Telangana High Court
K. Venkat Anand vs State Of Telangana on 5 March, 2021
Bench: T.Amarnath Goud
IN THE HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
W.P.No.17644 of 2019
Between:
K.Venkat Anand
Petitioner
VERSUS
State of Telangana, rep by its Principal Secretary
Department of Welfare of Women, Children,
Disabled and Senior Citizens, Secretariat,
Hyderabad And 5 others.
Respondents
JUDGMENT PRONOUNCED ON: 05.03.2021
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : No
_________________________
T.AMARNATH GOUD, J
2
* THE HON'BLE SRI JUSTICE T. AMRNATH GOUD
+ WRIT PETITION No.17644 OF 2019
% 05.03.2021
# K.Venkat Anand
Petitioner
VERSUS
$ State of Telangana, rep by its Principal Secretary
Department of Welfare of Women, Children,
Disabled and Senior Citizens, Secretariat,
Hyderabad And 5 others.
Respondents
! Counsel for Petitioner : Sri B.Chandrasen Reddy
^ Counsel for the respondents : Sri Sriram Sharma Susla
<GIST:
> HEAD NOTE:
? Cases referred
Appeal (Civil) 2896 of 2006 dated 11.7.2006
3
THE HON'BLE SRI JUSTICE T.AMARNATH GOUD
WRIT PETITION No.17644 of 2019
ORDER:
1 This Writ Petition is filed seeking to issue a writ of certiorari
calling for records in Case No.J/3375/2016, dated 06.4.2018 and
18.7.2019 passed by the third respondent - Revenue Divisional
Officer-cum-Tribunal constituted under Maintenance & Welfare of
the Parents & Senior Citizens Act, 2007, Hyderabad whereunder
the gift deed bearing Doc.No.3294/1998 dated 26.11.1998
executed by the fourth respondent herein in favour of the
petitioner and respondent Nos.5 and 6 was cancelled, and to
quash the same as being illegal and arbitrary.
2 The case of the petitioner in nutshell is that he and
respondent Nos.5 and 6 are the sons of respondent No.4 herein.
Respondent No.4 purchased agricultural dry land wet lands total
admeasuring Ac.20-39 guntas in Sy.Nos.215, 228 and 229 of
Thakkadpally village, Yacharam Mandal, Ranga Reddy District, in
the year 1994 (hereinafter referred to as schedule 'A' property). In
the year 1998, the respondent No.4 transferred that property to the
petitioner and respondent Nos.5 and 6 equally by way of a
registered gift deed dated 26.11.1998 vide Document
No.3294/1998. The petitioner further assets that their joint family
consists of house bearing D.No.3-6-25, Basheerbagh, Hyderabad,
admeasuring 80 sq. yards and house bearing D.No.3-6-26, which
is also situated at Basheerbagh, Hyderabad, admeasuring 48 sq.
yards (hereinafter referred to as schedule 'B' property). Further,
the grandmother of the petitioner purchased property bearing
H.No.3-4-835/A, Barkathpura Chaman, Hyderabad, admeasuring
90 sq. yards during her lifetime (hereinafter referred to as schedule
'C' property). The petitioner further asserts that as the respondent
No.4 i.e. their father was having some financial constraints, he
cleared off those debts incurred by the respondent No.4 to the tune
of Rs.18,45,000/- with interest.
It is the further case of the petitioner that his mother passed
away in the year 2015 and after her demise, the petitioner and the
respondent Nos.4 to 6 came to a mutual understanding to partition
Schedule B property and in furtherance of the same, a registered
partition deed dated 31.10.2015 was executed vide Document
No.3536/2015. As per the said partition schedule B property was
divided amongst the petitioner and his two brothers. In lieu
thereof, the respondent No.4 was paid cash of Rs.5.00 lakhs
towards his share. Further, the schedule C property was devolved
unto the respondent No.6 by way of a release deed by which the
respondent No.4 relinquished his share in the said property. While
the things stood thus, in the year 2015, after the death of his first
wife, the respondent No.4 married second time and has been
residing in the property belonging to the respondent No.6 along
with his second wife.
The petitioner further asserts that despite receiving his share
of money in the partition, in the year 2016, respondent No.4 filed
an application before the respondent No.3 - RDO seeking
nullification of the gift deed bearing Doc.No.3294/1998 dated
26.11.1998 under Section 23 (1) of the Maintenance & Welfare of
the Parents & Senior Citizens Act, 2007 (for short 'the Act'),
whereupon the respondent No.3 passed an order dated 06.4.2018
in Case No.J/3375/2016, partly cancelling the gift deed bearing
Doc.No.3294/1998 dated 26.11.1998 and directing the petitioner
and respondent Nos.5 and 6 to re-gift the property to an extent of
Ac.1-00 in the plain area i.e. Sy.Nos.228 and 229 and Ac.5.00 in
the hill rock area i.e. in Sy.No.215 totalling to an extent of Ac.6-00
guntas to the respondent No.4. Thereafter, as the said order was
not implemented, on the respondent No.4 approaching the
respondent No.3, the respondent No.3 passed an order dated
18.7.2019 in Case No.J/3375/2016 directing the cancellation of
the gift deed bearing Doc.No.3294/1998 dated 26.11.1998 and
directed the petitioner and respondent Nos.5 and 6 to re-gift the
property as directed earlier dated 06.4.2018. The petitioner
further states that he and his brothers are ready and willing to pay
maintenance to their father i.e. respondent No.4 as prescribed by
the respondent No.3. However the respondent No.4 opposed the
same and sought cancellation of the gift deed. Hence the present
Writ Petition.
3 Refuting the averments made in the affidavit filed along with
the Writ Petition, the respondent No.4 filed his counter admitting
the fact that he executed the gift deed in favour of his sons i.e.
petitioner and the respondent Nos.5 and 6 with a hope that they
will look after him and his wife during their old age. But his
dreams have gone to air as the petitioner and the respondent Nos.5
and 6 are neglecting him by not providing basic necessities such as
food, clothing and medicines etc. On 04.6.2016, the respondent
No.6 with the support of the petitioner, had thrown the respondent
No.4 out of the house illegally. In that connection he filed a police
complaint. Thereafter he was again inducted into the house.
It is the further case of the respondent No.4 that as his sons
neglected him he filed a case before the RDO seeking maintenance
and also cancellation of the gift deed. Thereafter, the petitioner
and respondent Nos.5 and 6 requested him not to seek
cancellation of the entire gift deed and agreed to give 2 acres each
and further told him not to claim any monthly maintenance. In
that case, the respondent No.3 - RDO passed an order dated
06.4.2018 in Case No.J/3375/2016 with the consent of all the
parties, partially cancelling the gift deed. Accordingly all the parties
entered into a MoU dated 11.9.2018 agreeing to implement the
orders passed by the respondent No.3. But the petitioner
suppressed the said MoU and filed the present Writ Petition.
However, as the order passed by the respondent No.3 could not be
implemented by the Sub-Registrar, Ibrahimpatnam, the
respondent No.4 approached the respondent No.3 for
implementation of the order. Thereupon, the respondent No.3
directed the petitioner and the respondent Nos.5 and 6 to re-gift
the property to the respondent No.4 as directed by him, by order
dated 18.7.2019. Hence prayed to dismiss the Writ Petition.
4 Heard the Sri B. Chandrasen Reddy, learned counsel for the
petitioner and Sri Sriram Sharma, learned counsel for the
respondent No.4 and perused the material available on record.
5 The learned counsel for the petitioner submitted that the
RDO has no jurisdiction to pass the impugned order even the
parties to the litigation consented to do so. He further submits
that the gift deed could not have been cancelled as it was executed
in the year 1998 much before the commencement of the Act and
that the Provision under Section 23 (1) of the Act does not have
retrospective operation and that the said gift is an unconditional
one and hence the impugned order is liable to be set aside.
6 The learned counsel for the respondent No.4 submitted that
as the sons of the respondent No.4 neglected him he filed a case
before the RDO seeking maintenance and also cancellation of the
gift deed. Thereafter, the petitioner and respondent Nos.5 and 6
requested him not to seek cancellation of the entire gift deed and
agreed to give 2 acres each and further told him not to claim any
monthly maintenance. He further submitted that as the award
impugned in this Writ Petition is a consent award, the same
cannot be challenged as there is a bar under Section 96 (3) CPC.
He further submitted that the petitioner and his brothers, having
accepted to give six acres of land to their father, and having
consented for passing of the award, now cannot turn around and
file the present Writ Petition with a different stand. He relied on the
judgment of the Hon'ble Apex Court in Pushpa Devi Bhagat (D)
Through Lr. Smt. Sadhna Rai vs. Rajinder Singh & Ors.
{Appeal (Civil) 2896 of 2006 dated 11.7.2006} wherein it was
stated that as per Section 96 (3) CPC no appeal shall lie from a
decree by the Court with the consent of the parties.
7 The admitted facts that culled out from the pleadings of the
parties are that the petitioner and the respondent Nos.5 and 6 are
the sons of the respondent No.4. The respondent No.4 gifted his
landed property to an extent of 22 acres approximately to his sons.
There are some house properties also to the joint family. The wife
of the respondent No.4 died in the year 2015 and thereafter he
again married some other lady and living with her in the petition C
Schedule property. The respondent No.4 filed the Case before the
respondent No.3 seeking cancellation of the gift deed since his
sons neglected to maintain him in his old age. During the course
of proceedings a consent award came to be passed wherein the
petitioner and the respondent Nos.5 and 6 agreed to give six acres
of land to the respondent No.4.
8 Section 4 (i) of the Act mandates that a senior citizen,
including parent, who is unable to maintain himself from his own
earnings or out of property owned by him, shall be entitled to make
an application under Section 5 of the Act to the Sub-Divisional
Officer of the State. Section 5 of the Act deals with application of
maintenance to be made by a senior citizen or a parent, as the
case may be if he is incapable, or by any other person or
organization authorized by him, or the Tribunal may take
cognizance suo motu. Section 6 of the Act deals with the
jurisdiction and procedure. Section 7 of the Act prescribes that a
Sub-Divisional Officer of the State is empowered to preside over the
Tribunal constituted by way of notification. So, the RDO has
jurisdiction to entertain the Case filed by the respondent No.4 as
per Section 6 of the Act. Before the respondent No.3 both sides
have accepted the particular officer as a judge and they consented
for passing the award. The petitioner has not contested the matter
before the RDO on the point of jurisdiction nor invited any order on
merits. It is a consent award.
9 Once the parties having accepted the officer as a judge, the
petitioner cannot now plead that the respondent No.3 has no
jurisdiction because principles of estoppel would come into
operation and no jurisdictional issues would arise. The petitioner
and his brothers having agreed to re-gift two acres of land each to
their father and by entering into a MoU, are estopped under
Section 115 of the Evidence Act to take a plea in this Writ Petition
that they are not bound by that consent award because they
cannot contradict, deny or declare to be false the previous
statement made by them before the RDO. However, in some
matters, this Court needs to go beyond the jurisdictional issues
because ultimately principles of natural justice will prevail.
Moreover, Laws are made for the citizens but citizens are not made
for laws. It becomes immense necessity to point out that when the
father has taken care of his children all through and parted his
property, it is the primary duty and responsibility of the children to
look after the welfare of the father in his advanced stage of life.
10 Since admittedly, the respondent No.4 has no other source of
income and as his sons neglected to maintain him he filed the
Case before the Revenue Divisional Officer as he has to survive in
his old age. From a glance at the record it is manifest that since
the respondent No.4 was dragged out of the house, he filed a
criminal case against his sons and thereafter he was again
inducted into the house. All through the case of the respondent
No.4 is that the award passed by the RDO was with the consent of
all the parties. May be the initial gift deed is an unconditional one.
But as per the enactment made under the Act, the petitioner and
the other sons of the respondent No.4 have to provide maintenance
to him. Of course, in the case on hand, the gift deed was not
cancelled. But it is only a direction given to the petitioner and his
brothers to re-gift six acres to the respondent No.4 and for that
matter they consented for it. Moreover, when it comes to the moral
and social responsibility and obligation between the father and
children, the documents executed should be given least
importance. Ultimately the paramount consideration is to be given
to their relationship.
11 Taking the totality of the facts and circumstances of the case
into consideration, this Court is of the considered view that there
is no justification on the part of the petitioner to approach this
Court under Article 226 of the Constitution of India, because a
cursory look at the record also reveals that all the parties entered
into a MoU dated 11.9.2018 agreeing to implement the orders
passed by the respondent No.3. But the petitioner suppressed the
said MoU and filed the present Writ Petition. Therefore, this Court
is of the view that the petitioner has not come to the Court with
clean hands.
12 Having regard to the facts and circumstances of the case, the
Writ Petition is devoid of any merit and is accordingly liable to be
dismissed.
13 In the result, the Writ Petition is dismissed. No order as to
costs. Miscellaneous petitions, if any, pending in this Writ Petition,
shall also stand dismissed.
_________________________
T. AMARNATH GOUD, J.
Date: 05.03.2021.
L.R.Copy be marked
B/o Kvsn
