Karnataka High Court
Axis Bank Ltd vs The Assistant Commissioner on 25 October, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.52158 OF 2017 (GM-RES)
BETWEEN:
AXIS BANK LTD.,
(FORMERLY UTI BANK LTD)
MIG-12, IST FLOOR
BLOCK-9, VISWAMAANAVA DOUBLE ROAD
SARASWATHIPURAM
MYSORE-570 009.
REPRESENTED BY ITS LAW OFFICER
& SENIOR MANAGER
MR. BALVEER KAPOOR SINGH.
...PETITIONER
(BY SRI.UNNIKRISHNAN M., ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
HASSAN SUB DIVISION
HASSAN - 573 201.
2. MR MIR JOHAR ALI
SINCE DEAD BY LR'S
3. MR MIR ANSAR ALI
S/MIR JOHAR ALI
AGED ABOUT 40 YEARS
R/A NO.22/1, IST FLOOR
SAI BABA ROAD
BEHIND NGO CLUB KOTE
CHANNARAYAPATNA
HASSAN - 573 201.
2
4. MS. ANJUM BEGUM
D/O MIR JOHAR ALI
AGED ABOUT 38 YEARS
R/A NO.22/1, IST FLOOR
SAI BABA ROAD
BEHIND NGO CLUB KOTE
CHANNARAYAPATNA
HASSAN-573 201.
(RESPONDENT NO.3 AND 4 ARE
TREATED AS LEGAL REPRESENTATIVES
OF DECEASED RESPONDENT NO.2)
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE N., HCGP FOR R1;
R3 AND R4 ARE TREATED AS LRS OF DECEASED R2 V/O
DATED:03.06.2024, R3 IS SERVED, R-4- NOTICE HELD
SUFFICIENT VIDE ORDER DATED 04.07.2023)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED.11.08.2017 IN CASE NO.M.A.G.(Hi.Na.Ri) 31/17-18, PASSED
BY THE ASSISTANT COMMISSIONER, HASSAN SUB DIVISION,
HASSAN I.E., ANNEXURE-A AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, M.G.S. KAMAL J.,
MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
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CAV ORDER
Petitioner-bank is before this court being aggrieved by
the order dated 11.08.2017 passed by the Respondent No.1-
Assistant Commissioner, Hassan Sub-Division, Hassan, under
the provisions of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter referred to as "the Act
2007") in case bearing No.M.A.G (Hi.Na.Ri) 31/17-18 produced
at Annexure A to the writ petition, giving rise to the questions
as to;
a) Whether under the scheme of the Act, 2007
Petitioner-Bank which is not a party to said
proceedings can assail the validity of the
impugned order by this writ petition?, and;
b) Whether in the facts and circumstances of the
case Respondent No.1-Assistant Commissioner
was justified in passing the impugned order?
2. Brief facts of the case are that;
a) Respondent No.2 is the father of the respondent Nos.3 and
4. On 16.05.2015 respondent Nos. 3 and 4 had approached the
petitioner-bank seeking financial assistance against security of
an immovable property bearing TMC Khata No.11, SAS No.353,
together with a residensial house existing thereon, situated at
4
Sai Baba Road, Kote extension, Ward No.4 under the revenue
jurisdiction of the Channarayapattana Town Municipal Council,
Chennarayapattana Town, Kasaba Hobli, Channarayapattana
Taluk, Hassan District, (herein after referred to as `Subject
Property'). Petitioner-bank accordingly sanctioned a loan known
as "ASSET POWER LOAN" in a sum of Rs.18,00,000/- in terms
of its letter of sanction dated 19.05.2015, against the security
of Subject Property.
b) That the respondent No.2 had earlier executed and
registered a Deed of Gift dated 05.06.2014 conveying the
subject property in favour of his son, the respondent No.3. That
said Deed of Gift was absolute without any conditions attached
to the conveyance.
c) That in furtherance to the sanctioning of the aforesaid loan
by the petitioner-bank, the respondent Nos.3 and 4 entered into
an agreement dated 25.05.2015 and also executed a Deed of
Mortgage date 25.05.2015 mortgaging the Subject property in
favour of the petitioner-bank. That after availing the loan as
above respondent Nos.3 and 4 defaulted in repayment of the
same violating the terms of the loan agreement. Consequently
5
petitioner-bank had caused issue of a notice calling up on the
respondent Nos.3 and 4 to repay the aforesaid loan amount.
However respondent Nos.3 and 4 did not repay the same.
d) When things stood thus the Petitioner-bank learnt from the
third parties that the respondent Nos.2 and 3 in collusion with
each other with an intention of defeating and defrauding the
rights of the petitioner-bank had surreptitiously got the said
Deed of Gift dated 05.06.2014 cancelled. The petitioner-bank
on an inquiry from the records of Sub-Registrar of
Channarayapattana however did not find any document
cancelling the Deed of Gift. The Petitioner-bank was informed
that the respondent No.2 had filed an application under Section
5 of the Act, 2007 before the respondent No1- Assistant
Commissioner, Hassan Sub-Division Hassan, who by his order
impugned in this Writ Petition cancelled the said Deed of Gift.
e) Since the subject property which was gifted by respondent
No.2 in favour of respondent No.3, which in turn had been
offered by the respondent No.3 as a security against the loan
availed and in view of the respondent No.1- Assistant
Commissioner cancelling the said Deed of gift under Section 23
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of the Act 2007, the Petitioner- bank, being aggrieved by the
impugned order, is before this court in this writ petition.
3. Learned counsel for the petitioner- bank reiterating the
grounds urged in the memorandum of writ petition submitted
that;
a) The respondent No.1-Assistant Commissioner grossly erred
in passing the impugned order in purported exercise of his
powers under Section 23 of the Act 2007. That provisions of
Section 23 of the Act 2007 can be invoked only when there is a
specific condition in the Deed of Gift that the transferee shall
provide the basic amenities and physical needs to the transferor
and if such transferee refuses to maintain or provide amenities
and physical needs of the transferor the transfer of property in
favour of the beneficiary shall be deemed to have been made
by fraud or coercion or undue influence and at the option of
transferor be declared void.
b) That in the instant case on perusal of Deed of Gift dated
05.06.2014 by respondent No.2 in favour of respondent No.3
there is no such condition of transferee being liable to provide
for basic amenities to respondent No.2. The Deed of Gift is
7
absolute one which clearly intended to transfer the subject
property absolutely in favour of the respondent No.3 without
any conditions. As such respondent No.1- Assistant
Commissioner could not have passed the impugned Order.
c) That the petitioner-bank has sanctioned and disbursed a sum
of Rs.18,00,000/- to the respondent No.3 against the security
of the subject property. That in view of erroneous order passed
the respondent No.1 cancelling the deed of gift the interest of
the petitioner-bank has been adversely affected in that it has
taken away the right of the petitioner-bank as a mortgagee to
recover the amount advanced to the respondent Nos.3 and 4.
d) That the respondent No.1-Assistant Commissioner had no
jurisdiction to cancel the deed of gift of this nature. The only
option that was available to the respondent No.2 was to initiate
the proceedings before the Civil Court and could not have
invoked the jurisdiction of the Respondent No.1- Assistant
Commissioner under the Act, 2007 seeking cancellation of the
deed of gift dated 05.06.2014.
e) That the entire process is vitiated by fraud and collusion
between the respondent No.2 and respondent No.3, adversely
8
affecting the recovery prospects of the petitioner-bank. The
petitioner-bank being a interested person in whose favour the
respondent Nos.3 and 4 had created the mortgage ought to
have been made a party to the proceedings before the
respondent No.1. That there is total lack of application of mind
by the respondent No.1- Assistant Commissioner in passing the
impugned order without assigning any reason justifying
cancellation of deed of gift.
f) On the question of maintainability of writ petition learned
counsel for the petitioner-bank submits that since there is no
specific provision provided under the Act, 2007 for petitioner-
bank to file an appeal the petitioner -bank has no other option
but to approach this Court by filing the present writ petition.
g) Learned Counsel for the petitioner-bank relied upon the
following judgments:
(i) Whirlpool Corporation Vs Registrar of Trade
Marks Mumbai and others reported in AIR 1999 SC
22
(ii) Adi Pherozshah Gandhi Vs H.M.Seervai reported
in AIR 1971 SC 385
(iii) Sudesh Chhikara Vs Ramti Devi and another
reported in 2022 SCC online SC 1684
9
(iv) Sri Vivek Jain Vs The Deputy Commissioner and
others in W.P.No.14704/2021 decided on
04.06.2024
(v) Nanjappa Vs State of Karnataka and others in
W.A.No.573/2022 decided on 17.03.2023
(vi) Jayashankar Vs The Assistant Commissioner,
North Taluk and others in W.P.339/2023 decided on
24.04.2024
(vii) Godrej Sara Lee Ltd., Vs The Excise and
Taxation Officer-cum-Assessing Authority and others
reported in AIR 2023 SC 781
Hence seeks for allowing of the writ petition.
4. Notice of this petition has been served on respondent 3
and 4. Respondent No. 2 is stated to have passed away during
the pendency of writ petition. Respondent Nos.3 and 4 have
been treated as legal representatives of deceased respondent
No.2 vide order dated 03.06.2024. There has been no
representation on behalf of respondent Nos.3 and 4.
5. Heard. Perused records.
6. There is no dispute of the fact that the impugned order has
been passed by the respondent No.1-Assistant Commissioner in
exercise of his powers under Section 23 of Act 2007. Challenge
to the impugned order is by the petitioner-bank who is no party
10
to the same. Therefore at the outset in the facts and
circumstances of the case, and in the context of the scope and
object of the Act 2007, it has to be ascertained whether the
petitioner-bank can be considered as an "aggrieved person" or
"aggrieved party"?, before proceeding further.
7. Necessary to note primary object and purpose of the Act
2007, which is essentially to provide speedy and inexpensive
remedy to the elderly persons who are not being looked after
by their families. The preamble of the said Act, 2007 reads as
under;
"an act to provide for more effective provision for
the maintenance and welfare of the parents and
senior citizens guaranteed and recognised under the
Constitution and for matters connected therewith or
incidental thereto"
8. Also apposite to refer to few provisions of the Act 2007.
Section 4 of the Act, 2007 provides for entitlement for
maintenance of a senior citizen including parent who is unable
to maintain himself from his own earning or out of the property
owned by him against one or more of his children not being
minor. Section 5 of the Act, 2007, lists out the procedure for
making application seeking maintenance under Section 4 of the
11
Act. Section 6 of the Act provides jurisdiction and the procedure
to be followed by the authority in determining the application.
Sections 7 and 8 provides for constitution of Maintenance
Tribunal and the nature of enquiry to be conducted. Section 9
provides authority to the Tribunal to direct the children to pay
the maintenance to the senior citizens. Section 10 provides for
alteration of the order. Section 13 provides for deposit of
maintenance amount while Section 14 provides for awarding of
interest on the maintenance amount. Section 15 provides for
constitution of appellate tribunal. Section 16 provides for filing
of the appeals. Relevant at this juncture to extract sections 15
and 16 of the Act, 2007 for the purpose of the present case
which are as under:
"15.Constitution of Appellate Tribunal.-(1) The State
Government may, by notification in the Official Gazette,
constitute one Appellate Tribunal for each district to hear
the appeal against the order of the Tribunal.
(2) The Appellate Tribunal shall be presided over by an
officer not below the rank of District Magistrate.
16. Appeals.- (1) Any senior citizen or a parent, as the
case may be, aggrieved by an order of a Tribunal may,
within sixty days from the date of the order, prefer an
appeal to the Appellate Tribunal:
Provided that on appeal, the children or relative who is
required to pay any amount in terms of such maintenance
order shall continue to pay to such parent the amount so
12
ordered, in the manner directed by the Appellate
Tribunal:
Provided further that the Appellate Tribunal may,
entertain the appeal after the expiry of the said period of
sixty days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal
in time.
(2) On receipt of an appeal, the Appellate Tribunal shall,
cause a notice to be served upon the respondent.
(3) The Appellate Tribunal may call for the record of
proceedings from the Tribunal against whose order the
appeal is preferred.
(4) The Appellate Tribunal may, after examining the
appeal and the records called for either allow or reject the
appeal.
(5) The Appellate Tribunal shall, adjudicate and decide
upon the appeal filed against the order of the Tribunal
and the order of the Appellate Tribunal shall be final:
Provided that no appeal shall be rejected unless an
opportunity has been given to both the parties of being
heard in person or through a duly authorised
representative.
(6) The Appellate Tribunal shall make an endeavour to
pronounce its order in writing within one month of the
receipt of an appeal.
(7) A copy of every order made under sub-section (3)
shall be sent to both the parties free of cost."
9. Perusal of Section 15 as above indicate the State
Government's obligation to constitute an Appellate Tribunal to
be presided over by an officer not below the rank of district
magistrate. Section 16 providing for appeals would indicate the
13
appeals to be filed by senior citizen or a parent as the case may
be who is aggrieved by an order of a Tribunal within 60 days
from the date of the order.
10. Thus the aforesaid provisions do not provide for filing an
appeal by a person/body like petitioner-bank whose cause in
the matter is completely different and distinct. Act 2007 does
not define the term "Aggrieved Person". Thus, in the
circumstances there is no possibility of petitioner-bank having
any recourse for any remedy under the Act, 2007. Therefore,
the only option available to the petitioner-bank is to approach
this Court invoking its extraordinary jurisdiction under Article
226 of the Constitution of India.
11. It is settled law that generally the term "aggrieved
person" or "aggrieved party" refers to any party whose
personal, property or financial interests or rights are negatively
impacted by another's action or by a statute, a judgment or an
order. Such aggrieved party is entitled to challenge the decision
or action legally in the court of law. In the case of Jasbhai
Motibhai Desai V. Roshan Kumar, Haji Basheer Ahmed
14
and others reported in AIR 1976 SC 578 at paragraph 12
Apex Court has held under:
"According to most English decisions, in order to have the
locus standi to invoke certiorari jurisdiction, the petitioner
should be an "aggrieved person" and in a case of defect
of jurisdiction, such a petitioner will be entitled to a writ
of certiorari as a matter of course, but if he does not fulfil
that character, and is a "stranger", the Court will, in its
discretion, deny him this extraordinary remedy, save in
very special circumstances. This takes us to the further
question: Who is an "aggrieved person" and what are the
qualifications requisite for such a status? The expression
"aggrieved person" denotes an elastic, and, to an extent,
an elusive concept. It cannot be confined within the
bounds of rigid, exact and comprehensive definition. At
best, its features can be described in a broad tentative
manner. Its scope and meaning depends on diverse,
variable factors such as the content and intent of the
statute of which contravention is alleged, the specific
circumstances of the case, the nature and extent of the
petitioner's interest, and the nature and extent of the
prejudice or injury suffered by him. English Courts have
sometimes put a restricted and sometimes a wide
construction on the expression "aggrieved person".
However, some general tests have been devised to
ascertain whether an applicant is eligible for this category
so as to have the necessary locus standi or 'standing' to
invoke certiorari jurisdiction.
From perusal of the proposition laid down in this case it is
evident that the meaning of aggrieved party depends on
diverse, variable factors such as the content and intent of
the statute of which contravention is alleged, the specific
circumstances of the case, the nature and extent of the
petitioner's interest, and the nature and extent of the
prejudice or injury suffered by him.
15
12. In the case of MAHARAJ SINGH VS STATE OF U.P.
reported in AIR 1976 SC 2602/ AIR 1977 (1) SCC 155 the
Apex Court at paragraphs 18, 19 and 20 has held that:
19. Aside from this stand, it is easy to take the view that
the 1st plaintiff is `a person aggrieved' and has the
competence to carry an appeal against the dismissal of
the suit. Of course, he who has a proprietary right, which
has been or is threatened to be violated, is surely an
'aggrieved person'. A legal injury creates a remedial right
in the injured person. But the right to a remedy apart, a
larger circle of persons can move the court for the
protection of defence or enforcement of a civil right or to
ward off or claim compensation for a civil wrong, even if
they are not proprietarily or personally linked with the
cause of action. The nexus between the lis and the
plaintiff need not necessarily be personal, although it has
to be more than a wayfarer's allergy to an unpalatable
episode. 'A person aggrieved' is an expression which has
expanded with the larger urgencies and felt necessities of
our times. Processual jurisprudence is not too jejune to
respond to societal changes and challenges:
Law necessarily has to carry within it the impression of
the past traditions, the capacity to respond to the needs
of the present and enough resilience to cope with the
demands of the future. A code of law, especially in the
social fields, is not a document for fastidious dialectics;
properly drafted and rightly implemented it can be the
means of the ordering of the life of a people.
20. The classical concept of a 'person aggrieved' is
delineated in Re : Sidebotham ex p. Sidebotham. But the
amplitude of 'legal grievance' has broadened with social
compulsions. The State undertakes today activities whose
beneficiaries may be the general community even though
the legal right to the undertaking may not vest in the
community. The State starts welfare projects whose
effective implementation may call for collective action
from the protected group or any member of them. New
movements like consumerism, new people's organs like
harijan or mahila samajams or labour unions, new
protective institutions like legal aid societies operate on
16
the socio-legal plane, not to beat 'their golden wings in
the void' but to intervene on behalf of the weaker classes.
Such burgeoning of collective social action has, in turn,
generated gradual processual adaptations. Test suits,
class actions and representative litigation are the
beginning and the horizon is expanding, with persons and
organisations not personally injured but vicariously
concerned being entitled to invoke the jurisdiction of the
court for redressal of actual or imminent wrongs.
13. In the case of ADI PHERORSHAH GANDHI VS
H.M.SEERVAI reported in AIR 1971 Supreme Court 385 the
Apex Court at paragraph 12 dealing with the expression "any
person aggrieved" used in Section 37 of the Advocates Act,
1961 has held as under:
"From these cases it is apparent that any person who
feels disappointed with the result of the case is not a
person aggrieved. He must be disappointed of a
benefit which he would have received if the other
had gone the other way. The order must cause him a
legal grievance by wrongfully depriving him of
something. It is no doubt a legal grievance and not a
grievance about material but his legal grievance
must be tendency to injure him"
14. In the case of WHIRLPOOL CORPORATION VS
REGISTRAR OF TRADE MARKS MUMBAI AND OTHERS
reported in AIR 1999 SC 22 the Apex Court at paragraphs 14,
15, 16, 17, 18, 19 and 20 has held as under;
17
14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature
and is not limited by any other provision of the
Constitution. This power can be exercised by the
High Court not only for issuing writs in the nature
of Habeas Corpus, Mandamus, Prohibition, Quo
Warranto and Certiorari for the enforcement of
any of the Fundamental Rights contained in Part
III of the Constitution but also for "any other
purpose".
15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the case,
has a discretion to entertain or not to entertain a
Writ Petition. But the High Court has imposed
upon itself certain restrictions one of which is that
if an effective and efficacious remedy is available,
the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a
bar in atleast three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental Rights or
where there has been a violation of the principle
of natural justice or where the order of
proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of
case-law on this point put to cut down this circle
of forensic Whirlpool, we would rely on some old
decisions of the evolutionary era of the
constitutional law as they still hold the field.
16. Rashid Ahmad vs. Municipal Board, Kairana,
AIR 1960 SC 163, laid down that existence of an
adequate legal remedy was a factor to be taken
into consideration in the matter of granting Writs.
This was followed by another Rashid case, namely,
K.S.Rashid & Son Vs. The Income Tax Investigation
Commissioner, AIR 1954 SC 207 which reiterated
the above proposition and held that where
alternative remedy existed, it would be a sound
exercise of discretion to refuse to interfere in a
petition under Article 226. This proposition was,
however, qualified by the significant words, "unless
there are good grounds therefor", which indicated
18
that alternative remedy would not operate as an
absolute bar and that Writ Petition under Article
226 could still be entertained in exceptional
circumstances.
17. Specific and clear rule was laid down in State of
U.P. vs. Mohd. Nooh 1958 SCR 595 = AIR 1958 SC
86, as under (at p.93 of AIR):
"But this rule requiring the exhaustion of statutory
remedies before the Writ will be granted is a rule of
policy, convenience and discretion rather than a
rule of law and instances are numerous where a
writ of certiorari has been issued in spite of the fact
that the aggrieved party had other adequate legal
remedies."
18. This proposition was considered by a
Constitution Bench of this Court in
A.V.Venkateswaran, Collector of Customs, Bombay
vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961
SC 1506 and was affirmed and followed in the
following words (para 10)
"The passages in the judgments of this Court we
have extracted would indicate (1) that the two
exceptions which the learned solicitor General
formulated to the normal rule as to the effect of
the existence of an adequate alternative remedy
were by no means exhaustive and (2) that even
beyond them a discretion vested in the High Court
to have entertained the petition and granted the
petitioner relief notwithstanding the existence of an
alternative remedy. We need only add that the
broad lines of the general principles on which the
Court should act having been clearly laid down,
their application to the facts of each particular case
must necessarily be dependent on a variety of
individual facts which must govern the proper
exercise of the discretion of the Court, and that in a
matter which is thus pre-eminently one of
discretion, it is not possible or even if it were, it
would not be desirable to lay down inflexible rules
which should be applied with rigidity in every case
which comes up before the Court".
19
19. Another Constitution Bench decision in Calcutta
Discount Co. Ltd. vs Income Tax Officer Companies
Distt. I AIR 1961 SC 372 laid down :
"Though the writ of prohibition or certiorari will not
issue against an executive authority, the High
Courts have power to issue in a fit case an order
prohibiting an executive authority from acting
without jurisdiction. Where such action of an
executive authority acting without jurisdiction
subjects or is likely to subject a person to lengthy
proceedings and unnecessary harassment. The
High Court will issue appropriate orders or
directions to prevent such consequences. Writ of
certiorari and prohibition can issue against Income
Tax Officer acting without jurisdiction under
s.34 I.T.Act".
20. Much water has since flown beneath the bridge,
but there has been no corrosive effect on these
decisions which, though old, continue to hold the
field with the result that law as to the jurisdiction of
the High Court in entertaining a Writ Petition under
Article 226 of the Constitution, inspite of the
alternative statutory remedies, is not affected,
specially in a case where the authority against
whom the Writ is filed is shown to have had no
jurisdiction or had purported to usurp jurisdiction
without any legal foundation.
The above being the legal position, now it is to be seen if
the impugned order is one without jurisdiction.
15. Section 23 of the Act, 2007 provides that if a senior
citizen transfers property by a gift otherwise with a condition
that the transferee shall provide basic amenities and basic
physical needs and if such transferee refuses or neglects to
provide such amenities and physical needs the transfer of
20
property shall be deemed to have been made by fraud or
coercion or under undue influence and the transfer be declared
void by Tribunal at the option of senior citizen. Section 23
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 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."
16. The Apex Court in the case of Sudesh Chhikara Vs
Ramti Devi and anr reported in [2022 Livelaw (SC) 1011]
2022 SCC online SC 1684 while dealing with the provisions of
21
section 23 of the Act 2007 at paragraphs 12 13 and 14 has
held as under:
12. Sub-section (1) of Section 23 covers all kinds of
transfers as is clear from the use of the expression "by way
of gift or otherwise". For attracting sub-section (1) of
Section 23, the following two conditions must be fulfilled:
a. 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
b. the transferee refuses or fails to provide such amenities
and physical needs to the transferor.
If both the aforesaid conditions are satisfied, by a legal
fiction, the transfer shall be deemed to have been made by
fraud or coercion or undue influence. Such a transfer then
becomes voidable at the instance of the transferor and the
Maintenance Tribunal gets jurisdiction to declare the
transfer as void.
13. When a senior citizen parts with his or her property by
executing a gift or a release or otherwise in favour of his or
her near and dear ones, a condition of looking after the
senior citizen is not necessarily attached to it. On the
contrary, very often, such transfers are made out of love
and affection without any expectation in return. Therefore,
when it is alleged that the conditions mentioned in sub-
section (1) of Section 23 are attached to a transfer,
existence of such conditions must be established before the
Tribunal.
14. Careful perusal of the petition under Section 23 filed by
respondent no.1 shows that it is not even pleaded that the
release deed was executed subject to a condition that the
transferees (the daughters of respondent no.1) would
provide the basic amenities and basic physical needs to
respondent no.1. Even in the impugned order dated 22nd
May 2018 passed by the Maintenance Tribunal, no such
finding has been recorded. It seems that oral evidence was
not adduced by the parties. As can be seen from the
impugned judgment of the Tribunal, immediately after a
reply was filed by the appellant that the petition was fixed
for arguments. Effecting transfer subject to a condition of
providing the basic amenities and basic physical needs to
22
the transferor - senior citizen is sine qua non for
applicability of sub-section (1) of Section 23. In the present
case, as stated earlier, it is not even pleaded by respondent
no.1 that the release deed was executed subject to such a
condition."
17. It is now well settled that the Tribunal constituted under
the Act, 2007 would get jurisdiction to declare transaction
contemplated under Section 23 as void only if the conditions
specified thereunder are satisfied. Respondent No.2 being the
father of respondent No.3 had executed Deed of Gift dated
05.06.2014 conveying subject property in favour of his son-
respondent No.3. Relevant to extract the relevant recitals and
terms of the said Deed of Gift which are as under:
ಾನ ಪತ
ಸ ಎರಡು ಾ ರದ ಹ ಾಲ ೇ ಇಸ ಜೂ ಾ ೇ ಾ ೕ
ಐದರಂದು [05/06/2014] ಇ ೇ ಾಸನ !"ೆ#, ಚನ%&ಾಯಪಟ)ಣ ಾ"ೊ#ೕಕು,
,ೋ-ೆ ಬ/ಾವ1ೆ, ಎ .!.ಓ. ಕ#3 4ಂ5ಾಗ, ಚನ%&ಾಯಪಟ)ಣ -ೌ ನ8#
9ಾಸ9ಾ:ರುವ "ೇ; ಸಬ<= ಅ8 ರವರ ಮಗ£ÁzÀ ಸು ಾರು 71 ವಷBದ Cೕ=
Dೋಹ= ಅ8 ಆದ ಾನು [ ಾನ Fೕಡುವವರು) (Epic Card No:
KT/19/132/474314)
ಇ ೇ ಾಸನ !"ೆ#, ಚನ%&ಾಯಪಟ)ಣ ಾ"ೊ#ೕಕು, ,ೋ-ೆ ಬ/ಾವ1ೆ,
ಎ .!.,N 4ಂ5ಾಗ, ಚನ%&ಾಯಪಟ)ಣ -ೌ ನ8# 9ಾಸ9ಾ:ರುವ Cೕ=
Dೋಹ= ಅ8 ರವರ ಮಗ ಾದ ಸು ಾರು 37 ವಷBದ Cೕ= ಅನG= ಅ8 [ ಾನ
ಪ/ೆದವರು) [Epic Card No: UFJ3355702] ಆದ FನHೆ ಬ&ೆI,ೊಟ)
ನನ% Jಾ§ÄÛ ಈ ,ೆಳಕಂಡ ಅನುಸೂM ಸNOPನ ಾನ ಪತ ದ ಕ ಮ9ೇ ೆಂದ&ೆ.
ಅ ಾ: ಈ ಾನ ಪತ ದ ಕ ಮ9ೇ ೆಂದ&ೆ, Qೕಲ ಂಡ Cೕ= ಅನG= ಅ8 ಆದ
Fೕನು ನನ% Rಾ ಾ ಮಗ ಾ:ದುS, Fೕ ೇ ನನ% T ೕOUಾತ ಮಗ ಾ:ದುS. Fೕ ೆ
23
ನನ% ಎ"ಾ# VೕಗWೇಮಗಳನು% ೋX,ೊಳYZOPರುವ[ದ ಂದ ಾಗೂ ಇOPೕ\ೆHೆ ನನ%
ೈ4ಕ ಆ&ೋಗ^ ಸ ಇಲ#ದ ,ಾರಣ ನನ% 9ಾ^Uಾರ ವ^ವ ಾರಗಳನು% Fೕ ೇ
ೋX,ೊಂಡು ೋಗುOPದುS, ಮುಂ ೆ Fನ% ವ^ವ ಾರಗ_Hೆ ಾಲ ವHೈ&ೆಗಳನು%
ಸಂಬಂಧಪಟ) Jಾ^ಂaFಂದ ಪ/ೆಯುವ ಉ ೆSೕಶ9ಾ:ಯೂ FನHೆ
ಅನುಕೂಲ9ಾಗJೇ,ೆಂಬ ಸದು ೆSೕಶ ಂದ Fನ% ಮುಂ ನ !ೕವನ,ೆ dಾವ[ ೇ
ೊಂದ&ೆ ಉಂ-ಾಗJಾರ ೆಂಬ ಉ ೆSೕಶ ಂದಲೂ ಾಗೂ ಈ 4ಂ ೆ FನHೆ ಾನು
FೕXದ 9ಾHಾSನವನು% ಈ/ೇ ಸುವ ಉ ೆSೕಶ ಂದಲೂ ಅನುಸೂM ಸNOPನ Rಾ ೆಯನು%
Fನ% ೆಸ Hೆ ಬದ"ಾ I,ೊಡJೇ,ೆಂಬ ಉ ೆSೕಶ ಂದ ಈ ,ೆಳಕಂಡ ನನ% Jಾ§ÄÛ
ಅನುಸೂM ಸNತPನು% ಾನು ಈ ವಸ ಈ ಪತ ,ೆ ಾe ಾaರುವವರ ಸಮfಮ
ನನ% ಮನಃಪhವBಕ9ಾ: FನHೆ ಾನ9ಾ: FೕXರು ೆPೕ ೆ. ಸದ ಸNತುP ಈ 4ಂ ೆ
ನನ% ಪO% ಅಹಮ Jೇಗಂ ರವರು ಾಂಕ:16/01/1987 ರಂದು
ಚನ%&ಾಯಪಟ)ಣ -ೌ ನ ,ೆ.ಎ . 9ಾಸು i ,ೆ.ಎಂ. ನಂಜಪj ರವ ಂದ
ಚನ%&ಾಯಪಟ)ಣ ಉಪ ೋಂದ1ಾk,ಾ ಯವರ ಕlೇ ಯ 3 ೇ ಪ[ಸPಕದ 2347 ೇ
ಸಂಪ[ಟದ 228-229 ೇ ಪ[ಟದ8# 86-87 ೇ ಇಸ ಯ ಕ ಯ ಪತ ದ !ಸ)m
ನಂಬ=: 1312 ರಂ ೆ ೋಂ ಾ Iದ PÀæAiÀÄ¥ÀvÀæzÀ ªÀÄÆ®PÀ CªÀjUÉ §AzÀÄ ಅವರ
ೆಸ Hೆ ಚನ%&ಾಯಪಟ)ಣ ¥ÀÄರಸ5ೆAiÀÄ°è SÁvÉ ªÀUÉÊgÉAiÀiÁV CªÀgÀ ºÀPÀÄÌ ªÀÄvÀÄÛ
C£ÀĨsÀªÀzÀ°èzÀÝ ಸNತPನು% ಅವರ ಮರ1ಾನಂತರ ಅವರ ¥ÀwAiÀiÁzÀ Cೕ= Dೋಹ= ಅ8
i ಸಬ<= ಅ8# ಆದ ನನ% ೆಸ Hೆ ಚನ%&ಾಯಪಟ)ಣ ಮರಸ5ೆಯ8# Jಾadಾ:
ನನ% ಹಕು ಮತುP ಅನುಭವದ8#ರುವ ಸN ಾP:ರುತP ೆ. ಸದ ಸNತPನು% ಾನು Fನ%
ನB Jೇ&ೆ dಾ ಗೂ ಪರ5ಾ&ೆ. ವHೈ&ೆ ಾXರುವ[ ಲ# ಮತುP ಸದ ಸNOPನ
Qೕ"ೆ dಾವ[ ೋ ತಕ&ಾರು ಇರುವ[ ಲ#. ಮುಂ ೆ ಏ ಾದರೂ ತಂ-ೆ ತಕ&ಾರು
ಬಂದ&ೆ ಾ ೇ ನನ% ಸNಂತ ಖMBFಂದ ಾಗೂ ಜವJಾS ಂದ
ಪ ಹ I,ೊಡು ೆPೕ ೆ.
ಸದ ಸNತPನು% ಾನು ಈ ವಸ ಂದ"ೇ Fನ% ಾNkೕನ,ೆ ಅದರ ಸಮಸP ಹಕು
Jಾಧ^ ೆಗಳ ಸQೕತ ವ4Iರು ೆPೕ ೆ. ಸದ ಾನದ ಸNತPನು% Fೕನು ಇನು% ಮುಂ ೆ
ಈ ಾನಪತ ದಂ ೆ Fನ% ೆಸ Hೆ Rಾ ೆ ವHೈ&ೆ ಾXI,ೊಂಡು ಸುಖ ಂದ
ಅನುಭ I,ೊಂಡು ೋಗತಕ ದುS. ಸದ ಾನದ ಸNತುP ಇನು% ಮುಂ ೆ FನHೆ ಾvÀæ
ೇರತಕ ದುS, ಸದ ಸNOPನ Qೕ"ೆ ಇನು% ಮುಂ ೆ Fನ%ನು% ೊರತುಪXI,
ನನHಾಗ8ೕ ಅಥ9ಾ ನನHೆ ಸಂಬಂಧಪಟ) ಇತ&ೆ ಸದಸ^ Hಾಗ8ೕ dಾವ[ ೇ ೕOಯ
ಹಕು Jಾಧ^ ೆ ಇರುವ[ ಲ#. ಸದ ಾನದ ಸNತPನು% ಇನು% ಮುಂ ೆ ಕ ಯ. 5ೋಗ^,
ಆrಾರ ಇF%ತರ ವ^ವ ಾರಗಳನು% Fೕ ೇ ಾಡುವ ಸಂಪhಣB ಅk,ಾರವನು%
ೊಂ ರುOPೕdಾ ಎಂಬು ಾ: ಾನು ಬ&ೆದು,ೊಟ) ಾನ ¥ÀvÀæ.
24
ಾನ9ಾ: FೕXರುವ ಸNOPನ ವರ.
ವರ
ಾಸನ !"ೆ#, ಚನ%&ಾಯಪಟ)ಣ ಾ"ೊ#ೕಕು, ಕಸJಾ ೋಬ_,
ಚನ%&ಾಯಪಟ)ಣ -ೌ , ಚನ%&ಾಯಪಟ)ಣ ಪ[ರಸ5ಾ 9ಾ^TPಯ 9ಾmB £ÀA.4
,ೋ-ೆ ಬ/ಾವ1ೆ, ¸Á¬Ä¨Á¨Á ರ ೆP, g°ègÀĪÀ ¤ªÉñÀ ಮತುP EzÉà ¤ªÉñÀ£ÀzÀ°è
¤«Äð¹gÀĪÀ £É® ºÀAvÀ¸ÀÄÛ, Dgï.¹¹ ªÀĺÀr ªÀÄ£É, ªÀÄvÀÄÛ sದಲ ೇ ಹಂತಸುP ಾಗೂ
ಎರಡ ೇ ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ ಪ[ರಸ5ಾ Rಾ ಾ ನಂ: 11
ಎt.ಎ.ಎt. ನಂ: 353, ರ8#ರುವ F9ೇಶನದ IPೕಣB ಪhವB-ಪuvಮ 40
ಆX. ಉತPರ-ದeಣ 30 ಅX F9ೇಶನದ ಒಟು) IPೕಣB 1200 ಚದರ ಅXಉಳZ
F9ೇಶನದ8# FCBIರುವ ೆಲ ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ IPೕಣB ಪhವB-
ಪuvಮ 40 ಅX, ಉತPರ- ದeಣ 30 ಅX ೆಲ ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ
ಒಟು) IPೕಣB 1200 ಚದರ ಅX ಾಗೂ sದಲ ೇ ಹಂತIPನ ಆ=.I.I.
ಮ ೆಯ IPೕಣB ಪhವB-ಪuvಮ 40 ಆX, ಉತPರ-ದeಣ 30 ಅX sದಲ ೇ
ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ ಒಟು) IPೕಣB 1200 ಚದರ ಅX ಾಗೂ
ಎರಡ ೇ ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ IPೕಣB ಪhವB-ಪuvಮ 24 ಆX,
ಉತPರ-ದeಣ 30 ಅX ಎರಡ ೇ ಹಂತIPನ ಆ=.I.I. ಮ ೆಯ ಒಟು) IPೕಣB
720 ಚದರ ಅX ಉಳZಸNOPHೆ ಲಗತುP ಒಂ ೇ \ೆಕು ಬಂ .
ಪhವB,ೆ * ರ ೆP ಪuvಮ,ೆ *ಎ .!.ಓ. ಕ#3
ಉತPರ,ೆ * ಹFೕx ಾ ೇಬರವರ ದeಣ,ೆ * ಪ[ರಸ5ೆ ಮ_Hೆ
ಮ ೆ
ಈ ಮrೆ^ ಇರುವ Qೕಲ ಂಡ F9ೇಶನ ಮತುP ಇ ೇ F9ೇಶನದ8#
FCBIರುವ ೆಲ ಹಂತಸುP, sದಲ ೇ ಹಂತಸುP ಾಗೂ ಎರಡ ೇ ಹಂತIPನ
ಆ=.I.I. ಮ ೆಯನು% ಈ ನ ಾನು FನHೆ ಾನ9ಾ: FೕXರು ೆPೕ ೆ. ಸದ
ಸNತುP ಈ:ನ ಾರುಕ-ೆ) Jೆ"ೆಯಂ ೆ ಸು ಾರು 30,00,000/- [ಮೂವತುP ಲf]
ರೂUಾ Jೆ"ೆJಾಳತಕ ಾS:ರುತP ೆ.
ಾನ ,ೊಟ)ವgÀÄ ಾನ ಪ/ೆದವರು
¸À»/- ¸À»/-
18. From the reading of the aforesaid document things that
emanates are: firstly, there is no any specific condition attached
in the Deed of Gift that respondent No.3 being the son and the
25
transferee, shall provide the basic amenities and basic physical
needs to the Respondent No.2, Secondly, the subject property
originally belonged to wife of respondent No.2 namely,
Smt. Ahmadi Begum who stated to have acquired the subject
property in terms of Deed of Sale dated 16.01.1987 from one
K.N.Vasu, son of K.M.Nanjappa and that upon her demise name
of the Respondent No.2 has been mutated in the revenue
records and that he was in possession and enjoyment of the
subject property, Thirdly, respondent No.2 cannot claim to be
the absolute owner of entire extent of subject property,
inasmuch as upon the demise of Smt.Ahmadi Begum-owner,
Respondent No.2 being her husband and Respondent Nos.3 and
4 being her son and daughter respectively, became entitled for
a specific share in the subject property in terms of law of
inheritance applicable to the parties.
19. Relevant at this juncture also to refer to averments and
allegations made by respondent No.2 in his application filed
before the respondent No.1-Assistant Commissioner on
20.06.2017 seeking relief under Act, 2007 which reads as
under:
26
gÀªÀjUÉ,
G¥À«¨sÁUÁ¢üPÁjUÀ¼ÀÄ
G¥À«¨sÁUÀ, ºÁ¸À£À f¯Éè, ºÁ¸À£À
EAzÀ,
«ÄÃgÁeÉÆúÀgï C° ©£ï ¯ÉÃmï ¸ÀzÁðgï C°
ಸು ಾರು 75 ವಷB ವಯಸುG,
ಮ ೆ ನಂ. 312. ಾಗಸಮುದ ರ ೆP,
2 ೇ ,ಾ t, ಚನ%&ಾಯಪಟ)ಣ -ೌ , ಾಸನ !"ೆ#.
¸Áé«Ä,
ಷಯ:- 4 ಯ ಾಗ ೕಕರ FವBಹ1ೆಯ ,ಾನೂನು ಆ ೇಶದ ಅನNಯ
!ೕವನ FವBಹ1ೆ ,ೋ ,
Qೕಲ ಂಡ ಷಯ,ೆ ಸಂಬಂkIದಂ ೆ ಾನು Qೕಲ ಂಡ yಾಸದ8#
9ಾಸ9ಾ:ರು ೆPೕ ೆ. ತಮz8# Uಾ {BI,ೊಳYZವ[ ೇ ೆಂದ&ೆ, ಇ ೇ ಾಸನ
!"ೆ#. ಚನ%&ಾಯಪಟ)ಣ -ೌ , 4 ೇ 9ಾmB, ,ೋ| ಬ/ಾವ1ೆ,
ಾ Jಾ3 ರ ೆPಯ8# 9ಾಸ9ಾ:ರುªÀ ನನ% ಮಗ ಾದ Cೕ&ಾ ಅನG=
ಆ8, ಸು ಾರು 40 ವಷB, ಇವನು ನನ% ೆಸ ನ8# ಮ ೆ
Rಾ ೆಯ8#ರುವ ಮ ೆಯನು% 2014 ೇ ಾ8ನ8# ನನHೆ Hೊ ಾPಗದ ೕO
O_ಸ ೆ sೕಸ ಾಡುವ ಉ ೆSೕಶ ಂದ ಾಂಕ: 05/06/2014
ರಂದು ಸುಳYZ ಾನಪತ ವನು% ಸೃ~)I,ೊಂಡು ಾX ವಂMಸುವ[ದು ಈಗ
ನನHೆ Hೊ ಾP: ೆ. ಸದ ಮ ೆಯು ಚನ%&ಾಯಪಟ)ಣ -ೌ ಪ[ರಸ5ೆ
9ಾ^TPಯ8# 9ಾmB ನಂ. 4, ,ೋ-ೆ ಬ/ಾವ1ೆ, ಾ Jಾಬ ರ ೆPಯ8#
FCBIರುವ ಆ=.I.I £Éಲ ಅಂತಸುP ಮತುP MAzÀ£Éà ಅಂತಸುP, 2 ೇ
ಅಂತIPನ ಮ ೆಯು ಸು ಾರು 50,00,000/- Jೆ"ೆ JಾಳYವ ಮ ೆಯು
ನನ% ೆಸ ನ8#ದುS, ವಂMI sೕಸ ಾಡುವ ಉ ೆSೕಶ ಂದ Qೕಲ ಂಡ
ಾಂಕದಂದು ಚನ%&ಾಯಪಟ)ಣ ಉಪ ೊಂದ1ಾk,ಾ ಗಳ ಕlೇ ಯ8#
ನನ% ಮಗನ ೆಸ Hೆ ಅಂದ&ೆ «ÄÃgïಅನG= ಅ8 ರವರ ೆಸ Hೆ ಾನ
ಪತ ಾXI ೊಂ ಾವ• ಾXI,ೊಂXರು ಾP&ೆ. ದ^ ಾನಗಳY
4ೕ:ರು9ಾಗ ನನ% ಮಗನು ಸು ಾರು 2 ವಷBಗ_ಂದ ನನHೆ ಸ dಾಗ
VೕಗWೇಮ ೋX,ೊಳZ ೆ. ಒಂದು ೊತುP ಅನ% ,ೊಡ ೆ ತುಂJಾ
ೊಂದ&ೆ ,ೊಡು ಾP ಬಂ ರು ಾP ೆ. ಅ€ೆ)ೕ ಅಲ# ೆ ನನ% Qೕ"ೆ ೈ4ಕ9ಾ:
ಹ"ೆ# ಾಡಲು ಯO%I ಅ9ಾಚ^ ಅಬSಗ_ಂದ Fಂ I, ಾನIಕ9ಾ:
4ಂ ೆ FೕX, ಎ€ೊ)ೕ Jಾ ನನ%ನು% ಮ ೆ ಂದ ಕOPನ ಪ|) 4Xದು
ೊರದೂಕಲು ಯO%Iರು ಾP&ೆ. ಈ ೕO ಾಡುOPರುವ[ದು ಏ,ೆ ಎಂದು
27
ಸಂಶಯ ಬಂದು ನನHೆ HೊOPರುವವರ ಹOPರ ಷಯ O_I
ಉಪ ೊಂದ1ಾk,ಾ ಚನ%&ಾಯಪಟ)ಣದ8# ಸದ ಷಯದ8# ನನ%
ಮ ೆಯ Rಾ ೆ ಬHೆ• O_I ಾಗ ಾನ ಪತ ಾX,ೊಂXರುವ[ದು
O_ದುಬಂ ರುತP ೆ. ನನHೆ ಓದು ಬರಹ HೊOPಲ#, ವೃ ಾ^ಪ^ 9ೇತನವನು%
ಾXI,ೊಡು ೆPೕ ೆಂದು ನನ%ನು% ನಂiI ನನHೆ ವಂMI, ನF%ಂದ *
ಾನಪತ ವನು% ಾXI,ೊಂXರು ಾP ೆ. ಈಗ ನನHೆ 75 ವಷB
ವಯ ಾG:ರುತP ೆ. ನನ% . ೆಂಡOಯು Fಧನ ೊಂ ಸು ಾರು 22
ವಷB ವಯ ಾG: ೆ ನನHೆ ಆHಾHೆ• ಆ&ೋಗ^ ಂದ ನರಳYOPರು ೆPೕ ೆ. ನನ%
ಮಗನು ಆ&ೋಗ^ ೋX,ೊಳZಲು, ಆಸj ೆ ಯ8# Ma ೆG ,ೊXಸಲು ತುಂJಾ
4ಂ ೇಟು ಾಕು ಾP ೆ.
ಾವಂದ&ಾದ ತಮz8# ನಂOI,ೊಳYZವ[ ೇ ೆಂದ&ೆ, ನನ%8#ದS ಮ ೆಯ
Rಾ ೆಯ8# ಾನಪತ ಾXI,ೊಂಡು ಚನ%&ಾಯಪಟ)ಣ ಪ[ರಸ5ೆಯ8#
Rಾ ೆdಾ:ರುವ[ದನು% ರದುS ಾX ನನ% ಮಗFಂದ ನನHೆ !ೕವನ FವBಹ1ೆ
ಾಡಲು ಸೂಕP ಪ ಾರ ,ೊXಸJೇ,ೆಂದು ಾಗೂ ಸದ ನನ%ಮಗನ
Qೕ"ೆ ಕ ಮ ಜರು:ಸJೇ,ಾ: ಾ^dಾ‚ವೃ ƒ ದೃ~) ಂದ Uಾ {Bಸು ೆPೕ ೆ.
ಅ!Bದಯ Dೊ ೆಯ8# ಾನ ಪತ ವನು% ಲಗOPIರು ೆPೕ ೆ. ನನHೆ ಒಬ<
ಮಗ ಮತುP 4 ಜನ ೆಣು„ ಮಕ ಳY ಇರು ಾP&ೆ.
ವಂದ ೆಗyೆ... ಂ Hೆ
20. Thus, there is no pleading with regard their being any
conditions in the Deed of Gift or violation of same as required
under Section 23 of the Act, 2007. Further respondent No.2 in
the aforesaid application has not only denied the very execution
of Deed of Gift by him but has also alleged that the same has
been fabricated and created by respondent No.3 by defrauding
him on the pretext of obtaining old age pension as he did not
know to read or write.
28
21. Though a legal fiction of "fraud" "coercion" and "undue
influence" is provided under section 23, same requires to be
read only for the limited purpose of the provision of Section 23
of the Act, 2007 and not beyond. The Division Bench of this
Court in the case of JAYASHANKAR VS. ASSISTANT
COMMISSIONER NORTH TALUK AND OTHERS decided on
24.04.2024 in Writ Appeal 339 of 2023 had an occasion to deal
with the species of "fraud" "coercion" and "undue influence" as
contemplated under Section 23 of the Act, 2007 in comparison
to the meaning of the said terms as understood under general
law. Relevant paragraphs of the said judgment are as under:
"6. It is true that the Section treats the transfer of the
property acted upon in particular manner to be deemed to
have been made by fraud or coercion or under undue
influence, but the concept of fraud or coercion
incorporated in the Section to be the ground to declare
the instrument void is limited to the breach of condition.
Since the Section provides for the 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, it would
constitute a ground to declare the instrument of gift or
transfer instrument to be void. the idea of fraud or
coercion encapsulated in Section 23(1) of the Act is
referable to the breach of such condition only.
6.1 The words 'fraud and coercion' mentioned in the
Section could not be enlarged to the normal concept of
'fraud' or 'coercion' in civil law. In order to establish
'fraud' or 'coercion' a foundation of established facts is
needed to conclude about 'fraud' as understood in
common legal parlance, establishing a fraud or fraudulent
29
conduct by any person would indispensably require
leading of evidence to prove the facts of fraud. For the
purpose of Section 23(1), fraud is that the transfer is
effected and the condition therein about providing basic
amenities and physical needs to the transferor by the
transferee, is not observed and abided by the transferee.
6.2 The group of words 'since the said transfer of
property shall be deemed to have been made by fraud or
coercion or under undue influence' creates a deeming
fiction. The deeming fiction is referable to and is delimited
to the breach of condition as above on the basis of which,
the transfer has been made. It is in this limited sense that
'fraud' or 'coercion' or 'undue influence' mentioned in this
Section has to be understood and applied.
6.3 The Tribunal exercising powers under Section 23(1) of
the Act is not a civil court, nor the powers exercised by
the Tribunal under the said provision are the powers of
civil court. They are the powers in the context of the
provisions of the Act which have their own purpose and
object, which is to provide more effective recourse in law
for maintenance and welfare of parents and senior
citizens and to guarantee and recognize for them their
rights.
6.4 In the above view, it will not be permissible in law for
the Tribunal, while exercising powers under Section 23(1)
of the Act, to pronounce upon generally that the transfer
of the property by way of gift or otherwise was fraudulent
or that the transferor was guilty of fraud or coercion in
the general sense of the term. The rights and obligations
arising for the parties in the context of commission of
fraud as is to be applied in general law, are the civil
disputes. It is not open for the Tribunal functioning under
the Act to pronounce upon such fraud having committed
in effecting the transfer.
6.5 In view of the above position obtaining, this Court is
of the view that the Tribunal misdirected itself in law in
making the observations in paragraph 13 of its order by
suggesting that the gift deed was fraudulently obtained
from the complainant. The aspects mentioned by the
Tribunal in that regard are to be proved by leading of
evidence. It was not permissible for the Tribunal to arrive
at a different finding in that regard. Even otherwise,
30
recording of such finding was beyond the powers and
jurisdiction of the Tribunal."
22. In the light of the aforesaid factual and legal aspects of
the matter necessary at this juncture to advert to the
impugned order dated 11.08.2017 passed by Respondent No.1-
Assistant Commissioner which reads as under:
ಉಪ 5ಾHಾk,ಾ ಯವರ ಾ^dಾಲಯ, ಾಸನ ಉಪ 5ಾಗ, ಾಸ£À
¥ÀæPÀgÀt ¸ÀASÉå:JA.J.f (».£Á.j)31/17-18
¢£ÁAPÀ: 11-08-2017
9ಾ ಗಳY ಪ O9ಾ ಗಳY
u ೕ/u ೕಮO u ೕ/u ೕಮO
Cೕ&ಾDೋಹ= ಆ8 © "ೇ: Cೕ&ಾ ಅನG= ಆ°. 4 ೇ
ಸ§Ógï ಆ8, ಮ ೆ ನಂ.312. 9ಾmB. ,ೋ-ೆ ಬ/ಾವ1ೆ"
ಾಗಸಮುದ ರ ೆP, 2 ೇ ,ಾ t, ಾ Jಾಬ ರ ೆP, ಚನ%&ಾಯಪಟ)ಣ
ಚನ%&ಾಯಪಟ)ಣ -ೌ , ಾಸನ -ೌ ,
ಪ ಾPವ ೆ: ಅ!B ಾರರು 4 ಯ ಾಗ ೕಕ Uಾಲ ೆ, ‡ೕಷ1ೆ ಮತುP
ಕ"ಾ^ಣ ಅkFಯಮ 2007 ರ Qೕ&ೆ ಪ O9ಾ ರುದƒ ಾಸನ !"ೆ#,
ಚನ%&ಾಯಪಟ)ಣ -ೌ , 4 ೇ 9ಾmB, ,ೋ-ೆ ಬ/ಾವ1ೆ, ಾ Jಾಬ
ರ ೆPಯ8# FCBIರುವ 3 ಅಂತIPನ ಮ ೆಯು ಪ[ರಸ5ಾ ಚನ%&ಾಯಪಟ)ಣ
Rಾ ಾ ನಂ.11/353 ರ8#ನ 40 X 30 ಅX (ಆ=.I.I. ಮಹX)
ಸNತುP 9ಾ ೆಸ ನ8#ದುS, ಸದ Rಾ ೆಯನು% ರದುSಪXI Rಾ ೆ ಪ[ನ=
ಾˆTಸುವಂ ೆ ಾಗೂ !ೕವನ FವBಹ1ೆHೆ ಭ ೆ^ಯನು% ,ೊXಸುವಂ ೆ
9ಾ ಯವರು ಪ ಕರಣ ಾಖ8Iರು ಾP&ೆ.
ಸದ ಪ ಕರಣದ \ಾರ1ೆಯನು% ಾಂಕ: 15-07-2017
ಂದ 11-08-2017 ರವ&ೆHೆ ಧ ಾಂಕಗಳಂದು ಈ
ಾ^dಾkೕಕರಣದ8# \ಾರ1ೆ ನ/ೆಸ"ಾ:ರುತP ೆ. ಅಂOಮ9ಾ:
\ಾರ1ೆಯನು% ಾಂಕ: 11-08-2017 ರ ಸದ ಈ
31
ಾ^dಾkೕಕರಣದ8# ನ/ೆIದುS, ಅ!B ಾರರ ಮನ ಾಗೂ \ಾರ1ಾ
ಅಂಶಗಳನು% ಪ&ಾಮuBI ಈ ,ೆಳಕಂಡಂ ೆ ಆ ೇuI ೆ.
DzÉñÀ ¸ÀASÉå. JA.J.f(».£Á.j)31/17-18, ¢£ÁAPÀ:11.08.2017
ಾಸನ !"ೆ#, ಚನ%&ಾಯಪಟ)ಣ ಾಲೂ#ಕು ಉಪ 5ಾHಾk,ಾ ಗಳ ಕlೇ
ೊಂದ• ಪತ ದ ನಂ. ¹.¦.J£À-1-00876-20/14-15, ¢£ÁAPÀ:
05-06-2014 Cೕ&ಾ ಅನG= ಆ° ©£ï Cೕ&ಾ Dೋಹ= ಆ8 ರವರ
ೆಸ Hೆ ೋಂದ• ಆ:ರುವ ಾಸನ !"ಾ# ಚನ%&ಾಯಪಟ)ಣ -ೌ
9ಾmB 4 ರ8#ರುವ ಪ[ರಸ5ಾ Rಾ ಾ ನಂ.11/353 ರ8#ನ 40 X 30
ಅX (ಆ=.I.I. ಮಹX) ರ ಾನ ಪತ ವನು% ರದುSಪXI ೆ. ಮತುP
ಸದ ಸNOPನ ಾಖ"ೆಗಳನು% ಈ 4ಂ ೆ Rಾ ೆ ಾರ&ಾ:ದS Cೕ&ಾDೋಹ=
ಆ8 ©£ï ಸಬ<= ಆ° ರವರ ೆಸ Hೆ Rಾ ೆ ವHಾB ಸಲು ಮರಸ5ೆ
ಮುRಾ^k,ಾ , ಚನ%&ಾಯಪಟ)ಣ ರವ Hೆ ಆ ೇuI ೆ.
ಈ ಆ ೇಶವನು% ಉಕP"ೇಖನ FೕX Jೆರಳಚುv ಾXI ಾಂಕ: 11-
08-2017 ರಂದು ಆ ೇuI ೆ.
(qÁ. JZï. J¯ï. £ÁUÀgÁeï PÉ.J.J¸ï.,)
CzsÀåPÀëgÀÄ ¤ªÀðºÀuÁ £ÁåAiÀĪÀÄAqÀ½
ºÁUÀÆ G¥À«¨sÁ¢üPÁj,
ºÁ¸À£À G¥À«¨sÁUÀ, ºÁ¸À£À
23. The impugned order as seen above is as cryptic as it
could be without there being any reason whatsoever. The
respondent No.1-Assistant Commissioner has neither adverted
to the facts of the matter nor has he adverted to the provisions
of Section 23 of the Act, 2007 justifying him invoking his
jurisdiction thereunder. There is also no whisper as to if the
Respondent No.2 had made out case warranting interference at
the hands of the respondent No.1. The impugned order exfacie
32
being one without jurisdiction is arbitrary and perverse, cannot
be sustained.
24. Petitioner-bank claims to have sanctioned and
disbursed a sum of Rs.18,00,000/- to respondent Nos.3 and 4
against the security of subject property. As already noted
above, the subject property admittedly belonged to wife and
mother respectively of respondent Nos.2, 3 and 4. Upon her
demise the revenue records of the subject property has been
mutated in the name of respondent No.2. That alone would not
make him exclusive owner of the subject property. Respondent
Nos.3 and 4 would also be entitled for a specific share in the
schedule property even in the absence of the Deed of Gift. Now
that respondent No.2 is also stated to have passed away
leaving behind the Respondent Nos.3 and 4 as heirs, the
subject property even otherwise would vest with the respondent
Nos.3 and 4. As this Court has already held that the impugned
order passed by the respondent No.1- Assistant Commissioner
is unsustainable for the reasons as noted above and in the light
of there being no specific provision under the Act, 2007 for the
petitioner-bank to challenge, whose financial interest is
33
negatively impacted and adversely affected by the impugned
order, this Court under the peculiar facts situation of the case,
is of the considered view that the petitioner-bank is entitled to
maintain the writ petition, more so when it is required to
recover the loan amount advanced by it in the larger public
interest.
25. Before parting necessary to emphasis that though
the object of the Act, 2007 is lofty and laudable, same has been
deliberately misused quite often. Since the procedure
contemplated under the Act, 2007 is summary and simple in
nature, even the disputes of substantial nature which ought to
be otherwise dealt with under the general law by a civil court of
competent jurisdiction are being taken up and are disposed of
in a highly cavalier manner regardless of consequences as that
of one in the instant case. Imminent need therefore is to
sensitize the Tribunals regarding limits of their jurisdiction and
also with regard to scope and extent of the disputes that could
be entertained under the Act, 2007 by the concerned.
34
26. Points raised are answered thus. Accordingly,
following:
ORDER
(i) Writ petition is allowed.
(ii) Order dated 11.08.2017 passed by the respondent No.1-Assistant Commissioner, Hassan Sub-Division, Hassan in case bearing No.M.A.G.(Hi.Na.Ri)31/17-18 is quashed.
SD/-
(M.G.S. KAMAL) JUDGE SBN/RU