Karnataka High Court
Smt Munivenkatamma @ Venkatamma vs The State Of Karnataka on 27 June, 2024
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WA No. 1328 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT APPEAL NO. 1328 OF 2021 (GM-RES)
BETWEEN:
1. SMT. MUNIVENKATAMMA
@ VENKATAMMA
REPRESENTED BY LR'S
1(a). DASABHOVI
HUSBAND OF LATE MUNIVENKATAMMA @
VENKATAMMA
AGED ABOUT 75 YEARS
Digitally 1(b). JAYALAKSHMI
signed by K G
RENUKAMBA D/O DASABHOVI
AGED ABOUT 42 YEARS
Location:
High Court of
Karnataka 1(c). RATHNAMMA
D/O DASABHOVI
AGED ABOUT 38 YEARS
1(d). MANJUNATHA
S/O DASABHOVI
AGED ABOUT 35 YEARS
APPELLANT NO.1(a) TO (d) ARE RESIDING AT:
R/O DODDABADAGERE
HAROHALLI, KANAKAPURA TALUK
RAMNAGAR DISTRICT - 562 117
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WA No. 1328 of 2021
2. SMT. YELLAMMA
W/O RAMAIAH
AGED ABOUT 53 YEARS
R/AT: RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 117
3. SMT. SAKAMMA
W/O SRI. GOPAL
AGED ABOUT 40 YEARS
R/AT: RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 117
...APPELLANTS
(BY SRI. K R KRISHNAMURTHY., ADV FOR A2 & A3 AND
ALSO FOR LRS OF A1(A) TO (D))
AND:
1. THE STATE OF KARNATAKA
DEPARTMETN OF REVENUE
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU - 560 001
REP BY ITS PRINCIPAL SECRETARY
2. ASSISTANT COMMISSIONER
SENIOR CITIZEN MAINTENANCE
APPELLATE TRIBUNAL
RAMANAGARA SUB-DIVISION
RAMANAGARA - 562 159
3. SRI. KARIYAPPA
S/O. LATE. CHIKKA KARIYAPPA
REPRESENTED BY LR'S
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WA No. 1328 of 2021
3(a). VENKATAMMA @ DODDAMMA
AGED ABOUT 72 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(b). KAMALAMMA
W/O. NANJAPPA
AGED ABOUT 50 YEARS
R/O KADAVEKEREDODDI VILLAGE
MALAGALU POST
KASABA HOBLI
KANAKAPURA TALUK - 562 117
3(c). NAGAMMA
AGED ABOUT 48 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(d). SHARADAMMA
W/O NANJAPPA
AGED ABOUT 42 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(e). RANJITHA
W/O SURESH
D/O NANJAPPA
AGED ABOUT 25 YEARS
R/O KADAVEKEREDODDI VILLAGE
MALAGALU POST
KASABA HOBLI
KANAKAPURA TALUK - 562 117
3(f). KIRAN N
S/O NANJAPPA
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WA No. 1328 of 2021
AGED ABOUT 23 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(g). VENKATASWAMY
S/O KARIYAPPA
AGED ABOUT 39 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(g)(1). MANGAMMA @ MANJULA
W/O VENKATASWAMY
AGED ABOUT 40 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
3(g)(2). KANAKA
D/O VENKATASWAMY
AGED ABOUT 26 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562112
3(g)(3). KAVYA
D/O VENKATASWAMY
AGED ABOUT 24 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBL
KANAKAPURA TALUK - 562 112
3(g)(4). KAVITHA
D/O VENKATASWAMY
W/O DHANANJAYA
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WA No. 1328 of 2021
AGED ABOUT 24 YEARS
R/O RAMASAGARA VILLAGE
MEDAMARANAHALLI DHAKLE
HAROHALLI HOBLI
KANAKAPURA TALUK - 562 112
ALSO AT
SIDDANAPALAYA VILLAGE
KASABA HOBLI
ANEKAL TALUK - 586 206
4. LOKESH
S/O DASABHOVI
AGED ABOUT 38 YEARS
R/O DODDABADAGERE
HAROHALLI
KANAKPURA TALUK
RAMNAGAR DISTRICT
5. RAJU D
S/O DESABHOVI
AGED ABOUT 52 YEARS
R/O DODDABADAGERE
HAROHALLI
KANAKPURA TALUK
RAMNAGAR DISTRICT
...RESPONDENTS
(BY SRI. DEVARAJ C.H., GOVT. ADV FOR R1 & R2;
SRI. K.NARASIMHA MURTHY, ADV FOR R3(D),
R3(G)(1) & (3) AND R3(F);
V/O/D 9/2/2023 NOTICE ON R3(B) & (E) ARE
HELD SUFFICIENT;
V/O/D 17/8/2023 NOTICE ON R3(G)(4) IS HELD
HELD SUFFICIENT;
R3(A), R3(C), R3(D), R3(G)(2), R4 AND R5 ARE
SERVED AND UNREPRESENTED)
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WA No. 1328 of 2021
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
10.08.2021 PASSED IN WP NO.14496/2021 AND FURTHER BE
PLEASED TO ALLOW THE WRIT PETITION NO.14496/2021, AS
PRAYED FOR, BY QUASHING THE ORDER DATED 26.07.2021
PASSED BY THE 2ND RESPONDENT ASSISTANT
COMMISSIONER IN HIRIYA NAA.RA.KAA.NO./02/2021-22 AND
ETC.,
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
V KAMESWAR RAO J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the petitioners/
appellants challenging the order dated 10.08.2021 passed in
W.P.No.14496/2021 (GM-RES), whereby the learned Single
Judge has dismissed the petition by stating in paragraph
No.5 of the impugned order as under:
"5. Petitioner's case is that third respondent is
financially sound and Assistant Commissioner ought to
have called upon third respondent to produce his
details of assets and Bank particulars. The said
argument is wholly untenable because, the owner of
the property has alleged fraud and misrepresentation."
2. The submission of Mr. K.R. Krishnamurthy, learned
counsel appearing for the appellants (appellant no.1
substituted by legal representatives) is that the appellants
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are the daughters of respondent No.3 (who is substituted by
legal representatives in the appeal). Respondent No.3
executed a registered gift deed dated 23.08.2018 with
respect to land bearing Sy.No.89/5, measuring 32 guntas,
situated at Ramasagara Village, Medamaranahalli Dhakle,
Harohalli Hobli, Kanakapura Taluk. On 06.11.2020, he
preferred a petition before the Assistant Commissioner,
Senior Citizen Maintenance Appellate Tribunal (respondent
No.2) under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 ('the Act' for short) seeking
cancellation of the gift deed on the ground that the
gift deed is obtained by making misrepresentation that
the petitioners/appellants are not taking care of
him and hence, the gift deed is deemed to have
been obtained by fraud and undue influence. According
to him, respondent No.2 declared the gift deed dated
23.08.2018 as void by exercising powers under Section 23 of
the Act, which is totally erroneous. In as much as Section 23
(1) which has been invoked by respondent No.3, stipulates
the following two conditions to be satisfied:
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(i) gift deed must have been made subject to the
condition that the transferee shall provide the
basic amenities and basic physical needs to
respondent No.3-the transferor; and
(ii) the appellants refused or failed to provide such
amenities and physical needs to respondent
No.3-the transferor.
According to Mr. Murthy, no such condition/clause has been
stipulated in the gift deed dated 23.08.2018. So, according
to him, respondent No.2 could not have considered the
petition at all. In support of his submission, he has relied
upon the judgment of the Hon'ble Supreme Court in the case
of Sudesh Chhikara -Vs.- Ramti Devi and Another1,
more particularly paragraphs No.12 to 14.
3. On the other hand, learned counsel for respondent
No.3 would justify the order of respondent No.2/Tribunal by
stating the findings of the learned Single Judge and the
respondent no.2 are findings of fact to hold that the gift deed
was executed with an understanding that the
appellants/petitioners shall provide the basic needs to
2022 SCC Online SC 1684
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respondent No.3, which have not been provided. In fact,
they have cheated him by obtaining his signatures. That
apart, he states that when the Tribunal as well as the
learned Single Judge have held in favour of respondent No.3,
this Court in the appellate jurisdiction would not like to differ
from the view taken by the said authorities and dismiss the
appeal.
4. Having heard the learned counsel for the parties, the
only issue that arises for consideration is whether the
learned Single Judge is justified in rejecting the petition filed
by the petitioners/appellants and thereby upholding the
order of the Tribunal dated 26.07.2021?
5. The plea of Mr. Murthy is primarily that
respondent No.2/Tribunal could not have set aside the gift
deed when the two conditions stipulated under section 23(1)
of the Act have not been satisfied. This submission of
Mr. Murthy is not appealing for the reason that though the
gift deed did not stipulate that the same is being executed
on an understanding that the petitioners/appellants shall
maintain respondent No.3, but respondent No.3 in his
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complaint before respondent No.2 did state that the gift deed
has been executed based on oral assurances of the
appellants/petitioners. Paragraph No.7 of the English
translation of the same as filed by the petitioners/appellants
reads as under:
"7. The Appellant submit that the Respondents, to
the appellant given oral assurances and they refused to
fulfill the appellant fundamental facilities and the
Respondents are failure to fulfill their given assurance
to the Appellant and continued not given any protection
to the Appellant leading his life and the appellant
refused from censure and the appellant become
mentally and physically harassment made from the
Respondents."
6. The aforesaid paragraph do indicate that the
petitioners i.e., the appellants, despite oral assurance,
refused to give any protection to respondent No.3. We find
even respondent No.2/Tribunal has set aside the gift deed,
based on a finding that petitioners/appellants have not
maintained respondent No.3. Mr. Murthy's submission is,
the consideration that the appellants would maintain the
respondent No.3 should have been specifically mentioned in
the gift deed. In the absence of any such stipulation in the
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gift deed, even if the complaint filed by respondent No.3
states so and the Tribunal gives such a finding, the same
would not help the case of respondent No.3, is not appealing
more particularly in view of paragraph No.15 of the
judgment in the case of Sudesh Chhikara (supra). We
reproduce herewith paragraphs No.12 to 15 of the said
judgment 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.
13. 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
of the transferor and the Maintenance Tribunal gets
jurisdiction to declare the transfer as void.
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14. 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.
15. 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 not 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
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by respondent no.1 that the release deed was executed
subject to such a condition."
(emphasis supplied)
7. A reading of paragraph No.15 would make it clear
that it is not necessary that the transfer deed must state
that the appellants shall maintain respondent No.3. It is
enough if such a case is set up in the complaint filed before
the Tribunal/respondent No.2, which in fact has been setup
by respondent No.3 and there is a finding in that regard by
the Tribunal. So it follows the requirements of sub-section
(1) of Section 23 have been satisfied. This we say so,
because the Hon'ble Supreme Court in paragraph No.15
says, "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 xx xx" and also "Even in the impugned order dated
22nd May 2018 passed by the Maintenance Tribunal, no such
finding has been recorded".
8. During the course of his submissions, Mr. Murthy
would contend that the order passed by the
Tribunal/respondent No.2 was in violation of Principles of
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Natural Justice. This submission of Mr. Murthy is primarily
for the reason that the order passed by the Tribunal was
without issuing notice to appellants No.2 and 3 herein.
For this purpose, we had called for the record of the
Tribunal. It clearly emerges that all the petitioners/
appellants were issued notice which were received by them.
In fact, one of the appellants Mrs. Munivenkatamma had
appeared before the Tribunal and in token thereof, had put
her thumb impression during the hearing on 15.04.2021.
9. In view of our above discussion, we are of the view
that the appeal filed by the appellants/petitioners is without
any merit and the same is liable to be dismissed. It is
ordered accordingly. No costs.
Sd/-
JUDGE
Sd/-
JUDGE
PA
