Sri K.Nanjundappa vs Sri.K.N. Prabhudeva
2022 Latest Caselaw 590 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY, 2022

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                           AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                  W.A.No.1863/2019 c/w
               W.A.No.1860/2019 (GM - RES)

IN W.A.No.1863/2019:

BETWEEN :

1)      SRI K.NANJUNDAPPA
        S/O LATE K.M.KARIBASAPPA
        AGED ABOUT 84 YEARS,
        R/AT KESTUR VILLAGE,
        KORA HOBLI, TUMKUR TALUK,
        TUMKUR DISTRICT-572128

2)      SMT.GIRIJADEVI G.,
        W/O K.NANJUNDAPPA
        AGED ABOUT 75 YEARS,
        R/AT KESTUR VILLAGE,
        KORA HOBLI, TUMKUR TALUK,
        TUMKUR DISTRICT-572128               ...APPELLANTS

        (BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL A/W
                     SRI S.SARAVANA, ADV.)

AND :

1)      SRI K.N.PRABHUDEVA
        S/O NANJUNDAPPA,
        R/AT KESTUR VILLAGE
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572128
                              -2-



2)      THE CHIEF SECRETARY
        TO THE GOVERNMENT
        GOVERNMENT OF KARNATAKA
        VIDHANA SOUDHA, BENGALURU-560001

3)      THE DEPUTY COMMISSIONER
        TUMKUR, TUMKUR DISTRICT-572138

4)      THE ASSISTANT COMMISSIONER
        TUMKUR SUB-DIVISION,
        TUMKUR DISTRICT-572138

5)      SRI K.N.SIDDALINGASWAMY
        S/O NANJUNDAPPA K.,
        AGED ABOUT 54 YEARS,
        R/AT KESTUR VILLAGE
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572138              ...RESPONDENTS

     (BY SRI PADMANABHA V. MAHALE, SENIOR COUNSEL A/W
                 SRI S.VENUGOPAL, ADV. FOR R-1;
        SRI T.P.SRINIVAS, PRL. GOVT. ADV. FOR R-2 TO R-4;
                           R-5 SERVED.)

      THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.No.21447/2017, DATED 25.03.2019.


IN W.A.No.1860/2019:

BETWEEN :

1)      SRI NANJUNDAPPA
        S/O K.M.KARIBASAPPA
        AGED ABOUT 85 YEARS,
        R/AT KESTUR VILLAGE,
        KORA HOBLI, TUMKUR TALUK,
        TUMKUR DISTRICT-572128

2)      SMT.GIRIJADEVI G.,
        W/O K.NANJUNDAPPA
        AGED ABOUT 79 YEARS,
                             -3-



        R/AT KESTUR VILLAGE,
        KORA HOBLI, TUMKUR TALUK,
        TUMKUR DISTRICT-572128                 ...APPELLANTS

        (BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL A/W
                     SRI S.SARAVANA, ADV.)

AND :

1)      THE STATE OF KARNATAKA
        REP BY SECRETARY
        DEPARTMENT OF REVENUE
        VIDHANA SOUDHA,
        Dr. B.R. AMBEDKAR VEEDHI,
        BENGALURU-560001

2)      THE DEPUTY COMMISSIONER
        TUMKUR, TUMKUR DISTRICT-572101

3)      THE ASSISTANT COMMISSIONER
        SUB-DIVISION, TUMKUR DISTRICT-572101

4)      THE TAHSILDAR
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572101

5)      THE REVENUE INSPECTOR
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572101

6)      SRI K.N.SIDDALINGASWAMY
        S/O NANJUNDAPPA K.,
        R/AT KESTUR VILLAGE
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572128

7)      SRI K.N.PRABHUDEVA
        S/O NANJUNDAPPA K.,
        R/AT KESTUR VILLAGE
        KORA HOBLI, TUMKUR TALUK
        TUMKUR DISTRICT-572128             ...RESPONDENTS

 (BY SRI T.P.SRINIVAS, Prl. GOVT. ADVOCATE FOR R-1 TO R-5;
    SRI PADMANABHA V. MAHALE, SENIOR COUNSEL A/W
                          -4-



      SRI S.VENUGOPAL, ADV. FOR R-7; R-6 SERVED.)

      THIS W.A. IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED BY THE LEARNED SINGLE JUDGE IN
W.P.Nos.36601/2017 & 42708-709/2017, DATED 25.03.2019.

      THESE APPEALS COMING ON FOR HEARING, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                   JUDGMENT

These intra-Court appeals are directed against the

common order dated 25.03.2019 passed by the learned

Single Judge in W.P.No.36601/2017 and connected

matters.

2. The appellants - senior citizens being the

husband and wife filed W.P.Nos.36601/2017 and 42708-

709/2017 challenging the order dated 20.08.2016

passed by the Assistant Commissioner and Presiding

Officer of the Maintenance and Welfare of Parents and

Senior Citizens Tribunal, Tumkur District and the order

dated 20.12.2016 passed by the Deputy Commissioner,

Tumkur, Tumkur District (Annexures - C and F

respectively in W.P.Nos.36601/2017 and 42708-

709/2017).

3. W.P.No.21447/2017 was filed by Sri. K.N.

Prabhudeva (respondent No.7 in W.P.Nos.36601/2017

and 42708-709/2017) challenging the order dated

20.12.2016 passed by the Deputy Commissioner,

Tumkur District (Annexure - A in W.P.No.21447/2017).

Learned Single Judge clubbing these matters, passed a

common order dated 25.03.2019 denying to interfere

with the impugned orders, however, directed respondent

No.7 (Sri. K.N. Prabhudeva) to provide all the amenities

as undertaken by him before the Court in the house of

which the possession has already been handed over to

his parents/appellants and shall ensure that the stay of

the parents/appellants is comfortable and shall take

care of well being of the appellants and shall bear all the

medical expenses which may be incurred by them. It is

categorically observed that the said direction has been

issued in view of the undertaking given by the learned

Senior counsel for the said respondent No.7 before the

Court that respondent No.7 is ready and willing to abide

by such directions issued by the writ Court.

4. Being aggrieved by the said common order

dated 25.03.2019, the appellants have filed these writ

appeals.

5. During the appeal proceedings, appellant

No.2 died on 01.11.2019. Since no steps have been

taken to bring the legal representatives of the deceased

- appellant No.2, writ appeals filed by the appellant

No.2 stand dismissed as abated.

6. Learned Senior counsel Sri. D.R.

Ravishankar representing the appellants would submit

that the learned Single Judge was swayed away by the

fact that the caption or nomenclature of the document

as "partition" and as such, Section 23(1) of the

Maintenance and Welfare of Parents and Senior Citizens

Act, 2007 ('Act' for short) would be inapplicable.

Learned Assistant Commissioner has failed to exercise

the jurisdiction inasmuch as the partition deed dated

28.04.2008 whether deals with the redistribution or

adjustment of pre-existing rights among co-

owners/coparceners. Refusal to exercise the jurisdiction

by the Assistant Commissioner was not properly

appreciated by the Deputy Commissioner on further

appeal preferred by the appellants. The Deputy

Commissioner without assigning valid reasons has

passed a blanket order that the house and surrounding

1 Acre of land from younger son and 1 Acre of land from

elder son needs to be entered in the name of the

parents' joint name until death, for meeting out their

home, social and economic needs. Thus, merely

entering the parents' joint name until their death would

not be of any benefit to the senior citizens and it is not

the remedy for the claim made under the provisions of

the Act. Thus, the learned Senior counsel seeks to

remand the matter to the Assistant Commissioner to re-

examine the issue. In support of his contention, learned

Senior counsel has placed reliance on the judgment of

the Hon'ble Apex Court in the case of Theiry

Santhanamal vs. Vishwanathan and others reported

in (2018) 3 SCC 117.

7. Learned Senior counsel Sri. Padmanabha V.

Mahale representing respondent No.7 - Sri K.N.

Prabhudeva submitted that the provisions of the Act are

not applicable to the facts of the present case. Inviting

the attention of the Court to the provisions of the Act, it

was submitted that a senior citizen including parent,

who is unable to maintain himself from his own earning

or out of the property owned by him, shall be entitled to

make an application under Section 5 of the Act for

maintenance. In the partition deed dated 28.04.2008,

the properties were allotted to the share of the

appellants also.

8. Learned Senior counsel submitted that

subsequent to execution of the partition deed dated

28.04.2008, certain documents have been executed by

the parents of the respondent No.7 as stated by the

respondent No.7 in his affidavit dated 12.10.2020 filed

before this Court. The relevant portions of the said

affidavit are extracted hereunder for ready reference:-

"

(a) The appellants executed unregistered Gift Deed dated: 23.07.2009 which is produced at page 288, as ANNEXURE-R3 gifting House Property bearing Khaneshumari No.55 in favour of his nephew Sri K.A.Gurusiddalingappa son of Sri Adaviswamy who is brother of appellant No.1.

(b) The appellant No.1 executed Gift Deed dated 16.02.2010 which is produced at page 290, as ANNEXURE-R4, in favour of appellant No.2 Smt.Girijadevi in respect of 37 Guntas of land Sy.No.93/1.

(c) The appellants executed Gift Deed dated 16.02.2010 which is produced at page 278, an ANNEXURE-R2 in favour of

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Smt.A.C.Annapoorna the wife of brother of respondent No.7 Sri K.N.Siddalingaswamy, in respect of 05 Guntas of land in survey No.93/1.

(d) Sale Deed dated 16.02.2010 in favour of one Sri Ramaswamy in respect of 05 Guntas of land in Sy.No.93/1.

(e) Thereafter, the said survey number 93/1 bifurcated as Sy.No.93/1, 93/5, 93/6 and 93/7. On 19.05.2011 my father got conversion of all the said survey numbers and formed 36 sites and sold all the sites for Crores of Rupees the EC evidencing the said sale transactions are produced at page 216 as ANNEXURE-R1 which running to 62 Pages from 216 to 277.

(f) The appellants have got sufficient funds and their own income. The appellants have got about Rs.47 lakhs in fixed deposits in several banks out of the crores of rupees derived from the sale of the properties allotted to their share details of which are as under:-

Sl.         Name of the Bank                     Amount Rs.
No.
1.          Basaweshwara      Co-Operative 25,00,000/-
            Bank, Ashoka Road, (Church
            Circle), Tumkur.

2. Tumkur Veerashaiva Bank, SS 20,00,000/-

Pura, Near Bhadramma Choultry,

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Tumkur

3. Corporation Bank, Kestur, Tumkur 2,00,000/-

Taluk.

                     Total              47,00,000/-
                                                              "

9. Learned Senior counsel submitted that on

humanitarian grounds, the Assistant Commissioner

passed the order dated 20.08.2016 directing all the

children to pay Rs.2,500/- i.e., in total Rs.10,000/- per

month to the appellants though their claim is not

maintainable under the Act. However, the Deputy

Commissioner exceeded his jurisdiction in passing the

order as per Annexure - F in W.P.No.36601/2017 and

allied matters.

10. It is further stated in the said affidavit that

pursuant to the undertaking given by the respondent

No.7 before the Court, he requested his parents to

furnish the key of the house, so as to enable him to

provide all amenities, but they refused to give. The said

respondent No.7 is always willing and ready to abide by

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the undertaking given by him before this Court in the

writ petition proceedings.

11. However, the learned Senior counsel submits

that he has no objections to remand the matter to the

Assistant Commissioner/Maintenance Tribunal for re-

consideration.

12. We have carefully considered the arguments

of the learned counsel appearing for the parties and

perused the material on record.

13. The original applicants filed an application

under the provisions of the Act seeking a relief of

nullification of the partition deeds dated 24.01.1998

and 28.04.2008 to the extent by which some of the

properties were allotted in favour of respondent Nos.6

and 7. The claim of the appellants was contested only

by respondent No.7. The Assistant Commissioner by an

order dated 20.08.2016 partly allowed the application,

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directing all the four children i.e., respondent Nos.6 and

7 as well as daughters of the appellants to pay a sum of

Rs.2,500/- per month each to the appellants refraining

to consider the claim regarding the properties as sought

for. On further appeal before the Deputy Commissioner,

an order has been passed on 20.12.2016 by the Deputy

Commissioner directing respondent Nos.6 and 7 to

enter the house and surrounding 1 Acre of land from

elder son and 1 Acre of land from younger son in the

name of the parents' joint name until their death. Being

aggrieved by the said orders, the appellants as well as

respondent No.7 had approached the writ Court.

14. The interpretation given by the learned

Single Judge inasmuch the expression 'has transferred

by way of gift or otherwise' employed in Section 23(1) of

the Act is in conformity with the object of the Act. As

per Section 23(1) of the Act, where any senior citizen

who, after the commencement of the Act, has

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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 undue influence and shall at the option of

the transferor be declared void by the Tribunal.

Indisputedly, partition deed dated 24.01.1998 would

not come within the purview of Section 23(1) of the

Act. Thus, the partition deed dated 28.04.2008

having executed after the commencement of the Act,

learned Single Judge has rightly considered the

effect of the partition deed in the teeth of Section

23(1) of the Act. But according to the learned

Senior counsel for the appellants, there is no

finding by the Assistant Commissioner/Maintenance

Tribunal regarding said deed dated 28.04.2008 and

the claim made by the appellants. On the other

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hand, the respondent No.7 has filed an affidavit

stating about the transactions effected

subsequently with respect to the properties allotted

to the share of the appellants by virtue of the

partition deed dated 28.04.2008, by executing

certain deeds by the said appellants. Given the

circumstances, we are of the considered view that ends

of justice would be met if an adjudication is done by the

Assistant Commissioner/Maintenance Tribunal in this

regard, considering the material available on record.

15. In our considered opinion, it was obligatory

on the part of the Assistant Commissioner to

examine the matter and to decide the claim under

Section 23(1) of the Act keeping in mind Sections

3 and 27 of the Act. The argument of the learned

Senior counsel for the appellants that in the

absence of such adjudication, merely based on the

caption or the nomenclature of the document, no

- 16 -

refusal could have been made by the Assistant

Commissioner to exercise his jurisdiction has some

force. Indeed, this submission is also accepted by

the learned Senior counsel appearing for the

respondent No.7.

16. At this juncture, it would be apt to refer to

the relevant paragraphs of the decision of the Hon'ble

Apex Court in the case of Theiry Santhanamal, supra,

which reads thus:-

"30. Therefore, the main issue is as to whether such a partition deed could be executed by Oubegaranadin in respect of the properties of which he was the absolute owner. It is to be borne in mind that the properties in question had fallen in the share of Oubegaranadin on the basis of the partition deed dated 23-3-1959 between Oubegaranadin and his brothers. As on that date, the French Code governed the field as per which customary Hindu Law applies. It is not disputed that Oubegaranadin had become the absolute owner of the property in question. Therefore, the moot

- 17 -

question is as to whether he could give away portions of these properties to his sons by entering into a partition deed like the one he executed on 15-3-1971? Even if the French Code is not applied, the aforesaid question cannot be answered with reference to the provisions of the Hindu Succession Act. Partition deed can be entered into between the parties who are joint owners of the property. In case the father, namely, Oubegaranadin herein wanted to give property to his sons, of which he was absolute owner, it could be done by will or by means of gift deed/donation, etc. The High Court was, therefore, right in observing that such a partition deed has to be construed either a gift deed or family settlement. However, the claim of the plaintiffs was not on that basis. It was not stated anywhere as to whether necessary formalities, conditions or rules laid down for donation inter vivos or gift so as to enforce said document were complied with in the absence of any pleadings, obviously no evidence was produced to this effect."

17. In the light of the said judgment, a

finding is necessary on the claim made by the

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appellants for the purpose of Section 23(1) of the

Act. It is true that the daughters of the appellants

have filed O.S.Nos.275/2014 and 272/2014 before the

Senior Civil Judge, Tumkur against the appellants and

others for partition and possession and the same is

pending consideration. In that background, the

Assistant Commissioner/Maintenance Tribunal has

held that it has no jurisdiction to decide the rights

over the said properties, but there is no bar to examine

the claim for the purpose of Section 23(1) of the Act on

the basis of the available material on record vis-à-vis

maintenance of the claim made by the appellants under

the provisions of the Act. It is further significant to note

that the Deputy Commissioner has also not recorded

any finding on these aspects. In such circumstances,

we deem it appropriate to remand the matter to the

Assistant Commissioner to re-consider the matter and

give findings on these aspects. The Assistant

Commissioner/Maintenance Tribunal shall provide

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reasonable opportunity of being heard to both the

parties and shall take appropriate decision in

accordance with law in an expedite manner.

18. For the reasons aforesaid, we pass the

following

ORDER

i) The common order dated 25.03.2019 passed by the learned Single Judge in W.P.No.36601/2017 and connected matters as well as the order dated 20.08.2016 passed by the Assistant Commissioner and Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens Tribunal, Tumkur District (Annexure - C) and the order dated 20.12.2016 passed by the Deputy Commissioner, Tumkur, Tumkur District (Annexure - F) impugned in W.P.No.36601/2017 are set aside.

ii) The matter is restored to the file of the Assistant Commissioner/Maintenance Tribunal, Tumkur Sub- Division, Tumkur,

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for re-consideration, keeping open all the rights and contentions of the parties.

iii) Since both the parties are represented by their respective learned Senior Counsel assisted by the instructing counsel, the parties are directed to appear before the Assistant Commissioner, Tumkur/ Maintenance Tribunal, without waiting for any notice, on 02.02.2022 at 3.00 p.m. either physically or by virtual mode depending upon the Standard Operating Procedure (SOP) issued by the Government of Karnataka applicable, at the relevant point of time.

iv) The Assistant Commissioner/ Maintenance Tribunal, Tumkur Sub-Division, Tumkur, shall provide an opportunity of hearing to both the parties and keeping in mind the observations made hereinabove, shall take appropriate decision in accordance with law in an expedite manner, preferably within a period of four months from the date of appearance of the parties before the Tribunal.

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v) With the aforesaid observations and directions, writ appeals stand disposed of.

vi) In view of the disposal of the main matter, all pending I.As. stand disposed of.

Sd/-

JUDGE

Sd/-

JUDGE PMR