Karnataka High Court
Sri. R. Shubakara vs The Chairman on 30 September, 2024
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NC: 2024:KHC:40602
WP No. 1132 of 2020
C/W WP No. 2780 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 1132 OF 2020 (GM-RES)
C/W
WRIT PETITION No. 2780 OF 2020 (GM-RES)
IN WP No. 1132/2020
BETWEEN:
1 . SRI M. VARA PRASAD REDDY,
AGED ABOUT 44 YEARS,
S/O LATE HANUMA REDDY,
RESIDING AT No.102,
GANGOTRI ENCLAVE,
22ND MAIN ROAD,
RAGAVENDRA LAYOUT,
PADMANABHANAGAR,
BENGALURU-560 070.
Digitally signed ...PETITIONER
by VALLI
MARIMUTHU (BY SRI NISHANTH A. V., ADVOCATE)
Location: High
Court of AND:
Karnataka
1. SMT. RAMAKKA,
W/O LATE RAMAIH,
RESIDING AT: ARAHALLI VILLAGE,
UTTARAHALLI HOBLI,
BENGALURU-560 061.
2. SRI R. SHUBAKAR,
AGED ABOUT 52 YEARS,
S/O LATE RAMAIAH,
RESIDING AT: ARAHALLI VILLAGE,
-2-
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WP No. 1132 of 2020
C/W WP No. 2780 of 2020
GURAPPA VATARA,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BENGALURU-560 061.
3. SRI NAGARAJU,
AGED ABOUT YEARS,
S/O LATE RAMAIAH,
RESIDING AT: ARAHALLI VILLAGE,
GURAPPA VATARA,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BENGALURU -560 061.
4. SRI PRAMOD,
AGED MAJOR,
S/O SRI MADESH,
RESIDING AT: U. KURUPARAHALLI,
NAGAMANGALA POST,
DENKANIKOTE TALUK,
KRISHNAGIRI DISTRICT,
TAMIL NADU STATE-635113.
5. SMT. PAVITRA,
AGED MAJOR,
W/O SRI SUNIL KUMAR,
D/O SRI MADESH AND LATE RATNAMMA,
RESIDING AT: U. KURUPARAHALLI,
NAGAMANGALA POST,
DENKANIKOTE TALUK,
KRISHNAGIRI DISTRICT,
TAMIL NADU STATE-635 113.
6. SMT. RENUKA,
AGED ABOUT 47 YEARS,
W/O RAJU,
RESIDING AT No.44/2,
N. NYATHAPPAL LAYOUT,
ARAKERE VILLAGE,
BANNERGHATTA ROAD,
BENGALURU-560 068.
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WP No. 1132 of 2020
C/W WP No. 2780 of 2020
7. SMT. PADMA,
AGED ABOUT 45 YEARS,
W/O SRI N. MANJUNATH,
RESIDING AT No.102,
5TH CROSS, GROUND FLOOR,
JAYANAGAR COMFORT APARTMENT,
LIC COLONY, JAYANAGAR 1ST BLOCK,
BENGALURU-560 011.
8. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB DIVISION,
BENGALURU-5600061.
...RESPONDENTS
(BY SMT. RAKSHITHA D.J., ADVOCATE FOR R2;
SRI S.H. RAGHAVENDRA, AGA FOR R8;
SMT. S.B. LAKSHMI, ADVOCATE FOR R4 TO R7;
SRI S. NAGARAJA, ADVOCATE FOR R1 & R7 (ABSENT);
R3 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 18.12.2019 PASSED IN CASE BY
THE R-8 VIDE ANNEXURE-A WITH RESPECT OT THE
COMPOSITE PROPERTY.
BETWEEN:
SRI. R. SHUBAKARA,
AGED ABOUT 51 YEARS,
S/O LATE RAMAIAH,
RESIDING ATHOUSE No.813,
POORNAPRAJNA LAYOUT,
32ND CROSS, AREHALLI,
SUBRAMANYAPURA POST,
BENGALURU-560061.
...PETITIONER
(BY SMT. RAKSHITHA D. J., ADVOCATE)
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AND:
1 . THE CHAIRMAN,
TRIBUNAL OF MAINTENANCE AND
WELFARE OF PARENTS AND
SENIOR CITIZENS AND
THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB-DIVISION
BENGALURU-560098.
2 . SMT. RAMAKKA,
AGED ABOUT 70 YEARS,
W/O LATE RAMAIAH,
C/O SRI VAJRAPPA,
AREHALLI VILLAGE,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BENGALURU-560061.
3 . SRI.R.NAGARAJU,
MAJOR IN AGE,
S/O LATE RAMAIAH,
RESIDING AT AREHALLI VILLAGE,
GUNDAPPANA VATARA,
SUBRAMANYAPURA POST,
UTTARAHALLI HOLBI,
BENGALURU-560061.
4 . SRI.PRAMOD,
MAJOR IN AGE,
S/O SRI. MADESH,
RESIDING AT U.KURUPARPALLI,
NAGAMANGALA POST,
DENKANIKOTE DISTRICT,
KRISHNAGIRI DISTRICT,
TAMILNADU-635113.
5 . SMT. PAVITHRA,
MAJOR IN AGE,
W/O SRI.SUNIL KUMAR,
D/O SRI.MADESH AND
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SMT LATE.RATHNAMMA,
RESIDING AT U.KURUPARPALLI,
DENKANIKOTE TALUK,
KRISHNAGIRI DISTRICT,
TAMILNADU-635113.
6 . SMT. R.RENUKA,
MAJOR IN AGE,
W/O RAJU,
AT No.44/2, N.NYATHAPPAL LAYOUT,
AREKERE VILLAGE,
BANNERGHATTA ROAD,
BENGALURU-560068.
7 . SMT. R.PADMA,
MAJOR IN AGE,
AT No.102, 5TH CROSS,
GROUND FLOOR,
JAYANAGAR COMFORT APARTMENT,
LIC COLONY, JAYANAGAR 1ST BLOCK,
BENGALURU-560011.
...RESPONDENTS
(BY SRI S.H. RAGHAVENDRA, AGA FOR R1;
SRI S. NAGARAJA, ADVOCATE FOR R2 & R7 (ABSENT);
SMT. S.B. LAKSHMI, ADVOCATE AND
SRI SHIVAKUMAR M., ADVOCATE FOR R4 TO R6;
R3 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 18.12.2019 PASSED BY THE R-1 -
ASSISTANT COMMISSIONER, THE CHAIRMAN, TRIBUNAL OF
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR
CITIZEN AND BENGALURU SOUTH SUB-DIVISON, BENGALURU
VIDE ANNEXURE-C TO THE WRIT PETITION.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. ORDER
Heard Sri Nishanth A.V., learned counsel for the
petitioner, Smt. Rakshitha D.J., learned counsel for
respondent No.2, Smt. S.B. Lakshmi, learned counsel for
respondents Nos.4 to 7 Sri S.H. Raghavendra and learned
Additional Government Advocate for respondent No.8 in
W.P.No.1132/2020;
Smt. Rakshitha D.J., learned counsel for the
petitioner, Sri S.H. Raghavendra, learned Additional
Government Advocate for respondent No.1, Smt. S.G.
Lakshmi and Sri M. Shivakumar, learned counsels for
respondent Nos.4 to 6 in W.P.No.2780/2020.
Sri S. Nagaraja, learned counsel appearing for
respondent Nos.1 and 7 in W.P. No.1132/2020 and
respondent Nos.2 & 7 in W.P.No.2780/2020 remained
absent.
Respondent No.3 in both the petitions is served and
unrepresented.
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2. The parties are referred according to their ranks in
W.P.No.1132/2020 for convenience.
3. W.P.No.1132/2020 and W.P.No.2780/2020 arise out
of common order dated 18.12.2019 in Case
No.MSC/SC/CR/17/2019-20 passed by the Assistant
Commissioner, Bengaluru South Sub-Division, Bengaluru.
4. Respondent No.1 is mother, respondent No.2 and 3
are sons and respondent Nos.4 to 7 are other family
members. The private respondents entered into a
partition dated 24.01.2014. Based on the partition,
respondent Nos.1 to 7 entered into a Joint Development
Agreement (JDA) with the petitioner on 24.01.2014.
Respondent No.1 affixed her signature as witness to the
JDA. The land in question is Survey No.20/2 situated in
Arahalli Village, Uttarahalli Hobli, Bengaluru South Taluk.
The parties have executed General Power of Attorney in
favour of the petitioner/builder dated 24.01.2014.
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5. The smaller piece and parcel of the land in
Sy.No.20/2 is amalgamated by the competent authority,
thus forming composite property.
6. The petitioner under the JDA constructed residential
apartment "Siri Life Style" in the composite property after
sanction by the competent authority. The petitioner has
sold various apartments in favour of prospective buyers
under registered sale deed in the year 2019.
7. Respondent No.1 filed petition under Section 23 of
the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 (for short 'Act'). The petitioner was not
a party before the Assistant Commissioner. The parties to
the partition deed and JDA were respondents in the
petition under Section 23 of the Act. The Assistant
Commissioner allowed the petition by order dated
18.12.2019. While ordering maintenance of Rs.5,000/-
per month by each of the children, the Assistant
Commissioner declared the partition deed in respect of
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Sy.No.20/2A of Arahalli Village to an extent of 15 guntas
as null and void.
8. Sri Nishanth A.V., learned counsel for the petitioner
would submit that the respondents have entered into
partition deed dated 24.01.2014. On the same day, all
the respondents entered JDA with the petitioner/builder.
Respondent No.1 is party to the partition deed.
Respondent No.1 has further affixed her signature as
witness to the JDA. Learned counsel submits that when
the petitioner refused to fulfill the illegal demands of the
respondents, a petition under Section 23 of the Act is filed
before the Assistant Commissioner by suppressing the JDA
and in collusion.
8.1 Learned counsel further submits that the petitioner
was a necessary party before the Assistant Commissioner.
The private respondents have intentionally not arrayed the
petitioner as a party to the proceedings before the
Assistant Commissioner. The Assistant Commissioner
without application of mind and without examining the
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records, by ignoring the JDA and further sale deeds
executed in relation to the flats has declared the partition
deed as null and void. The provisions of the Act are not
applicable when third-party interest is created.
8.2. Learned counsel further submits that the provisions
of the Act are not applicable for the transfer of property
under partition among the members of the family. There
is no condition in the partition deed to maintain
respondent No.1 by her children. Even if so, as third-
party interest is created, the Assistant Commissioner
committed an error in entertaining the petition under
Section 23 of the Act.
8.3 Learned counsel for the petitioner relies on the
judgment of this Court in the case of Nanjundappa S/o
K.M.Karibasappa and another vs. State of Karnataka
and others (AIR 2019 Kar. 76) and in Jayashankar
vs. The Assistant Commissioner and others
(W.A.No.339 of 2023).
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9. There is no representation on behalf of respondent
Nos.1 and 7.
10. Learned counsel for respondent No.2 submits that
when other members of the family have failed to provide
maintenance to respondent No.1, the order of the
Assistant Commissioner directing maintenance and
declaring the partition deed as null and void is justified.
10.1 Learned counsel for respondent No.2 relies on the
judgment of the Hon'ble Apex Court in the case of Sudesh
Chhikara Vs. Ramti Devi and another (2022 SCC
Online SC 1684) and the judgment of this Court in the
case of Smt.Lakshmamma and another Vs.
Sri.M.K.Thimmegowda and others
(W.P.No.11991/2021 c/w W.P.No.6142/2021).
11. Learned counsel for respondent Nos.4 to 7 would
support the impugned order.
12. Sri S.H. Raghavendra, learned Additional
Government Advocate appearing for respondent No.8-
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Assistant Commissioner submits that the welfare of senior
citizen is a paramount consideration. The children reside
separately after the partition. The children have failed to
maintain and take care of the well-being of the senior
citizens. The Assistant Commissioner is justified in
ordering maintenance and declaring the partition deed null
and void.
13. Respondent No.2 in W.P.No.1132/2020 and
petitioner in W.P.No.2780/2020 submit that the order
impugned passed by the Assistant Commissioner is
without notice to Respondent No.2/petitioner and in
violation of principles of natural justice.
14. Considered the rival contentions of learned counsels
for the parties and perused writ papers.
15. The respondents entered a partition under a
registered partition deed dated 24.01.2014. Respondent
No.1 was allotted Rs.2,00,000/- in lieu of her right in the
subject matter of the partition deed. The transfer of the
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scheduled properties is under partition deed. The
respondents' family members entered JDA with the
petitioner under the registered JDA dated 24.01.2014.
Respondent No.1 affixed her signature as a witness. The
petitioner has developed the property by constructing an
apartment. The constructed flats have been sold in favour
of third parties.
16. In the backdrop of the facts stated above, the point
that arises for consideration of this Court is,
" Whether Section 23 of the Act is applicable
when the transfer of property is under partition
followed by JDA and further sale deeds in
favour of third parties."
17. It is relevant to refer to the judgment of the Co-
ordinate Bench of this Court in the case of Nanjundappa
(supra), wherein this Court held that partition is a
redistribution or adjustment of pre-existing rights among
co-owners/coparceners resulting in a division of lands or
other properties jointly held by them into different lots or
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proportions and delivery thereof to the respective
allottees. It is held that the provisions of Section 23(1) of
the Act are not attracted to partition deeds.
The Division Bench of this Court in the case of
Jayashankar (supra) held that unless the deed of
transfer imposes a condition that the transferee shall
provide basic amenities and physical needs to the senior
citizen-transferor to be abided by and in the event such
condition is not abided by, then Section 23 (1) of the Act
is attracted.
The Hon'ble Apex Court in the case of Sudesh
Chhikara (supra) held that the twin conditions that, 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 the transferee
refuses or fails to provide such amenities and physical
needs to the transferor should exhaust and satisfied to
attract Section 23 of the Act. The condition to provide
basic amenities and basic physical needs to the senior
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citizen is the sine qua non for applicability of Section 23(1)
of the Act.
The Co-ordinate bench of this Court in the case of
Lakshmamma (supra) considered the applicability of
Section 23 of the Act regarding the partition deed. This
Court held that partition deed cannot be questioned in
proceedings under Section 23 of the Act, which are
absent.
In the case of Dhariyappagouda Patil vs. State of
Karnataka (WP No.101705/2024), this Court held that
Section 23 of the Act does not apply when a third-party
interest is created in the property in question.
18. If the law laid down in the above-referred judgment
is applied to the case at hand, the order of the Assistant
Commissioner is not sustainable.
19. Respondent No.1 has received her share in the
property through the value of money. Respondent No.1,
accepting Rs.2,00,000/- in lieu of her share in the
immovable property, has relinquished her right in favour
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of other family members. Respondent No.1 has
questioned the partition deed before the Assistant
Commissioner. The Assistant Commissioner has annulled
the partition deed dated 24.01.2014. Given the judgment
referred to supra, Section 23 of the Act does not apply to
partition deeds.
20. Respondent No.1 has affixed her signature to JDA as
a witness. Respondent No.1 having consciously allowed
the creation of third party interest in the property in
question, filing an application under Section 23 of the Act
can only be held to be an abuse of process of law. As held
by the Hon'ble Apex Court and the Division Bench of this
Court supra, there is no condition in any of the transfer
deeds to provide basic amenities and basic physical needs
to respondent No.1 by any of the parties. The twin
conditions are mandatory to attract Section 23 of the Act,
which are absent.
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21. One more important aspect relevant to be noticed is
that under JDA, the petitioner has developed flats and sold
them in favour of the prospective buyers through different
registered sale deeds. The third-party interest is created
not only on the land but also on the flats constructed
thereon.
22. The Assistant Commissioner by declaring the
partition deed as null and void under Section 23 of the Act,
not only mis-interpreted himself on applicability of the Act,
but also the action is overreached.
23. If Section 23 of the Act is to be made applicable to
the present facts scenario, it would lead to an absurd
irreversible situation wherein the Assistant Commissioner
would declare the rights created in favour of third parties
as null and void. Such action is unintended. It is a settled
legal position that the validity of any registered document
creating right in favour of third parties shall be adjudicated
before the Civil Court. If the property wherein third-party
interest is created is allowed to be adjudicated under
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Section 23 of the Act, it would confer unintended power
and jurisdiction and also create another forum vesting the
adjudication of title, which is exclusively within the domain
of the Civil Court.
24. The present case is a classic example of abuse of
process as provided under the Act, which should result in
exemplary costs. The Court considering the age of senior
citizen, levy of cost is viewed leniently.
25. In view of the above-referred decision and the legal
position, the order of the Assistant Commissioner is not
sustainable.
26. In backdrop of the above discussion and the
reasoning, the following,
Order
i) W.P.No.1132/2020 and W.P.No.2780/2020 are
allowed.
ii) The impugned order dated 18.12.2019 in Case
No.MSC/SC/CR/17/2019-20 passed by the
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Assistant Commissioner, Bengaluru South Sub-
Division, Bengaluru, is hereby quashed to the
extent declaring the partition deed dated
24.01.2014 as null and void.
iii) No order as to cost.
Sd/-
(K. V. ARAVIND)
JUDGE
MV
