Karnataka High Court
Smt Venkatalakshmmma vs The State Of Karnataka on 3 September, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 18596 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 18596 OF 2021 (GM-RES)
BETWEEN:
SMT VENKATALAKSHMMMA
W/O LATE H CHIKKANNA
AGED ABOUT 79 YEARS,
PRESENTLY RESIDING AT NO.152
KALASHRINAGAR
T DASARAHALLI NEAR OLD PREETHI SCHOOL
BENGALURU NORTH
BENGALURU-560 057.
...PETITIONER
(BY SRI. FAYAZ SAB B G.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF REVENUE
M S BUILDING
BANGALORE-560 001.
2. THE DEPUTY COMMISSIONER AND
Digitally signed APPELLATE AUTHORITY
by SUMA B N
Location: High
BENGALURU URBAN DISTRICT
Court of KANDAYA BHAVANA
Karnataka BENGALURU-560 009.
3. THE ASSISTANT COMMISSIONER AND THE CHAIRMAN OF
EXECUTIVE TRIBUNAL
BENGALURU NORTH SUB DIVISION,
KANDAYA BHAVANA
BENGALURU-560 009.
4. SRI LAKSHMINARAYANA C.,
S/O LATE H CHIKKANNA
AGED ABOUT 45 YEARS,
RESIDING AT NO.694/4
KEMPAMMANA NILAYA
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WP No. 18596 of 2021
CHOKKASANDRA T DASARAHALLI
BENGALURU-560 057.
...RESPONDENTS
(BY SRI.RAGHAVENDRA S.H., AGA FOR R1 TO R3;
SRI. PAWADEGOWDA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH AN IMPUGNED ORDER
PASSED BY THE R-2 UNDER SECTION 16 OF THE MAINTENANCE AND
WELFARE OF PARTENTS AND SENIOR CITIZENS ACT, 2007 IN
APPEAL NO.M.A.G(4)CR4/2021-22 DATED 01.10.2021 WHEREIN THE
ABOVE APPEAL IS PARTLY ALLOWED AS PER ANNEXURE-J 5.12.2022
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 M.G.S. KAMAL
ORAL ORDER
Petitioner-mother is before this Court aggrieved by the
order dated 05.12.2022 produced at Annexure-J passed by the
respondent No.2-Deputy Commissioner by which respondent
No.2 while allowing the appeal filed by the respondent No.4-
Son had set-aside the order dated 19.04.2021 passed by the
respondent No.3-Assistant Commissioner. By the said order
dated 19.04.2021, respondent No.3-Assistant Commissioner
had declared the deed of gift dated 17.02.2014 executed by the
petitioner herein in favour of the respondent No.4 as null and
void. Accordingly had set-aside the same and had further
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directed the respondent No.4 herein to pay maintenance of
Rs.5,000/- per month to the petitioner herein.
2. The brief facts of the case are that;
2.1. Petitioner-Smt.Venkatalakshmmma had married to
one Sri.H.Chikkanna. They were blessed with six children
namely (1). Sri.Kemparaju.C, (2).Sri.Hanumanthu.C,
(3).Sri.Lakshminarayana.C-(respondent No.4 herein),
(4).Smt.Kempamma.C, (5). Smt.Rukmini, and
(6).Smt.Manjula. That the petitioner had purchased an
immovable property bearing No.06, Sy.No.9/1B and 9/2B,
situated at Chokasandra Village, Dasarahalli, Bengaluru South
Taluk, Bengaluru measuring 1,500 Sq.fts in terms of deed of
sale dated 25.11.2004. That respondent No.4 had promised
and assured the petitioner of providing her maintenance and
taking care of her. Acting upon the promises and assurances
made by the respondent No.4, petitioner had executed a deed
of gift dated 17.02.2014 as per Annexure-C.
2.2. That the husband of the petitioner passed away on
27.03.2014. Soon thereafter, the respondent No.4 started to
show his true colors at the instances of his wife and children.
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He apart from stealing her gold ornaments and other valuable
kept at home, had availed the loan encumbering the subject
property. The petitioner had approached jurisdictional Police on
18.11.2019, seeking their intervention and suitable advise to
the respondent No.4. However, jurisdiction Police issued an
endorsement registering the case as NCR.No.1063/2019 as per
Annexure-E. The respondent No.4 completely neglected and
refused to pay maintenance to the petitioner, though he had
undertaken to do so in the deed of gift dated 17.02.2014.
2.3. Being aggrieved by the same, petitioner approached
the respondent No.3-Assistant Commissioner by filing the
petition under Section 23 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 (hereinafter referred to
'the Act, 2007') contending that the respondent No.4 had
obtained deed of gift on false promise and assurance of taking
care of the petitioner and had induced her to execute the deed
of gift on the said promises. That she was suffering from the
severe illness, despite the same respondent No.4 had thrown
her out of the residential house.
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3. The respondent No.4 had filed statement of objections
admitting the relationship with the petitioner, yet contended
that he is running a business of Screen Printing for over 20
years. He had also contended that though deed of gift was
executed by the petitioner in his favour on 17.02.2014, on the
very same day petitioner had also executed another agreement
in favour of the respondent No.4 admitting that the said
property was purchased by the respondent out of his own
earning in her name on 25.11.2004. Thus though the deed of
sale was registered in her name by virtue of said agreement,
she had admitted the property originally belonging to the
respondent No.4. He also had contended that there was
memorandum of understanding that was entered into on
04.09.2004, amongst the family members. Even in the said
memorandum of understanding it was admitted that the said
property belonged to the respondent No.4.
3.1. It is further contended that, the respondent No.4
had barrowed the loan upon this property and had constructed
a house on another property. It is also contended that the
petition was filed at the instance of his elder brother and not by
the petitioner by her own. That though she has three sons, she
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has chosen to file the petition only against the respondent No.4
and not against any other sons. That the dispute would not be
adjudicated by the respondent No.3-Assistant Commissioner
and same ought to have been resolved before the Court of
competent jurisdiction. Hence, sought for dismissal of the
petition.
4. The respondent-Assistant Commissioner on
consideration of the merits of the case allowed the petition by
Order dated 19.04.2021, declaring that the deed of gift dated
17.02.2014 executed by the petitioner in favour of the
respondent No.4 as null and void. Consequently, ordered for
cancellation of the same. He further directed the respondent
No.4 to pay monthly maintenance of Rs.5,000/- per month to
the petitioner till her death.
5. Aggrieved by the same, respondent No.4-herein
preferred an appeal before the respondent No.2-Deputy
Commissioner. The respondent No.2-Deputy Commissioner by
impugned order while allowing the appeal had set-aside the
order passed by the respondent No.3-Assistant Commissioner.
Aggrieved by the same, petitioner is before this Court.
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6. Learned counsel for the petitioner reiterating the
grounds urged in the memorandum of petition and referring to
the unnumbered para No.2 at page No.5 of the Document
namely Deed of Gift dated 17.02.2014 submitted that said
paragraph in unambiguous terms record the promises and
assurances made by the respondent No.4 of taking care of the
petitioner and petitioner executing the deed of gift acting upon
the said deed of gift. Learned counsel for the petitioner refers
to Section 23 of the Act, 2007 and submit that the facts of the
matter squarely fall within the portray of Section 23 of the Act,
2007. He submits that the order passed by the respondent
No.3-Assistant Commissioner was valid, legal and the
respondent No.2-Deputy Commissioner ought not to have
interfered with the same. He submits that the reasons
assigned by the respondent No.2-Deputy Commissioner while
setting aside the order passed by the respondent No.3-
Assistant Commissioner is unjustified, illegal and contrary to
the provisions of the Act. Hence, seeks for allowing of the
petition.
7. Per contra, learned counsel for the respondent No.4
justifying the order passed by the respondent No.2-Deputy
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Commissioner submits that the Deputy Commissioner has
taken into consideration of the fact that the property in
question was originally purchased by the respondent No.4,
though the deed of sale dated 25.11.2004 was nominally
executed in favour of the petitioner. He submits that there is
no explicit/clear clause in the deed of gift falling within the
provisions of Section 23 of the Act, 2007. He submits that very
fact that the petitioner had chosen to initiate the proceedings
under the Act, 2007 only against the respondent No.4 leaving
out the other two sons would indicate that the proceedings
were malafide. He submits that the respondent No.4 is always
ready and willing to take care of the petitioner-mother. He has
invested amounts on the property which was given to him
based on the deed of gift dated 17.02.2014 and the petitioner
is of 88 years, if the order passed by the respondent No.2-
Deputy Commissioner is not sustained, same would meet the
ulterior motive and demands of the others sons of the
petitioner-mother. He relies upon the following judgments in
supports of his submissions and hence seeks for dismissal of
the petition:
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1.Smt.M.Sunitha vs Smt.M.Shashikala
Mugadura in Writ Petition No. 147056/2020
decided on 20/07/2021.
2. Sudesh Chhikara vs Ramti Devi in Civil
Appeal No.174/2021 decided on 06.12.2022
3. Apparanda Shanthi Bopanna vs A.B
Ganapathy in Writ Petition No.9943/2022
decided on 26/12/2023.
8. Heard and perused the records.
9. Unnumbered para No.2 at page No.5 of the Document
namely Deed of Gift dated 17.02.2014 reads as under:
''ಆ ಾ , ಈಗ ನನ ೆ ಸು ಾರು 64 ವಷ ವಯ ಾ ದು,
ೈ ಾನುಗ ಹ ಂದ ೈ ಕ ಾ ಾಗೂ ಾನ!ಕ ಾ
ಸದೃಢ$ಾ ೇ&ೆ. ನನ' (ಾನ, ಬು * ಮತು- ಪಂ/ೇಂ ಯಗಳ1
ಸು!23ಯ45ದು, 6ೋಕದ ಆಗು- ೋಗುಗಳ ಪ7(ಾನವ8ಳ9-$ಾ ದು,
ಾ ಾ:ಕ ಒ<ತು =ೆಡುಕುಗಳ ಅ7@ದು, ಾನ!ಕ ಾ
ಸಮAತ-$ಾ ರುವ ಸಮಯದ45 ನನ' 3&ೇ ಮಗ&ಾದ
B ೕ.ಲDEೕ&ಾFಾಯಣ.! ನನ' ಕಷH-ಸುಖಗಳ45 Jಾ Kಾ ದು, ನನ'
LೕಗMೇಮವನು' /ೆ&ಾ' &ೋN=ೊಳ193- ಾ&ೆ ಮತು- ಮುಂ ೆಯೂ ಸಹ
ನನ' :ೕ@ತ =ಾಲದ45 ಅ ೇ 7ೕ3 &ೋN=ೊಳ19Oಾ-&ೆಂಬ
ಸಂಪPಣ ಾದ ಭರವ ೆRಂದ ಈ ಾನ ಪತ ವನು'
ಬFೆದು=ೊಡು3- ೇ&ೆ.''
10. Section 23 of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007 reads as under:
''23. Transfer of property to be void in certain
circumstances. --
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(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.''
11. Thus from the contents of the deed of gift extracted
hereinabove it is clear that the petitioner had executed the
deed of gift believing that the respondent No.4 who was taking
care of her would continue to take care of her in future as well.
The petition filed before the respondent No.3-Assistant
Commissioner has specifically alleged that:
'' The Petitioner further submits that, Mr. H. Chikkanna,
i.e., husband of the Applicant and father of the
Respondent herein was passed away on 27.03.2014. The
Applicant is suffering from severe ailment and needs to
incur huge medical expenses, but the Respondent
thrown out the Petitioner from the said premises and
made to stay away. The Respondent not showing love
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and affection towards the Applicant herein and showing
scant respect and not bothered to take care of the
Applicant. By taking undue advantage of the documents
obtained by him and trying to sell to some third parties
behind back of this Applicant. The Respondent hatched
plan and obtained the said Gift Deed document in his
name by playing fraud, breach of trust and under
influence and coercion. Hence, prays for allowing the
petition. ''
12. The hon'ble Apex Court in the case of Sudesh
Chhikara vs Ramti Devi (Supra) at para No.13 held as under:
''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.''
13. Respondent No.2-Deputy Commissioner on the other
hand found that the sale deed dated 25.11.2004 was nominally
executed in favour of petitioner out of the funds of the
respondent No.4. That petitioner though has executed the
deed of gift in favour of other sons, she has not filed any case
against them. That the present case is filed by the petitioner at
the instigation of other sons. However, there is no discussion
or reasoning in the impugned order of respondent No.2-Deputy
Commissioner regarding the case falling within the Section 23
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of the Act, 2007. The deed of gift is a registered document, no
oral evidence can be taken to exclude the contents of a
registered document.
14. It was not open for the Deputy Commissioner to have
gone into the question, as to who purchased the property when
there was existence of a registered deed of sale dated
25.11.2004. It is neither in his power nor his jurisdiction to
adjudicate that aspect of the matter, more particularly when
requirement of Section 23 of the Act, 2007 has been complied
with. Merely because petitioner herein had executed the deed
of gift in favour of other sons could not be a reason for the
Deputy Commissioner to interfere with the order passed by the
respondent No.3-Assistant Commissioner when the petitioner
had made out a case of violation of Section 23 of the Act, 2007.
No reasons as to why the respondent No.2-Deputy
Commissioner has thought it fit to confirm the Order of
respondent No.3-Assistant Commissioner only to the extent of
directions of respondent No.4 to pay Rs.5,000/- towards
maintenance of the petitioner.
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15. Thus, the order passed by the respondent No.2-
Deputy Commissioner is unsustainable and same is contrary to
the facts and law referred to herein above.
16. Accordingly, following:
ORDER
(a). Petition is allowed.
(b). Order dated 05.12.2022 produced at
Annexure-J passed by the respondent
No.2-Deputy Commissioner is set aside.
(c). Order dated 19.04.2021 passed by the
respondent No.3-Assistant Commissioner is
hereby confirmed.
SD/-
(M.G.S. KAMAL)
JUDGE
RL
