Karnataka High Court
N.D. Vanamala vs State Of Karnataka on 29 June, 2022
Bench: Alok Aradhe, J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
WRIT APPEAL NO.96 OF 2019 (GM-RES)
IN
WRIT PETITION NO.54488 OF 2017 (GM-RES)
BETWEEN:
N.D. VANAMALA
D/O N.B.DHARMAPAL,
AGED ABOUT 55 YEARS,
#29/30, LASHKAR MOHALLA,
ASHOKA ROAD,
MYSURU - 570 001.
... APPELLANT
(BY. SRI. ABUBACKER SHAFI, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
REPT. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA,
BENGALURU - 560 001.
2 . THE DEPUTY COMMISSIONER
MYSURU DISTRICT,
MYSURU-570 005.
3 . THE ASSISTANT COMMISSIONER
MYSURU SUB DIVISION,
MYSURU-570 005.
2
4 . N.D.ASHOK KUMAR
S/O N.B.DHARMAPAL,
AGED ABOUT 58 YEARS
C/O BARAMAIAHS AND SONS
#29/30, LASHKAR MOHALLA,
ASHOKA ROAD,
MYSURU - 570 001.
... RESPONDENTS
(BY SMT. JAI M PATIL, ADVOCATE FOR C/R4;
SMT. VANI H, AGA FOR R1-R3;
V/O/DTD 22.04.2022, R4 IS DELETED;
R5-SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO a)
SET ASIDE THE IMPUGNED ORDER PASSED BY THE
LEARNED SINGLE JUDGE IN W.P. NO.54493/2017 (GM-
RES) DATED 14.11.2018; b) AND IN CONSEQUENCE
ALLOW THE W.P.NO.54488/2017 (GM-RES); c) QUASH
THE IMPUGNED ORDER DATED 15.03.2017 IN CASE
NO.M.A.G.121/2016-17 PASSED BY THE 3RD
RESPONDENT VIDE ANNEXURE-C TO THE WRIT
PETITION AND IN CONSEQUENCE ALSO QUASH THE
ORDER PASSED BY THE 2ND RESPONDENT IN CASE
NO.REVISION MIS[HI.NAA.KAA] 12/2017 DATED
08.11.2017 VIDE ANNEXURE-F TO THE WRIT PETITION;
d) PASS ANY OTHER ORDER/S OR DIRECTION/S THAT,
THIS HON'BLE COURT MAY DEEMS FIT TO GRANT IN
THE INTEREST OF JUSTICE AND EQUITY.
3
THIS WRIT APPEAL COMING ON FOR ORDERS,
THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:
JUDGMENT
Sri. Abubacker Shafi, learned counsel for
the appellant.
Smt. Jai M. Patil, learned counsel for
respondent No.4.
Smt. Vani H., learned Additional
Government Advocate for respondent Nos.1 to 3.
This intra Court appeal arises out of the
order dated 14.11.2018 passed by the learned
Single Judge by which the writ petition preferred
by the appellant has been dismissed and the
orders dated 15.03.2017 and 08.11.2017 passed
by the Assistant Commissioner and Deputy
Commissioner respectively under the
Maintenance and Welfare of the Parents and
Senior Citizens Act, 2007 (hereinafter referred to
as 'the Act' for short) have been upheld.
2. The facts giving rise to filing of this
appeal briefly stated are that the appellant is the
daughter of deceased-respondent No.4. The
appellant used to take care of her mother.
Therefore, the mother of the appellant, namely,
deceased-respondent No.4 executed a gift deed
dated 08.07.2015 in favour of the appellant in
respect of the house property situated at Ashoka
Road, Lashker Mohall, Mysuru City. It appears
that deceased-respondent No.4 submitted an
application to the Assistant Commissioner under
Section 23(1) of the Act.
3. The Assistant Commissioner by an
order dated 15.03.2017 inter alia held that the
appellant has refused to take care of deceased-
respondent No.4 and therefore, the gift deed was
declared to be void. Being aggrieved, the
appellant filed an appeal before the Deputy
Commissioner, who by an order dated
08.11.2017 dismissed the appeal preferred by the
appellant as not maintainable. The appellant
there upon assailed the aforesaid order in the
writ petition. Learned Single Judge by an order
dated 14.11.2018 has dismissed the writ petition.
In the aforesaid factual background, this appeal
has been filed.
4. Learned counsel for the appellant
submitted that the order dated 15.03.2017
passed by the Assistant Commissioner suffers
from jurisdiction infirmity inasmuch as Assistant
Commissioner under the Act has no power to
declare that the gift deed is void which does not
contain a stipulation with regard to the
maintenance of Senior Citizen. On the other
hand, learned Additional Government Advocate
has invited the attention of this Court to the gift
deed and has submitted that the aforesaid gift
deed contains a stipulation of maintenance of
deceased-respondent No.4.
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
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.
In the result, appeal is allowed.
Sd/-
JUDGE
Sd/-
JUDGE
Mds/-
