Karnataka High Court
Jayashree W/O Ramesh Keralli vs The Deputy Commissioner on 31 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC-D:1954
WP No. 104510 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 104510 OF 2021 (GM-RES)
BETWEEN:
1. JAYASHREE W/O. RAMESH KERALLI,
AGE. 34 YEARS, OCC. NIL,
R/O. NAGAPPA BHUT SHASHIDHAR,
BADAWANE, OZONAHALLI ROAD,
BHAGYANAGAR -583231,
DIST. KOPPAL.
2. RAMESH S/O. MUDAKAPPA KERALLI,
AGE. 36 YEARS, OCC. NIL,
R/O. NAGAPPA BHUT SHASHIDHAR,
BADAWANE, OZONAHALLI ROAD,
BHAGYANAGAR -583231,
DIST. KOPPAL.
...PETITIONERS
(BY SRI C.S SHETTAR, AND
SMT KAVYA C, ADVOCATES)
Digitally signed by
VISHAL
NINGAPPA AND:
PATTIHAL
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad 1. THE DEPUTY COMMISSIONER,
D. C. OFFICE,
KOPPAL- 583201.
2. THE ASSISTANT COMMISSIONER
AND PRESIDENT,
MAINTENANCE TRIBUNAL FOR SENIOR CITIZENS,
KOPPAL- 583201.
3. MAHADEVAPPA S/O. LINGAPPA SALAGUNDI,
AGE. 71 YEARS, OCC. EMPLOYED,
R/O. NEAR MEHETA RICE MILL,
BEHIND MARUTI TEMPLE,
CLUB ROAD,
-2-
NC: 2025:KHC-D:1954
WP No. 104510 of 2021
GANESH NAGAR,
KOPPAL- 583201.
...RESPONDENTS
(BY SRI SHARAD V. MAGADUM, AGA FOR R1 & R2,
SMT ANURADHA DESHPANDE, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA IS PRAYING TO ISSUE A WRIT OF
CERTIORARI, QUASHING THE ORDERS PASSED BY THE 1ST
RESPONDENT AUTHORITY IN CASE NO.KO/ SANKERNA/ 310/67689/
2021-22/ 4092 DATED. 21.09.2021 VIDE ANNEXURE-J. THEREBY
CONFIRM THE ORDERS PASSED BY THE 2ND RESPONDENT IN NO/
KO/ HIRIYA NAGARIKARA RAKSHNA KAIDE/ 23/2020-21/ 141
DATED.28.05.2021 VIDE ANNEXURE-H. ANY OTHER RELIEF AS
DEEMED FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN
THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE M.NAGAPRASANNA)
1. The petitioner is before this Court calling in question an order dated 21.09.2021 passed by the Deputy Commissioner affirming the order passed by the Assistant Commissioner on 28.05.2021 by which the gift that was made in favour of the petitioners by the 3rd respondent is annulled.
-3-NC: 2025:KHC-D:1954 WP No. 104510 of 2021
2. Heard the learned counsel Sri.C.S.Shetter and Smt.Kavya C. Shettar appearing for petitioners and learned AGA-Sri.Sharad V. Magadum for respondents No.1 and 2 and Smt.Anuradha Deshpande appearing for respondent No.3.
3. The parties to the lis are that the 3rd respondent is the father of the 1st petitioner and the 2nd petitioner is the son-in-law of the 3rd respondent. On 02.09.2015, it transpires that the 3rd respondent purchased a property measuring 875 square yards at Koppal. On 12.02.2019 the 3rd respondent executes a gift deed gifting the property to the 1st petitioner to the daughter. Long thereafter alleging that the 3rd respondent has been abandoned and not being taken care off as is necessary in law, the 3rd respondent approaches the Assistant Commissioner invoking Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Assistant Commissioner in terms of his order dated 28.05.2021 dismissed the petition on the score that there was no condition that they are stipulated -4- NC: 2025:KHC-D:1954 WP No. 104510 of 2021 in the gift deed for gift to be annulled. This is challenged by the 3rd respondent before the Appellate Authority, the Deputy Commissioner, who upturns the order of the Assistant Commissioner and annuls the gift deed. It is the order of the Deputy Commissioner that has driven the petitioners to this Court in the subject petition.
4. Learned counsel appearing for the petitioner would vehemently contend that the gift deed does not stipulate any such condition of taking care of the needs of the 3rd respondent the donor of the property and therefore, would submit that the Assistant Commissioner had rightly rejected the application filed by the 3rd respondent, the Deputy Commissioner has committed an error in reversing the finding of the Assistant Commissioner and annulling the gift deed. She would submit that the issue in the lis stands answered by judgment rendered by this Court in Writ Petition No.14704/2021, disposed on 04.06.2024.
-5-NC: 2025:KHC-D:1954 WP No. 104510 of 2021
5. Per Contra the counsel representing the 3rd respondent would vehemently refute the submission to contend that the act should be construed liberally and therefore the donor having not been taken care of by the donee, the 1st petitioner should necessarily result in annulment of the gift deed, whether there are conditions stipulated in the gift deed with regard to taking care of the donor or not is immaterial, is the submission of the learned counsel appearing for the respondent.
6. The State would also toe the lines of the counsel appearing for the 3rd respondent.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The afore-narrated facts are not in dispute. The gift deed is appended to the petition. It is an admitted fact the gift deed does not stipulate any such condition that the 3rd respondent should be taken care of, of his needs throughout his life and therefore the Assistant -6- NC: 2025:KHC-D:1954 WP No. 104510 of 2021 Commissioner was justified in rejecting the claim of the 3rd respondent on the score that it did not contain any such stipulation. The Deputy Commissioner passes an order upturning the order passed by the Assistant Commissioner and orders annulment of gift deed. The issue whether the annulment would happen in the teeth of the fact that there was no stipulation or condition in the gift deed need not detain this Court for long or delve deep into the matter.
This Court considering the entire spectrum of the law in Writ Petition No.14704/2021 dated: 04.06.2024 has held as follows:
"Whether the Assistant Commissioner could have entertained the petition under Section 23 of the Act and set aside the gift deed dated 20-06- 2019 and the subsequent sale deed dated 19-12- 2019?'
8. The afore-narrated facts are not in dispute, but would require a little elaboration. The lis has three protagonists - one, the 3rd respondent/father (hereinafter referred to as the donor or father as the case may be), second, the 4th respondent (hereinafter referred to as 'the donee') and the third, the petitioner, purchaser from the hands of the donee. It is not in dispute that the donor owned certain property, which is the subject matter of the present petition. The said property becomes the subject matter of a gift executed by the donor initially on 15-03-2000 in favour of his wife, one Smt. Kalavathi. It is said that Smt. Kalavathi during her life time had executed a mortgage deed in favour of State Bank of India as -7- NC: 2025:KHC-D:1954 WP No. 104510 of 2021 security for the loan secured by her. The said deed was executed on 07.11.2012. The wife dies on 29.10.2015. After the death of the wife, the records of the property again reverted back to the donor, the 3rd respondent as his wife was no more and the donor was alive. The donor enjoyed the property for over four years. He then executes a gift deed on 20-06-2019 in favour of the 4th respondent/donee. After execution of the gift deed, a release deed is executed by the 5th respondent, the other son of the donor. Therefore, the 4th respondent becomes the absolute owner of the property. The 4th respondent clears all the dues to the State Bank of India, a loan that was availed by the mother of the 4th respondent. Thereafter the State Bank of India executes a discharge deed in favour of the 4th respondent on 12-11-2019. Thus, the property becomes free from all encumbrances. It is then, the 4th respondent sells the property in favour of the present petitioner by execution of sale deed dated 19-12-2019. Now all the records are in favour of the petitioner pursuant to the said sale deed. The proceeds of sale were also distributed to the donor viz., ₹15/- lakhs was paid to him by way of deposit being made in the Life Insurance Corporation of India in favour of the donor and ₹10,000/- per month being remitted to the bank account of the father/donor. The afore-quoted facts are admitted, as they are borne out of records. Then begins the problem.
9. The father/donor approaches the Assistant Commissioner invoking Section 23 of the Act contending that he is not being taken care of and the gift deed is taken by playing fraud upon him. The Assistant Commissioner issues notice to all the concerned. The present petitioner was also made a party before the Assistant Commissioner. He was 3rd respondent. The issue now would be whether the Assistant Commissioner could have entertained the petition before him in the teeth of recitals in the gift deed. Therefore, it becomes necessary to notice the gift deed. The gift deed reads as follows;
"¸À£ï JgÀqÀÄ ¸Á«gÀzÀ ºÀvÉÆÛA¨sÀvÀÛ£É E¸À« dÆ£ï ªÀiÁºÉà vÁjÃRÄ E¥ÀàvÀÛgÀ®Äè (20-06-2019) gÁªÀÄ£ÀUÀgÀ f¯Éè ZÀ£ÀߥÀlÖt mË£ï, PÀĪÉA¥ÀÅ£ÀUÀgÀ, 3£Éà CqÀØgÀ¸ÉÛ, 2290/1£Éà £ÀA§gï ªÀÄ£ÀAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ -8- NC: 2025:KHC-D:1954 WP No. 104510 of 2021 ²æÃ.J¸ï.²æäªÁ¸ïgÀªÀgÀ ªÀÄUÀ ¸ÀĪÀiÁgÀÄ 39 ªÀµÀð ªÀAiÀĸÀÄì¼Àî ²æà ºÀµÀð ¹.J¸ï. gÀªÀjUÉ (DzsÁgï £ÀA.337498055290) gÁªÀÄ£ÀUÀgÀ f¯Éè. ZÀ£ÀߥÀlÖt mË£ï. PÀĪÉA¥ÀÅ£ÀUÀgÀ, 3£Éà CqÀØgÀ¸ÉÛ, 2290/1£Éà £ÀA§gï ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ ¯ÉÃmï J¸ï.Dgï.¸ÀA¥Àvï gÀªÀgÀ ªÀÄUÀ ºÁUÀÆ ¤£Àß vÀAzÉAiÀÄÄ DzÀ ¸ÀĪÀiÁgÀÄ 76 ªÀµÀð ªÀAiÀĸÀÄì¼Àî ²æà J¸ï. ²æäªÁ¸ï DzÀ £Á£ÀÄ §gɹPÉÆlÖ zÁ£À¥ÀvÀæ.
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The gift deed supra admittedly does not contain any condition that the son should take care of the necessities basic or otherwise of the father during his life time and in the absence of such condition, whether the Assistant Commissioner could have annulled the gift deed is the issue that needs consideration. The said issue need not
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 detain this Court for long or delve deep into the matter. It has borne consideration by the Apex Court and by judgments rendered by this Court and other High Courts.
10. The Apex Court in the case of SUDESH CHHIKARA v. RAMTI DEVI1 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 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 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 1 2022 SCC OnLine SC 1684
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5."
(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,
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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."
(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:2
W.A.No.573 of 2022 Decided on 17-03-2023
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021
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 ransferor; and
b) The transferee refuses or fails to provide such menities 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 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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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, the provisions of Sub-sections (1) and (2) of Section 23 of the Senior Citizens Act are not attracted.
22. 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 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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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 appellant that, the appellant being the absolute owner 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 23.2.2012, 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 Citizens 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)-2020-9-81 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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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 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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 not applicable to 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- Ramthi 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.
11. Two divergent opinions emerge before the High Court of Kerala in SUBHASHINI v. DISTRICT COLLECTOR3. The matter was then referred to a Full Bench. The reference was made by a Division Bench in the light of conflict of two Benches where the conflict is answered in the following manner:
".... .... .... .......
25. Sundhari again was a case in which the parents gifted their property to their daughter. The father expired and problems arose between the mother and the daughter. The mother approached the Tribunal and though the Tribunal set aside the gift deed as such, the learned Single Judge found that the gift made by the father, who is no more, cannot be set aside under Section 23. The Division Bench agreed with that and found that on setting aside of gift made by the mother, she along with her 3 W.A.No.1460 of 2015 decided on 22-09-2020
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 daughter becomes co-owners of the property. Their right to residence as found in the deed was held to be sufficient satisfaction of the condition under Section 23(1), reckoning it to be a provision for basic amenity or physical need.
26. Section 23 (1) & (3) reads as under:
"23. Transfer of property to be void in certain circumstances.- (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
xxx xxx xxx (3) If, any senior citizen is incapable of enforcing the rights under sub-
sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5".
27. None of the words employed in Section 23(1) has been defined in the Act except 'senior citizen'. The other words which have definite legal connotation, have to be understood in the context in which the same has been used, which is discernible from the general scope of the statute as is laid down by the Hon'ble Supreme Court in Kotak Mahindra Bank Limited; with reliance placed on an authoritative text on interpretation. Section 3 only saves any provision in the Act of 2007, inconsistent with any other enactment. The various legal terms are not differently defined and no substantive right is intended to flow from the enactment of 2007. It has to be understood as not intending any
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 conferment of rights or imposition of liabilities hitherto not conferred or imposed by the various other enactments. The Act and Section 23(1) only provides a speedy remedy. If at all there is any right conferred, it can only be that of declaration of a gift or a similar transaction, as void, on the grounds of fraud, coercion and undue influence, which otherwise would make it voidable under Section 19 of the Contract Act. The context in which the enactment was brought in, as we have already seen, is to curb the evil of alienation of senior citizens from society and the purpose is to provide expeditious adjudication and recovery of maintenance. The remedy available, prior to the Act, insofar as maintenance is concerned, which is sought to be by- passed, as has been referred to in the Act itself, is Section 125 of the Code of Criminal Procedure ['Cr.P.C.' for brevity). The relevant statutes insofar as transfer of property is concerned, would be the T.P. Act, the Indian Contract Act, 1872 and so on and so forth. The remedy to enforce a right or to annul one created by a document executed, is before the Civil Court. Does Section 23(1) relate to every such remedy, against all known forms of transfer of property, which otherwise is enforceable before the Civil Court is the vexing question we have to first deal with in considering whether the condition has to be expressly specified in the document for the jurisdiction of the Tribunal to arise.
28. Section 23 does not create or negate any substantive rights; except the one mentioned above and merely provides a procedure for speedy recovery, to ensure which a deeming fiction is created with respect to certain categories of transfer of property, made subject to a condition. The fiction created; on a breach of the specified condition, deems the transfer itself to be vitiated by reason of fraud, coercion or exercise of undue influence. The transfer of property as spoken of in the provision has to concede to the various transfers spoken of in the T.P Act. The vitiating factors are those available under common law and defined under the Indian Contract Act. Normally the
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 transferor will have to approach the civil courts to enforce his claim to get the transfer set aside. When a remedy is sought before the Civil Court, the normal rules of evidence applies and the adjudication is carried on by a judicial officer.
49. One other aspect is that the option if exercised, cannot be withdrawn and if the senior citizen expires immediately after the declaration by the Tribunal, the property would revert as the estate of the deceased and every legal heir acquires a right to inherit. We specifically notice the Division Bench judgment of this court in Antony Scaria & Anr. v. District Collector & Ors. [2020 (3) KLT 183], wherein before the death of the transferor there was no declaration made by the Tribunal. The writ petition was filed by the transferor against the refusal of the Tribunal and the appellate authority to invoke its jurisdiction under Section 23(1). Pending writ petition, the transferor died when the other legal heirs sought to continue the proceedings. It was held that the right to approach the Maintenance Tribunal is in the personal capacity of the senior citizen and not a heritable right under common law. The situation would be quite different if in the life time of the senior citizen the declaration is made by the Tribunal. On his death the property devolves on te legal heirs.
..... ..... .....
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
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 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)."
53. In the facts and circumstances of the case, we are of the opinion that nothing further arises, for us to remand the matter to the Division Bench for consideration of the appeal itself. The document, which is the subject matter of dispute, is a settlement deed wherein there is a reservation of right of residence in the residential building as also to take usufructs from the standing coconut trees in the property. There is no condition as required under Section 23(1) expressly stated in the document. The life interest reserved in the document cannot also lead to such a condition being implied or inferred. There can be no consideration of the circumstances under which the document was executed, as has been attempted by the appellate authority. We hence, dismiss the appeal and restore the order of the Tribunal granting maintenance of Rs. 2,500/-. We are quite conscious of the fact that there is an interim order passed granting Rs. 5,000/- per month during the pendency of the appeal. The respondent is said to have complied with that order till date. We are of the opinion that what is required is the restoration of the order of the Tribunal in the facts and circumstances, leaving open the remedy of the appellant to approach the Civil Court for enforcement of any rights reserved on her under the document. We specifically restore the order of the Tribunal also in the context of the admission of the appellant that she has other children with whom she is residing. There is a contention raised that she had also resided in an Ashram for a period. If she wishes to claim further maintenance, she could approach the Tribunal in which event, the quantum would
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 have to be proportionately shared by all the children."
(Emphasis supplied) The Full Bench of the High Court of Kerala interpreting Section 23 of the Act and analyzing the law on the point holds that unless a condition is stipulated in favour of the senior citizen in the recitals of the gift deed, the Assistant Commissioner would not get jurisdiction to annul the gift deed. The Full Bench of the High Court of Kerala after answering the reference as afore-quoted left it open to the senior citizen to approach the Assistant Commissioner if the senior citizen would need enhancement of maintenance, as maintenance was already directed to be paid in the afore- quoted paragraphs.
12. Then comes certain line of judgments of the High Court of Bombay and the High Court of Madras which follow a three Judge Bench judgment of the Apex Court in the case of S.VANITHA v. DEPUTY COMMISSIONER4. The High Court of Bombay and High Court of Madras declined to follow the judgment of the Apex Court in the case of RAMTI DEVI and hold that under the Act it is presumed that the donor should be taken care of, as love and affection cannot be restricted to just love and affection, but care and necessities. The judgments of the learned Judges of respective High Courts would only have a persuasive value. The Division Bench of this Court in the case of NANJAPPA supra has clearly held following the judgment in RAMTI DEVI, in its judgment rendered on 17th March 2023, that unless there is a condition, the gift deed cannot be annulled. I deem it appropriate to follow the judgment of the Apex Court in the case of RAMTI DEVI on the issue and that of the Division Bench of this Court in the case of NANJAPPA, as this Court has held following the said judgment in RAMTI DEVI in the case of S. SURESH v. ASSISTANT COMMISSIONER5 as follows:
9. It is further germane to refer to the judgment of the Division Bench of this Court passed in W.A.No.96/2019 and connected 4 (2021) 15 SCC 730 5 th W.P.NO.24162 of 2022 decided on 29 March, 2023
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 matters disposed on 29.06.2022, wherein, the Division Bench considering the purport of Section 23 of the Act, has held as follows:
"5. We have considered the submissions made on both sides and have perused the records. Section 23(1) of the Act reads as under:
23. Transfer of property to be void incertain 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.
6. Thus, from the perusal of the aforesaid provision, it is evident that if the Senior Citizen after commencement of the Act has gifted the property subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and in case transferee refuses or fails to do so, the transfer of the 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.
7. In the instant case, deceased-
respondent No.4, who was the mother of the appellant had executed the gift deed dated 08.07.2015. The aforesaid gift deed does not contain any stipulation with regard to maintenance of deceased- respondent No.4. The relevant extract of the Gift deed is reproduced below for the facility of reference.
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 "That, because of love and affection and you, my daughter viz., N.D. Vanmala is being looked after me in all manner, today, I am gifting the below mentioned schedule property, through this gift deed and along with possession of the schedule property. Hereinafter, you are required to get transfer the Khata of the schedule property in your name and to pay the revenue and also to enjoy the same with complete ownership at your wish.
That except you, neither myself nor any other of my successors have no any kind of rights or interest over the schedule property hereinafter."
Thus from the perusal of the relevant extract of the Gift deed, it is evident that the Gift deed does not contain any condition that the transferee, namely, the appellant shall provide the basic amenities and basic physical needs to the transferor. On the other hand, Gift deed has recorded that the appellant has taken care of respondent No.4. Respondent No.4 has expired during the pendency of the appeal. In the absence of any stipulation in the gift deed with regard to the maintenance of respondent No.4, the Assistant Commissioner had no authority under Section 23 of the Act to declare the Gift deed to be void.
However, the aforesaid aspect of the matter has not been appreciated by the learned Single Judge.
9. For the aforementioned reasons, the order dated 15.03.2017 passed by the
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 Assistant Commissioner, the order dated 08.11.2017 passed by the Deputy Commissioner and the order dated 14.11.2018 passed by the learned Single Judge are hereby quashed and set aside."
(emphasis supplied)
10. The afore-quoted judgments, both of the Apex Court in the case of SUDESH CHHIKARA (supra) and the order of the Division Bench would clearly indicate that the Assistant Commissioner cannot annul a gift deed, if the deed does not contain any conditions of amenities or the donor to be taken care of with all physical means. The issue in the case at hand is identical and in the considered view of this Court, stands covered on all its fours to the afore-quoted judgments. Therefore, the order of the Assistant Commissioner is rendered unsustainable, only insofar as annulment of the gift deed. The order of maintenance stands sustained."
This Court disposed of the petition following the Division Bench judgment of this Court in W.A.No.96 of 2019 disposed of on 29-06-2022.
13. On a coalesce of the judgments quoted hereinabove, what would unmistakably emerge is, that the Assistant Commissioner would get jurisdiction to annul the gift deed only if the recitals in the gift deed have the condition, as observed by the Apex Court in RAMTI DEVI. The gift deed is quoted supra. There is no condition in the gift deed that would satisfy the test laid down in RAMTI DEVI. Therefore, this Court cannot but interfere with the order passed by the Assistant Commissioner."
9. The issue now would be whether the 3rd respondent who was the donor of the property and the beneficiary of such gift being the 1st respondent or the 2nd respondent-husband of the 1st respondent has been paying
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 any kind of maintenance as is available under the Act.
Under the Act, the maximum maintenance that can be awarded is at Rs.10,000/-. Therefore the learned counsel appearing for the petitioner submits that the daughter and the husband have no avocation of the kind that can give the father 3rd respondent on month on month basis at Rs.10,000/-. Learned counsel appearing for the respondent however would dispute the position and seek such maintenance. On a balance I deem it appropriate to direct the 3rd respondent donee of the property to pay maintenance at Rs.7,500/- per month to the donor. For the aforesaid reasons the following:
ORDER
(i) The writ petition is disposed of.
(ii) The impugned order of the Deputy Commissioner, Koppal in No. PÀA/¸ÀAQÃtð/ 310/67689/2021-22/4092 dated:21.09.2021 vide Annexure-J is quashed.
(iii) The order of the Assistant Commissioner No.£ÀA/PÀA/»jAiÀÄ £ÁUÀjPÀgÀ gÀPÀët PÁAiÉÄÝ/23/
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NC: 2025:KHC-D:1954 WP No. 104510 of 2021 2020-21/141 dated:28.05.2021 vide Annexure-H stands restored.
(iv) The donor of the gift deed is held entitled to maintenance at Rs.7,500/- to be paid by the petitioners exclusive of any other payment that is made.
(v) The 3rd respondent is at liberty to approach the concerned Court for redressal of any residuary grievance if the 3rd respondent would so desire.
Sd/-
(M.NAGAPRASANNA) JUDGE RHR/-
List No.: 1 Sl No.: 2