R G Somashekar vs Assistant Commissioner
2023 Latest Caselaw 6383 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 08TH DAY OF SEPTEMBER, 2023

                                 BEFORE

             THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

            WRIT PETITION No.46129/2019 (GM-RES)

BETWEEN:

1.     R.G. SOMASHEKAR
       AGED ABOUT 46 YEARS,
       S/O. H. RAMEGOWDA,
       R/AT NO.124, 1ST FLOOR,
       12TH B MAIN, 6TH BLOCK,
       RAJAJINAGAR,
       BANGALORE - 560 010.

2.     R.G. JAYARAM
       AGED ABOUT 40 YEARS,
       S/O. B.H. RAMEGOWDA,
       R/AT NO.124, GROUND FLOOR,
       12TH B MAIN, 6TH BLOCK,
       RAJAJINAGAR,
       BANGALORE - 560 010.                      ... PETITIONERS

(BY SRI SAMPATH A., ADVOCATE)

AND:

1.     ASSISTANT COMMISSIONER
       BANGALORE NORTH TALUK,
       IIND FLOOR, KANDAYA BHAVAN,
       BANGALORE - 560 009.

2.     SIDDALINGAMMA
       AGED ABOUT 64 YEARS,
       W/O. H. RAMEGOWDA,

3.     SRI H. RAMEGOWDA
       AGED ABOUT 72 YEARS,
       S/O. HANUMANTHAIAH,
                              -2-

     RESPONDENT NOS.2 AND 3 ARE
     R/AT NO.11 & 12, 4TH MAIN,
     DWARAKA NAGAR, CHANDRA LAYOUT,
     VIJAYANAGAR, BANGALORE - 560 040.

4.   UNION OF INDIA
     REPRESENTED BY ITS SECRETARY
     SRI K. GINKHAN BAIG,
     MINISTRY OF LAW AND JUSTICE
     4TH FLOOR, A WING, SHASHTRI BHAVAN,
     NEW DELHI - 110 001.

5.   MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
     SRI YASHPAL
     UNDER SECRETARY (CDN)
     ROOM NO.622, A WING,
     SHASHTRI BHAVAN,
     NEW DELHI - 110 001.

     (R-4 AND R-5 ARE DELETED AS PER
     ORDER DATED 09/06/2023)                   ... RESPONDENTS

(BY SMT. ANITHA N., HCGP FOR R-1;
    SRI C.R. GOPAL SWAMY SENIOR COUNSEL A/W
    SRI BHARGAV G., ADVOCATE FOR R-2 AND R-3;
    V/O. DATED 09/06/2023 R-4 & R-5 ARE DELETED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE ORDER READING
DOWN SECTION 23 OF THE ACT AS INAPPLICABLE TO CONCLUDED OR
UNCONDITIONAL GIFT DEEDS AND OR THAT THE MAINTENANCE AND
WELFARE OF PARENTS AND SENIOR CITIZENS ACT 2007
CONTRAVENES SECTION 126 OF THE TRANSFER OF PROPERTY ACT AND
IS THUS NOT ENFORCEABLE OR IN THE ALTERNATIVE TO DECLARE
THAT SECTION 23 OF THE MAINTENANCE AND WELFARE OF PARENTS
AND SENIOR CITIZENS ACT 2007 IS NOT ENFORCEABLE SINCE THE
ACT DOES NOT PROVIDE ANY MECHANISM FOR ANNULLING GIFT
DEEDS UNDER SECTION 23 OF THE ACT AND ETC.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
13/07/2023 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
                                -3-

                            ORDER

The present petition by the sons of respondent Nos.2

and 3 assailing the impugned order dated 04.09.2019 passed

by respondent No.1-Assistant Commissioner canceling the

Gift deed executed by respondent Nos.2 and 3, in favour of

the petitioners, by exercising the power under Section 23 of

the Maintenance and Welfare of Parents and Senior Citizens

Act, 2007 (hereinafter referred to as 'the Senior Citizens Act',

for short).

2. Brief facts of the case are that, respondent Nos.2

and 3-parents of the petitioners executed gift deed in respect

of two sites bearing Nos.1 and 2 in Sy. No.46 of Nagarbhavi

by a gift deed dated 05.08.2004 and the other three gift

deeds were executed on 14.06.2012 in favour of petitioners

in respect of site No.18, property No.124 and site Nos.11 and

12. Respondent Nos.2 and 3-the parents of the petitioners

filed petition under Section 23 of the Senior Citizens Act

seeking cancellation of the gift deeds executed in favour of

the petitioners.

3. On the earlier occasion, respondent No.1-

Assistant Commissioner had allowed the petition filed by

respondent Nos.2 and 3 and cancelled the gift deeds.

Aggrieved by which, the petitions were preferred in W.P.

No.100386/2019 and connected petitions, since the

petitioners raised a sole contention that the impugned order

passed by the Assistant Commissioner was without issuance

of notice to the petitioners and without holding any enquiry,

this Court set aside the order passed by the Assistant

Commissioner and remitted the matter for fresh

consideration. On remand, the Assistant Commissioner

passed the impugned order canceling the gift deeds executed

by respondent Nos.2 and 3 in favour of the petitioners

herein, aggrieved by which, the present petition.

4. Heard Sri Sampath A., learned counsel for the

petitioners; Smt. Anitha .N, learned High Court Government

Pleader for respondent No.1 and Sri C.R. Gopal Swamy,

learned senior counsel appearing for Sri Bhargav G., learned

counsel for respondent Nos.2 and 3.

5. Learned counsel for the petitioners would contend

that Section 23 of the Senior Citizens Act does not apply to

the present facts, as there is no condition mentioned in the

gift deeds that the petitioners would provide maintenance to

respondent Nos.2 and 3. It is submitted that the ingredients

of Section 23 of the Senior Citizens Act, has not been

established by respondents Nos.2 and 3. It is stated that the

sister of the petitioners had filed a suit for partition and

separate possession claiming share in the petition property in

O.S.No.4150/2014 and the said suit is pending consideration.

Further, another suit in O.S.No.6965/2018 came to be filed

by respondent No.2 challenging the gift deeds, which is also

pending before the Trial Court. Learned counsel emphasized

that the order passed by respondent No.1 annulling the gift

deeds executed by respondent Nos.2 and 3 in favour of the

petitioners is, without following the mandate condition

mentioned in Section 23 of the said Act, in the said

document of transfer, it should be expressly provided to

maintain the transferor and in the absence of the same, the

impugned order of the Assistant Commissioner is

unsustainable.

6. Per contra, learned senior counsel appearing for

the respondents would justify the order passed by the

Assistant Commissioner-respondent No.1 and invited the

attention of this Court to the findings recorded by respondent

No.1-Assistant Commissioner. He further contended that

respondent Nos.2 and 3 are aged persons and the Tribunal

taking into consideration the scope and ambit of the Senior

Citizens Act and the obligation on the persons, who inherited

their property of their aged relatives to maintain such aged

persons has passed the impugned order. Learned senior

counsel would contend that the very purpose of enacting this

Act is to provide protection to the senior citizens without

unnecessarily directing the aged parents to approach the

Civil Court and the enactment was to see that there should

be simple, inexpensive and speedy provisions for the

parents. Learned senior counsel would contend that due to

the act and fraud played by the petitioners, respondent

Nos.2 and 3 are at the mercy of their daughter and

petitioners have thrown respondent Nos.2 and 3 to the

streets at the fag end of their life. Learned senior counsel

would justify the impugned order of the Assistant

Commissioner.

7. Having heard learned counsel for the petitioners

and learned senior counsel for the respondents, the point

that arises for consideration is:

"Whether the order of the Assistant Commissioner is justifiable in view of the provisions of Section 23 of the Senior Citizens Act in the peculiar facts and circumstances of this case?"

8. This Court has given anxious consideration to the

rival contentions urged by the learned counsel for the parties

and carefully perused the material placed before this Court.

9. The Senior Citizens Act was enforced with object

and reasons that the traditional norms and values of the

Indian Society laid stress on providing care for the elderly

and due to withering of the joint family system, a large

number of elderly have not been looked after by their family

and taking the fact that the ageing has become a major

social challenge and there is a need to give more attention to

the care and protection for the older persons, and taking

note that the parents can claim maintenance under the Code

of Criminal Procedure, 1973, the procedure being time

consuming as well as expensive and noting there is a need to

have simple, inexpensive and speedy provision to claim

maintenance for the parents, to cast an obligation on the

persons who inherited the property of their aged relatives to

maintain such aged relatives and to make provision for

setting up old-age homes for providing maintenance to the

indigent older persons, the bill was proposed and the Act

No.56 of 2007 was enacted to provide more effective

provisions for maintenance and welfare of parents and senior

citizens guaranteed and recognized under the Constitution

and for matters connected therewith or incidental thereto.

10. The Tribunal has been established under Section 7

to exercise various power under the Senior Citizens Act,

2007. Section 8 provides summary procedure in case of

inquiry. Section 9 of the Senior Citizens Act provides for

order for maintenance where a Tribunal may, on being

satisfied of such neglect or refusal, order such children or

relatives to make a monthly allowance at such monthly rate

for the maintenance of such senior citizens.

11. Section 23 of the Senior Citizens Act, 2007

provides jurisdiction to the Tribunal, which 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

- 10 -

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."

12. Perusal of Section 23 makes it evident that the

following two conditions must be fulfilled:

(i) Transfer must have been made subject to the condition

that the transferee shall provide the basic amenities and

basic physical needs to the transferor.

(ii) The transferee refuses or fails to provide such

amenities and physical needs to the transferor.

- 11 -

13. It is relevant to note that very often such

transfers are made by parents with love and affection

towards their children without any expectation in return. The

parents herein are senior citizens and are at the fag end of

their lives. The son was under the obligation to maintain the

parents, though not written specifically in the document. The

gift deeds are executed by the parents with a trust and love

that the son would take care of them in their old age, but the

petitioners failed to show any affection and made them to

approach the Court of law for their rights. Looking into the

scope and object of the Senior Citizens Act, the Assistant

Commissioner, in conscience mind to favour the welfare of

the senior citizens, has passed the impugned order. It is the

fundamental duty of every son/daughter to take care of

his/her parents. The trend of neglecting or refusing to take

care of the aged parents by their children would shock the

conscience of the judicial minds. However, the fact remains

that the gift deed does not fulfill the conditions stipulated

under Sub-Sections (1) and (2) of Section 23 of the Senior

- 12 -

Citizens Act. Hence, this Court has no option than to hold

the order of the Assistant Commissioner, who is an authority

under the Act, has passed the impugned order ignoring the

conditions stipulated under the provisions of Section 23 of

the Senior Citizens Act.

14. In identical circumstances, the Full Bench of

Kerala High Court in the case of Subhashini Vs. The

District Collector, Kozhikode and ors. in W.A.

No.1460/2015 disposed of on 22.09.2020 at paragraph

No.52 has held as under:

"52. We conclude by answering the reference, that the condition as required under Section 23(1) for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer. It is the jurisdictional fact, which the Tribunal will have to look into before invoking Section 23(1) and proceeding on a summary enquiry. We answer the reference agreeing with the decision in W.A.No.2012 of 2012 dated 28.11.2012 [Malukutty Ponnarassery v. P.Rajan Ponnarassery].

- 13 -

We find Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [2018 KHC 4655 : 2013 (3) KLT 1082] to be wrongly decided. We approve Radhamani v. State of Kerala [2016 (1) KHC 9] which had a recital in the document akin to that required under Section 23(1)."

15. The Apex Court in recent decision in the case of

Sudesh Chhikara Vs. Ramti Devi & Anr. [2022 LiveLaw

(SC) 1011] at paragraph No.12 has held as under:

"12. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise". For attracting sub-section (1) of Section 23, the following two conditions must be fulfilled:

a. The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and b. the transferee refuses or fails to provide such amenities and physical needs to the transferor.

If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance

- 14 -

of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void."

16. The Division Bench of this Court to which this

Court is also a part in the case of Sri. Nanjappa vs. State

of Karnataka and Others in W.A. No.573/2022 at

paragraph Nos.24 to 26 has held as under:

"24. On careful reading of the contents of the Gift Deed, dated 23.2.2012, the impugned order passed by the learned Single Judge of this Court is in consonance with the provisions of Sub-sections (1) and (2) of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, as the Gift Deed, dated 23.2.2011, does not contain any stipulation that respondent No.3 is under obligation to maintain the present appellant. In the absence of the same, it cannot be held that the impugned order passed by the learned Single Judge is not in consonance with the provisions of Section 23 of the Senior Citizens Act.

25. Though our conscious is in favour of the welfare of the Senior Citizens considering the scope and object of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, but our hands are tied in view of the dictum of the Hon'ble Supreme Court

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in the case of Sudesh Chhikara, wherein while interpreting the very provisions of Sub-section (1) of Section 23 of the said Act, it has been held that the two conditions must be stipulated in the document, which is binding on all including this Court as contemplated under Article 141 of the Constitution of India.

26. The judgments relied upon by the learned Senior Counsel for the appellant are not applicable to the peculiar facts and circumstances of the present case, in view of the latest dictum of the Hon'ble Supreme Court rendered on 6th December 2022 in the case of Sudesh Chhikara -vs- Ramthi Devi reported in LAWS(SC) 2022-12-17."

17. Since the enquiry provided under Section 8 of this

Act is a summary proceeding, respondent Nos.2 and 3 are

not precluded from approaching the Civil Court and the

original suit is already pending consideration before the Civil

Court, the parties are at liberty to urge all the contentions in

the suit. In light of the proposition of law and the decisions

stated supra, there cannot be another view from this Court.

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18. For the foregoing reasons, this Court pass the

following:

ORDER

i. The writ petition is allowed.

ii. Impugned order dated 04.09.2019 passed

by respondent No.1-Assistant Commissioner

at Annexure-Q is set aside.

iii. It is needless to observe that the respondent

Nos.2 and 3 can agitate their rights in the

suit pending consideration before the Civil

Court.

     iv.     It is also needless to observe that, if

             respondent   Nos.2     and    3       are    found   in

             possession    of    the      petition        property,

             respondent    Nos.2     and       3    not     to    be

             dispossessed until due process of law.

     v.      All contentions of the parties are kept open.


                                                    SD/-
                                                   JUDGE
S*