioned in Sub-Section (1) of Section 23 must be attached to a transfer, and the existence of such conditions must be established before the tribunal. The observation made by the Hon'ble Apex Court emphasizes that there must be a clause in the Gift Deed where the transferee undertakes to provide basic amenities and physical needs to the transferor. Moreover, if such a clause exists, the transferor must establish that despite this clause, the transferee failed to provide basic amenities and physical needs. Therefore, in the absence of a clause obligating the provision of basic amenities and physical needs to the transferor, the petition filed under Section 23 of the Act is deemed not maintainable.
11. However, despite the petition being deemed not maintainable under Section 23 of the Act due to the absence of a clause obligating the provision of basic amenities and physical needs to the transferor, the petitioner is directed to continue paying monthly maintenance of Rs.5,000/- to respondent No.1 as per the order issued by respondent No.3. Additionally, it is noted that the petitioner is also paying another sum of Rs.5,000/- to respondent No.1 pursuant to provisions under the Domestic Violence Act.
12. In view of the above, this Court proceeds to pass the following;
ORDER
(i) The petition is allowed.
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(ii) The impugned order dated 16.11.2017 passed by respondent No.3 at Annexure-G insofar it relates to declaring the Gift Deed dated 05.03.2014 executed in favour of the petitioner is null and void and is quashed.
(iii) The order passed by respondent No.3 directing the petitioner to pay monthly maintenance of Rs.5,000/- stands confirmed.
Sd/-
JUDGE NBM