Karnataka High Court
Hilda D Souza vs State Of Karnataka on 7 January, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2026:KHC:751
WP No. 15394 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 15394 OF 2022 (GM-RES)
BETWEEN:
HILDA D'SOUZA
W/O D. ROBERT D'SOUZA
AGED ABOUT 73 YEARS
R/AT NIRMALA VILLA,
NGO COLONY,
76, BADAGABETTU, BAILOOR
UDUPI TALUK AND DISTRICT-576101
...PETITIONER
(BY SRI. B.S.SACHIN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY REVENUE DEPARTMENT
BY SECRETARY
Digitally
signed by M.S. BUILDING,
SUMA B N BENGALURU-560001
Location:
HIGH COURT
OF 2. DEPUTY COMMISSIONER
KARNATAKA UDUPI DISTRICT
"RAJATADRI", MANIPAL
UDUPI-576014
3. ASSISTANT COMMISSIONER AND ALSO PRESIDENT
MAINTENANCE TRIBUNAL
KUNDAPURA SUB-DIVISION,
UDUPI-576201
4. RESHMA D'SOUZA
W/O LATE MELVIN MATHEW D'SOUZA
AGED ABOUT 38 YEARS
FORMALLY RESIDING AT
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NC: 2026:KHC:751
WP No. 15394 of 2022
HC-KAR
KARPIMAR HOUSE, POST PADIL,
MANGALURU-575007
...RESPONDENTS
(BY SMT. B. SUKANYA BALIGA, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NOS.1 TO 3;
SRI. K. CHANDRANATH ARIGA, ADVOCATE FOR RESPONDENT NO.4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER PASSED BY THE RESPONDENT NO.2 AT
NO.CDS.MAG.SR.06/2022 DATED 30.05.2022 WHICH IS PRODUCED
AS ANNEXURE-F THEREBY CONFIRMING THE ORDER PASSED BY THE
ASSISTANT COMMISSIONER AT CDS.MAG.SR.199/2014-15 DATED
29.10.2015 AS PER ANNEXURE-E AND CONSEQUENTLY KINDLY
ALLOW THE RELIEF AS PRAYED BY THE PETITIONER.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL
ORAL ORDER
The petitioner, who is the mother-in-law of respondent No.4 herein, is before this Court being aggrieved by the order dated 29.10.2015 passed by respondent No.3 - Assistant Commissioner, which is confirmed by respondent No.2 - Deputy Commissioner vide order dated 30.05.2022.
2. The case of the petitioner is that she being an absolute owner of the petition schedule property had executed -3- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR a gift deed in favour of her daughter-in-law/respondent No.4. Respondent No.4 had attempted to sell the property to third parties. Daughter of the petitioner had intervened and protected the property from being sold. However, respondent No.4 has shifted from Udupi to Mangaluru. The petitioner had requested respondent No.4 to look after her and protect her as per the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (henceforth referred to as 'Act'), which was refused. As her conduct of fraud and undue influence was realized by the petitioner at the time of executing the deed of gift, the petitioner filed a petition before respondent No.3 - authority seeking cancellation of the deed of gift. The matter was contested by respondent No.4 denying the claim of the petitioner and also questioning the maintainability of the petition before respondent No.3. Accepting the same, respondent No.3/Assistant Commissioner dismissed the complaint by the impugned order dated 29.10.2015. Being aggrieved by the same, the petitioner preferred an appeal before respondent No.2/Deputy Commissioner under Section 16 of the Act, which also came to be dismissed confirming the -4- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR order passed by respondent No.3/Assistant Commissioner. Aggrieved by the same, present petition is filed.
3. Learned counsel for the petitioner taking this Court through the records submits that respondent Nos.2 and 3 have grossly erred in not appreciating the intent and spirit of the Act, which is promulgated to safeguard the interest of the senior citizens. He submits that though the Hon'ble Apex Court in the case of Sudesh Chhikara vs. Ramti Devi and another reported in 2022 SCC OnLine SC 1684, has laid down the law requiring a specific term/condition in the deed of gift regarding donee undertaking to provide amenities or maintenance to the senior citizen, the said judgment has been distinguished by various High Courts including the Co-ordinate Bench of this Court. He refers to the order dated 29.07.2024 passed by the Co-ordinate Bench of this Court in W.P.No.202832/2019 in the case of Smt. Shoba vs. Dr. Anil P. Kumar and another. Referring to paragraph Nos.7, 8, 9 and 10 of the said order, he submits that the distinction drawn by the Co-ordinate Bench of this Court is squarely applicable to the present case as well. In that case, respondent No.4/daughter-in-law of the petitioner was duty bound to provide maintenance and basic -5- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR amenities for survival of the petitioner and deliberate refusal of which has not been taken into consideration by the authority, resulting in erroneous order. Therefore, he insists that the writ petition be allowed and the order impugned be set aside.
4. In response, the learned counsel for respondent No.4 submits that the judgment of the Hon'ble Apex Court in the case of Sudesh Chhikara, referred supra, still holds the field, which requires twin condition to be specified namely, a specific condition in the deed of gift or instrument providing for an assurance of maintaining or providing maintenance or a pleading in the petition to be filed under the provisions of the Act. He submits that in the absence of either of these two, it is not open for the petitioner to contend otherwise. As regards submission made by the learned counsel for the petitioner of the petitioner orally making submission before the Assistant Commissioner and the Deputy Commissioner, he submits that principle that in the absence of pleading, no proof is acceptable would apply to the case of this nature as well. Therefore, he submits that no grounds are made out by the petitioner warranting interference in this petition. -6-
NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR
5. Heard. Perused the records.
6. Annexure - B to the writ petition is a gift deed dated 08.11.2010 admittedly executed by the petitioner in favour of respondent No.4, who is her daughter-in-law. Unnumbered recital 3 at page 2 of the said document reads as under:
"AND WHEREAS the Donee herein is the daughter-in-law of the Donor and she has been attending to the welfare of the Donor and out of love and affinity and with a view to making a provision for the future of the Donee, the Donor has decided to gift the Schedule property in her favour."
7. Learned counsel for the petitioner attempted to impress upon this Court that an undertaking or promise or assurance of taking care of the petitioner is implicit in the said clause. Except the aforesaid clause, there is no other clause, statement or averment in the entire deed of gift, which meets the requirement of Section 23 of the Act.
8. Perusal of the petition filed by the petitioner before the Assistant Commissioner also does not reveal any such express averments having been made by the petitioner of respondent No.4 undertaking or assuring or promising to -7- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR provide any maintenance. Paragraph Nos.7, 8, 9 and 10 of the said petition are extracted hereunder for immediate perusal:
"7. Amuda, widow of the eldest son pressurized her mother-in-law (victim) to transfer the property to her name after she lost her husband, for the security of her children.
8. The second daughter-in-law (Respondent), Mrs. Reshma D'Souza, took advantage of the situation and in turn, initiated a plan to keep the property in her name to avoid the transfer of the property to Amuda (eldest daughter-in-law).
9. Taking advantage of that position, the Respondent started torturing the victim mentally.
10. Finally the victim had to succumb to the pressure brought on her and on the 8th day of November 2010, executed a gift deed in favour of her second daughter-in-law Reshma D'souza (Respondent) thinking it would be safe with her. A copy of the gift deed is enclosed as Document No.2."
9. The Hon'ble Apex Court in the case of Sudesh Chhikara, referred supra, at paragraph Nos.11 to 14, has held as under:
"11. We have given careful consideration to the submissions. Before dealing with the factual aspects, it is necessary to advert to the legal aspects. The Sub-Divisional Magistrate acting as the Maintenance Tribunal under the 2007 Act has invoked the power under Section 23 to declare that the subject release deed was void. The 2007 Act has been enacted for the purposes of making effective -8- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India. The Maintenance Tribunal has been established under Section 7 to exercise various powers under the 2007 Act. Section 8 provides that the Maintenance Tribunal, subject to any rules which may be framed by the Government, has to adopt such summary procedure while holding inquiry, as it deems fit. Apart from the power to grant maintenance, the Tribunal exercises important jurisdiction under Section 23 of the 2007 Act, which reads thus:
"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 -9- NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR any of the organisation referred to in Explanation to sub-section (1) of section 5."
(emphasis added)
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
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NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR (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 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."
10. All the other judgments relied upon by the learned counsel for the petitioner in support of the submission of distinguishing the law laid down by the Hon'ble Apex Court are on the premise of there being specific averments in the petition filed contending what is laid down by the Hon'ble Apex Court requiring specific averments in the petition and the proof thereon.
11. In the instant case, as noted above, neither in the gift deed nor in the petition filed before the Assistant Commissioner/respondent No.3 is there any averment meeting the requirement of the law laid down by the Hon'ble Apex Court
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NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR in the case of Sudesh Chhikara, referred supra. Therefore, the reliance placed by the learned counsel for the petitioner on the other judgments including the one referred to above, is of no avail.
12. It is necessary to note that in the order passed by the Assistant Commissioner/respondent No.3 dated 29.10.2015 at Annexure - E at paragraph No.3, the Assistant Commissioner has taken note of the stand/objections raised by the respondent No.4/daughter-in-law which is extracted hereinunder:
"3. ªÉÄîä£À«zÁgÀgÀÄ ¥ÀæPÀÈvÀ GqÀĦ vÁ®ÆPÀÄ 76 §qÀUÀ¨ÉlÄÖ UÁæªÀÄzÀ ¸À.£ÀA 168/2 gÀ°è 0.10 JPÉæ d«Ää£À°ègÄÀ ªÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀÛªÀå EgÀĪÀÅzÁVzÉ. ªÉÄîä£À«zÁgÀgÀ fëvÀ PÁ®zÀªÀgÉUÆ À F ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀÛªåÀ EgÀĪÀ §UÉÎ vÀªÀÄä DPÉëÃ¥ÀuÉ EgÀĪÀÅ¢®èªÉAzÀÄ ¥ÀæwªÁ¢AiÀĪÀgÀÄ w½¹gÀĪÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ."
13. The apprehension of the petitioner being thrown out of the house is taken care by the aforesaid finding of the Assistant Commissioner confirmed by the Deputy Commissioner. This Court has taken note of the above averment only to ensure and insulate the apprehension of the petitioner of she being thrown out of the house. In the light of
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NC: 2026:KHC:751 WP No. 15394 of 2022 HC-KAR the undertaking given by respondent No.4 of she not intending to take any action of vacating premises by the petitioner, this Court do not see any ground justifying the apprehension expressed by the petitioner in the matter. No grounds warranting interference of the impugned order.
14. Accordingly, this petition is dismissed.
15. It is necessary to observe that notwithstanding the dismissal of this petition since in the petition filed before the Assistant Commissioner at paragraph Nos.7, 8, 9, the petitioner has alleged fraud, she is at liberty to seek such remedy as may be available and permissible under law, if so advised. The dismissal of this petition would not come in the way of considering and adjudicating of such matter and the same shall be decided and adjudicated in accordance with law. The time consumed in prosecuting the matter shall be excluded, if sought for.
Sd/-
(M.G.S. KAMAL) JUDGE PMR List No.: 1 Sl No.: 3