Karnataka High Court

Apparanda Shanthi Bopanna vs A B Ganapathy on 20 December, 2023

Author: M. Nagaprasanna

Bench: M. Nagaprasanna

                           1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 20TH DAY OF DECEMBER, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.9943 OF 2022 (GM - RES)

BETWEEN:

SMT. APPARANDA SHANTHI BOPANNA
W/O LATE A.C.BOPANNA
AGED ABOUT 85 YEARS
RESIDING AT HEROOR ESTATE
SIDDAPURA, VIRAJPET TALUK
KODAGU DISTRICT - 571 201.

                                              ... PETITIONER
(BY SMT.RUPA RON, ADVOCATE)

AND:

1.   SRI A.B.GANAPATHY
     S/O LATE A.C.BOPANNA
     AGED ABOUT 57 YEARS
     RESIDING AT ASHIYANA
     NO.64, FERNS MEADOWS
     BILISHIVALE VILLAGE
     DR.SHIVARAMAKARANTH NAGAR
     BENGALURU - 560 077.

2.   SMT. POOJA @ SANJANA SUBIAH
     D/O LATE APPARANDA SUBAIAH
     AGED ABOUT 35 YEARS
     GROUND FLOOR, 158, 4TH MAIN
     DEFENCE COLONY
     INDIRANAGAR
                             2



     BENGALURU - 560 038.

3.   MAINTENANCE AND WELFARE OF
     PARENTS AND SENIOR CITIZENS TRIBUNAL
     REPRESENTED BY ITS PRESIDENT
     THE ASSISTANT COMMISSIONER
     MADIKERI SUB DIVISION
     KODGAU DISTRICT
     MADIKERI - 571 201.

4.   THE APPELLATE TRIBUNAL
     KARNATAKA MAINTENANCE AND
     WELFARE OF PARENTS AND
     SENIOR CITIZEN ACT AND
     THE DEPUTY COMMISSIONER
     KODAGU DISTRICT
     MADIKERI - 571 201.
                                            ... RESPONDENTS

(BY SRI H.N.MANJUNATH PRASAD, ADVOCATE FOR C/R-1 AND R-2;
     SRI KIRAN KUMAR, HCGP FOR R-3 AND R-4)


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER
DATED 22.03.2022 PASSED BY THE R4 IN RA.NO.HI.NA./07/2021
AT ANNEXURE-A; CONSEQUENTLY AFFIRM THE ORDER DATED
15.04.2021 PASSED BY THE R3 HEREIN AT ANNEXURE-B.



     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.11.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
                                 3



                               ORDER

The petitioner, an octogenarian, is knocking at the doors of

this Court, in the subject petition, calling in question an order dated

22-03-2022 passed by the 4th respondent/Deputy Commissioner in

Regular Appeal No.HI.NA/07/2021 under the provisions of the

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

('the Act' for short) and has sought a consequential relief of

affirmation of the order passed by the 3rd respondent/Assistant

Commissioner.

2. Heard Smt. Rupa Ron, learned counsel appearing for the

petitioner, Sri H.N. Manjunath Prasad, learned counsel appearing

for respondents 1 and 2 and Sri Kiran Kumar, learned High Court

Government Pleader for respondents 3 and 4.

3. The facts, in brief, germane are as follows:-

The petitioner is a widow aged 85 years and is a resident of

Heroor Estate, Siddapura, Virajpet Taluk, Kodagu District. The

petitioner owned about 48 acres of coffee plantation and was

residing at the ancestral house of her husband. The petitioner has

four sons. The 1st respondent is the 3rd son and the 2nd respondent

is the daughter of the first son who is no more. In respect of 48

acres of coffee plantation of the petitioner, the eldest son instituted

a suit in O.S.No.174 of 2016 for specific performance to execute a

sale deed for 24 acres which comes to be decreed and accordingly

he takes possession of 24 acres of land. What remained was 24

acres with the petitioner.

4. All along the petitioner was showering love and affection

towards respondents 1 and 2. After execution of the sale deed

pursuant to decree in O.S.No.174 of 2016 in favour of the eldest

son Sri A.B. Biddappa, respondents 1 and 2 persuaded the

petitioner to execute gift deeds in their favour in respect of the

property that is remaining with her as, if they become owners

thereof they would be able to develop further more and look after

the property well. They also assured that they would pay

`7,00,000/- each every year to her account to lead a satisfactory

life irrespective of the income that they would derive from the

property. Since the petitioner had already become an octogenarian

the proposal of respondents 1 and 2 appeared to her to be more

pleasing. Accordingly, she executed gift deed dated 14-09-2016 in

favour of respondent No.1 and another gift deed dated 17-09-2016

in favour of respondent No.2 gifting them the property to an extent

of 11 acres each without incorporating any condition as undertaken

by respondents 1 and 2. After execution of two gift deeds, the

petitioner has only a house to reside. All the income from coffee

plantation is now a part of the gift to the children. It is the

averment in the petition that pursuant to assurances held out by

respondents 1 and 2 certain payments are made to the petitioner

from 2016 to 2019 which is said to be at `48/- lakhs. From 2019-20

the respondents 1 and 2 neglected the petitioner by stopping

payment that was being made for the last three years. The

petitioner then learns that both respondents 1 and 2 were making

attempts to alienate the property gifted to them and owing to them

neglecting the petitioner, she initiated proceedings before the 3rd

respondent/ Assistant Commissioner, the authority under the Act

for revocation of gift deeds dated 14-09-2016 executed in favour of

the 1st respondent and 17-09-2016 executed in favour of the 2nd

respondent.

5. The Assistant Commissioner, by his order dated 15-04-

2021, after hearing the parties, allowed the application and set

aside gift deeds so executed in favour of respondents 1 and 2. The

same was called in question by respondents 1 and 2 before the

Deputy Commissioner in Regular Appeal No.7 of 2021. The Deputy

Commissioner sets aside the order of the Assistant Commissioner

holding that gift deeds nowhere mention that the donees would

take care of the donor, but directs that respondents shall provide

amenities and physical needs along with maintenance amount

which is being paid annually to be paid without fail till the lifetime of

the petitioner. It is calling in question this order of the Deputy

Commissioner, the petitioner is before this Court in the subject

petition.

6. The learned counsel appearing for the petitioner would

vehemently contend that the oral understanding between the

petitioner and respondents 1 and 2 can be demonstrated from the

statement of bank account of the petitioner as `14/- lakhs annually

was being transferred by respondents 1 and 2 to the account of the

petitioner and transfer has happened for close to three years and it

is her contention that an amount of `48/- lakhs is transferred by

respondents 1 and 2/beneficiaries of gift deeds to the account of

the petitioner. The learned counsel would further contend that gift

deeds are executed only out of love and affection. Though the gift

deeds do not expressly state that it is executed out of love and

affection, it cannot be beyond that. The learned counsel would

further emphasise that scores and scores of gift deeds are executed

all around and none of them contain any such condition. It is after

the judgment of the Apex Court in the case of SUDESH CHHIKARA

v. RAMTI DEVI1 the condition necessary in a gift deed has

emerged. Though the judgment of the Apex Court would become

applicable to all pending cases, her submission is that the judgment

of Three Judge Bench of the Apex Court rendered interpreting the

entire Act is not taken note of in the subsequent judgment of the

Apex Court in the case of RAMTI DEVI (supra). She would seek to

place reliance upon the judgment of the Apex Court in the case of

S.VANITHA v. DEPUTY COMMISSIONER, BENGALURU URBAN

DISTRICT2 and judgments of Madras and Bombay High Courts in

MOHAMED DAYAN v. DISTRICT COLLECTOR, TIRUPPUR

2022 SCC OnLine SC 1684

(2021) 15 SCC 730

DISTRICT3 and ASHWIN BHARAT KHATER ADULT v. URVASHI

BHARAT KHATER ADULT4.

7. Per-contra, the learned counsel representing respondents 1

and 2 would vehemently refute the submissions to contend that gift

deeds did not contain any such condition of providing maintenance.

It is only out of goodwill respondents 1 and 2 have transferred the

amount to the account of the petitioner. From the year 2019-20

they have stopped paying the said amount is an admitted fact. It is

his contention that respondents 1 and 2 need not pay any amount

as there is no condition. He would contend that the order of the

Deputy Commissioner does not warrant any interference and it is

also his submission that respondents 1 and 2 have not challenged

the order of the Deputy Commissioner. He would seek to place

reliance on the judgment of the Apex Court in the case of RAMTI

DEVI and a judgment of the Division Bench of this Court in the

case of NANJAPPA v. STATE OF KARNATAKA5 to buttress his

2023 SCC OnLine Mad 6079

2023 SCC OnLine Bom 1921

Writ Appeal No.573 of 2022 decided on 17th March 2023.

submission that in the event gift deeds do not contain any such

condition, they cannot be declared as null and void.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

9. The afore-narrated facts are not in dispute. The petitioner

did own 48 acres of coffee plantation as observed hereinabove. Out

of which 24 acres goes away in the year 2016 pursuant to a decree

in O.S.No.174 of 2016 filed by her eldest son Sri A.B. Biddappa

seeking specific performance. What remained with the petitioner

from 2016 was only 24 acres of coffee plantation to which gift

deeds are made in favour of respondents 1 and 2 - one on

14-09-2016 and the other on 17-09-2016 respectively to an extent

of 11 acres each. Remaining property was the house in which the

petitioner is staying. The gift deeds are claimed on an

understanding that respondents 1 and 2 shall each pay a sum of

`7/- lakhs every year to the petitioner. To demonstrate the oral

understanding, bank statements are appended to the petition which

would clearly show that between 2016 to 2019 `48/- lakhs was

transferred in total to the account of the petitioner year on year by

respondents 1 and 2. There was no problem of any kind between

respondents 1 and 2 and the petitioner. From 2019-20, the

respondents failed to deposit even a rupee.

10. The petitioner then comes to know that it is not being

made on account of efforts made by respondents 1 and 2 to

alienate the property. She then immediately knocks at the doors of

the Assistant Commissioner, the Authority under the Act seeking

cancellation/revocation of gift deeds aforementioned. The Assistant

Commissioner, in terms of his order dated 15-04-2021, accepts the

claim and cancels gift deeds so made in favour of respondents 1

and 2. Respondents 1 and 2 immediately challenge the same before

the Deputy Commissioner. The Deputy Commissioner by his order

dated 22-03-2022 holding that there was no condition in the gift

deeds that the beneficiaries of gift deeds would take care of the

mother and the Assistant Commissioner could not have annulled

the gift deeds, sets aside the order of the Assistant Commissioner.

The relevant portion of the order of the Deputy Commissioner reads

as follows:-

"34. The main contention of the respondent No.1 that the appellants were not maintaining her cannot be believed and the record shows that the maintenance amount was paid and hence the claim made under the Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 cannot be sustainable. If the parents and senior citizens are not maintained, then only they can seek the protection of Sections 4, 5 and Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.

35. The respondent No.1 further contended the case on various other facts and grounds which are not connected to the issues in question for the determination of this case under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007. On the other hand the respondent No.1 admits the fact that Rs.48,00,000/- was received from the appellants for the year 2016 to 2020 and submits that a sum of Rs.22,00,000/- was not paid. Pertaining to the said alleged arrears, the respondent No.1 cannot seek the relief under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 .

36. The respondent No.2/Tribunal having gone through the fact that the appellants have paid the sum of Rs.48,00,000/- towards the basic amenities with a Maruthi D'zire car to the respondent No.1, has passed the order of cancellation of gift deed, hand over the possession and change of ownership amounts to arbitrary and not hold good under the provisions of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007.

37. It is further noted that as per sub-section (2) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, the respondent having the right to receive the maintenance may be enforced against the transferee on notice of right. The Tribunal/respondent No.2 inspite of giving relief under sub-section (2) has given the relief under sub-section (1) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 by cancelling the gift deed

and order to hand over the possession of the property gifted which amounts to arbitrary and not sustainable under the law. In view of the above discussion and observation the point No.1 is answered in "NEGATIVE". Hence, the following order:

ORDER

1. The appeal filed by the appellants is "allowed". As a result, the order passed by the Presiding Officer, Maintenance and Welfare of Parents and Senior Citizens Protection Tribunal and Assistant Commissioner, Madikeri sub-Division, Kodagu District on 15-04-2021 in case No.HI.NA.GI.PRA.SAN. 60/2020 is "SET ASIDE".

2. It is directed the appellants to "provide amenities and physical needs along with the maintenance amount which is being paid annually to be paid without fail till the life time of the respondent No.1."

The Deputy Commissioner while setting aside the order of the

Assistant Commissioner, however, directs respondents 1 and 2 to

provide amenities and physical needs along with maintenance

amount which is being paid annually to be paid till the life time of

the petitioner herein. Though several grounds have been urged by

both the petitioners and respondents 1 and 2 placing reliance upon

several judgments of the Apex court and that of other High Courts,

what is required to be noticed is that the order of the Deputy

Commissioner though restores gift deeds directs maintenance

amount to be paid as was being paid. The order does not quote the

figure. Non-quoting of the figure is taken advantage of by

respondents 1 and 2 by contending that Section 24 of the Act

mandates a maximum of `10,000/- to be paid as maintenance and,

therefore, they are ready and willing to pay `10,000/- or even

`25,000/- per month but not the amount of `7,00,000/- per year

that was being paid earlier as there was no condition of the kind.

11. What is germane to be noticed is that respondents 1 and

2 have accepted the order of the Deputy Commissioner. The

Deputy Commissioner nowhere says that maintenance will have to

be paid in terms of the Act. The order of the Deputy Commissioner

is maintenance which is being paid annually to be paid without fail

till the lifetime of the petitioner as accepted by respondents 1 and

2. What is being paid by respondents 1 and 2 is a sum of

`14,00,000/- in total every year - `7,00,000/- each annually. This

is evident from the Bank statements between 2016-2019 and that

is admitted by the learned counsel for respondents 1 and 2 that

respondents 1 and 2 did transfer `48,00,000/-. Therefore,

respondents 1 and 2 cannot now contend that they would not pay

maintenance to the petitioner till her life time. Insofar as the

judgments relied on by the respective learned counsel, be it of the

Apex Court or that of this Court need not be considered in the

peculiar facts of this case.

12. The petitioner is now 85 years old. The petitioner was

satisfied for three years after execution of gift deeds as the

donees/respondents 1 and 2 were depositing `14,00,000/- every

year into her account for maintenance or living of the petitioner as

she was living earlier. Stopping of maintenance of `14,00,000/-

that was paid every year, drew the petitioner to the doors of the

Assistant Commissioner. The Assistant Commissioner annuls gift

deeds. If that is accepted, it would mean that the petitioner would

get back the property to her name. As observed hereinabove, she is

85 years old and will not be in a position to take care of the

property even if the order of the Deputy Commissioner is set aside.

What the petitioner requires and why the petitioner knocked at the

doors of the Assistant Commissioner was for maintenance i.e., the

maintenance at the rate at which it was agreed between

respondents 1 and 2 and the petitioner. Therefore, relying on the

judgments quoted hereinabove, in the peculiar facts before this

Court, annulling the order of the Deputy Commissioner or restoring

the order of the Assistant Commissioner is not required, as those

issues need not be decided in the present case. It would suffice, by

sustaining the order of the Deputy Commissioner, a direction is

issued to the respondents 1 and 2/donees to put the petitioner in a

position status quo ante i.e., receipt of money as maintenance that

she was receiving between 2016-2019, the petitioner should be

satisfied.

13. The Act obligated the donee to pay maintenance in a

maximum of `10,000/- or the amount that is projected by

respondents 1 and 2 that they would pay `25,000/- per month is of

no avail, as the petitioner was being paid at `14,00,000/- annually,

which the respondents 1 and 2 cannot escape under any garb.

14. For the preceding analysis, I deem it appropriate to pass

the following:

ORDER

(i) Writ Petition is disposed of.

(ii) The order of the Deputy Commissioner insofar as it sets aside the order of the Assistant Commissioner is sustained in part.

(iii) The order of the Deputy Commissioner which directs payment of maintenance to the petitioner is also sustained, with a modification that respondents 1 and 2/donees would be entitled to enjoy fruits of gift deeds executed by the petitioner, subject to the condition that they would pay maintenance to the petitioner at the rate of `7,00,000/- each, every year till her lifetime, as was being paid to the petitioner between 2016-2019.