Karnataka High Court
Smt Krishnaveni vs The Chairman on 27 May, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 4280 OF 2024 (GM-RES)
C/W
WRIT PETITION NO. 11886 OF 2021 (GM-RES)
IN WP NO.4280/2024
BETWEEN
SMT KRISHNAVENI
W/O P NAGARAJACHAR,
AGED ABOUT 71 YEARS,
R/O NO. 72, SUNDER RESIDENCY,
WEST OF CHORD ROAD,
BASAVAESHWARANAGARA,
BENGALURU 560 079.
...PETITIONER
(BY SRI. JAYKUMAR S. PATIL., SR. ADVOCATE FOR
SRI. PATIL SUMANTH KUMAR., ADVOCATE)
Digitally signed
by SHWETHA AND
RAGHAVENDRA
Location: HIGH
COURT OF 1. THE CHAIRMAN
KARNATAKA TRIBUNAL OF MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZENS AND
ASSISTANT COMMISSIONER,
BENGALURU NORTH SUB DIVISION,
BENGALURU - 560 001.
2. SRI N YOGESH
S/O NAGARAJ,
AGED ABOUT 42 YEARS,
3. SMT SHWETA Y
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W/O N YOGESH
AGED ABOUT 41 YEARS,
BOTH ARE RESIDENTS OF NO. 149,
KARNATAKA LAY OUT, 1ST CROSS,
WEST OF CHORD ROAD, 2ND STAGE,
MAHALAKSHMPURAM, BENGALURU 560086.
.... RESPONDENTS
(BY SRI. MAHANTESH SHETTAR., AGA FOR R1;
SRI. R. PADMANABHA., ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI, SETTING ASIDE THE IMPUGNED ORDER PERTAINING
TO DIRECTION TO R-2 AND 3 TO ACCOMMODATE PETITIONER IN
THE SUBJECT PROPERTY I.E SCHEDULE PROPERTY NO. 2 WITHIN 30
DAYS FROM THE DATE OF THE ORDER PASSED BY THE R-1 ON
29.01.2020 IN MISC CR 106/2018-19 VIDE ANNX-E AND ETC.
IN WP NO.11886/2021
BETWEEN
1. SRI N YOGESH
S/O NAGARAJ N
AGED ABOUT 39 YEARS
2. SMT. SHWETA Y
W/O N YOGESH
AGED ABOUT 38 YEARS
BOTH PETITIONERS ARE
R/AT NO.149,
KARNATAKA LAYOUT,
1ST CROSS,
WEST OF CHORD ROAD 2ND STAGE,
MAHALAKSHMIPURAM,
BENGALURU-560086.
...PETITIONERS
(BY SRI. PADMANABHA., ADVOCATE)
AND
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1. THE CHAIRMAN
TRIBUNAL OF MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZENS AND
ASSISTANT COMMISSIONER,
BENGALURU NORTH SUB-DIVISION,
BENGALURU-560001.
2. SMT. KRISHNAVENI R
W/O NAGARAJ
AGED ABOUT 64 YEARS,
R/AT NO.78/2,
RAGHAVA RESIDENCY,
FLAT NO.104, S.V.K. LAYOUT,
WEST OF CHORD ROAD,
2ND STAGE, BASAVESHWARANAGAR,
BENGALURU-560079.
.... RESPONDENTS
(BY SRI. JAYKUMAR.S. PATIL., SR. ADVOCATE FOR
SRI. PATIL SUMANTH KUMAR., ADVOCATE FOR R2;
SRI. MAHANTESH SHETTAR., AGA FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI, TO QUASH THE ORDER DTD. 29.01.2020 IN
PROCEEDINGS NO. MSC.CR.106/2018-19 PASSED BY THE R-1 VIDE
ANNX-D AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 24.04.2025, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The Petitioner- Senior Citizen in WP No.4280/2024 is
before this Court seeking the following reliefs:
a. Issue a writ of certiorari, setting aside the impugned
order pertaining to the direction to R2 and R3 to
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accommodate petitioner in the subject property i.e.,
schedule property No.2, within 30 days from the
date of the order passed by the respondent no.1 on
29.01.2020, in Misc.Cr.106/2018-19 vide Annexure-
E.
b. Issue a writ of mandamus directing the R2 and 3 to
hand over/ give possession of the subject property
i.e., schedule property No.2 to the petitioner with
immediate effect.
c. Pass such other orders as may be appropriate in the
facts and circumstances of the case, in the ends of
justice and equity.
2. The Petitioners in WP No.11886/2021 are before this
Court seeking the following reliefs:
d. Issue a writ in the nature of certiorari to quash the
order dated 29.01.2020 in proceedings No.
MSC.CR.106/2018-19 passed by the R1 vide
Annexure-D
e. Pass such other orders as may be appropriate in the
facts and circumstances of the case, in the ends of
justice and equity.
3. Facts in WP No.4280 of 2024:
3.1. Petitioner No.1 in WP No.11886 of 2021 is the
Son of Respondent No.2-therein, who is none
other than the Petitioner in WP No.4280 of
2024. It is not in dispute that the Petitioner in
WP No.4280 of 2024 Smt.Krishnaveni
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(hereinafter referred to as "Mother") is the
owner of Municipal Corporation bearing No.988
situated at Hosur-Sarjapura Road layout,
Sector-7, Bengaluru (herein after referred to as
"HSR property") measuring East to West 9.14
metres and North to South 12.19 metres which
is allotted to her by the BDA and a sale deed
executed in her favour on 07.06.2001. Mother
is also stated to be the founder and promoter of
Gayathri Educational Institution and Universal
Education Institutions, running several colleges
and schools. The said institutions were being
run by Mother until respondents No.2 and 3,
i.e., her Son and daughter-in-law, became the
directors of the said Trust.
3.2. Respondent No.2 is the Son of the Mother
(hereinafter referred to as "Son"),
Respondent No.2 is the Daughter-In-Law of the
Mother (hereinafter referred to as "Daughter-
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in-law"). Apart from Respondent No.2-son,
Mother does not have any other children. After
their marriage, Son and Daughter-in-law are
stated to be living separately in
Chikkaballapura. However, since they
expressed financial difficulties, they were made
directors of the aforesaid society and were
given the post of Joint Secretary and Vice
President of the Society. Mother claims that in
the year 2016, they pleaded with her and
sought permission to live with her, till they
made alternate arrangements in Bangalore and
as such they were accommodated in her home
bearing No.149, Karnataka layout, 1st Cross,
West of Chord Road, 2nd Stage,
Mahalakshmipuram, Bangalore-560 086 (herein
after referred to as "Mahalakshmipuram
Property").
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3.3. The Mahalakshmipuram property is stated to be
purchased by the Mother under a sale dated
02.12.1992, which is also not in dispute. The
Mother claims that the Son and daughter-in-law
taking undue advantage of her advanced age
promised that they will look after her and got
the petitioner to execute a gift deed in respect
of the HSR property in the name of the Son,
wherein they had stated that they would be
putting up of a construction of a house. It is in
pursuance thereof, that she executed a gift
deed on 18.03.2006, which came to be
registered in the office of the Sub-registrar of
Bangalore South.
3.4. The Son and daughter-in-law had been
appointed in the society to enable them to
receive certain salaries and emoluments. The
Mother claims that the Son and daughter-in-law
started parallel administration of both the
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societies and opened different accounts in the
name of the society and transferred the monies
collected into those accounts without the
permission of the Managing Committee. Mother
received many complaints regarding the
administration and found the Son and
daughter-in-law having opened dubious
accounts which was confronted to them, when
they started abusing the Mother, threatened
her and took her signatures on blank papers.
They also started misappropriating funds of the
society. The daughter-in-law on 15.07.2017
entered the chamber of the Mother in the
society and threatened her, snatched her
mobile phone, broke it into two pieces and on
the same night the Mother and father were
thrown out of their home in
Mahalakshmipuram, when they started living
with their friend Smt.Savitri Gundi.
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3.5. In the absence of the Mother and father, the
Son and daughter-in-law are stated to have
forged and fabricated resolutions, opened
another account in Vijaya Bank and siphoned
off the funds of the institution. The Mother and
father with the help of their friend rented out a
house in Basaveswarnagar on monthly rental of
Rs.20,000/-. The Son and daughter-in-law
stopped the salary and other honorarium
facilities that she is getting from the Education
institution, putting the Mother into financial
difficulty, whereas the Son and daughter-in-law
continue to draw salaries from the institution,
as also usurped the property of the petitioner
and her husband measuring nearly 1.6 acres of
land which is also grabbed by the Son and
daughter-in-law.
3.6. It is in that background that the Mother alleges
that she was constrained to approach the
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Tribunal for Maintenance and Welfare of Parents
and Seniors Citizens and Assistant
Commissioner, Bangalore North Sub-Division,
Bengaluru (hereinafter referred to as
"Tribunal"), in MSC.CR.106/2018-19 to get
back the residential premises at
Mahalakshmipuram and to reconvey the gifted
property at HSR Layout. The Mother had also
filed an application to hand over the
Mahalakshmipuram property which was
forcefully occupied by the Son and daughter-in-
law.
3.7. The Assistant Commissioner vide the impugned
order dated 29.01.2020 directed the Son and
daughter-in-law to reconvey the HSR property
on account of he having failed to look after the
parents and directed the Son and daughter-in-
law to accommodate the petitioner in the
Mahalakshmipuram property within 30 days.
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3.8. The Mother contends that such an order is
perverse inasmuch as the Mahalakshmipuram
property belongs to her, which is under the
forceful occupation of the Son and daughter-in-
law. The question of the Son and daughter-in-
law accommodating her in her own house would
not arise, there being a threat to the life of the
Mother she being mentally and physically
abused by the Son and daughter-in-law she
cannot live with the Son and daughter-in-law
and as such they were required to be directed
to vacate the property and hand over the
property of the Mother which has not been
done. She and her husband have been thrown
on the streets by the Son and daughter-in-law,
forced to take a rented premises in spite of
them owning a property.
3.9. The Son and daughter-in-law have also filed
false police complaints, which have continued
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the harassment against her. She contends that
the Son and daughter-in-law had filed WP
No.11886 of 2021 challenging the order passed
by the Assistant Commissioner without
exhausting the Alternate Remedy under Section
16 of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 (hereinafter
referred to as "Senior Citizens Act"), the order
has been stayed by this Court subject to the
Son paying Rs.25,000/- to the Mother every
month. The said payment was made for a few
months and thereafter stopped. Even the said
Rs.25,000/- is not sufficient to cater to the
rental and the needs of the petitioner and her
husband. It is in that background that the writ
petition WP No.4280 of 2024 was filed
challenging the order of the Assistant
Commissioner without filing an appeal under
Section 16. Since the stay granted by this Court
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in WP No.11886 of 2021, there need not be
parallel proceedings before two different
forums.
4. Facts in WP No.11886/2021:
4.1. The above Petition has been filed by Son and
doctor-in-law, the Mother being arrayed as
respondent No.2. The relationship between the
petitioners and respondent No.2 is not in
dispute. The petitioner No.1 is referred to as
the Son, the petitioner No.2 is the daughter-in-
law, the respondent No.2 is the Mother.
4.2. It is claimed that from and out of the marriage
of the Son and daughter-in-law on 17.04.2008,
there are two sons who are born, who are
studying in the third standard and pre-nursary
as on the date of filing of the Petition. It is
claimed that earlier, the Son, Mother and father
were residing in a rented premises at Nandini
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Layout. Thereafter, in the year 2000 they
moved to Mahalakshmipuram where they have
been residing together. The Son claims to have
utmost love and affection towards his Mother
and father. After his marriage, there were
certain misunderstandings between the
daughter-in-law and the Mother, which were
blown out of proportion due to the ill-advise of
sisters and relatives of the Mother which led to
certain litigations.
4.3. The Mother did not accept the daughter-in-law
since it was a love marriage. The Son and
daughter-in-law claimed to be software
professionals, the Son working in Wipro
technology and the daughter-in-law working in
JBA technologies. Both of them had a good
chance of going to USA, however, the Mother
and father prevailed upon them to stay back. In
the year 2008-2009 the educational institutions
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managed by the Mother were under severe
financial crunch due to mal-administration by
the sister of the Mother namely Smt.Mangala
and another sister's daughter namely
Smt.Poornima.
4.4. There being huge debts incurred from Punjab
National Bank, State Bank of India, National
Bank and private financiers. The loan had
become NPA and notices had been issued under
the securitisation Act. At that stage, Mother
prevailed upon the Son to resign from his
lucrative job and join the educational society.
In that background, the Son is stated to have
joined the educational institution and brought
about financial stability.
4.5. It is contended that the Mother's sisters and her
family brought about further misunderstanding
between the Mother and daughter-in-law, and
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when the Mother and father started living
separately. It is claimed that the Son and
daughter-in-law did not compel them to leave
the premises. Thereafter, there were attempts
to remove the Son and daughter-in-law from
the post held by them in the society as regards
which certain suits which have been filed. The
Son claims that the Mother is getting
Rs.45,000/- per month as honorarium as well
as sum of Rs.65,000/- as rentals. Hence, she
has sufficient means to take care of herself. It
is claimed that the Son was served with only a
notice in one matter i.e., is as regards the
cancellation of the gift deed. There is no
petition that has been served on him regarding
the vacating of the Malakshmipuram property.
4.6. Insofar as the gift deed it is contended that the
gift deed has been executed out of pure love
and affection, there are no preconditions in the
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gift deed. Hence, no direction could have been
issued to cancel the gift deed by declaring it to
be null and void and it is in that background he
submits that the present Petition has been
found challenging the order of the Assistant
Commissioner.
5. Sri.Jaykumar S.Patil., learned Senior counsel,
appearing for the Mother, would submit that;
5.1. The Mother has been deprived of her
properties. The impugned order does not take
into consideration the relevant aspects of the
case. By referring to the order of the Assistant
Commissioner, he submits that in Para 1, there
is a clear and categorical reference made to an
earlier petition having been filed seeking a
direction to hand over the Malakshmipuram
property.
5.2. However, it is noted that during the
proceedings, the Mother prayed for the
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cancellation of the above-said property from
the Petition. He submits that no such prayer
was ever made; the Mother asserts her claims
regarding both properties, and therefore, the
Assistant Commissioner ought to have
considered the handover of the property from
the proper perspective and issued necessary
orders accordingly.
5.3. Be that as it may, he submits that the
Mahalakshmipuram property belongs
exclusively to the Mother, with the Son and
daughter-in-law having no right, title, or
interest in the said property. This Court, instead
of remanding the matter to the Assistant
Commissioner, could exercise its extraordinary
powers to render justice by directing the
handover of the Mahalakshmipuram property to
the Mother. Since no defence can be presented
by a son and daughter-in-law concerning those
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properties, the Son and daughter-in-law are not
entitled to any portion of the said property.
5.4. He submits that the matter would have to be
only considered if there was any claim of the
Son and daughter-in-law. If there is no claim
which can be entertained, then this Court
taking into consideration that the owner of the
property is the Mother ought to allow the
application which has never been withdrawn as
falsely indicated by the assistant commissioner
in the impugned order.
5.5. He submits that though there is a conditional
stay which had been passed in WP No.11886 of
2021, the amount of Rs.25,000/- which was
directed to be paid has not been paid for all the
months, it is only certain of the months that the
payment has been made. The said payments
are not sufficient to pay the rentals and to take
care of the daily necessities and medical
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necessities of the Mother and father. There are
several disputes between the Mother and the
Son and daughter-in-law as regards the
educational institutions, as regards which
several litigations have been filed. He contends
that the Mother is not receiving any monies
from those institutions and all monies have
been blocked by Son and daughter-in-law.
5.6. Be that as it may, those aspects will be
addressed in the pending matters, as they
cannot be raised in the current issue. He
submits that the Mother and father have
provided their Son with the best education. He
joined a private company but could not keep his
job and thus became dependent on his Mother.
The Mother has accepted the marriage between
the Son and daughter-in-law, which was
performed by both parents. After the marriage,
they chose to live separately in
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Chikkaballapura. However, since they wished to
reside in Bangalore, they approached the
Mother and father in Malakshmipuram and
requested to stay there, which the parents
granted without suspecting any malafides
intentions on the part of the Son and daughter-
in-law.
5.7. It is after they started living with them, that
they prevailed upon the parents to make them
part of the educational society, which also they
did in the hope that they would run the
educational institution properly and since
anyway, on a future point of time, all the assets
of the parents would anyway enure to the
benefit of their only Son. However, the Son and
daughter-in-law were in a hurry and were not
willing to wait and had started swindling monies
from the societies as if they were done by the
parents, which resulted in several complaints.
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5.8. The Managing Committee also filed complaints
against the Son and daughter-in-law, which
resulted in the Son and daughter-in-law
throwing the Mother and father out of the
house on the night of 15.07.2017. He submits
that thereafter, there were various complaints
which have been filed by his Son and daughter-
in-law in FIR No.207 of 2021, PCR No.17320 of
2021, etc. He, however, submits that those are
not the subject matter of the present Petition
and as such he does not wish to get into the
facts and disputes therein.
5.9. He however, submits that the gift deed which
had been executed though does not bear any
particular Clause or condition of the Son being
obligated to look after the parents. The said gift
deed was executed in the year 2006 under the
belief that the Son would look after the parents
as is the normal expectation. In the Petition
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which has been filed by the Mother, the Mother
has clearly stated the expectation, wherein she
has clearly stated, that the Son and daughter-
in-law had promised to look after her, which
they clearly have not and the Mother and father
are now literally on the streets without anyone
to care for them and they do not have any
funds, the properties having been usurped by
the Son and daughter in law.
5.10.It is also clearly stated in the Petition filed
before the Assistant Commissioner that the
Mother has no income, she has also produced
medical records as regards her hospitalisation
and the expenses incurred in relation thereto
and as such the prayer which had been made
for reconveyance of the gifted property being
proper and correct has been rightly considered
by the Assistant Commissioner.
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5.11.As regards an alternative remedy available
regarding the non-grant of the relief seeking for
the handing over of the possession of the
Mahalakshmipuram property. He submits that,
since the facts not being in dispute, the
ownership of Mahalakshmipuram property not
being in dispute, this Court could well consider
the same and pass necessary orders.
5.12.He further submits that there would be no
purpose served by challenging the very same
order before this Court by Son and daughter-in-
law and by the Mother before the Deputy
Commissioner in an appeal filed under Section
16, if two forums were to consider two different
appeals, there could be a possibility of
contradictory orders being passed.
5.13.That apart, he submits that if both the appeals
were to be considered by the very same Court,
like this Court, substantial justice could be
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rendered in both the matters by taking into
consideration all the relevant facts.
6. Sri.R.Padmanabha., learned counsel for the son and
daughter-in-law would submit that;
6.1. WP No.4280 of 2024 is not maintainable in as
much as the Mother has an alternative efficacy
remedy under Section 16 of the Senior Citizens
Act and as such WP No.4280 of 2024 is
required to be dismissed in limine.
6.2. Secondly, he submits that the Mother having
given up her claim as regards handing over of
the possession of Mahalakshmipuram property
as indicated in para 1 of the impugned order.
The order passed by the Assistant
Commissioner in accommodating the Mother
within 30 days being bad in law.
6.3. The question of the Mother filing WP No.4280 of
2024 being aggrieved by an order on an
application which has been withdrawn would
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not arise. Thus, on this ground also
WP No.4280 of 2024 is required to be
dismissed.
6.4. Insofar as the HSR property is concerned, he
submitted that the gift deed was executed in
the year 2006 out of love and affection of the
Mother in favour of the Son. There are no
conditions which are attached to the said gift
deed. It was therefore, required for the
Assistant Commissioner to have dismissed the
said application since the gift deed being
unconditional one, no relief could have been
granted of holding the said gift deed to be null
and void as sought for by his Mother.
6.5. He relies upon the decision of the Hon'ble Court
in Sudesh Chhikara vs. Ramti Devi &
Another reported in (2022) SCCOnline SC
1684 more particularly para 12, 13, 14 and 15
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thereof, which are reproduced hereunder for
easy reference;
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.
13. 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.
14. 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.
15. Careful perusal of the Petition under Section
23 filed by respondent no.1 shows that it is not even
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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 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.
6.6. By relying on Sudesh Chhikara's case, he
submits that the transfer by gift or otherwise
must have been made subject to the condition
that the transferee shall provide the basic
amenities and basic physical needs and it is
only if the transferee fails to provide such
amenities, then could a proceeding under
Section 23 of the Senior Citizens Act be filed.
The transfer if made out of love and affection
and there being no condition an application
under Section 23 is not maintainable.
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6.7. He relies upon the decision of the Hon'ble Apex
Court in Prabha Tyagi vs. Kamlesh Devi
reported in (2022) 8 SCC 90 more particularly
para 31 and 32 thereof, which are reproduced
hereunder for easy reference;
31. Section 12 of the D.V. Act states that an
aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one
or more reliefs under the D.V. Act. The proviso,
however, states that before passing any order on
such an application, the Magistrate shall take into
consideration any Domestic Incident Report
received by him from the Protection Officer or the
service provider. The expression 'aggrieved person'
as defined Under Section 2(a) means any woman
who is, or has been, in a domestic relationship with
the Respondent and who alleges to have been
subjected to any act of domestic violence by the
Respondent. Domestic relationship as defined in
Section 2(f), means a relationship between two
persons who live or have, at any point of time, lived
together in a shared household, when they are
related by consanguinity, marriage, or through a
relationship in the nature of marriage, adoption or
are family members living together as a joint family.
Domestic violence has the same meaning as
assigned to it in Section 3.
32 . The expression 'shared household' in relation
to the definition of domestic relationship as per the
definition in Section 2(s) means a household where
the person aggrieved lives or at any stage has lived
in a domestic relationship either singly or along with
the Respondent and includes such a household
whether owned or tenanted either jointly by the
aggrieved person and the Respondent, or owned or
tenanted by either of them in respect of which
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either the aggrieved person or the Respondent or
both jointly or singly have any right, title, interest
or equity and includes such a household which may
belong to the joint family of which the Respondent
is a member, irrespective of whether the
Respondent or the aggrieved person has any right,
title or interest in the shared household. The
definition of shared household is thus an inclusive
one.
6.8. By referring to Prabha Tyagi's case, he
submits that the Mother has an alternative
efficacy remedy under the Protection of Women
from Domestic Violence Act, 2005 (DV Act) and
as such, an application under the Senior
Citizens Act is not maintainable.
6.9. Again, by referring to Prabha Tyagi's case, he
submitted that the daughter-in-law cannot be
thrown out of the house. The said house being
the matrimonial house amounting to be a
shared household, the daughter-in-law would
be entitled to continue to stay in the said
house.
6.10. At this stage, on enquiry as to whether the Son
would also be staying along with the daughter-
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in-law in the household, if this contention were
to be accepted, he submits that since the
daughter-in-law will be living in the shared
household, the Son would also be entitled to
live in the same shared household and as such,
both the Son and the daughter-in-law cannot
be made to vacate the Malakshmipuram
property.
6.11. He relies upon the decision of the Co-ordinate
Bench of this Court the case of Sri.Vivek Jain
vs. The Deputy Commissioner & others in
WP No.14704 of 2021, dated 04.06.2024,
more particularly para 10 thereof, which is
reproduced hereunder for easy reference.
10. The Apex Court in the case of Sudesh Chhikara v.
Ramti Devi has held as follows:
CONSIDERATION OF SUBMISSIONS
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
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deed was void. The 2007 Act has been enacted for the
purposes of making effective provisions for the
maintenance and welfare of parents and senior citizens
guaranteed and recognised 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 any of the organisation referred
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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 (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
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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.
it is not even pleaded by respondent no. 1 that the
release deed was executed subject to such a condition."
(Emphasis supplied) Following the said judgment, a
Division Bench of this Court in the case of NANJAPPA v.
STATE OF KARNATAKA2 has held as follows:
18. On careful reading of the aforesaid provisions makes
it clear that all kinds of transfers as is clear from the use
of the expression 'by way of gift or otherwise' so as to
attract the provisions of Sub-section (1) of Section 23 of
the Senior Citizens Act, 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 W.A.No.573 of 2022 Decided on 17-03-2023
b) The transferee refuses or fails to provide such
amenities and physical needs to the transferor.
19. If both the aforesaid conditions are satisfied, by a
legal action, 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.
20. Though a specific contention is urged by the learned
Senior Counsel for the appellant that in view of the
scope and object of the Senior Citizens Act, it is deemed
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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 made by
him would be null and void, it is an undisputed fact that
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 of the Senior
Citizens Act are attached to a transfer, existence of such
conditions must be established before the Tribunal.
21. In the present case, on careful perusal of the
document executed by the appellant in favour of the 3rd
Respondent, who happens to be the brother of the
appellant, it does not contain any stipulation that the
3rd Respondent is under the obligation to maintain the
present appellant. In the absence of the same and in
view of the provisions of Sub-sections (1) and (2) of
Section 23 of the Senior Citizens Act, the transaction
could be declared as null and void provided the same
contains the stipulation that the transferee shall
maintain the senior Citizen and the aforesaid Gift Deed
does not contain any such stipulation, in the absence of
any condition stipulated in the documents provisions of
Sub-sections (1) and (2) of Section 23 of the Senior
Citizens Act are not attracted.
20. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of Sudesh Chhikara vs. Ramti
Devi reported in LAWS (SC) 2022-12-17 wherein at
paragraphs 12, 13 and 14 it is held as under:
"12. Sub-section (1) of Section 23 covers all kinds of
transfers as in 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
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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 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."
23. Though in the present case, a specific contention is
being taken by the learned Senior Counsel for the
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appellant that, the appellant being the absolute onwer of
the property in question, out of love and affection
executed a Gift in favour of his brother/respondent No.3
under a Gift deed, dated 23.2.2018, with a ray of hope
that the 3rd Respondent/brother would take care of basic
needs of medical necessities as his Son was not keeping
well and his daughter was settled with her husband, but
respondent No.3 has changed attitude towards him and
has failed to show even love and affection towards him.
The fact remains that, on the application filed by the
appellant against respondent No.3, the Assistant
Commissioner, who is the authority under the provisions
of Sub-sections (1) and (2) of Section 23 of the Senior
Citizen Act has allowed the application filed by the
present appellant ignoring the conditions stipulated
under the provisions of Sub-sections (1) and (2) of the
Senior Citizens Act as held by the Hon'ble Supreme
Court. Thereby, the learned single Judge has rightly
allowed the writ petition. In identical circumstances, the
Full Bench of the Kerala High Court in the case of
Subhashini-vs District Collector, Kozhikode reported in
LAWS (KER)-2000-9-81 at paragraph-52 has held as
under
"52. We conclude by answering the reference, that the
condition as required under Section 23(1) for provision
of basic amenities and basic physical needs to a senior
citizen has to be expressly stated in the document of
transfer, which transfer can only be one by way of gift
or which partakes the character of gift or a similar
gratuitous transfer. It is the jurisdictional fact, which the
Tribunal will have to look into before invoking Section
23(1) and proceeding on a summary enquiry. We
answer the reference agreeing with the decision in W.A.
No. 2012 of 2012 dated 28.11.2012 [Malukutty
Ponnarassery v. P. Rajan Ponnarassery). We find
Shabeen Martin v. Muriel [2016 (5) KHC 603) and
Sundhari v. Revenue Divisional Officer [2018 KHC
4655(2013) 3 KLT 1082) to be wrongly decided. We
approve Radhamani v. State of Kerala [2016 (1) KHC 9]
which had a recital in the document akin to that
required under Section 23(1)."
24. On careful reading of the contents of the Gift Deed,
dated 23.2.2012, the impugned order passed by the
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learned Single Judge of this Court is in consonance with
the provisions of Sub-sections (1) and (2) of Section 23
of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007, as the Gift Deed, dated 23.2.2011,
does not contain any stipulation that respondent No.3 is
under obligation to maintain the present appellant. In
the absence of the same, it cannot be held that the
impugned order passed by the learned Single Judge is
not in consonance with the provisions of Section 23 of
the Senior Citizens Act.
25. Though our conscious is in favour of the welfare of
the Senior Citizens considering the scope and object of
Maintenance and Welfare of Parents and Senior Citizens
Act, 2007, but our hands are tied in view of the dictum
of the Hon'ble Supreme Court in the case of Sudesh
Chhikara, wherein while interpreting the very provisions
of Sub-section (1) of Section 23 of the said Act, it has
been held that the two conditions must be stipulated in
the document, which is binding on all including this
Court as contemplated under Article 141 of the
Constitution of India.
26. The judgments relied upon by the learned Senior
Counsel for the appellant are not applicable the peculiar
facts and circumstances of the present case, in view of
the latest dictum of the Hon'ble Supreme Court
rendered on 6th December 2022 in the case of Sudesh
Chhikara-vs-Kamthi Devi reported in LAWS(SC) 2022-
12-17.
27. For the reasons stated above, the point raised in the
present Intra Court Appeal is answered in the negative
holding that the appellant has not made out any ground
to interfere with the impugned order, dated 26.2.2019,
passed by the learned Single Judge in Writ Petition
No.52010/2016.
(Emphasis supplied) In the light of the aforesaid
judgment of the Apex Court and that of the Division
Bench of this Court what would unmistakably emerge is,
the Assistant Commissioner could not have annulled the
gift deed, unless the condition that is observed by the
Apex Court in RAMTI DEVI is fulfilled in a gift deed.
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6.12. He submits that the Co-ordinate Bench of this
Court took into consideration the decision of the
Hon'ble Apex Court in Sudesh Chikkara's
case, and has come to a conclusion that
without a condition being imposed in the gift
deed, no such condition can be presumed nor
can the said sale deed be declared to be null
and void.
6.13. He relies upon the decision of the Hon'ble Apex
Court in Samtola Devi vs. Sate of Uttar
Pradesh & Ors in SLP No.26651 of 2023
dated 27.03.2025, more particularly para 30,
31, 32 thereof, which are reproduced hereunder
for easy reference:
30. The Senior Citizens Act vide Chapter-II provides
for maintenance of parents and senior citizens. It inter
alia provides a senior citizen or a parent who is unable
to maintain himself from his own earning or the
property owned by him shall be entitled to make an
application against his parent or grand parent or
against one or more of his children (not a minor) or
where the senior Citizen is issueless against specified
relatives to fulfil his needs to enable him to lead a
normal life. The Tribunal constituted under the Act on
such an application may provide for the monthly
allowance for the maintenance and expenses and in
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the event they fail to comply with the order, the
Tribunal may for breach of the order issue a warrant
for levying fines and may sentence such person to
imprisonment for a term which may extend to one
month or until payment is made whichever is earlier.
31. The provisions of the Senior Citizens Act, nowhere
specifically provides for drawing proceedings for
eviction of OPPO Reno8 Tr5 Gremises owned or
belonging to such a senior person. It is only on
account of the observations made by this Court in S.
Vanitha vs. Commissioner, Bengaluru Urban District &
Ors that the Tribunal under the Senior Citizens Act
may also order eviction if it is necessary and expedient
to ensure the protection of the senior citizens. The
Tribunal thus had acquired jurisdiction to pass orders
of eviction while exercising jurisdiction under Section
23 of the Senior Citizen Act which otherwise provide
for treating the sale of the property to be void if it is
against the interest of the senior Citizen.
32. The aforesaid decision was followed by this Court
in Urmila Dixit (supra). However, even in the aforesaid
case the Court has only held that in a given case, the
Tribunal "may order" eviction but it is not necessary
and mandatory to pass an order of eviction in every
case. The Appellate Tribunal has not recorded any
reason necessitating the eviction of Krishna Kumar or
that in the facts and circumstances of the case, it is
expedient to order eviction so as to ensure the
protection of the senior Citizen.
In our opinion, the Appellate Tribunal was, therefore,
not justified in ordering for his eviction merely for the
reason that the property belongs to Kallu Mal,
completely ignoring the fact that the claim of Krishna
Kumar regarding 1/6th share and the cancellation of
gifts and sale deeds is pending adjudication before the
civil Court.
6.14. By referring to Samtola Devi's case, he
submits that the provision of the Senior Citizen
Act does not provide for eviction of persons
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from any premises owned or belonging to a
senior citizen. It is if the requirements of the
decision in (2021) 15 SCC 730 were satisfied
that the Tribunal may order eviction, if
necessary and expedient to ensure the
protection of senior Citizen. Thus, he submits
that the Tribunal may order eviction, it is not
necessary to order eviction.
6.15. In the present facts and circumstances, no such
eviction could be ordered and it is for that
reason that the Tribunal has directed the Son
and daughter to accommodate the Mother in
the house which they are willing to do so and in
this regard an affidavit has been filed by the
Son and daughter-in-law on 25.1.2022,
wherein they have category stated the house is
a duplex house having ground and first floor,
the ground floor consists of one room with
attached bath, one hall, one common bath,
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kitchen, pooja room and garage and the first
floor consists of two bedrooms, one with
attached bath, one study room and sit out, the
study room can be converted into a kitchen
there would be a staircase provided from the
outside to the first floor and as such, the
Mother and father could stay in the ground
floor. The Son and daughter-in-law along with
their children would stay in the first floor and
that the Son would also take care of the health
emergencies of the Mother and father.
6.16. His submission is also by relying on the very
same affidavit that both the Mother and father
were tested positive for COVID and it is the Son
who lookafter them. He therefore submits that
if the arrangement as undertaken in the
affidavit were to be accepted in terms of
decision in Samtola Devi's case, there would
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be no reason to evict the Son and daughter-in-
law from the premises.
6.17. He relies upon the decision in Sri.P.Gopal vs.
The State of Karnataka & Orthers in
WP No.44175 of 2016 dated 5.10.2021, more
particularly para 3A and 3B thereof, which are
reproduced hereunder reference;
a) Fourth Respondent had transferred the subject
property by a registered Gift Deed dated 22.08.2005
in favour of the fifth Respondent who is none other
than her daughter; this donee of the property sold it
to the petitioner vide registered Sale Deed dated
26.08.2014; apparently, petitioner is a bonafide
transferee for value; thus, he was a necessary &
proper party to the proceedings under the 2007 Act
before the authorities below; in his absence, the
impugned order dated 16.07.2015 could not have
been made by the Assistant Commissioner; for the
same reason, petitioner's appeal ought to have been
allowed by the Deputy Commissioner, however, the
appeal was wrongly rejected vide order dated
21.07.2016: thus, there is an error apparent on the
face of the impa orders warranting their invalidation.
b) The fourth respondent Mother had transferred the
subject property in favour of the fifth respondent
daughter by a registered Gift Deed dated
22.08.2005; apparently, this transfer happened long
before the 2007 Act came into force; Section 23(1)
reads as under:
"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
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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.
It leaves no manner of doubt as to the text of this
Section not enclasping the pre-enactment
transactions; contention of the respondents that the
property was later transferred to petitioner and by
that time, the Act was at place is a ridiculous
argument; the focal point of Section 23(1) is the date
of a first transaction in this case; if both the
transactions had happened after the Act came into
force, that amely, the transaction being post-
enactment, is lacking in this case; thus, the
impugned orders are liable to be voided; this view is
supported by the Hon'ble Punjab & Haryana High
Court decision in HARVINDER KAUR BAWA / THE
APPELLATE TRIBUNAL, PANCHKULA AND ORS in
CWP.No.17482/2015 disposed of on 17.10.2016.
6.18. By relying on P.Gopal's case he submits that
the gift having been executed prior to the act of
2007 coming into force, the gift being a
pre-enactment transaction Section 23 would
not be applicable to the said gift.
6.19. He relies upon the Division Bench judgment of
this Court dated 16.11.2021 in
Smt.C.Kamalamma vs. Sri.P.Gopal & Ors,
in WA No.1170 of 2021, more particularly
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para 7 thereof, which is reproduced herein for
easy reference;
7. In the present case on hand, the appellantes phed
the property inson under registered dated 22.08.2005
much prior to the commencement of the Are and
therefore, all transactions which are pre-enactrient are
saved and therefore, the respondent No.4/Assistant
Commissioner had no authority to entertain the
Petition filed by the appellant herein. Even ottierwise,
we are of the view that the appellant, cannot pursue
two parallel remedies on the same cause of action. It
is not in dispute that the appellant has already
approached the competent civil Court seeking relief of
declaration and has challenged the registered gift deed
and also consequent sale deed executed by the
respondent No.5. All these significant details are
examined by the learned Single Judge.
6.20. By relying on C.Kamalamma's case, he again
submits that the gift in that case also had been
executed on 22.08.2005 prior to the Act of
2007 coming into force, the transaction being
pre-enactment, the Assisatant Commissioner
would not have any authority to entertain the
Petition.
6.21. On the above grounds, he submits that WP No.
4280 of 2024 is required to be dismissed, WP
No. 11886 of 2021 insofar as a direction setting
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aside the gift deed as null and void, is required
to be quashed.
6.22. As regards accommodation to be provided in
Mahalakshmipuram property, he submits that
the Son and daughter-in-law are ready to
provide the same, as per the affidavit indicated
(supra).
7. Heard Sri.Jaykumar S. Patill., learned Senior counsel
for the Mother and Sri.R.padmanabha., learned
counsel for Son and daughter-in-law. Perused
papers.
8. The points that would arise for consideration are;
1. Would the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 which
came into force on 29.12.2007 would apply
to a gift deed executed before the
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 came into force?
2. Is the appeal filed by the Son and daughter-
in-law in WP No.11886 of 2021
maintainable without having exhausted the
alternative efficacious remedy under
Section 16 of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007?
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3. Is WP No.4280 of 2024 filed by the Mother
maintainable without exhausting the
alternative efficacious remedy under
Section 16 of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007?
4. Can this Court exercise its powers under
Articles 226 and 227 of the Constitution to
consider WP No.4280 of 2024, despite the
same having been filed without exhausting
the remedy under Section 16 of the
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007?
5. Does the impugned order passed by the
Assistant Commissioner dated 29.01.2020
require any interference?
6. What order?
9. I answer the above points as under;
10. Answer to point No.1: Would the Maintenance
and Welfare of Parents and Senior Citizens Act,
2007 which came into force on 29.12.2007
would apply to a gift deed executed before the
Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 came into force?
10.1. This issue is no longer res integra. A single
judge of this Court in P. Gopal's case had
categorically held that the gift deed executed
on 22.08.2005 prior to the coming into force of
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the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 would not be
governed by the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007.
10.2. The said decision having been taken on appeal
in WA No.1170 of 2021, the Division Bench of
this Court confirmed the judgment of the single
bench and categorically came to the conclusion
that all transactions which are pre-enactment
are saved and therefore the Assistant
Commissioner would have no authority to
entertain the Petition filed by a senior citizen.
10.3. There is no other decision to the contrary which
has been brought to the notice of this Court,
the respective counsels submit that there is no
decision of the Hon'ble Apex Court on this
issue.
10.4. In that view of the matter, I answer point No.1
by holding that any transaction envisaged
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under Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act,
2007 if executed prior to coming into force of
the Senior Citizens Act cannot be challenged
under Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act,
2007 and the only remedy which is available for
any aggrieved party is to file appropriate suit
before the appropriate Civil Court.
11. Answer to point No.2; Is the appeal filed by the
Son and daughter-in-law in WP No.11886 of
2021 maintainable without having exhausted
the alternative efficacious remedy under
Section 16 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007?
11.1. What has been challenged in WP No.11886 of
2021 is an order passed by the Assistant
Commissioner, the Son and daughter-in-law,
had not filed an appeal under Section 16 of the
Senior Citizens Act.
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11.2. Though there are several orders of the single
benches of this Court holding that even a
person other than a senior citizen could file an
appeal under Section 16, what holds the Court
now is the Division Bench judgment of this
Court in WA No.1170/2021 dated
16.11.2021 in Smt.C.Kamalamma vs.
Sri.P.Gopal & Ors wherein it has been
categorically held that an appeal under Section
16 being a statutory remedy can only be
availed by a senior citizen and/or a parent and
not by anyone else. The Son and daughter-in-
law in the present case are neither the senior
Citizen nor parent, and as such, they cannot file
an appeal under Section 16 of the Maintenance
and Welfare of Parents and Senior Citizens Act,
2007.
11.3. In that view of the matter, I answer point No.2 by
holding that there being no appellate remedy
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available for the Son and daughter-in-law, the
only remedy available is a writ petition under
Article 226 and 227 and as such, I am of the
considered opinion that WP No.11886 of 2021
filed by the Son and daughter-in-law are
maintainable.
12. Answer to points No.3: Is WP No.4280 of 2024
filed by the Mother maintainable without
exhausting the alternative efficacious remedy
under Section 16 of the Maintenance and
Welfare of Parents and Senior Citizens Act,
2007?
And
Answer to points No. 4: Can this Court exercise
its powers under Articles 226 and 227 of the
Constitution to consider WP No.4280 of 2024,
despite the same having been filed without
exhausting the remedy under Section 16 of the
Maintenance and Welfare of Parents and Senior
Citizens Act, 2007?
12.1. Both the above points are related to each other
and are taken up for consideration together.
12.2. In terms of the decision of the division bench of
this Court in WA No.1170 of 2021 dated
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16.11.2021 in Smt.C.Kamalamma vs.
Sri.P.Gopal & Ors, this Court has held that an
appeal by a person other than the senior
Citizen or parent is not maintainable under
Section 16.
12.3. In the circumstances of the present matter
where a single order has been passed by the
Tribunal, the senior citizens/parent being
aggrieved would be required to file an appeal
under Section 16. However, insofar as the, Son
or daughter or the like against whom the said
proceedings under Section 23 of the Senior
Citizen Act was filed, if they are aggrieved they
would have to file a writ petition under Article
226/227. Thus, as rightly contended by
Sri.Jayakumar S.Patil., learned Senior counsel
the same would result in duality of proceedings,
one being an appeal under Section 16 filed by a
senior citizen/parent before the Deputy
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Commissioner insofar as the aspect of the order
as regards which the senior citizen/parent is
aggrieved of and the other before this Court
filed by a person other than a senior
citizen/parent since such person namely the
Son//Daughter, daughter-in-law/Son-in-law or
the like would not be entitled to file an appeal
under Section 16 of the senior Citizen so on so
act, if they were themselves not a senior
citizen.
12.4. When two such proceedings are filed before two
different fora and/or prosecuted by the parties
before two different foras. It could also happen
that there could be two different findings, which
are rendered by the two different forums.
However, it could also happen that it could be
the same finding is rendered by both the
forums.
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12.5. Be that as it may, even the possibility of a
different finding being rendered by two different
foras would have to be considered by this Court
in all seriousness that it deserves. Of course, it
would also be for the legislature to look into
this anomaly and rectify the same. What would
be required of this Court to do is to implement
the law "as is" considering the rival
submissions.
12.6. In answer to point No.2, I have already come to
a conclusion that WP No.11886 of 2021 filed by
Son and daughter-in-law would be maintainable
insofar as the Son and daughter-in-law being
aggrieved by the impugned order.
12.7. The impugned order consists of two portions.
The first portion as regards the declaration of
the gift deed as regards the HSR property being
null and void. The second portion, as regards
the direction of the Assistant Commissioner to
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provide accommodation to the Mother and
father in the Mahalakshmipurum property of
which the Mother is the exclusive owner.
12.8. Holistically speaking, an appeal filed by a senior
citizen or parent under Section 16 would be
maintainable. However, no appeal filed by the
Son or daughter or daughter-in-law or son-in-
law would be maintainable challenging the very
same order of the Assistant Commissioner be
maintainable before the Deputy Commissioner
under Section 16. Thus the Son, daughter,
daughter-in-law, son-in-law would have to file a
writ petition invoking the extraordinary
jurisdiction as well as supervisory jurisdiction of
this Court under Article 226 and 227 of the
Constitution of India, whereas the senior
citizen/parent, the Mother in this case could file
an appeal under Section 16 of the Act.
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12.9. As referred to Supra, there is a possibility of
conflicting decisions being passed by two
different foras as regards the very same subject
matter and as regards the very same facts.
Thus, in my considered opinion, if it is only the
senior citizen/parent who is aggrieved by the
order, then such senior citizen/parent could file
an appeal under Section 16 of the Act. If it is
only the Son, daughter, daughter-in-law, son-
in-law or a third party, where to be aggrieved
by the order of the Assistant Commissioner,
then the only remedy available for such person
is to approach this Court and Article 226 and
227 of the Constitution. This being the
straitjacket remedy available, when it is only
one set of persons who can be said to be
aggrieved by the order passed by the Assistant
Commissioner.
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12.10. The present case is a peculiar one, inasmuch as
from the very same order, both the Son and
daughter-in-law on the one hand are aggrieved,
on the other hand the Mother is also aggrieved
by the very same order. Thus, resulting in both
of them having approached this Court by way
of writ petitions.
12.11. Though normally, when an alternative
efficacious remedy is available this Court would
relegate a person who has approached this
Court to such an alternative efficacious remedy,
namely the Mother in this case to an appeal
under Section 16 of the Senior Citizens Act.
12.12. I am of the considered opinion that doing so in
the present case would firstly result in a
separate order being passed in a writ petition
filed by a son and daughter-in-law and a
separate order being passed by a Deputy
Commissioner in appeal under Section 16,
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which order of the Deputy Commissioner could
also be challenged before this Court under
Article 226 and 227 of the Constitution.
12.13. The entertainment of the present writ petition,
dehors the alternative efficacious remedy of an
appeal under Section 16, available to the
Mother, would deprive the Mother on the one
hand or the son/daughter-in-law on the other
hand, of one more challenge by way of a writ
petition before this Court. However, as
observed supra, if there is a possibility of a
conflicting opinion being rendered by this Court
on the one hand, and the Deputy Commissioner
on the other hand this Court would be required
to do everything within its powers to avoid such
conflicting decisions being passed.
12.14. In the peculiarity of the present matter, taking
into consideration that both the senior
citizen/parent is aggrieved by the order passed
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by the Assistant Commissioner, as also the Son
and daughter-in-law are aggrieved by the very
same order. The writ petitions which have been
filed by both of them could be entertained by
this Court and both the writ petitions taken up
for disposal together.
12.15. As such, I answer point No.3 and 4 by holding
that
12.15.1. Normally, if a senior citizen/parent is
aggrieved by an order passed by the
Assistant Commissioner, the remedy
available is an appeal under Section 16 of
the Senior Citizens Act.
12.15.2. If a Son, daughter, daughter-in-law, son-
in-law or a third party who is not a senior
citizen/parent is aggrieved by an order
passed by the Assistant Commissioner,
the remedy of an appeal under Section 16
of the Senior Citizen Act is not available to
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them, unless the person challenging the
order is a Senior Citizen, they would have
to approach this Court under Article 226
and 227 of the Constitution of India.
12.15.3. If both the senior Citizen or parent, as
also the Son, daughter, daughter-in-law,
son-in-law or a third party, who is not a
senior citizen or a parent, are aggrieved
by an order passed by the Assistant
Commissioner and both of them were to
file writ petitions before this Court both
the writ petitions would have to be
considered together and a common order
be passed so as to avoid conflicting
decisions.
12.15.4. This situation can only be addressed and
or rectified by the Parliament. Hence, the
Registrar (Judicial) is directed to forward a
copy of this order to the Hon'ble Law
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Commission of India, with a request to
look into this issue and take such action as
deemed fit by the Hon'ble Law
Commission of India.
13. Answer to point No.5: Does the impugned order
passed by the Assistant Commissioner dated
29.01.2020 require any interference?
13.1. As indicated supra, the impugned order of the
Assistant Commissioner comprises of two parts.
(1) Where a gift deed executed as regards to
HSR property executed on 18.03.2006 prior to
coming into force of the Maintenance and
Welfare of Parents and Senior Citizens Act,
2007 on 29.12.2007 has been declared to be
null and void. (2) A direction issued by the
Assistant Commissioner directing the Son and
daughter-in-law to provide accommodation for
the Mother in the Malakshmipuram property.
13.2. Insofar as the gift deed relating to HSR
property is concerned, in my answer to point
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No.1, I have clearly and categorically come to a
conclusion that the Senior Citizen Act will not
be applicable to a transaction mentioned in
Section 23 of the Senior Citizens Act executed
prior to the Act coming into force. Thus, insofar
as the first portion of the order of the Assistant
Commissioner is concerned, the same would
have to be set aside since the Assistant
Commissioner has not considered this aspect.
13.3. Insofar as the second portion of the order is
concerned, it is the senior citizen/parent who is
before this Court. The facts as regards this is
not clear, inasmuch as the Assistant
Commissioner in the impugned order at para 1,
has stated as under;
1. The petitioner earlier had filed the
Petition seeking relief to direct
respondents to handover to her the
property bearing municipal corporation
No.149 carved out of Sy.Nos.184, 185, 186
and 38 of Laggere Village, Yeshwanthpura
Hobli, formed by Karnataka Co-operative
House Building Society Ltd., situated at
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Karnataka Layout, 1" Cross, WOC Road 2nd
stage, Mahalakshmipuram, Bengaluru, (Herein
after referred to as Subjected property)
however during the course of
proceedings, the petitioner has prayed to
cancel the above said property from the
Petition.
... Emphasis supplied by me
13.4. A perusal of the above para 1 would indicate
that the petitioner had filed a petition seeking
relief to direct the Respondent - Son and
Daughter-in law to hand over to her the
Malakshmipuram property. However, during the
course of proceeding, the petitioner has prayed
to cancel the above said property from the
Petition. If that be so, the question of any order
being passed in respect of the Malakshmipuram
property would not arise, since the said
property, even as per the Assistant
Commissioner has been cancelled from the
Petition. The operative portion of the order
reads as under;
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ORDER
In the light of this observation the Tribunal opines that the respondent son has failed in this, as so the gift deed dated 18.03.2006 registered as Doc No.BAS-1-20055/2005-06, in Book I and stored in CD No.BASD228 in the office of the Senior Sub-Registrar, Bengaluru South Taluk is held as null and void, further that the direct that, the petitioner shall be accommodated in subjected property within 30 days from the date of this order by this the Petition is hereby allowed. 13.5. The direction issued is for the petitioner to be accommodated in the subject property within 30 days from the date of the order. The subject property is detailed in para 2 of the order, which reads as under;
2. Later the petitioner has filed Petition under Section 4 and 23 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 to declare the gift deed dated 18.03.2006 registered as Doc No.BAS-1- 20055/2005-06, in Book I and stored in CD No.BASD228 in the office of the Senior Sub- Registrar, Bengaluru South Taluk (subject property) executed by her in favour of Respondent in respect of property bearing site No.988, situated at Hosur Sarjapura Road Layout, Sector 7, Bengaluru, measuring east to west 9.14 mtrs and north to South 12.19 mtrs, as null and void and also to pass such other order/s which this Hon'ble Tribunal may deem fit in the interest of equity and justice. 13.6. A perusal of the above would indicate that the subject property is the HSR property.
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR Admittedly, there is no construction which has been put up in the HSR property. The said property continues to be a vacant property and was subject matter of the gift deed dated 18.03.2006 which has been dealt with above. 13.7. Without reference to my answer to point No.1, if the order of the Assistant Commissioner were to be looked at by itself, then what the Assistant Commissioner has done is to declare the gift deed dated 18.03.2006 as regards the subject property to be null and void and has directed the Mother to be accommodated in the subject property within 30 days. 13.8. Thus, this direction does not in any manner relate to the Mahalakshmipuram property as contended by the Son and daughter-in-law in WP No.11886 of 2021 or by the Mother in WP No.4280 of 2024.
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR 13.9. The original records pertaining to the proceedings were also secured through the Additional Government Advocate. The same indicates that on 07.03.2019, an application had been filed by the Mother wherein the following reliefs has been sought for:
"Wherefore, it is humbly prayed that this Hon'ble Authority be pleased to direct the respondents to hand over the property forthwith in the interest and equity"
13.10. The schedule property described therein was the Mahalakshmipuram property. There is no relief which had been sought for in the said proceeding as regards the gift deed or the property subject matter of the gift deed i.e., HSR Property.
13.11. On 03.07.2019, one more application under Section 4 and 23 of the Senior Citizen Act was filed by the Mother, wherein the relief which had been sought for was "Wherefore it is humbly prayed that this Hon'ble Authority be pleased to direct the respondents to
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13.13. Thus the application which had been filed on 07.03.2019 was as regards the handover of the Malakshmipuram property, which stands in the name of the Mother, as regards which no gift deed has been executed, and the same is in possession of the Son and daughter-in-law. 13.14. The application filed on 03.07.2019 is as regards the reconveying of the HSR property by challenging the gift deed executed in favor of the Son by the Mother on 18.03.2006. Both these applications were filed at different points in time and relate to different aspects.
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR 13.15. The order sheet which has been maintained in the said proceedings, notes the filing of the Petition on 07.03.2019 and on 19.03.2019 notice was issued. On 03.07.2019 there is a noting made of the second application being filed. However, no notice had been issued thereon. On 20.11.2019, objections were filed and on that day, it is noted, "petitioner prays to cancel scheduled property mentioned in Petition. R1 states that he is ready to take care of his Mother, but petitioner is not ready to go and stay with them as her daughter-in-law is ill-treating petitioner, petitioner wants to get back her property and house. Hence, Mother prays for orders". 13.16. It is this statement of petitioner praying to cancel the scheduled property mentioned in the Petition which is mentioned in the impugned order at para 1.
13.17. This reproduction by the Assistant Commissioner is contrary to the further recordal in the order sheet dated 20.11.2019 in
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13.19. Be that as it may, the same has been contested and I have come to a conclusion that the gift deed executed in respect of the property subject matter of the application on 03.07.2019 being prior in point of time, then the coming into force of the Senior Citizen Act, no such relief was maintainable before the Assistant Commissioner under Section 23. 13.20. As regards the original prayer sought for in the application dated 07.03.2019, the Assistant Commissioner has wrongly come to a conclusion that the petitioner has prayed to cancel the above property from the Petition have not been considered properly and the final declaration the final direction which has been issued is to accommodate the petitioner in the
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR subject property within 30 days which subject property refers to the HSR layout property. 13.21. In that view of the matter, I am of the considered opinion that the matter would have to be remitted back to the Assistant Commissioner for consideration of all these aspects relating to the Mahalakshmipuram property keeping all the contentions open as regards the said property, it is for this reason that the contentions urged in relation to the same are not dealt with in the present order, lest it cause any prejudice to the case of the respective parties. The Tribunal would have to independently consider this aspect and pass necessary orders in accordance with law, this court has not expressed any opinion on the same.
13.22. As such, I am of the considered opinion that the order of the Assistant Commissioner comprising
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14. Answer to point No.5: What order?
14.1. In view of my answers to points No.1 to 3, I pass the following:
ORDER i. Writ petition in WP No.11886 of 2021 is partly allowed.
ii. The order dated 29.01.2020 passed by the Assistant Commissioner, Bengaluru North Sub- Division on 29.01.2020 in MSC CR 106/2018-19 insofar as the gift deed dated 18.03.2006 declaring it to be null and void is set aside,
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR liberty is however reserved to the Senior Citizen/Mother to challenge the same in an appropriately instituted suit. iii. The further direction that the mother shall be accommodated in the subject property within 30 days from the date of the order is also set aside.
iv. The matter is remitted for fresh consideration to the Assistant Commissioner insofar as the Mahalakshmipuram property is concerned as per the application filed by the Mother on 03.07.2019.
v. Writ petition in WP No.4280 of 2024 is also partly allowed.
vi. The remittal of the matter to the Assistant Commissioner for fresh consideration as directed above would answer the grievance of the Mother, raised in WP No.4280 of 2024.
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NC: 2025:KHC:18405 WP No. 4280 of 2024 C/W WP No. 11886 of 2021 HC-KAR vii. Since order is passed in the presence of both counsels, both parties shall appear before the Assistant Commissioner without the requirement of any further notice on 16.6.2025. viii. The Assistant Commissioner shall proceed with the matter by providing an opportunity to both parties to file such documents and pleadings on record as permissible, hearing both of them and passing necessary orders as expeditiously as possible.
ix. The Registrar (Judicial) is directed to forward a copy of this order to the Hon'ble Law Commission of India, with a request to look into this issue and take such action as deemed fit by the Hon'ble Law Commission of India.
SD/-
(SURAJ GOVINDARAJ) JUDGE SR, List No.: 3 Sl No.: 43