Karnataka High Court

Sri K Gangadhar vs The State Of Karnataka on 22 January, 2025

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                          NC: 2025:KHC:2800
                                                        WP No. 1839 of 2022




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 22ND DAY OF JANUARY, 2025
                                           BEFORE
                         THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                          WRIT PETITION NO. 1839 OF 2022 (GM-RES)
                 BETWEEN
                 SRI K GANGADHAR
                 S/O LATE KALAPPA
                 AGED ABOUT 62 YEARS
                 R/AT HANCHINPURA VILLAGE
                 KASABA HOBLI
                 NELAMANGALA TALUK - 562 123
                 BANGALORE RURAL DISTRICT
                                                               ...PETITIONER

                 (BY SRI. NAIK RAMACHANDRA RAMA., ADVOCATE)

                 AND
                    1. THE STATE OF KARNATAKA
                       REP BY ITS PRINCIPAL SECRETARY
                       DEPARTMENT OF REVENUE
                       M S BUILDINGS
                       AMBEDKAR VEEDI
ASHPAK
                       BANGALORE - 560 001
KASHIMSA
MALAGALADINNI


                    2. THE CHAIRMAN AND WELFARE OF
Location: HIGH
COURT OF
KARNATAKA
                       PARENTS AND SENIOR CITIZENS TRIBUNAL
DHARWAD
BENCH                  AND ASSISTANT COMMISSIONER
                       BANGALORE NORTH SUB DIVISION
                       BANGALORE - 560 009


                    3. SMT. LAKSHMIDEVAMMA
                       W/O LATE KALAPPA
                       AGED 80 YEARS
                       R/AT 295/1, 3RD MAIN,
                       2ND CROSS, VIDYANANDA NAGAR
                       NANDINI LAYOUT
                       BANGALORE - 560 096
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                                                 NC: 2025:KHC:2800
                                             WP No. 1839 of 2022




       NOW R/AT 139, KGHS LAYOUT
       NEAR RAJAGOPAL NAGAR POLICE STATION
       BANGALORE - 560 058

     4. K SHIVAKUMAR
        S/O LATE KALAPPA
        AGED 80 YEARS
        R/AT 139 K G H S LAYOUT
        NEAR RAJAGOPAL NAGAR POLICE STATION
        BANGALORE - 560 058

     5. SRI CHANDRA DEV S
        S/O K SHIVAKUMAR
        AGED 27 YEARS
        R/AT 139 K G H S LAYOUT
        NEAR RAJAGOPAL NAGAR POLICE STATION
        BANGALORE - 560 058
                                                    ...RESPONDENTS

(BY SMT. PRATHIBHA R.K., AGA FOR R1 & R2;
    SRI. M.C. JAYAKIRTHI., ADVOCATE FOR R3 TO R5)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF IN
THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED JUDGMENT
AND ORDER DATED 13.01.2022 PASSED IN MSC/CR/90/2021-22 BY
THE RESPONDENT NO.2 TRIBUNAL VIDE ANNEXURE-E AND ETC.

     THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 16.12.2024, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:

                              ORDER

1. The Petitioner is before this Court seeking for the

following reliefs:

a. Issue a writ in the nature of certiorari to quash the impugned judgment and order dated 13.01.2022

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passed in MSC/CR/90/2021-22 by the R2 Tribunal vide Annexure-E.

b. To pass such other a writ or order this Hon'ble Court as deems fit under the facts and circumstances of the above case.

2. The petitioner is the son of late Kalappa and

Smt. Lakshmidevamma, it is claimed that respondent

No.3-Smt.Lakshmidevamma had executed a gift

deed dated 09.09.2011 in favour of the petitioner in

respect of property bearing Sy.No.199 to an extent

of 4 acres 13 guntas situated at Hanchipura Village,

Kasaba Hobli, Nelamangala Taluk, Bangalore Rural

District.

3. It is also claimed that respondent No.3-the mother

was residing with the petitioner and she is suffering

from old age diseases, on account of which she was

shifted to Bangalore for treatment and has been

residing with her second son-Respondent No.4

namely Sri.K.Shivkumar.

4. In the month of June 2021, Respondent No.4 had

lodged a complaint before the Nelamangala Rural

Police Station alleging that the petitioner had

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fraudulently obtained a gift deed from his mother,

thereafter a petition came to be submitted under the

Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 before Respondent No.2-the

Assistant Commissioner for a declaration that the gift

deed dated 09.09.2011 was void.

5. The Assistant Commissioner issued notice to the

petitioner on 27.10.2021. Thereafter, the petitioner

appeared through his advocate and filed his

objections stating that he is willing to maintain and

make payment of maintenance amounts for his

mother. It is alleged that no opportunity of hearing

was granted to the petitioner and the matter was

posted for orders on 13.01.2022, when it was so

pronounced cancelling the gift deed executed by the

mother.

6. Subsequently, Respondent No.4- Sri.K.Shivkumar got

executed a gift deed from Respondent No.3 in favour

of Respondent No.5-Sri.Chandra Dev.S, who is the

son of Respondent No.4 and grandson of Respondent

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No.3 and thereafter a police complaint was lodged.

It is contended that the Assistant Commissioner has

not considered the petitioner's objection, the gift

deed was executed by Smt.Lakshmidevamma in the

year 2011, the father of the petitioner and husband

of Smt.Lakshmidevamma having expired in the year

1972. It is the petitioner who has been maintaining

the family, the entire proceedings have been initiated

at the behest of Respondent No.4. There being one

other property standing in the name of the mother in

Vijayanagara, Bangalore she was earning a rental

income of Rs.20,000/- per month and on that ground

it was contended that the order passed by the

Assistant Commissioner is bad in law and would

require interference of the hands of this Court.

7. Sri.M.C.Jayakirthi., learned counsel for respondents

No.3 to 5 submit that;

7.1. The petitioner has an alternative efficacy

remedy in terms of appeal under Section 16 of

the Maintenance and Welfare of Parents and

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Senior Citizens Act, 2007 and as such, the

above petition is not maintainable. On that

ground, he submits that the above petition is

required to be dismissed.

7.2. On merits, he submits that the gift deed has

been got executed by the petitioner by

exercising undue influence on Respondent No.3

and it is in that background that Respondent

No.3 has challenged the gift deed executed by

her before the Assistant Commissioner. He

submitted that the order passed by the

Assistant Commissioner being proper and

correct does not require any interference.

8. Heard Sri. Naik Ramachandra Rama., learned counsel

appearing for the petitioner and Sri.M.C.Jayakirthi.,

learned counsel appearing for respondents No.3 to 5

and perused papers.

9. The Hon'ble Division Bench of this Court recently in

the case of K Lokesh Vs The Bangalore District

Maintenance and Welfare of Parents and Senior

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Citizens Appellate Tribunal and others date

20.12.2024 in WA No. 254 of 2024 has held that

it is only a senior citizen or a parent who can file an

appeal under Section 16 of the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007.

Thus, categorically holding that a person otherwise

than a senior citizen or parent cannot file an appeal

under Section 16. The petitioner being the son and

not being either a senior citizen or a parent coming

within the purview of the Maintenance and Welfare of

Parents and Senior Citizens Act, 2007. Therefore,

would not be in a position or entitled to under law to

file an appeal challenging the order of the Assistant

Commissioner.

10. Thus, the contention of Sri.M.C.Jayakirthi., learned

counsel for Respondents No.3 to 5 that the petitioner

has an alternative efficacy remedy is not sustainable.

11. It is trite law that whenever a person aggrieved by

an order or an order passed by an Administrative

Authority, Judicial Authority or a quasi-judicial

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Authority as regards which no appeal is provided for,

such person could approach the Constitutional Courts

under Article 227 requesting the Constitutional Court

to exercise supervisory jurisdiction.

12. Thus, when the petitioner like in the present case has

no appellate remedy against the order passed by the

Assistant Commissioner, I am of the considered

opinion that the present writ petition filed under

Article 227 of the Constitution is maintainable.

13. Coming to the merits of the matter, the submission

of Sri. Naik Ramachandra Rama., learned counsel for

the petitioner is that the gift deed had been executed

in the year 2011 by the mother of her free Will and

volition and there is no undue influence or coercion

or the like which has been brought about by the

petitioner/son. His submission categorically is that

the entire proceedings have been initiated at the

behest of the other son-Respondent No.4 who is also

a witness to the aforesaid gift deed of 2011.

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14. His categorical submission is that it is only in the

year 2021 when Respondent No.3-mother shifted to

Bangalore for treatment that a complaint came to be

filed against the petitioner registered on 5.10.2021

and within one month thereafter on 4.11.2021 a gift

deed came to be executed by Respondent No.3 in

favour of Respondent No.5 who is the son of

Respondent No.4 and the impugned order came to

be passed on 13.01.2022.

15. Thus, as on the date on which a gift deed came to be

executed in favour of Respondent No.2 on

4.11.2021, the gift deed executed by Respondent

No.3 in favour of the petitioner on 09.09.2011 was

still valid and subsisting. The declaration as regards

the said gift deed being made on 13.01.2022 was

subsequent to the gift deed executed by Respondent

No.3 in favour of Respondent No.5 on 4.11.2021.

16. The circumstances and the facts as aforesaid to say

the least are very suspicious. A gift deed having been

executed in the year 2011 and continued to be in

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force till the year 2021, Respondent No.4 being a

witness to the said gift deed there is no particular

covenant in the said gift deed of the petitioner being

required to maintain the respondent No.3-Mother.

17. Be that as it may, on a complaint being filed, the

petitioner has filed his objections and categorically

indicated that he is ready to provide maintenance

and take care of the maintenance of his mother

which would indicate that the petitioner has not

abandoned his mother, but he is willing to take care

of her interests. The suspicious circumstances of the

complaint having been filed after the mother being

shifted for treatment to Bangalore and residing with

Respondent No.4, I am of the considered opinion

that the Assistant Commissioner has not taken these

factors into account. The Assistant Commissioner

could have directed the petitioner to make payment

of sufficient amounts to take care of the maintenance

of Respondent No.3.

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18. During the course of argument, learned counsel for

the petitioner had submitted that any reasonable

amount could be fixed which the petitioner would be

willing to make payment of. In that view of the

matter, I pass the following;


                                  ORDER

       i.    The writ petition is allowed.

      ii.    The   order       dated      13.01.2022     passed     in

MSC/CR/90/2021-22 by Respondent No.2 at

Annexure-E is set aside.

iii. Consequently, the gift deed dated 4.11.2021

executed by Respondent No.3 in favour of

Respondent No.5 who is the son of Respondent

No.4 during the subsistence of the Gift deed in

favour of the Petitioner is non-est and is

therefore cancelled, the jurisdictional sub-

registrar is directed to make necessary entries

in this regard.

iv. The petitioner is directed to make payment of a

sum of Rs.15,000/- per month to respondent