Karnataka High Court
Smt. Shoba vs Dr. Anil.P.Kumar And Anr on 29 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 202832 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH R
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 202832 OF 2019 (GM-RES)
BETWEEN:
SMT. SHOBA
W/O PRAHALADRAO KULKARNI
AGE: 65 YEARS, OCC: HOUSEWIFE,
R/O. H.NO.8-11-180/227,
VIDYANAGAR, RAICHUR.
...PETITIONER
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND:
1. DR. ANIL.P.KUMAR
S/O PRAHALADRAO KULKARNI
AGE: 32 YEARS, OCC: DOCTOR,
R/O J.P.NAGAR, BANGALORE-01
Digitally signed by
BASALINGAPPA 2. THE ASST. COMMISSIONER
SHIVARAJ & THE CHAIRMAN SENIOR
DHUTTARGAON
Location: HIGH CITIZEN WELFARE COMMITTEE
COURT OF RAICHUR-584 101.
KARNATAKA
...RESPONDENTS
(BY SRI GANESH S. KALBURAGI, ADVOCATE FOR R1;
SRI SHIVAKUMAR R. TENGLI, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 25.05.2019 IN FILE
NO.SUM/KUM/HINARAKAA/03/2018-19/69 OF THE RESPONDENT
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WP No. 202832 of 2019
NO.2 AS PER ANNEXURE-E TO THE WRIT PETITION AND
CONSEQUENTLY ALLOW THE APPLICATION OF THE PETITIONER
DATED 11.12.2018 AS PER ANNEXURE-C TO THE WRIT PETITION, IN
THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioner is before this Court seeking for the
following reliefs:
a) Issue a writ of certiorari or any other writ of
the like nature and quash the impugned order
dated 25.05.2019 in file No.SUM/KUM/
HINARAKAA/03/2018-19/69 of the respondent
No.2 as per Annexure-E to the writ petition and
consequently allow the application of the
petitioner dated 11.12.2018 as per Annexure-C
to the writ petition, in the interest of justice
and equity.
b) Any other relief to which the petitioner would
be entitled to in facts and circumstance of the
case.
2. Petitioner is the mother of respondent No.1.
Petitioner claims to have gifted the property bearing
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Plot Nos.73 and 74, Municipal No.8-13-4/73 and 74
situated at Raichur, to respondent No.1-son in the
belief that he will take care of the basic requirements
of the petitioner. The petitioner claiming that
respondent No.1 had completely shown disinterest in
the welfare of the petitioner and her husband and
not provided basic amenities and physical needs to
her during her old age had filed an application in File
No.3/2018-19 which came to be opposed by
respondent No.1 and dismissed by respondent No.2.
It is challenging the same, the petitioner is before
this Court seeking for the aforesaid reliefs.
3. Learned counsel for the petitioner submits that
3.1. Respondent No.2 has not considered the matter
in proper perspective. Respondent No.2 has
rejected the application filed by the petitioner
on two grounds. Firstly, on the ground that the
Gift Deed did not have any clause indicating
that the donee would take care of the interest
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of the petitioner. Secondly, on the ground that
at the time of Gift Deed being executed, the
petitioner was not a senior citizen but was aged
only about 53 years.
3.2. He submits that the very purpose of executing
the Gift Deed in favour of her son-respondent
No.1, was in order to enable respondent No.1
to build a Nursing Home in furtherance of the
education which had been imparted by the
petitioner and her husband by incurring huge
expenses for the education of respondent No.1,
so that from the earning of the Nursing Home
Respondent No.1 son could take care of the
parent in their old age.
3.3. Respondent No.1 had approached the petitioner
to gift the aforesaid property so that the
property stands in his name enabling him to
obtain all and necessary permissions to set up a
Nursing Home on the said property. It is out of
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love and affection and with the intention to see
a better future for their son, gift of the property
was made. Being parents, there was also
expectation from the petitioner that respondent
No.1-son would take care of them in their old
age.
3.4. It is only because respondent No.1 did not take
care of the basic necessities, the application
was filed by the petitioner before the Assistant
Commissioner which has been wrongly rejected
by the Assistant Commissioner.
4. Sri.Ganesh S.Kalburgi, learned counsel for
respondent No.1 submits that
4.1. Without a clause in the Gift Deed being present
as regards an obligation on the donee to take
care of the basic necessities of the donor-
parent, there cannot be an obligation so
imposed.
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4.2. In this regard, he relied upon the decision of
the Hon'ble Supreme Court in the case of
Sudesh Chhikara vs. Ramti Devi and
another in Civil Appeal No.174/2021 disposed
of on 06.12.2022, more particularly,
paragraphs-11 to 14 of the said judgment
which are reproduced hereunder for easy
reference:
"11. We have given careful consideration to
the submissions. Before dealing with the
factual aspects, it is necessary to advert to
the legal aspects. The Sub-Divisional
Magistrate acting as the Maintenance Tribunal
under the 2007 Act has invoked the power
under Section 23 to declare that the subject
release deed was void. The 2007 Act has
been enacted for the purposes of making
effective provisions for the maintenance and
welfare of parents and senior citizens
guaranteed and recognized under the
Constitution of India. The Maintenance
Tribunal has been established under Section 7
to exercise various powers under the 2007
Act. Section 8 provides that the Maintenance
Tribunal, subject to any rules which may be
framed by the Government, has to adopt
such summary procedure while holding
inquiry, as it deems fit. Apart from the power
to grant maintenance, the Tribunal exercises
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important jurisdiction under Section 23 of the
2007 Act which reads thus:
"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.
(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."
(emphasis added)
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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, transfer
shall be deemed to have been made
by fraud or coercion or undue
influence. Such a transfer the n
becomes voidable at the instance of
the transferor and the Maintenance
Tribunal gets jurisdiction to declare
the transfer as void.
13. When a senior citizen parts with his
or her property by executing a gift or a
release or otherwise in favour of his or her
near and dear ones, a condition of looking
after the senior citizen is not necessarily
attached to it. On the contrary, very often,
such transfers are made out of love and
affection without any expectation in return.
Therefore, when it is alleged that the
conditions mentioned in sub-section (1) of
Section 23 are attached to a transfer,
existence of such conditions must be
established before the Tribunal.
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14. Careful perusal of the petition under
Section 23 filed by respondent no.1 shows
that it is not even pleaded that the release
deed was executed subject to a condition that
the transferees (the daughters of respondent
no.1) would provide the basic amenities and
basic physical needs to respondent no.1.
Even in the impugned order dated 22nd May
2018 passed by the Maintenance Tribunal, no
such finding has been recorded. It seems that
oral evidence was no adduced by the parties.
As can be seen from the impugned judgment
of the Tribunal, immediately after a reply was
filed by the appellant that the petition was
fixed for arguments. Effecting transfer subject
to a condition of providing the basic amenities
and basic physical needs to the transferor -
senior citizen is sine qua non for applicability
of sub-section (1) of Section 23. In the
present case, as stated earlier, it is not even
pleaded by respondent no.1 that the release
deed was executed subject to such a
condition."
4.3. By relying on the above judgment, he submits
that when a Gift Deed has been executed out of
natural love and affection, there cannot be any
obligation imposed to take care of the basic
requirements of the donor-parents and since
that test has not been satisfied, the Assistant
Commissioner has rightly rejected the petition
filed by the mother.
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4.4. He reiterates that when the Gift Deed was
executed, the petitioner was aged 53 years as
shown in the Gift Deed though wrongly
mentioned as 57 years in the order of the
Assistant Commissioner. Hence, he submits
that the Gift Deed having been executed when
the petitioner was not a senior citizen, the
petitioner cannot claim the benefit of the
provisions of the Maintenance and Welfare of
Parents and Senior Citizen Act, 2007 (for short,
hereinafter referred to as 'the Act').
4.5. He submits that the mother having filed an
application for maintenance, the said
application has been dismissed and therefore,
he submits that the obligation of maintenance
cannot be imposed on the son.
4.6. His last submission is that the petitioner's
husband i.e., the father was a retired Range
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Forest Officer who had enough and adequate
properties, income and pension amount which
was sufficient to take care of the interest of the
petitioner and as such, there is no requirement
for respondent No.1 to take care of the
petitioner, but respondent No.1 undertakes to
take care of the medical treatment or otherwise
of the petitioner.
5. Heard Sri.Shivanand Patil, learned counsel for the
petitioner, Sri.Ganesh S.Kalburgi, learned counsel for
respondent No.1 and Sri.Shivakumar R.Tengli,
learned Additional Government Advocate for
respondent No.2. Perused the papers.
6. It is not in dispute that the petitioner is the mother
and respondent No.1 is the son. An application under
Section 23 of the Act was filed by the petitioner
contending that the petitioner was presently aged 64
years and her husband was 69 years and both are
residing at Vidyanagar locality, Raichur. It was
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further stated that respondent No.1 was working as
Senior Resident Medical Officer in Jayadeva Cardio-
Vascular Sciences and Research Institute, Bengaluru,
he having completed his Medicine in Mysore and post
graduation in Imphal. Thereafter, he was appointed
in Jayadeva Cardio-Vascular Sciences and Research
Institute, Bengaluru.
7. It is also not in dispute that property bearing No.8-
13-4/73-74 has been purchased by the husband of
the petitioner in petitioner's name and that the
petitioner had gifted the property to respondent
No.1-son under a registered Gift Deed dated
04.03.2014 i.e., to say if not for the gift the
Respondent No.1 son would not derive any right, title
or interest in the property gifted.
8. It is stated in the petition that the petitioner and her
husband out of love and affection towards their son
had maintained him during his studies, supported
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him during his education and made payment of all
the educational expenses. After completion of his
education, when the son expressed his desire to set
up a Nursing Home at Raichur, in order to enable
their son so to set up a Nursing Home, the petitioner
had transferred her property under a Gift Deed to
enable easy construction by obtaining all permissions
in the name of the Respondent No.1 son.
9. It is categorically averred in paragraph-6 of the
petition that the son had promised that he will
provide basic amenities and physical needs to his
mother and thereby, with a fond hope that the son
will take care of her interest, during old age, the Gift
Deed was executed by the mother in favour of son.
10. The judgment which has been relied upon by the
learned counsel for respondent No.1 in Sudesh
Chhikara's case (supra) would not be applicable to
the present case for the reason that in paragraph-14
which has been extracted hereinabove, the Hon'ble
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Apex Court has taken into consideration that in the
petition filed under Section 23 of the Act, in that
case, it was not even pleaded that Release Deed was
executed subject to the condition that the transferee
will provide the basic amenities and basic physical
needs to parents. The Hon'ble Apex Court has not in
as many words categorically stated that the condition
for providing basic amenities and basic physical
needs is to be incorporated in the Gift Deed and
Release Deed, but what has been held in that case is
that the pleadings did not indicate any such
obligation having been undertaken by the donee or
the releasee made in an application filed under
Section 23 of the Act.
11. Therefore, the contention of Sri.Ganesh S.Kalburgi,
that there is no obligation imposed in the Gift Deed
and therefore, jurisdiction under Section 23 of the
Act cannot be exercised is not countenanced by the
said judgment.
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12. As aforesaid, it is not in dispute that the property
was owned by the mother and has been gifted to the
son. A mother or father if during their lifetime were
to transfer a property by way of gift, leaving them
without the benefit of the property during their
lifetime, a reasonable expectation that their offspring
be it either a son or a daughter would take care of
their requirements in their old age can be so
imputed, when there is a specific pleading in the
application filed under Section 23 of the Act.
13. Now the contention of the son is that the father was
a retired Range Forest Officer and that he has
enough resources to take care of himself and his
wife. Unfortunately, during the pendency of the
above petition, the father has also expired leaving
behind only the mother.
14. In such circumstances, I am unable to countenance
the stand of the son that there is no obligation on the
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part of the son to take care of his mother during her
old age, merely because, there is no such obligation
imposed in the Gift Deed. The mother out of
frustration has filed said application against her son,
since the son is not taking care of her and has
categorically averred in the petition that there was
fond hope that her son will take care of her during
her old age after building a Nursing Home in the
property which belonged to the mother. This
statement made in the pleading would suffice the
requirement of the decision of the Hon'ble Apex
Court in Sudesh Chhikara's case (supra).
15. One other contention that has been urged by
Sri.Ganesh S.Kalburgi, learned counsel for
respondent No.1 is that when the Gift Deed was
executed, the mother was aged 53 years as such,
the benefit of Section 23 of the Act cannot be availed
of by her. I am unable to again accept this
contention for the reason that the
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application/petition under Section 23 of the Act
would have to be considered as on the date of the
application so long as the applicant satisfies the
requirement of being a senior citizen as on that day,
the same would be sufficient and it is not required for
the donor or releasor to be a senior citizen on the
day on which the Gift or Release is executed. Thus,
this contention also stands rejected.
16. The last contention that is urged by Sri.Ganesh
S.Kalburgi, learned counsel for respondent No.1 is
that the maintenance petition filed by the Petitioner
is dismissed and therefore, no obligation could be
imposed in a petition under Section 23 of the Act on
Respondent No.1 to take care of the basic needs and
requirements of the mother, he will only take are of
medical expenses, this being supported by the
contention that the father was a Range Forest officer,
who was drawing pension, subsequent to his expiry
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the mother will be entitled to family pension hence,
there is no requirement to maintain the mother.
17. This submission would only indicate that the
Petitioner Mother was constrained to move the Court
seeking for maintenance which was also contested by
the Respondent No.1 son, thus leaving the Petitioner
mother without any manner of taking care of her
interest. Despite enquiry the submission on behalf of
respondent No.1 is that he will not take care of the
day to day needs of the Petitioner Mother but would
only make payment of medical expense, this
according to me would not satisfy the requirements
of the mother, the son despite receipt of the property
is unwilling to take care of the requirements of the
aged mother. The submission would also indicate
that the father Range Forest Officer has expended
monies from his earnings to educate his son to an
extent of enabling him to be a doctor, now to
contend that the mother can take care of herself
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from the family pension after the expiry of the father
during the pendency of this petition, would only
indicate the conduct and attitude of Respondent No.1
Son. This Court refrains from making any further
observations on the same. The Act has been brought
into force to provide adequate maintenance and
effective welfare to old parents and senior citizens,
by making it a legal obligation on adult children and
heirs by way of inexpensive and speedy procedures.
The aim and objectives of the Act are required to be
given due effect.
18. In that view of the matter, the Assistant
Commissioner having dismissed the application filed
by the petitioner only on the ground that there is no
obligation under the Gift Deed for respondent No.1 to
take care of the petitioner, does not stand the test as
laid down by the Hon'ble Apex Court in Sudesh
Chhikara's case (supra) and as such, it is required
to be set aside.
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19. Accordingly, I pass the following:
ORDER
i. The Writ Petition is allowed.
ii. A Certiorari is issued, the order dated
25.05.2019 in File No.SUM/KUM/
HINARAKAA/03/2018-19/69 passed by
respondent No.2 at Annexure-E is hereby
quashed. Consequently, having come to a
conclusion that the petition of the mother
was maintainable and grounds have been
made out, the said petition filed under
Section 23 of the Act is allowed.
iii. The Gift Deed registered as document
No.10333/2013-14 dated 04.03.2014
registered in the office of Senior Sub-
Registrar, Raichur, is declared void.
Respondent No.1 son is directed to hand
over the property subject matter of the Gift
Deed to the mother within sixty days from
the date of receipt of copy of this order.
iv. Insofar as other immovable and movable
properties said to be in the custody of
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respondent No.1, liberty is reserved to the
petitioner to file such other and appropriate
proceedings for recovery of the same as
may be available in law.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
NB
List No.: 1 Sl No.: 54.1
Ct:RBM
