Karnataka High Court
Sri Thulasidass vs The Deputy Commissioner on 21 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 11180 OF 2020 (GM-RES)
C/W
WRIT PETITION NO. 10196 OF 2020
WRIT PETITION NO. 12832 OF 2020
IN WRIT PETITION NO. 11180 OF 2020 (GM-RES)
BETWEEN:
SMT. MAMATHA. S,
W/O SANDEEP. T,
AGED ABOUT 31 YEARS,
R/AT NO.16,
BACK OF BEGUR GOVERNMENT SCHOOL,
BEGUR,
DEVARACHIKKANAHALLI MAIN ROAD,
Digitally signed by
PADMAVATHI B K BENGALURU - 560 008.
Location: HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. KRISHNA MURTHY N., ADVOCATE)
AND:
1. DEPUTY COMMISSIONER,
KEMPEGOWDA ROAD,
BEHIND KANDAYA BHAVANA,
BENGALURU URBAN DISTRICT,
BENGALURU - 560 009.
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
2. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH DIVISION,
AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR,
BENGALURU - 560 009.
3. SRI THULASIDASS,
S/O LATE CHINNAPPA NAIDU,
AGED ABOUT 64 YEARS,
R/AT NO.506,
3RD 'B' MAIN ROAD,
VIRAT NAGAR,
BOMMANAHALLI,
BENGALURU - 560 008.
4. SRI T.SANDEEP,
S/O THULASIDASS,
AGED ABOUT 36 YEARS,
R/AT NO.16,
BACK OF BEGUR
GOVERNMENT SCHOOL,
BEGUR,
DEVARACHIKKANAHALLI MAIN ROAD,
BENGALURU - 560 068.
5. THE SUB-REGISTRAR,
BOMMANAHALLI,
BENGALURU SOUTH,
BENGALURU DISTRICT,
BENGALURU - 560 068.
6. THE TAHASILDAR,
BENGALURU SOUTH DIVISION,
AMBEDKAR VEEDHI,
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
SAMPANGI RAMA NAGAR,
BENGALURU - 560 009.
...RESPONDENTS
(BY SRI B.V.KRISHNA, AGA FOR R1, R2, R5 AND R6;
SRI JAYAKUMAR. S. PATIL, SENIOR COUNSEL FOR
SRI J.SUDHAKAR, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERS PASSED BY THE R-1 IN PROCEEDINGS DATED
29/07/2020 PRODUCED AS ANNEXURE-L CASE
NO.MAG(H)MISC/CR /10/2019-20 AND ETC.,
IN WRIT PETITION NO. 10196 OF 2020
BETWEEN:
SRI T.SANDEEP,
S/O THULASIDASS,
AGED ABOUT 36 YEARS
R/AT NO. 16,
BACK OF BEGUR GOVERNMENT SCHOOL,
BEGUR, DEVARACHIKKANAHALLI MAIN ROAD,
BENGALURU - 560 068.
...PETITIONER
(BY SRI SARAVANA S., ADVOCATE)
AND:
1. DEPUTY COMMISSIONER,
KEMPEGOWDA ROAD,
BEHIND KANDAYA BHAVANA,
BENGALURU URBAN DISTRICT,
BENGALURU - 560 001.
2. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH DIVISION,
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
BENGALURU - 560 002.
3. SRI THULASIDASS,
S/O LATE CHINNAPPA NAIDU,
AGED ABOUT 64 YEARS,
R/AT NO.506, 3RD 'B' MAIN ROAD,
VIRAT NAGAR, BOMMANAHALLI,
BENGALURU - 560 008.
4. THE SUB-REGISTRAR,
BOMMANAHALLI,
BENGALURU SOUTH,
BENGALURU DISTRICT,
BENGALURU - 560 068.
5. THE STATION HOUSE OFFICER,
BEGUR POLICE,
BEGUR MAIN ROAD,
VISHWAPRIYA NAGAR,
BEGUR, BENGALURU DISTRICT,
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI B.V.KRISHNA, AGA FOR R1, R2, R4 AND R5;
SRI JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR
SRI J.SUDHAKAR, ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLE 226 READ WITH
ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-
QUASH THE ORDERS PASSED BY THE R-1 IN PROCEEDINGS
DATED 29.07.2020 PRODUCED AS ANNEXURE-G AND ETC.,
IN WRIT PETITION NO. 12832 OF 2020
BETWEEN:
SRI THULASIDASS,
S/O LATE CHINNAPPA NAIDU,
AGED ABOUT 67 YEARS,
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
R/AT NO.506, 3RD 'B' MAIN ROAD,
VIRAT NAGAR,
BOMMANAHALLI,
BENGALURU - 560 008.
...PETITIONER
(BY SRI JAYAKUMAR. S. PATIL, SENIOR COUNSEL FOR
SRI J SUDHAKAR., ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER,
KEMPEGOWDA ROAD,
BEHIND KANDAYA BHAVANA,
BENGALURU URBAN DISTRICT,
BENGALURU - 560 001.
2. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH DIVISION,
BENGALURU - 560 002.
3. SRI T.SANDEEP,
S/O THULASIDASS,
AGED ABOUT 36 YEARS,
R/AT NO.16,
BACK OF BEGUR GOVERNMENT SCHOOL,
BEGUR, DEVARACHIKKANAHALLI MAIN ROAD,
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI B.V.KRISHNA,AGA FOR R1,R2;
SRI SARAVANA. S., ADVOCATE FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
PORTION OF TH EORDER OF THE R-1 TO THE EXTENT OF
REJECTING THE PRAYER FOR CANCELLATION OF SALE DEED S
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WP No. 11180 of 2020
C/W WP No. 10196 of 2020
WP No. 12832 of 2020
DATED.22.01.2005 AND 04.03.2004 AND RESTRAINING THE
MAINTENANCE TO RS.10,000/- PER MONTH AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These petitions call in question an order dated 29.07.2020, passed by the Deputy Commissioner in Case No.MAG(4)MIS/CR/10/2019-20 in exercise of his jurisdiction under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('the Act' for short).
2. Heard Sri Krishna Murthy N., learned counsel for petitioner in W.P.No.11180/2020, Sri Saravana S., learned counsel for petitioner in W.P.No.10196/2020 and for respondent No.3 in W.P.No.12832/2020, Sri Jayakumar S.Patil, learned senior counsel for the petitioner in W.P.No.12832/2020, for respondent No.3 in W.P.Nos.11180/2020 and 10196/2020, Sri B.V.Krishna, learned Additional Government Advocate for respondent Nos.1, 2, 5 and 6 in W.P.No.11180/2020, for respondent Nos.1, 2, 4 and 5 in W.P.No.10196/2020, for respondent Nos.1 and 2 in W.P.No.12832/2020.
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3. Brief facts of the cases at hand, that leads the petitioners to this Court in these subject petitions, as borne out from the pleadings are as follows:
Writ Petition No.11180/20220 is filed by the daughter in-
law of respondent No.3 and wife of respondent No.4, Writ Petition No.10196/2020 is preferred by the son and Writ Petition No.12832/2020 is preferred by the father seeking several prayers including enhancement of maintenance.
4. Facts in Writ Petition No.11180/2020 are narrated, for the purpose of convenience. The relationship of the parties would go this way. The third respondent one Thulasidass is the father of respondent No.4, one T. Sandeep, the petitioner in W.P.No.10196/2020 and the petitioner in W.P.No.12832/2020 is the wife of respondent No.4. Writ Petition No.12832/2020 is filed by the father, seeking several prayers including enhancement of maintenance. The issue in the lis revolves around these protagonists.
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5. The parties enter into a family settlement deed on 21.11.2014. The father later executes a gift deed in favour of his son on the same day i.e., the day on which the settlement deed was entered into in the family. After the execution of the gift deed in favour of the son, the son further executes a gift deed in favour of his wife, the petitioner in W.P.No.11180/2020, on 07.03.2015. On the ground that the father was not being taken care of by the son or the daughter in law, respondent No.3 - father knocks at the doors of the Assistant Commissioner under Section 23 of the Act. The Assistant Commissioner by his order dated 14.12.2018, rejects the prayer of the father, but directs that an amount of Rs.10,000/- to be paid by the son as maintenance to the father. The father calling in question the order passed by the Assistant Commissioner, knocks at the doors of the Deputy Commissioner, the Appellate Tribunal. The Deputy Commissioner allows the appeal in-part, cancel the gift deed executed in favour of the son. The order of the Deputy Commissioner is what drives the daughter in-law to file W.P.No.11180/2020, the son in W.P.No.10196/2020. After filing of the aforesaid petitions, the father files a petition in -9- WP No. 11180 of 2020 C/W WP No. 10196 of 2020 WP No. 12832 of 2020 W.P.No.12823/2020 seeking enhancement of maintenance inter alia.
6. Learned counsel for the petitioner in W.P.No.11180/2020 contends that after the execution of the gift deed by the father in favour of his son on 21.11.2014, the son executed a gift deed in favour of his wife on 07.03.2015. The proceedings were instituted by the father without making the daughter in-law as a party in those proceedings. He would contend that in the light of no condition being stipulated in the gift deed with regard to providing of amenities and other benefits to the father, the gift deed could not have been set aside by the Deputy Commissioner. He would seek reliance upon the judgement of the Apex Court in the case of SUDESH CHHIKARA V. RAMTI DEVI AND ANOTHER reported in 2022 SCC OnLine SC 1684 and the judgment of the Division Bench of this Court in W.A.No.96/2019 and connected matters disposed on 29.06.2022.
7. On the other hand, learned senior counsel representing the father would refute the submissions of the learned counsel
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WP No. 11180 of 2020C/W WP No. 10196 of 2020 WP No. 12832 of 2020 for the petitioner - daughter in-law and the son to contend that merely because there is no conditions stipulated in the gift deed, it does not mean that the son should not take care of his father, who is the donor of the property by executing a gift deed in favour of his son. He would contend that the amount of maintenance that was awarded by the Assistant Commissioner was at Rs.10,000/- on 14.12.2018 and 4 ½ years have passed by and therefore, it requires to be enhanced in the light of the health of the father deteriorating. He further submits that though several independent petitions are filed as aforesaid, he would seek grant of those prayers that have been sought for in the petition filed by the father.
8. I have given my anxious consideration to the submissions made by the learned counsel appearing for the son and the daughter in-law and the learned senior counsel appearing for the father and have perused the material on record.
9. The afore-narrated facts are not in dispute. Two events take place on 21/11/2014, an unregistered family
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WP No. 11180 of 2020C/W WP No. 10196 of 2020 WP No. 12832 of 2020 settlement deed and a gift deed executed by the father in favour of his son. The gift deed was bequeathing the property as mentioned in the schedule of the gift deed in favour of the son, one T. Sandeep. After the execution of the gift deed, the son executes a gift deed in favour of his wife on 07.03.2015. Therefore, the petitioner in W.P.No.11180/2020 becomes the owner of the property as per the schedule in the said gift deed. Long after execution of the gift deed, on the ground that the son is not taking care of the father, the father knocks at the doors of the Assistant Commissioner and the Assistant Commissioner passes the following order:
"ORDER.
The Petition is hereby dismissed with the following condition.
1. Subject to the liberty granted to the Petitioner the Petitioner may approach any concerned Authority/Courts, the Petition is hereby Dismissed.
2. By exercising the Power of this Tribunal, the Respondent is hereby directed to give Rs.10,000/- (Ten Thousand Only)/- per month to the Petitioner towards the monthly Maintenance of the Petitioner.
3. In the event of Respondent fails to pay maintenance of Rs. 10,000/- per month from the date of this order, the Tribunal to issue warrant against the Respondent
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and the Jurisdictional Police is directed to implement the same order.
4. The Jurisdictional Tahasildhar is hereby directed to take steps to implement the order in letter and spirit."
The Assistant Commissioner rejects the petition filed by the father, but directs monthly maintenance of Rs.10,000/- to be paid by the son. The father challenges it before the Deputy Commissioner and the Deputy Commissioner sets aside the gift deed by the following order:
"ORDER The Petition is hereby partly allowed.
a. By exercising the powers conferred under the Act, Gift Deeds dated 21-11-2014 vide Document No.BMH-1- 06433-20014-15 OF Book-I stored in CD No.BMHD691 dated 21-11-2014 Registered in the office of Sub Register, Bommanahalli, and Bengaluru city is here by cancelled.
b. By exercising the powers conferred under the Act, Gift deed Dated 7-3-2015. Vide Document No. BK I BNG- BMH 9095/2014-15 registered in the office of Sub registrar, Jayanagar (Bommanahali) Bengaluru is here by cancelled.
c. Since this Authority does not consist the power to cancel the sale deeds, the Appellants prayer to cancel the sale deed dated."
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WP No. 11180 of 2020C/W WP No. 10196 of 2020 WP No. 12832 of 2020 Challenging the order of the Deputy Commissioner, two petitions in W.P.Nos.11180/2020 and 10196/2020 have sprung, one by the son and another by his wife. It is not in dispute that the gift deed did not contain any such condition that would become a ground for the Deputy Commissioner to pass the impugned order. A perusal of the gift deed would indicate, that no such condition is stipulated and it is also an admitted fact that there is no such condition in the gift deed. The Assistant Commissioner exercising his discretion has directed payment of Rs.10,000/- as monthly maintenance, in the light of no condition being stipulated in the gift deed for providing of amenities to the donor of the property, the order of the Deputy Commissioner would be untenable in law. The issue in the lis need not detain this Court for long or delve deep into the matter as the Apex Court in the case of SUDESH CHHIKARA V. RAMTI DEVI AND ANOTHER reported in 2022 SCC OnLine SC 1684, 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
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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 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."
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(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.
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 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
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WP No. 11180 of 2020C/W WP No. 10196 of 2020 WP No. 12832 of 2020 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.
16. We have perused the counter affidavit filed by respondent no. 1. Even in the counter, it is not pleaded that the release was subject to such a condition. It is merely pleaded that the appellant had no intention to take care of her mother. Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub- Section (1) of Section 23 were not satisfied. Unfortunately, the High Court has not adverted to the merits of the case at all.
17. There is an application for intervention on behalf of a developer. The intervenor claims that he is a bona fide buyer of a part of the land subject matter of the release deed from the appellant and that he has carried out substantial work of development. It is not necessary for us to deal with the rights claimed by the intervenor. All questions regarding the rights claimed by the intervenor are left open to be decided in appropriate proceedings."
(Emphasis supplied) 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 matters disposed on 29.06.2022, wherein, the Division Bench considering the purport of Section 23 of the Act, has held as follows:
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"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 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.
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. "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
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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."
8. 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 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) In the light of the issue standing covered by the judgments of the Apex Court and that of the Division Bench of this Court, the order of the Deputy Commissioner is rendered unsustainable, but the order which directs maintenance to be paid to the father by the Assistant Commissioner requires to be sustained.
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10. Insofar as the contention of the learned senior counsel - father - petitioner in W.P.No.12832/2020, qua the settlement deed is concerned, since the issue before the Assistant Commissioner was concerning the gift deed and before the Deputy Commissioner was the order passed by the Assistant Commissioner and the issue before this Court is, qua the gift deed, any observations on the settlement deed, is unwarranted. It is open for the parties to agitate their rights in the manner known to law.
11. Insofar as enhancement of maintenance as is sought by the father, the said plea of maintenance merits consideration. The order of the Assistant Commissioner was passed in the year 2018 i.e., 14.12.2018 and 4 ½ years have passed by. Learned senior counsel would submit that the father is now ailing and is suffering from health problems and therefore, the father has sought enhancement of maintenance at Rs.20,000/- per month, since 4 ½ years have passed by and it is his son, who is the beneficiary of the gift deed. I deem it appropriate to enhance the same as is sought by the father in W.P.No.12832/2020 i.e., at Rs.20,000/- p.m. from today and
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WP No. 11180 of 2020C/W WP No. 10196 of 2020 WP No. 12832 of 2020 not from retrospective effect of the passage of the order by the Assistant Commissioner.
12. For the aforesaid reasons and for the aforesaid observations, the following:
ORDER a. The writ petition Nos.11180/2020 and 10196/2020 are allowed.
b. The writ petition No.12832/2020 is allowed in-part.
c. The order of the Deputy Commissioner calling in question in writ petition Nos.11180/2020 and 10196/2020, stands quashed.
d. The order of the Assistant Commissioner granting maintenance at Rs.10,000/- is enhanced to Rs.20,000/- p.m., from today i.e., 21.03.2023, except the prayer seeking maintenance, all other prayers of the petitioner - father, stands rejected. e. The son - petitioner in W.P.No.10196/2020 as is undertaken by him shall take care of his father during his lifetime and continue to pay the aforesaid amount.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 63