IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
W.P.No.17644 of 2019
Between:
K.Venkat Anand
Petitioner
VERSUS
State of Telangana, rep by its Principal Secretary
Department of Welfare of Women, Children,
Disabled and Senior Citizens, Secretariat,
Hyderabad And 5 others.
Respondents
JUDGMENT PRONOUNCED ON: 05.03.2021
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : No
_________________________
T.AMARNATH GOUD, J
2
* THE HON'BLE SRI JUSTICE T. AMRNATH GOUD
+ WRIT PETITION No.17644 OF 2019
% 05.03.2021
# K.Venkat Anand
Petitioner
VERSUS
$ State of Telangana, rep by its Principal Secretary
Department of Welfare of Women, Children,
Disabled and Senior Citizens, Secretariat,
Hyderabad And 5 others.
Respondents
! Counsel for Petitioner : Sri B.Chandrasen Reddy
^ Counsel for the respondents : Sri Sriram Sharma Susla
<GIST:
> HEAD NOTE:
? Cases referred
Appeal (Civil) 2896 of 2006 dated 11.7.2006
3
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION No.17644 of 2019
ORDER:
1 This Writ Petition is filed seeking to issue a writ of certiorari calling for records in Case No.J/3375/2016, dated 06.4.2018 and 18.7.2019 passed by the third respondent - Revenue Divisional Officer-cum-Tribunal constituted under Maintenance & Welfare of the Parents & Senior Citizens Act, 2007, Hyderabad whereunder the gift deed bearing Doc.No.3294/1998 dated 26.11.1998 executed by the fourth respondent herein in favour of the petitioner and respondent Nos.5 and 6 was cancelled, and to quash the same as being illegal and arbitrary.
2 The case of the petitioner in nutshell is that he and respondent Nos.5 and 6 are the sons of respondent No.4 herein. Respondent No.4 purchased agricultural dry land wet lands total admeasuring Ac.20-39 guntas in Sy.Nos.215, 228 and 229 of Thakkadpally village, Yacharam Mandal, Ranga Reddy District, in the year 1994 (hereinafter referred to as schedule 'A' property). In the year 1998, the respondent No.4 transferred that property to the petitioner and respondent Nos.5 and 6 equally by way of a registered gift deed dated 26.11.1998 vide Document No.3294/1998. The petitioner further assets that their joint family consists of house bearing D.No.3-6-25, Basheerbagh, Hyderabad, admeasuring 80 sq. yards and house bearing D.No.3-6-26, which is also situated at Basheerbagh, Hyderabad, admeasuring 48 sq. yards (hereinafter referred to as schedule 'B' property). Further, the grandmother of the petitioner purchased property bearing 4 H.No.3-4-835/A, Barkathpura Chaman, Hyderabad, admeasuring 90 sq. yards during her lifetime (hereinafter referred to as schedule 'C' property). The petitioner further asserts that as the respondent No.4 i.e. their father was having some financial constraints, he cleared off those debts incurred by the respondent No.4 to the tune of Rs.18,45,000/- with interest.
It is the further case of the petitioner that his mother passed away in the year 2015 and after her demise, the petitioner and the respondent Nos.4 to 6 came to a mutual understanding to partition Schedule B property and in furtherance of the same, a registered partition deed dated 31.10.2015 was executed vide Document No.3536/2015. As per the said partition schedule B property was divided amongst the petitioner and his two brothers. In lieu thereof, the respondent No.4 was paid cash of Rs.5.00 lakhs towards his share. Further, the schedule C property was devolved unto the respondent No.6 by way of a release deed by which the respondent No.4 relinquished his share in the said property. While the things stood thus, in the year 2015, after the death of his first wife, the respondent No.4 married second time and has been residing in the property belonging to the respondent No.6 along with his second wife.
The petitioner further asserts that despite receiving his share of money in the partition, in the year 2016, respondent No.4 filed an application before the respondent No.3 - RDO seeking nullification of the gift deed bearing Doc.No.3294/1998 dated 26.11.1998 under Section 23 (1) of the Maintenance & Welfare of 5 the Parents & Senior Citizens Act, 2007 (for short 'the Act'), whereupon the respondent No.3 passed an order dated 06.4.2018 in Case No.J/3375/2016, partly cancelling the gift deed bearing Doc.No.3294/1998 dated 26.11.1998 and directing the petitioner and respondent Nos.5 and 6 to re-gift the property to an extent of Ac.1-00 in the plain area i.e. Sy.Nos.228 and 229 and Ac.5.00 in the hill rock area i.e. in Sy.No.215 totalling to an extent of Ac.6-00 guntas to the respondent No.4. Thereafter, as the said order was not implemented, on the respondent No.4 approaching the respondent No.3, the respondent No.3 passed an order dated 18.7.2019 in Case No.J/3375/2016 directing the cancellation of the gift deed bearing Doc.No.3294/1998 dated 26.11.1998 and directed the petitioner and respondent Nos.5 and 6 to re-gift the property as directed earlier dated 06.4.2018. The petitioner further states that he and his brothers are ready and willing to pay maintenance to their father i.e. respondent No.4 as prescribed by the respondent No.3. However the respondent No.4 opposed the same and sought cancellation of the gift deed. Hence the present Writ Petition.
3 Refuting the averments made in the affidavit filed along with the Writ Petition, the respondent No.4 filed his counter admitting the fact that he executed the gift deed in favour of his sons i.e. petitioner and the respondent Nos.5 and 6 with a hope that they will look after him and his wife during their old age. But his dreams have gone to air as the petitioner and the respondent Nos.5 and 6 are neglecting him by not providing basic necessities such as food, clothing and medicines etc. On 04.6.2016, the respondent 6 No.6 with the support of the petitioner, had thrown the respondent No.4 out of the house illegally. In that connection he filed a police complaint. Thereafter he was again inducted into the house.
It is the further case of the respondent No.4 that as his sons neglected him he filed a case before the RDO seeking maintenance and also cancellation of the gift deed. Thereafter, the petitioner and respondent Nos.5 and 6 requested him not to seek cancellation of the entire gift deed and agreed to give 2 acres each and further told him not to claim any monthly maintenance. In that case, the respondent No.3 - RDO passed an order dated 06.4.2018 in Case No.J/3375/2016 with the consent of all the parties, partially cancelling the gift deed. Accordingly all the parties entered into a MoU dated 11.9.2018 agreeing to implement the orders passed by the respondent No.3. But the petitioner suppressed the said MoU and filed the present Writ Petition. However, as the order passed by the respondent No.3 could not be implemented by the Sub-Registrar, Ibrahimpatnam, the respondent No.4 approached the respondent No.3 for implementation of the order. Thereupon, the respondent No.3 directed the petitioner and the respondent Nos.5 and 6 to re-gift the property to the respondent No.4 as directed by him, by order dated 18.7.2019. Hence prayed to dismiss the Writ Petition. 4 Heard the Sri B. Chandrasen Reddy, learned counsel for the petitioner and Sri Sriram Sharma, learned counsel for the respondent No.4 and perused the material available on record. 7 5 The learned counsel for the petitioner submitted that the RDO has no jurisdiction to pass the impugned order even the parties to the litigation consented to do so. He further submits that the gift deed could not have been cancelled as it was executed in the year 1998 much before the commencement of the Act and that the Provision under Section 23 (1) of the Act does not have retrospective operation and that the said gift is an unconditional one and hence the impugned order is liable to be set aside. 6 The learned counsel for the respondent No.4 submitted that as the sons of the respondent No.4 neglected him he filed a case before the RDO seeking maintenance and also cancellation of the gift deed. Thereafter, the petitioner and respondent Nos.5 and 6 requested him not to seek cancellation of the entire gift deed and agreed to give 2 acres each and further told him not to claim any monthly maintenance. He further submitted that as the award impugned in this Writ Petition is a consent award, the same cannot be challenged as there is a bar under Section 96 (3) CPC. He further submitted that the petitioner and his brothers, having accepted to give six acres of land to their father, and having consented for passing of the award, now cannot turn around and file the present Writ Petition with a different stand. He relied on the judgment of the Hon'ble Apex Court in Pushpa Devi Bhagat (D) Through Lr. Smt. Sadhna Rai vs. Rajinder Singh & Ors. {Appeal (Civil) 2896 of 2006 dated 11.7.2006} wherein it was stated that as per Section 96 (3) CPC no appeal shall lie from a decree by the Court with the consent of the parties. 8 7 The admitted facts that culled out from the pleadings of the parties are that the petitioner and the respondent Nos.5 and 6 are the sons of the respondent No.4. The respondent No.4 gifted his landed property to an extent of 22 acres approximately to his sons. There are some house properties also to the joint family. The wife of the respondent No.4 died in the year 2015 and thereafter he again married some other lady and living with her in the petition C Schedule property. The respondent No.4 filed the Case before the respondent No.3 seeking cancellation of the gift deed since his sons neglected to maintain him in his old age. During the course of proceedings a consent award came to be passed wherein the petitioner and the respondent Nos.5 and 6 agreed to give six acres of land to the respondent No.4.
8 Section 4 (i) of the Act mandates that a senior citizen, including parent, who is unable to maintain himself from his own earnings or out of property owned by him, shall be entitled to make an application under Section 5 of the Act to the Sub-Divisional Officer of the State. Section 5 of the Act deals with application of maintenance to be made by a senior citizen or a parent, as the case may be if he is incapable, or by any other person or organization authorized by him, or the Tribunal may take cognizance suo motu. Section 6 of the Act deals with the jurisdiction and procedure. Section 7 of the Act prescribes that a Sub-Divisional Officer of the State is empowered to preside over the Tribunal constituted by way of notification. So, the RDO has jurisdiction to entertain the Case filed by the respondent No.4 as per Section 6 of the Act. Before the respondent No.3 both sides 9 have accepted the particular officer as a judge and they consented for passing the award. The petitioner has not contested the matter before the RDO on the point of jurisdiction nor invited any order on merits. It is a consent award.
9 Once the parties having accepted the officer as a judge, the petitioner cannot now plead that the respondent No.3 has no jurisdiction because principles of estoppel would come into operation and no jurisdictional issues would arise. The petitioner and his brothers having agreed to re-gift two acres of land each to their father and by entering into a MoU, are estopped under Section 115 of the Evidence Act to take a plea in this Writ Petition that they are not bound by that consent award because they cannot contradict, deny or declare to be false the previous statement made by them before the RDO. However, in some matters, this Court needs to go beyond the jurisdictional issues because ultimately principles of natural justice will prevail. Moreover, Laws are made for the citizens but citizens are not made for laws. It becomes immense necessity to point out that when the father has taken care of his children all through and parted his property, it is the primary duty and responsibility of the children to look after the welfare of the father in his advanced stage of life. 10 Since admittedly, the respondent No.4 has no other source of income and as his sons neglected to maintain him he filed the Case before the Revenue Divisional Officer as he has to survive in his old age. From a glance at the record it is manifest that since the respondent No.4 was dragged out of the house, he filed a 10 criminal case against his sons and thereafter he was again inducted into the house. All through the case of the respondent No.4 is that the award passed by the RDO was with the consent of all the parties. May be the initial gift deed is an unconditional one. But as per the enactment made under the Act, the petitioner and the other sons of the respondent No.4 have to provide maintenance to him. Of course, in the case on hand, the gift deed was not cancelled. But it is only a direction given to the petitioner and his brothers to re-gift six acres to the respondent No.4 and for that matter they consented for it. Moreover, when it comes to the moral and social responsibility and obligation between the father and children, the documents executed should be given least importance. Ultimately the paramount consideration is to be given to their relationship.
11 Taking the totality of the facts and circumstances of the case into consideration, this Court is of the considered view that there is no justification on the part of the petitioner to approach this Court under Article 226 of the Constitution of India, because a cursory look at the record also reveals that all the parties entered into a MoU dated 11.9.2018 agreeing to implement the orders passed by the respondent No.3. But the petitioner suppressed the said MoU and filed the present Writ Petition. Therefore, this Court is of the view that the petitioner has not come to the Court with clean hands.
1112 Having regard to the facts and circumstances of the case, the Writ Petition is devoid of any merit and is accordingly liable to be dismissed.
13 In the result, the Writ Petition is dismissed. No order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition, shall also stand dismissed.
_________________________ T. AMARNATH GOUD, J.
Date: 05.03.2021.
L.R.Copy be marked B/o Kvsn