"11. The questions that arise for consideration in the
present matter are:
13.7. Hence, I pass the following:
NC: 2025:KHC-D:2659
ORDER
i. W.P. No.6142/2021 is dismissed. W.P.
No.11991/2021 is allowed. The order of the
Asst. Commissioner dated 27.06.2019 in
No.So.Hi.Na.Ra(M.A.G) 25/2019-20
Annexure-H is quashed, as also the order of
the Deputy Commissioner in
NO.MAG/259/2019-20 at Annexure-L are
quashed.
ii. Respondent No.4-Tahsildar is directed to
restore the name of Srinivas, S/o
M.K.Thimmegowada in the mutation register
in respect of MR No.3/1992-93.
iii. Liberty is however reserved to
M.K.Thimmegowda to challenge the partition
by filing appropriate suit.
iv. Lakshmamma and Srinivas are restrained in
any manner transferring, dealing with the
property covered under Sy.No.102/5 earlier
covered under Sy.No.102, measuring 2 acres
9 guntas bearing reference to MR No.3/1992-
93 for a period of 45 days from today.
v. In the event if the petitioner not filing a suit
within the said period and or obtaining an
injunction from the trial Court, this order of
injunction would automatically lapse.
Needless to state once a suit is filed, it is for
the trial Court to pass injunction or not. The
trial Court shall deal with the said matter
without being influenced by the observations
made hereinabove."
The issue whether mutation entries could have been
gone into by the Assistant Commissioner invoking under
the 2007 Act therefore is held to be illegal. The action of
the Assistant Commissioner in the case at hand is to tweak
NC: 2025:KHC-D:2659
the mutation entries by making an entry of the 1st
respondent's name. Therefore, the said direction fall foul
of what the Coordinate Benches held in the afore-quoted
order. Thus, the order of the Assistant Commissioner
becomes illegal on the face of it.
The second issue is whether the petitioner could have
preferred an appeal before the Deputy Commissioner
claiming to be aggrieved by the aforesaid order of the
Assistant Commissioner. The issue again need not detain
this Court for long or delve deep into the matter.
4. The Division Bench in terms of its order dated
20.12.2024 has held that no other person other than the
senior citizen who had knocked at the doors of the
Assistant Commissioner under the 2007 Act, has a right to
prefer an appeal. Therefore, the very right of the
petitioner to prefer an appeal gets obliterated and the
appeal so preferred becomes nonest in the eyes of law.
5. The situation now is the mutation entries
tweaked pursuant to the order of the Assistant
NC: 2025:KHC-D:2659
Commissioner and the order of the Deputy Commissioner
to keep the appeal in abeyance and direct the Assistant
Commissioner to consider maintenance is rendered illegal
by the observations of the Division Bench. The Division
Bench in W.A.No.254/2024 disposed on 20.12.2024
has held as follows:
"12. Having heard learned advocates for the parties and on
consideration of the submissions, the following two points
arise for consideration of the Court.
(i) Whether respondent No.2 has right of appeal
under Section 16 of the Act?
(ii) Whether the order of learned Single Judge in the
facts is justifiable?.
ANALYSIS
Re. Point No.(i)
13. For convenience, relevant provisions are outlined
below. Sections 23 and 16 of the Act of 2007 read as,
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
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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-section (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.
16. Appeals.--(1) Any senior citizen or a parent, as
the case may be, aggrieved by an order of a Tribunal
may, within sixty days from the date of the order,
prefer an appeal to the Appellate Tribunal:
Provided that on appeal, the children or relative who
is required to pay any amount in terms of such
maintenance order shall continue to pay to such
parent the amount so ordered, in the manner directed
by the Appellate Tribunal:
Provided further that the Appellate Tribunal may,
entertain the appeals after the expiry of the said
period of sixty days, if it is satisfied that the appellant
was prevented by sufficient cause from preferring the
appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal
shall, cause a notice to be served upon the
respondent.
(3) The Appellate Tribunal may call for the record of
proceedings from the Tribunal against whose order
the appeal is preferred.
(4) The Appellate Tribunal may, after examining the
appeal and the records called for either allow or reject
the appeal.
(5) The Appellate Tribunal shall, adjudicate and decide
upon the appeal filed against the order of the Tribunal
and the order of the Appellate Tribunal shall be final:
Provided that no appeal shall be rejected unless an
opportunity has been given to both the parties of
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being heard in person or through a duly authorised
representative.
(6) The Appellate Tribunal shall make an endeavour to
pronounce its order in writing within one month of the
receipt of an appeal.
(7) A copy of every order made under sub-section (5)
shall be sent to both the parties free of cost.
14. Section 23 stipulates that if a senior citizen transfers
property, whether as a gift or otherwise, with the condition
that the transferee will provide basic amenities and physical
needs and the transferee subsequently fails or refuses to
fulfill these obligations, the senior citizen may request that
the transfer be declared void.
15. Section 16 provides a senior citizen or parent the right
to appeal against an order passed under Section 23.
However, in this case, the Deputy Commissioner
entertained the appeal at the request of the transferee. The
appellant has argued that such an appeal is not
maintainable and that any order passed in such an appeal
would not withstand legal scrutiny.
16. The learned advocate for respondent No. 2 has cited
judgments from various High Courts to argue that an
appeal filed by children or transferees is maintainable under
Section 16 of the Act. However, before examining the
judgments relied upon, the Court deems it appropriate to
first analyze the provisions based on their plain text and
intended meaning.
17. When an order is issued under Section 23 of the Act,
either the senior citizen or the transferee may be
considered an aggrieved party. The statute provides a
remedy of appeal against such an order, which is governed
by Section 16 of the Act. While two parties may potentially
be affected by an order under Section 23, the appeal
remedy explicitly applies to the senior citizen or parent. The
language of Section 16 is clear and leaves no room for
ambiguity or confusion in its interpretation. There is no
difficulty in reading Section 16 of the Act in its plain text.
18. The language of Section 16 of the Act is plain, clear,
and unambiguous. This provision specifically and
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unequivocally grants the right of appeal exclusively to
senior citizens. Extending this right to any other person,
including the transferee, is not permissible. Interpreting
Section 23 of the Act to provide a right of appeal to the
transferee or any other person would amount to rewriting
the provision, a function that lies beyond the jurisdiction of
the Court. Granting such a right to the transferee would
contradict the legislative intent behind the Act.
19. There is no dispute with the legal principle that when a
statutory provision is ambiguous, interpretative tools can be
used to resolve the ambiguity. If, after such an exercise,
the Court finds ambiguity, the interpretation should aim to
fulfill the purpose of the provision. However, Section 16 of
the Act is clear and unambiguous, leaving no necessity to
resort to interpretation tools.
20. In Rajeshkumar Bansraj Gandhi (supra), the Gujarat
High Court held as,
"10. A bare reading of the aforesaid provision
suggests that though the appeal is available to the
Appellate Tribunal, such appeal can be filed by any
senior citizen or parent. By express provision
therefore the Legislature appears to have limited right
to appeal for the limited class of persons, namely
senior citizens or parents. It is this class of persons
which are treated as aggrieved for the purpose of
preferring appeal. In circumstances, the contention of
learned advocate for the petitioners in counter to the
submission about availability of alternative remedy of
appeal could be countenanced. In view of the
provision and further in view of the totality of facts
and circumstances including that the petitioners were
ousted the possession of the house proceedings, in
this proceeding under the Act for Maintenance and
Welfare of Parents and Senior Citizens, exercise of
writ jurisdiction in respect of the impugned order is
only proper."
21. In Nayana Sudhir Shah (supra), the Bombay High Court
held as under,
"26. It is the settled position of law by a catena of
Judgments that, a statute is an edict of the Legislature
and the conventional way of interpreting or construing
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a statute is to seek the 'intention' of its maker. A
statute is to be construed according to the intent of
them, that make it and the duty of judicature is to act
upon the true intention of the Legislature. If a
statutory provision is open to more than one
interpretation, the Court has to choose that
interpretation which represents the true intention of
the Legislature, in other words the 'legal meaning' or
'true meaning' of the statutory provision. The statute
must be read as a whole in its context. It is now firmly
established that, the intention of the legislature must
be found by reading the statute as a whole. ..."
"27. The relevant provisions of this Act which have
been quoted/reproduced hereinabove therefore will
have to be construed harmoniously to promote the
cause of the 'Senior Citizens' under this Act. The Act is
enacted for a particular class of citizens i.e. Senior
Citizens and Parents, with an avowed object to
provide them maintenance by adopting simple
inexpensive and speedy remedy. It is the settled
position of law that, the provisions of a statute has to
be interpreted in a manner which will give ultimate
effect to the intention of legislature in enacting it and
not to frustrate it."
22. In Dinesh Banudas Chandanshive (supra), the Bombay
High Court held as
"25. Insofar as the contention of the petitioner is
concerned that merely because a remedy of an appeal
is not provided to the petitioner, Section 16 of the Act
becomes arbitrary and illegal, is wholly untenable. A
legislative provision cannot be struck down on such
count in the absence of any substantive ground
acceptable in law being made out by the petitioner, so
as to assail the provisions to be unconstitutional. The
provisions also cannot become bad only because the
petitioner feels so. A right of an appeal is to be
conferred by law. The legislature in its wisdom has
refrained from providing a right of an appeal except to
the senior citizens. In any event, it cannot be said that
the petitioner has no legal remedy."
23. In the judgments cited by respondent No. 2, it has been
held that an appeal filed by children or the transferee is
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maintainable under Section 16 of the Act. Before expressing
the Court's view on this matter, it is pertinent to examine
the object and reasons behind enacting the Act. The
statement of object and reasons can be found from the
judgment herein below.
24. In Rajeshkumar Bansraj Gandhi (supra),
"17. The statement of object and reasons of the Act
reads as under,
'Traditional norms and values of the Indian society
laid stress on providing care for the elderly. However,
due to withering of the joint family system, a large
number of elderly are not being looked after by their
family. Consequently, many order persons,
particularly widowed women are now forced to spend
their twilight years all alone and are exposed to
emotional neglect and to lack of physical and financial
support. This clearly reveals that ageing has become a
major social challenge and there is a need to give
more attention to the care and protection for the older
persons. Though the parents can claim maintenance
under Code of Criminal Procedure, 1973, the
procedure is both time-consuming as well as
expensive. Hence, there is a need to have simple,
inexpensive and speedy provisions to claim
maintenance for parents."
25. As the title of the Act suggests, the provisions of the
Act deal with maintenance and welfare of parents and
senior citizens. The Act is enacted for the welfare of a class
of citizens with an object to provide immediate relief
towards their amenities and basic physical needs. The aim
was not only to provide amenities and basic physical needs,
however with another broader object of speedy and
inexpensive remedy.
26. When the text of Section 16 of the Act is read and
understood in light of the object and reasons behind the
legislation, it becomes abundantly clear that Parliament
intended to provide the remedy of appeal under Section 16
solely to senior citizens or parents. Any alternative
interpretation would lead to an absurd outcome, which is
not permissible.
- 15 -
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27. This view is further justifiable for another reason. If the
children or transferee is aggrieved by an order under
Section 23 of the Act, they are not without a remedy. They
can always invoke Article 226 of the Constitution of India.
While this may result in two separate proceedings before
different forums, such a situation cannot be used as a basis
to extend the right of appeal under Section 16 of the Act to
a different class of persons, as this right was not provided
by Parliament.
28. The proposition that a statute is to be read, understood
and construed in its plain text without deeming or ignoring
any words needs no reiteration. Further, while interpreting
the provisions, it is for the Court to apply the law on its
plain text. This proposition has an exception to invoke
interpretation tools, when a statute leads to ambiguity.
However, language of Section 16 of the Act is clear in its
plain text without any ambiguity, which needs no further
interpretation. The right of appeal Inheres in no one and
therefore an appeal for its maintainability must have the
clear authority of law. That explains why the right of appeal
is prescribed as a creature of statute.
29. As observed earlier, there are two classes of persons
involved in the adjudication process under Section 23 of the
Act: the transferor and the transferee. In this context, the
transferor refers to senior citizens and parents, while the
transferee includes children or third parties. The legislature
has granted the right of appeal only to senior citizens and
parents, with no such right extended to children or third
parties.
30. The Court must also consider the potential violation of
Article 14 of the Constitution of India. In evaluating any
claim of discrimination, the reasonableness of the
classification is a critical factor. As established by various
courts, Article 14 prohibits class legislation, but not
classification. For a classification to be permissible, it must
be based on an intelligible differentia that distinguishes the
persons or things grouped together from others left out and
the differentia must have a rational connection to the
objective the statute seeks to achieve.
31. If equality and uniformity exist within each group, the
law will not be deemed discriminatory, even if, due to
specific circumstances, some individuals within the class
- 16 -
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receive an advantage over others, so long as they are not
singled out for special treatment. Therefore, the provision
granting the right of appeal solely to senior citizens or
parents cannot be interpreted to include children or third
parties as having the right of appeal.
32. The Hon'ble Supreme Court in Illachi Devi (D) by LRs.
and Others vs. Jain Society, Protection of Orphans India
and others, [(2003) 8 SCC 413], has held as,
"40. It is a well-settled principle of law that a plain
meaning must be attributed to a statute. Also, a
statute must be construed according to the intention
of the legislature. The golden rule of interpretation of
a statute is that it has to be given its literal and
natural meaning. The intention of the legislature
must be found out from the language employed in
the statute itself. The question is not what is
supposed to have been intended but what has been
said."
44. It is equally well settled that when the legislature
has employed plain and unambiguous language, the
court is not concerned with the consequences arising
therefrom. Recourse to interpretation of statutes may
be resorted to only when the meaning of the statute
is obscure. The court is not concerned with the
reason as to why the legislature thought it fit to lay
emphasis on one category of suitors than the others.
A statute must be read in its entirety for the purpose
of finding out the purport and object thereof. The
court, in the event of its coming to the conclusion
that a literal meaning is possible to be rendered,
would not embark upon the exercise of judicial
interpretation thereof and nothing is to be added or
taken from a statute unless it is held that the same
would lead to an absurdity or manifest injustice. It is
well established that a disabling legislation must be
characterized by clarity and precision. In the present
instance, the prohibitions laid down by Sections 223
and 236 of the Act are categorical and
comprehensive, and leave no scope for creative
interpretation.
33. In Padma Sundara Rao (dead) and others vs. State of
T.N. and others, [(2002) 3 SCC 533], it is held as,
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"12. The rival pleas regarding rewriting of statute and
casus omissus need careful consideration. It is well-
settled principle in law that the court cannot read
anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature.
The language employed in a statute is the
determinative factor of legislative intent. The first
and primary rule of construction is that the intention
of the legislation must be found in the words used by
the legislature itself. The question is not what may be
supposed and has been intended but what has been
said. "Statutes should be construed, not as theorems
of Euclid", Judge Learned Hand said, "but words must
be construed with some imagination of the purposes
which lie behind them".
34. In Harbhajan Singh vs. Press Council of India and
others, [(2002) 3 SCC 722], it is held as,
"7. .... The legislature does not waste its words.
Ordinary, grammatical and full meaning is to be
assigned to the words used while interpreting a
provision to honour the rule - the legislature chooses
appropriate words to express what it intends, and
therefore, must be attributed with such intention as
is conveyed by the words employed so long as this
does not result in absurdity or anomaly or unless
material - intrinsic or external - is available to permit
a departure from the rule. ..."
35. In M/s. Grasim Industries Ltd., vs. Collector of Customs
Bombay, [(2002) 4 SCC 297], it is held as,
"10. No words or expressions used in any statute can
be said to be redundant or superfluous. In matters of
interpretation one should not concentrate too much
on one word and pay too little attention to other
words. No provision in the statute and no word in any
section can be construed in isolation. Every provision
and every word must be looked at generally and in
the context in which it is used. It is said that every
statute is an edict of the legislature. The elementary
principle of interpreting any word while considering a
statute is to gather the mens or sententia legis of the
legislature. Where the words are clear and there is no
- 18 -
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obscurity, and there is no ambiguity and the intention
of the legislature is clearly conveyed, there is no
scope for the court to take upon itself the task of
amending or altering the statutory provisions."
36. In Dr. Baliram Waman Hiray (Dr.) vs. Justice B. Lentin
and others, [AIR 1988 SC 2267], it is held as,
"27. Law must be definite, and certain. If any of the
features of the law can usefully be regarded as
normative, it is such basic postulates as the
requirement of consistency in judicial decision-
making. It is this requirement of consistency that
gives to the law much of its rigour. At the same time,
there is need for flexibility. Professor H.L.A. Hart
regarded as one of the leading thinkers of our time
observes in his influential book 'The Concept of Law',
depicting the difficult task of a judge to strike a
balance between certainty and flexibility:
'Where there is obscurity in the language of a
statute, it results in confusion and disorder. No
doubt the courts so frame their judgments as
to give the impression that their decisions are
the necessary consequence of predetermined
rules. In very simple cases it may be so; but in
the vast majority of cases that trouble the
courts, neither statute nor precedents in which
the rules are legitimately contained allow of
only one result. In most important cases there
is always a choice. The judge has to choose
between alternative meanings to be given to
the words of a statute or between rival
interpretations of what a precedent amounts
to. It is only the tradition that judges "find"
and do not "make" law that conceals this, and
presents their decisions as if they were
deductions smoothly made from clear pre-
existing rules without intrusion of the judge's
choice.' "
37. In Competition Commission of India vs. Steel Authority
of India Ltd. and others, (2010) 10 SCC 744, it is held as,
"50. The principle of "appeal being a statutory right
and no party having a right to file appeal except in
accordance with the prescribed procedure" is now
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well settled. The right of appeal may be lost to a
party in face of relevant provisions of law in
appropriate cases. It being a creation of a statute,
legislature has to decide whether the right to appeal
should be unconditional or conditional. Such law does
not violate Article 14 of the Constitution. An appeal to
be maintainable must have its genesis in the
authority of law. Reference may be made to M.
Ramnarain (P) Ltd. v. State Trading Corpn. of India
Ltd. [(1983) 3 SCC 75] and Gujarat Agro Industries
Co. Ltd. v. Municipal Corpn. of the City of Ahmedabad
[(1999) 4 SCC 468] .
51. Right of appeal is neither a natural nor an
inherent right vested in a party. It is a substantive
statutory right regulated by the statute creating it.
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
[(1999) 3 SCC 722] and Kashmir Singh v. Harnam
Singh [(2008) 12 SCC 796 : AIR 2008 SC 1749] may
be referred to on this point. Thus, it is evident that
the right to appeal is not a right which can be
assumed by logical analysis much less by exercise of
inherent jurisdiction. It essentially should be provided
by the law in force. In absence of any specific
provision creating a right in a party to file an appeal,
such right can neither be assumed nor inferred in
favour of the party.
52. A statute is stated to be the edict of legislature.
It expresses the will of legislature and the function of
the court is to interpret the document according to
the intent of those who made it. It is a settled rule of
construction of statute that the provisions should be
interpreted by applying plain rule of construction. The
courts normally would not imply anything which is
inconsistent with the words expressly used by the
statute. In other words, the court would keep in mind
that its function is jus dicere, not jus dare. The right
of appeal being creation of the statute and being a
statutory right does not invite unnecessarily liberal or
strict construction. The best norm would be to give
literal construction keeping the legislative intent in
mind."
"56. Thus, the court can safely apply rule of plain
construction and legislative intent in light of the
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object sought to be achieved by the enactment.
While interpreting the provisions of the Act, it is not
necessary for the court to implant, or to exclude the
words, or overemphasise language of the provision
where it is plain and simple. The provisions of the Act
should be permitted to have their full operation
rather than causing any impediment in their
application by unnecessarily expanding the scope of
the provisions by implication."
38. In light of the above analysis, the only reasonable
interpretation of Section 16 of the Act is that the right of
appeal is vested exclusively in senior citizens or parents,
and not in any other individuals, including children or
transferees."
6. In that light, the issue now would be that the
mother could be entitled to maintenance which has now
been directed to be decided by the Assistant
Commissioner. Therefore, in the light of the aforesaid
illegalities in both the orders of the Assistant
Commissioner and the Deputy Commissioner, in terms of
the 2007 Act, I deem it appropriate to direct the petitioner
to pay the 1st respondent maintenance at Rs.10,000/-
month on month with liberty to the 1st respondent to seek
its enhancement if need arises before the Assistant
Commissioner.
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7. In that light, both the proceedings of the
Assistant Commissioner and the Deputy Commissioner
being illegal are to be obliterated. For the aforesaid
reasons, the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order dated 30.06.2022
passed by the respondent No.4, Assistant
Commissioner vide Annexure-B stands quashed.
iii. The mutation entries that stood prior to
the order of the Assistant Commissioner shall be
restored.
iv. The order dated 16.12.2022 passed by
the Deputy Commissioner, respondent No.3,
vide Annexure-E stands quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
KGK
