Karnataka High Court
Vijayalakshmi vs The Deputy Commissioner on 27 March, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 2619 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 2619 OF 2022 (GM-RES)
BETWEEN:
VIJAYALAKSHMI,
D/O S RAMANNA,
W/O SRI. A C NANJAPPA,
AGED ABOUT 66 YEARS,
R/AT NO. 64, 4TH CROSS,
BEHIND ST. JOSEPH'S CONVENT ROAD,
BANNIMANTAPA, MYSURU - 570 015.
...PETITIONER
(BY SRI. V MANJUNATHA AND
SRI. YOGESH M, ADVOCATES)
AND:
Digitally signed 1. THE DEPUTY COMMISSIONER,
by PADMAVATHI
BK BENGALURU URBAN DIST.,
Location: HIGH BENGALURU - 560 009.
COURT OF
KARNATAKA
2. THE CHAIRMAN AND ASST. COMMISSIONER,
THE MAINTENANCE AND WELFARE OF PARENTS
AND SENIOR CITIZENS TRIBUNAL,
BENGALURU NORTH SUB-DIVISION,
BENGALURU - 560 009.
3. SRI. VIJAY KUMAR,
S/O S RAMANNA,
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WP No. 2619 of 2022
AGED ABOUT 69 YEARS,
RESIDING AT NO.485, 2ND FLOOR,
1ST CROSS, 3RD STAGE,
3RD BLOCK, 80 FEET ROAD,
WEST OF CHORD ROAD,
BASAVESHWARNAGAR,
BENGALURU - 560 079.
4. S R VENUGOPAL,
S/O S RAMANNA,
AGED ABOUT 65 YEARS,
RESIDING AT NO.485, 2ND FLOOR,
1ST CROSS, 3RD STAGE,
3RD BLOCK, 80 FEET ROAD,
WEST OF CHORD ROAD,
BASAVESHWARNAGAR,
BENGALURU - 560 079.
5. S R HARI,
S/O S RAMANNA,
C/O VINAY DIAGNOSTIC CENTRE,
AGED ABOUT 62 YEARS,
RESIDING AT NO.485, 1ST FLOOR,
1ST CROSS, 3RD STAGE,
3RD BLOCK, 80 FEET ROAD,
WEST OF CHORD ROAD,
BASAVESHWARNAGAR,
BENGALURU - 560 079.
...RESPONDENTS
(BY SMT. SHWETHA KRISHNAPPA, AGA FOR R1 AND R2;
SRI. K T VASUDEVA IYENGAR, ADVOCATE FOR R3 TO R5)
THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 20.12.2021 PASSED BY THE R-1 VIDE ANNEXURE-G;
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WP No. 2619 of 2022
QUASH THE ORDER DATED 1.7.2021 PASSED BY THE R-2
ANNEXURE-F AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"i) Quash the order dated 20-12-2021 made in MA.G(4) SC/CR/APPEAL No.19/2021-22, passed by the first respondent, vide Annexure-G;
ii) Quash the order dated 01-07-2021 made in MSC/CR/103/2020-21 passed by the second respondent, vide Annexure-F;
iii) Grant such other relief or reliefs as deem fit to grant in the facts and circumstances of the case."
2. Heard Sri. V. Manjunatha and Sri. Yogesh M., learned counsel appearing for the petitioner and Smt. Shwetha Krishnappa, learned AGA appearing for respondent Nos.1 and 2, Sri. K.T. Vasudeva Iyengar, learned counsel appearing for respondent Nos.3 to 5 and have perused the material on record.
3. One Sri. S. Ramanna, is the father of the petitioner and respondent Nos.3, 4 and 5, and therefore, the petitioner -4- WP No. 2619 of 2022 and the contesting respondents are all the members of the same family. S. Ramanna executes a gift deed in favour of the present petitioner on 08.05.2018. After about three years of execution of the said gift deed at that point in time, when he was 95 years old knocks at the doors of the Assistant Commissioner seeking annulment of the said gift deed. Before the order could be passed, the petitioner S. Ramanna dies on 16.05.2021. Notwithstanding the death of the petitioner, the Assistant Commissioner by his order dated 01.07.2021, sets aside the gift deed and directs/grants consequential benefits to S. Ramanna - the donor. The order did not and does not enure to the benefit of the donor - S. Ramanna, as by then, he was no more.
4. A perusal at the gift deed would indicate that no condition being imposed that amenities and all other needs of the donor would be taken care of by the donee. There being no condition in the said gift deed, the Assistant Commissioner could not have annulled the same, apart from the fact that it was passed on a dead person. The law in this regard is no longer res integra as the Apex Court in the case of SUDESH -5- WP No. 2619 of 2022 CHHIKARA V. RAMTI DEVI AND ANOTHER1, has held as follows:
"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 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 1 2022 SCC OnLine SC 1684 -6- WP No. 2619 of 2022 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.
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.
-7- WP No. 2619 of 2022It 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.
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.
18. Hence, for the reasons recorded above, the appeal is allowed. The impugned order dated 22nd May 2018 passed by the Maintenance Tribunal as well as the order dated 21st May 2019 passed by the High Court are hereby set aside and the petition filed by respondent no. 1 under Section 23 of the 2007 Act stands dismissed. There shall be no order as to costs."
In the light of the issue standing covered by the judgment of the Apex Court in the case of RAMTI DEVI (supra), the order of the Assistant Commissioner even on the -8- WP No. 2619 of 2022 merit of the matter is unsustainable, apart from it being passed after the death of the father / donor.
5. The petitioner herein challenges the same before the Deputy Commissioner. The Deputy Commissioner on 20.12.2021 passes an order on the merit of the matter but ultimately rejects it on the ground that it was not maintainable.
Since the issue stands completely covered by the judgment of the Apex Court in the case of RAMTI DEVI (supra), the order of the Assistant Commissioner is rendered unsustainable so is the order of the Deputy Commissioner, both of which are necessarily required to be obliterated.
6. At this juncture, the learned counsel representing the members of the family submit that they are before the civil Court in two suits in O.S.Nos.4853/2022 and 1366/2022. It is for them to agitate their grievances in those civil proceedings.
7. For the aforesaid reasons, the following:
ORDER i. The writ petition is allowed.-9- WP No. 2619 of 2022
ii. The order dated 01.07.2021 passed by the second respondent in MSC/CR/103/2020-21 and the order dated 20.12.2021 passed by the first respondent in MA.G(4)SC/CR/APPEAL No.19/2021-22, stand quashed.
iii. The quashment of these orders will not come in the way of the petitioner or the respondents agitating their respective rights before any competent Court of law.
Sd/-
JUDGE SJK List No.: 1 Sl No.: 15 CT: BHK