Karnataka High Court

Bhadramma vs The Deputy Commissioner And on 10 September, 2024

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                                                        NC: 2024:KHC:37080
                                                       WP No. 1792 of 2022




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 10TH DAY OF SEPTEMBER 2024

                                          BEFORE

                          THE HON'BLE MR. JUSTICE K. V. ARAVIND

                          WRIT PETITION No.1792/2022(GM-RES)

                   BETWEEN:

                   SMT. BHADRAMMA,
                   W/O LATE KUMAR,
                   AGED ABOUT 68 YEARS,
                   RETD. SHERASTEDAR,
                   JUDICIAL DEPARTMENT,
                   7TH CROSS, LAKSHMIKANDAIAH NIVAS,
                   No.532, S.I.T EXTENSION,
                   TUMAKURU-572 102.
                                                             ...PETITIONER

                   (BY SRI PRABHULINGA MURTHY B. R., ADVOCATE)

                   AND:
Digitally signed
by VALLI           1 . THE DEPUTY COMMISSIONER AND
MARIMUTHU
                       APPELLATE AUTHORITY,
Location: High
Court of               TUMAKURU DISTRICT,
Karnataka              TUMAKURU-572 101.

                   2 . THE ASSISTANT COMMISSIONER,
                       APPELLATE AUTHORITY,
                       TUMAKURU TALUK AND
                       DISTRICT-572 101.

                   3 . SMT.DEEPA,
                       W/O H.T. ANILKUMAR,
                       MARUTHI COMPLEX,
                       MARUTHI VIDEO MIXING CENTRE,
                       KUNIGAL MAIN ROAD,
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                                           NC: 2024:KHC:37080
                                          WP No. 1792 of 2022




     SADASHIVANAGAR,
     TUMAKURU-572 101.

4 . SMT.GURUSHANTAMMA,
    W/O S. RENUKARADHYA,
    MAJOR,
    R/AT "CHIGARU NILAYA",
    PRAGATHI EXTENSION,
    OPP. ASHWINI HOSPITAL,
    RING ROAD, MARLUR POST,
    TUMAKURU-572 101.

5 . R. ABILASH,
    S/O RENUKARADHYA,
    MAJOR,
    R/AT No.441, CHIGARU NILAYA,
    PRAGATHI EXTENSION,
    MARIUR, TUMAKURU-572 101.
                                              ...RESPONDENTS

(BY SRI S.H. RAGHAVENDRA, AGA FOR R1 & R2; SRI KRISHNAMOORTHY D., ADVOCATE FOR R3 TO R5)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER PASSED BY THE R-1 ON THE FILE OF THE M.A.G (1)01/2021 (ANNEXURE-F) ORDER DATED 27.10.2021 CONFIRM THE ORDER PASSED BY THE R-2 IN DISPUTE No.32/2018-19 DATED 28.07.2020 VIDE ANNEXURE- E.

THIS WRIT PETITION 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. Prabhulinga Murthy B.R., learned counsel

for the petitioner, Sri. S.H. Raghavendra learned

Additional Government Advocate for respondent Nos.1 and

2 and Sri. Krishnamoorthy, learned counsel for respondent

Nos.3 to 5.

2. This petition seeking to quash the order dated

27.10.2021 passed by respondent No.1 and order dated

28.07.2020 in dispute No.32/18-19 passed by respondent

No.2.

3. Brief facts,

The petitioner retired as a Sheristedar. Respondent

No.3 is petitioner's daughter and respondent Nos.4 and 5

are the purchasers of property in question. As pleaded,

the petitioner purchased site bearing No.20, situated at

Maraluru Janaatha Colony, Ward No.29, Maraluru, Tumkur

under sale deed dated 14.05.2003. The petitioner has

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constructed a house on the said site in the year 2007. It

is pleaded that respondent No.3 daughter insisted the

petitioner to transfer the property in question by gift deed

to secure loan from Bank, with an assurance that the

property would be retransferred to the petitioner later.

The petitioner relying on the assurance of her daughter

respondent No.3 executed gift deed on 06.08.2007.

4. The petitioner preferred an application before

respondent No.2 - Assistant Commissioner in the year

2018 under Section 23 of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007 (for short '2007

Act').

5. Respondent No.3 sold the property in question

in favour of respondent Nos.4 and 5 under registered sale

deed dated 22.06.2018.

6. The Assistant Commissioner by order dated

28.07.2020 declared transfer of property under sale deed

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dated 22.06.2018 in favour of respondent Nos.4 and 5 as

null and void.

7. Respondent No.4 preferred appeal before the

appellate authority i.e., respondent No.1 - Deputy

Commissioner. Respondent No.1 set aside the order dated

28.07.2020 passed by respondent No.2 by holding that the

provisions of Section 23 of the 2007 Act is not applicable.

8. Sri. Prabhulinga Murthy B.R., learned counsel

for the petitioner submits that the gift deed was executed

in favour of respondent No.3 - daughter on the assurance

that the petitioner would be maintained and taken care. It

is submitted that after the execution of the gift deed,

respondent No.3 has sold the property in favour of

respondent Nos.4 and 5. After the sale, respondent No.3

ignored to maintain the petitioner. The petitioner is

entitled to be maintained by respondent No.3. It is

submitted that the petition under Section 23 of the 2007

Act is maintainable seeking cancellation of the gift deed

dated 06.08.2007. Further submits that the Assistant

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Commissioner justified in canceling the sale deed dated

22.06.2018 executed by respondent No.3 in favour of

respondent Nos.4 and 5 on failure to maintain the

petitioner. It is further submitted that without taking

above aspects into consideration, respondent No.1

committed an error in setting aside the order passed by

Assistant Commissioner dated 27.10.2021.

9. Sri.Krishnamoorthy D., learned counsel

appearing for the respondent Nos.3 to 5 would submit that

the gift deed dated 06.08.2007 has no condition to

maintain and provide basic amenities to the petitioner.

The petitioner retired as Sheristedar, Judicial Department

and is drawing pension. It is further submitted that the

petitioner is not depending on respondent No.3 for her

maintenance. It is submitted that in the absence of the

condition to provide basic necessities and basic physical

needs in the gift deed, petition under Section 23 of the

2007 Act is not maintainable. It is further submitted that

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there are no pleadings to fulfill the conditions to attract

Section 23 of the 2007 Act.

9.1. Learned counsel further submits that

respondent Nos.4 and 5 are bonafide purchasers for

consideration. Respondent No.2 while dealing with the gift

deed dated 06.08.2007 without any competence has

declared the sale deed dated 22.06.2018 as null and void.

10. Sri. S. H. Raghavendra, learned Additional

Government appears on behalf of respondent Nos.1 and 2.

11. Considered the submissions of learned counsel

for the parties and perused the writ petition papers.

12. The petitioner has pleaded that she is a retired

Sheristedar and drawing pension. The petitioner has

executed gift deed in favour of respondent No.3 on

06.08.2007. Respondent No.3 has executed registered

sale deed dated 22.06.2018 in favour of respondent Nos.4

and 5. The petitioner has filed an application under

Section 23 of the 2007 Act in the year 2018 i.e., after

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respondent No.3 executing the registered sale deed in

favour of respondent Nos.4 and 5. As on date, when the

application under Section 23 of the 2007 Act was filed,

third party interest was already created in the property in

question.

13. Respondent No.2 while adjudicating the petition

under Section 23 of the 2007 Act without examining the

compliance of the conditions to attract the provisions of

Section 23 of the 2007 Act has proceeded to declare the

sale deed dated 22.06.2018 as null and void.

14. The non application of mind by respondent No.2

is glaring on the face of the order. When Section 23 of the

2007 Act is invoked challenging the gift deed dated

06.08.2007, respondent No.2 - Assistant Commissioner

without application of mind has proceeded to declare the

Sale deed dated 22.06.2018 as null and void. Respondent

No.2 has failed to appreciate that as long as the gift deed

dated 06.08.2007 in favour of respondent No.3 remains,

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the property in question would not revert back to the

petitioner.

15. One more aspect to be noticed is that perusal of

the order passed by respondent No.2 would indicate that

no finding is recorded regarding fulfillment of relevant

conditions to invoke Section 23 of the 2007 Act.

16. The Deputy Commissioner having taken note of

the above aspects into consideration and also the fact that

the third party interest is created as well as the petitioner

is drawing a pension and there is no difficulty for her

maintenance, has rightly set aside the order passed by

respondent No.2 dated 28.07.2020.

17. It is relevant to note the legal position as

declared by the Apex Court and the co-ordinate bench of

this Court. The Hon'ble Supreme Court in the case of

Sudesh Chhikara Vs. Ramti Devi and Another reported

in 2022 SCC Online SC 1684 has held as,

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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.

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.

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.

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18. If the facts in the present case is tested

applying the principle of law held by the Apex Court

(Supra), the careful perusal of gift deed would not indicate

any condition to provide amenities to the petitioner. Even

the pleadings before the Assistant Commissioner would

not indicate such an understanding while executing the gift

deed.

19. Similarly there are no pleadings to that extent

in the present petition also. Further, it is held by the Apex

Court in the judgment (Supra) that "effecting transfer

subject to a condition of providing the basic amenities and

basic physical needs to the transferor-Senior Citizen is sine

qua non-applicability of sub-section (1) of Section 23".

20. The co-ordinate bench of this Court in W.P.

No.101705/2024 dated 02.07.2024 while examining

Section 23 of the 2007 Act when third party interest is

created has held as under,

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"8. ........ The petitioner acquired the property through a registered sale deed for valuable consideration. There is no indication that the petitioner had notice of any existing right to maintenance or any obligation to provide for Respondent No. 3. Since Respondent No. 3 did not transfer the property to the petitioner, and the transfer was part of a legal inheritance process followed by a sale for valuable consideration, Section 23 cannot be invoked. The petitioner, as a bona fide purchaser, is not liable under Section 23 as he did not receive the property gratuitously or with notice of any obligation towards Respondent No. 3. .......

11. The Assistant Commissioner's overreach in this matter not only misinterprets the Act's provisions but also disrupts the legal protection afforded to bonafide purchasers who has acquired property for valuable consideration. By nullifying a registered sale deed without proper jurisdiction, the Assistant Commissioner undermined the legal certainty and stability of property transactions, leading to unnecessary litigation and financial hardship for the petitioner."

21. In view of the above, by execution of registered

sale deed dated 22.06.2018 in favour of respondent Nos.4

and 5 for valuable consideration, third party interest has

been created and Section 23 of 2007 Act is not

maintainable. There are no pleadings alleging any

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illegality, fraud or such other aspects in execution of the

sale deed dated 22.06.2018.

22. The petitioner preferred application under

Section 23 of the 2007 Act challenging gift deed dated

06.08.2007. The Assistant Commissioner without deciding