Karnataka High Court
Siddram S/O Basappa Totagi vs The Assistant Commissioner on 21 September, 2022
-1-
WP No. 102812 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 102812 OF 2022 (GM-RES)
BETWEEN:
SIDDRAM S/O BASAPPA TOTAGI
AGE. 37, OCC. AGRICULTURE & PRIVATE JOB,
R/O. NAGANUR, TQ. BAILHONGAL,
DIST. BELAGAVI
.....PETITIONER
(BY SRI. HAREESH S NAYAK, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
AND THE PRESIDENT,
MAINTENANCE AND WELFARE OF
PARENTS AND SENIOR CITIZENS
PROTECTION TRIBUNAL, BAILHONGAL
TQ. BAILHONGAL, DIST. BELAGAVI-591102
2. BASAPPA S/O BASALINGAPPA TOTAGI
AGE. 66, OCC. AGRICULTURE,
R/O. NAGANUR, TQ. BAILHONGAL,
DIST. BELAGAVI
.....RESPONDENTS
Digitally signed
by
MOHANKUMAR
MOHANKUMAR B SHELAR
B SHELAR
(BY SRI. V.S. KALASURMATH, HCGP)
Date:
2022.09.27
18:00:17 +0530
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
BEARING NO. HINAPAPO/CR-18/2021-22 PASSED BY THE
RESPONDENT NO.1 DATED 04/05/2022 THEREBY CANCELLING THE
PARTITION DEED DATED 30.11.2020 BEARING DOCUMENT NO. 3233
IN RESPECT OF PROPERTY BEARING SY.NO. 70/6, 193/2, 194/4 AND
193/11 SITUATED AT NAGANUR VILLAGE BAILHONGAL TALUK AS
PER ANNEXURE-A AND DISMISS THE CLAIM PETITION FILED BY THE
-2-
WP No. 102812 of 2022
RESPONDENT NO.2 UNDER SECTION 4 OF KARNATAKA
MAINTENANCE AND SENIOR CITIZEN ACT 2007.
THIS PETITION COMING ON FOR PRELIMINARY HEARING 'B'
GROUP THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
Petitioner filed this writ petition seeking a writ of certiorari quashing the impugned order dated 04.05.2020 passed by the first respondent canceling the partition deed dated 30.11.2020.
2. Brief facts leading rise to filing of this writ petition are as under:
Respondent No.2 was the owner of the property bearing Sy.Nos.70/6, 193/2, 194/4 and 193/11 situated at Naganur village, Bailhongal Taluk executed a registered a partition deed released the property in question in favour of the petitioner and the said release was subject to payment of Rs.1,00,000/- to the respondent No.2. The respondent No.2 at the instigation of the sisters of the petitioner, has field a petition under Section 23 of the Karnataka Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act', for -3- WP No. 102812 of 2022 short) contending that the petitioner has failed to maintain the second respondent. The petitioner filed objections to the said petition. After hearing the parties, the first respondent by exercising the power under Section 23 of the Act, passed the impugned order dated 04.05.2022 canceling the partition deed executed in favour of the petitioner on the ground that the partition deed executed by coercion and misappropriation. The petitioner aggrieved by the same, has filed this writ petition.
3. Heard the learned counsel for petitioner and learned counsel for respondents.
4. Learned counsel for petitioner submits that the provisions of Section 23 of the Act is not applicable to the facts of the case since there is no clause for maintenance of second respondent by the petitioner and property in question is released in favour of the petitioner subject to payment of consideration of Rs.1,00,000/-. Hence, he submits that the impugned order passed by the -4- WP No. 102812 of 2022 respondent No.1 is without any authority of law. In support of his submission, he placed reliance on the decision of the Co-ordinate Bench of this Court in W.P.No.52010/2015 disposed of on 26.02.2019 and the decision of the Full Bench of Kerala High Court in the case of Subhashini Vs. District Collector, Kozhikode reported n AIRONLINE 2020 KER 674. Hence, on these grounds, the impugned order passed by the first respondent is contrary to the law laid down by this Court as well as by the Full Bench of Kerala High Court. Hence, he prays to allow the writ petition.
5. Per contra, learned counsel for respondent submits that even in the absence of condition, the transferee shall provide basic amenities and physical needs to the respondent No.2. The respondent No.1, in the absence of such condition, can exercise power under Section 23 of the Act to declare the partition deed as void. Hence, he submits that the first respondent by exercising power under Section 23 of the Act justified in canceling -5- WP No. 102812 of 2022 the partition deed. Hence, on these grounds, he submits that there is no error committed by the first respondent while passing the impugned order. Hence, he prays to dismiss the writ petition.
6. Heard and perused the records and considered the submissions of the learned counsel for parties.
7. It is not in dispute that the respondent No.2 executed a partition deed dated 30.11.2020 releasing the property in favour of the petitioner subject to payment of Rs.1,00,000/- to the second respondent. It is also not in dispute that the second respondent has received a sum of Rs.1,00,000/- from the petitioner for releasing the property in question in favour of the petitioner. Section 23 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 -6- WP No. 102812 of 2022 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.
8. A plain reading of Section 23 of the Act would indicate that any transfer made by the senior citizen by -7- WP No. 102812 of 2022 way of gift or otherwise, his property subject to condition that the transferee shall provide basic amenities and basic physical needs to the transferor, the transfer at the instance of transferor shall be declared as void, if the transferee fails to maintain the transferor. The Co- ordinate Bench of this Court in W.P.No.52010/2015 held that transaction can be declared as null and void provided the same contains a stipulation that the transferor shall maintain senior citizen.
9. In the present case, the petitioner has produced the copy of the partition deed vide Annexure-B. From the perusal of Annexure-B discloses that there is no clause regarding the petitioner to maintain and to provide physical needs to the second respondent. Considering the order passed by the Co-ordinate Bench of this Court in W.P.No.52010/2015 disposed of on 26.02.2019 and also in W.P.No.147066/2020 disposed of on 01.04.2021 and in order to maintain judicial discipline which envisages that a Co-ordinate Bench follows the decision of an earlier Co- -8- WP No. 102812 of 2022 ordinate Bench, I respectfully concur with the exposition of law laid down in the aforesaid writ petitions. The impugned order passed by the respondent No.1 is contrary to the law laid down by this Court. Hence, the impugned order is liable to be set aside. Accordingly, I proceed to pass the following:
ORDER Writ Petition is allowed. Impugned order dated 04.05.2022 vide Annexure-A passed by the first respondent is hereby quashed and set aside.
It is held that the petition filed by the second respondent is not maintainable.
It is needless to state that this order shall not come in the way of second respondent for agitating his right before the jurisdictional civil Court.
Sd/-
JUDGE Naa