Karnataka High Court
Mr. Presly Francis D Souza vs Mr. Peter Paul D Souza on 23 February, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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WP No. 33527 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO. 33527 OF 2017 (GM-RES)
BETWEEN:
MR. PRESLY FRANCIS D'SOUZA
S/O MR. PETER PAUL D'SOUZA,
AGED ABOUT 29 YEARS,
R/AT DHOTA GLORY HOME,
HOSABETTU POST - 574 227.
MANGALORE TALUK,
DAKSHINA KANNADA. ...PETITIONER
(BY SRI. GIRIDHAR H., ADVOCATE)
AND:
1. MR. PETER PAUL D'SOUZA
S/O LATE RAYMOND D'SOUZA,
C/O MR.GABRIEL D'SOUZA,
Digitally signed by
THEJASKUMAR N AGED ABOUT 64 YEARS,
Location: HIGH R/AT FLAT NO.305,
COURT OF
KARNATAKA BELLISSIMA APARTMENT,
MALLIKATTE, KADRI,
MANGALURU - 575 002.
2. THE ASSISTANT COMMISSIONER,
MANGALURU TALUK,
MANGALURU,
MANGALURU - 575 001. ...RESPONDENTS
(BY SRI. S.NAGABHUSHANA., ADVOCARE FOR R1;
SMT. A.R.SHARADAMBA., AGA FOR R2)
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WP No. 33527 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN
RELIEFS.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
We live in an era of globalization. The effect of globalization is very much visible in India. The family in India is undergoing a rapid transition in respect of structure, function, and interpersonal relations. Westernization and Modernization have led to the breakdown of the traditional joint family into a nuclear family. It has affected the family support systems for senior citizens.
Sri.Giridhar.H., learned counsel for the petitioner and Smt.A.R.Sharadamba., learned AGA for respondent No.2 have appeared in person.
The captioned Writ Petition is filed seeking a Writ of Certiorari to quash the order dated 06.06.2017 in Proceeding No. CDS M.S.C.C.R: 19/2016-17 passed by the Assistant Commissioner, Mangaluru Taluk, Mangaluru vide Annexure-D.
2. The brief facts are these:
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Mr.Peter Paul D'Souza the first respondent is the father of Mr.Presly Francis D'Souza - the petitioner herein. He executed a Settlement Deed dated:07.12.2002 in favor of his son Mr.Presly Francis D'Souza. The Settlement Deed was registered as Document No.888 of the year 2002-03 of Book I, Volume 707 pages 269-284 in the office of the Sub-Registrar, Moodbidri, Dakshina Kannada in respect of immovable agricultural properties bearing Sy.Nos.42/7P6, 158/2A, 201/1A, and 201/2 measuring in all 7 Acres 7 Cents situated in Hosabettu Village, Mangaluru Taluk.
The first respondent applied under Sections 4, 14, 23 and 24 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'the Senior Citizen's Act') before the Assistant Commissioner, Mangaluru to declare the Settlement Deed dated:07.12.2002 executed in favor of his son Mr.Presly Francis D'Souza as null and void, grant the possession of the settlement deed subject property, grant of monthly maintenance of Rs.10,000/- (Rupees Ten Thousand only), to impose strictest punishment to his son and also sought a direction against the petitioner to pay a sum of Rs.88,00,000/- (Rupees Eighty Eight Lakh only) being the -4- WP No. 33527 of 2017 amount owed to him by his son and provide police protection to him.
The petitioner appeared before the Assistant Commissioner and submitted his counter to the petition and denied the allegations made against him. The petitioner specifically contended that the provisions of the Senior Citizen's Act do not apply to the Settlement Deed which was executed way back in the year 2002. Consequently, the relief sought by the first respondent to declare the Settlement Deed as null and void cannot not be granted in view of the non-applicability of the provisions of the Senior Citizen's Act. It was also specifically contended that the Senior Citizen's Act is not applicable for those transfers that are made before the date of commencement of the Senior Citizen's Act. The Assistant Commissioner vide order dated 06.06.2017 partly allowed the application and declared the Settlement Deed as null and void. This order is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.
3. Learned counsel for the petitioner and learned AGA for respondent No.2 have urged several contentions. -5- WP No. 33527 of 2017
Sri.Giridhar.H., learned counsel for the petitioner in presenting his arguments vehemently contended that the Senior Citizen's Act does not apply to the facts and circumstances of the present case. He also argued by saying that at the time of the execution of the settlement deed, the father Mr.Peter Paul D'Souza aged 48 years, and the son was aged about 15 years. Learned counsel submitted that the Settlement Deed is executed in the year 2002 and the Senior Citizen's Act has come into force on the 1st day of April 2008. Hence, the provisions of the Senior Citizen's Act are not applicable. Therefore, he submitted that the Assistant Commissioner has erred in entertaining the application. Accordingly, he submitted that the order passed by the Assistant Commissioner is liable to be quashed and the Writ Petition may be allowed.
Smt.Sharadamba., learned AGA justified the order passed by the Assistant Commissioner. She submitted that the Writ Petition is devoid of merits and hence the same is liable to be dismissed.
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4. Heard, the contentions urged on behalf of the respective parties and perused the Writ papers and also the Annexures with utmost care.
5. The following short point would arise for my consideration.
Whether the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 apply to the facts and circumstances of the present case?
Before I answer the point, let us quickly glance at the statement of objects and reasons for passing the Senior Citizen's Act.
Traditional norms and values of Indian society laid stress on providing care for the elderly. A large number of elderly persons are not being looked after by their families. They are forced to live alone and are exposed to emotional neglect and lack physical and financial support. Aging has become a major social challenge and there is a need to give more attention to the care and protection of older persons. The Bill proposed to cast an obligation on the persons who inherit the property of -7- WP No. 33527 of 2017 their aged relatives to maintain such aged relatives and also proposed to make provisions for setting -up old age homes to provide maintenance to the indigent older persons. The Bill also proposed to provide better medical facilities to Senior citizens and provisions for the protection of their life and property. Hence, the Bill proposed to provide for - the appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens; provide better medical facilities to senior citizens; institutionalization of a suitable mechanism for the protection of the life and property of older persons; setting up old age homes in every district. To achieve these objectives and to ensure need-based maintenance for parents and senior citizens and their welfare, the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted on the 29th day of December 2007.
The main argument in the present case is centered around the non-applicability of the provisions of the Senior Citizens Act to the facts and circumstances of the case. Hence, extracting some of the provisions of the Act helps to indicate the right approach.
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"Section 1. Short title, extent, application, and commencement - (1) This Act may be called the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
(2) It extends to the whole of India except the State of Jammu and Kashmir and it applies also to citizens of India outside India.
(3) It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint.
2. Definitions -
xxx
(h) " senior citizen" means any person being a citizen of India, who has attained the age of sixty years and above;
xxx In Karnataka, the Act has come into force on the first day of April 2008. The Notification is extracted as under:
Notification No. WCD 479 PHP 2007, Bangalore, dated 27th March 2008.
[Karnataka Gazette, Part IV-A, dated 1st May, 2008] In exercise of the power conferred by sub- section (3) of Section 1 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Central Act No.56 of 2007) Government of Karnataka, hereby appoints the 1st day of April 2008 as the day on which the provisions of the said Act shall come into force in the State of Karnataka.-9- WP No. 33527 of 2017
Section 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 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-section (1) and (2), action may be taken on his behalf by any of the organizations referred to in Explanation sub-sections (1) of section 5."
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WP No. 33527 of 2017Suffice it to note that the provisions of the Senior Citizen's Act 2007 provide a simple, inexpensive, and speedy mechanism to claim maintenance for senior citizens.
As is well known that in Karnataka, the Senior Citizen's Act has come into force on the 1st day of April 2008. A perusal of Section 23(1), makes it very clear that if a senior citizen after the commencement of the Act, transfers any property by way of gift or otherwise with the condition that the transferee shall provide basic amenities and physical needs and such transferee fails or refuses to provide such amenities and physical needs, the transfer of the property shall be deemed to have been made by fraud or coercion or undue influence and the transfer be declared void at the option of the senior citizen.
Hence, what is required to be considered is whether the provisions of the Act apply to the facts and circumstances of the present case. To understand the issue, it is relevant to note a few facts and dates.
Mr.Peter Paul D'Souza is the father of Mr.Presly Francis D'Souza. He executed a Settlement Deed on 07.12.2002 in favor of his son in respect of immovable agricultural properties
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WP No. 33527 of 2017bearing Sy.Nos.42/7P6, 158/2A, 201/1A and 201/2 measuring in all 7 Acres 7 Cents situated in Hosabettu Village, Mangaluru Taluk. The age of the father and the son are quite relevant to be taken note of. At the time of the execution of the settlement deed, the father was aged about 48 years and the son was aged about 15 years. He was a minor; He was represented by his mother Mrs.Felsy Mary D'Souza.
The true copy of the settlement deed is produced and the same is marked as Annexure-B. A perusal of the same would depict that the father has executed a settlement deed in favor of his son on the 7th day of December 2002.
The transfer has been affected by way of a settlement Deed before the commencement of the Senior Citizen's Act. If Section 23 (1) of the Senior Citizens' Act is perused carefully, it is axiomatic that there has to be a transfer by way of gift or otherwise by a senior citizen after the commencement of the Act.
I have already extracted the relevant Sections and the Notification in the above paragraphs. If one reads the Sections and Notification carefully, it is evident that in Karnataka, the
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WP No. 33527 of 2017Act has come into force on the 1st day of April 2008. To be a senior citizen a person should be a citizen of India and should have attained the age of sixty years and above. Furthermore, to invoke Section 23, the following requirements are to be fulfilled.
He should be a senior citizen; who after the commencement of the Act, must have transferred the property and the transfer must be with a condition that the transferee shall provide the basic amenities and physical needs to the transferor and there must be a refusal or failure to fulfill the basic amenities and physical needs by the transferee. In the present case, Mr.Peter Paul D'Souza the father was 48 years at the time of the execution of the settlement deed and his son was aged about 15 years. The father being the applicant was neither a senior citizen nor the transfer has taken effect after the commencement of the Senior Citizen's Act. Hence, I have no hesitation in saying that the Senior Citizen's Act does not apply to the facts and circumstances of the present case.
I may venture to say that the Tribunal has failed to have regard to relevant considerations and disregarded relevant
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WP No. 33527 of 2017matters. In my considered opinion, the order passed by the Tribunal is unsustainable in law. Hence, the writ of certiorari is to be ordered.
The result is that the Writ Petition will be allowed. This Court orders a Writ of Certiorari. The order dated 06.06.2017 in Proceeding No. M.S.C.C.R: 19/2016-17 passed by the Assistant Commissioner, Mangaluru Taluk, Mangaluru vide Annexure-D is quashed.
Resultantly, the Writ Petition is allowed.
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JUDGE TKN List No.: 2 Sl No.: 80