Allowed

Kolluri Vijayalakshmi Girija Kumari v. The State of Andhra Pradesh

Andhra Pradesh HC2 Mar 2021WP/31561/2018

Case brief

AI extract

What is this about?

In a writ petition challenging an order cancelling a Gift Deed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, this Court held that the Tribunal violated principles of natural justice by not issuing notice to the petitioner. The Court allowed the petition, set aside the order, and remitted the matter for fresh consideration on merits including maintenance, requiring dec

What did the court decide?

The impugned order setting aside the Gift Deed cancelled and remitted to the 2nd respondent/Tribunal for fresh consideration, notice to petitioner, and decision on maintenance merits within 6 weeks.

Kolluri Vijayalakshmi Girija Kumari Vs The… — Maintenance and Alimony | Andhra Pradesh HC (2021)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO Writ Petition No.31561 of 2018

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ORDER :

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The petitioner seeks a writ of mandamus declaring the order in Rc.B1/483/2017 dated 06.08.2018 passed by 2^nd respondent as arbitrary, illegal and violative of the principles of natural justice and provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, ‘the Senior Citizens Act, 2007’) and to set aside the same.

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2. The petitioner’s case succinctly is thus:

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(a) The 5^th respondent is the husband and the 4^th respondent is the mother-in-law of the writ petitioner. The 4^th respondent filed a petition before 2^nd respondent under the provisions of the Senior Citizens Act, 2007 claiming maintenance of Rs.10,000/- per month from 5^th respondent with averments that she has two sons and one daughter and that her husband died on 09.02.2006; her husband had a building in 448 sq. yards bearing Door No.13-65-3 and 5^th respondent, who is her elder son, did not cooperate for partition of the property and hence, she filed O.S.No.215/2017 on the file of the learned Principal Senior Civil Judge, Machilipatnam, for partition of the plaint schedule property; in the said suit the 5^th respondent herein filed written statement contending that he executed the registered Gift Deed dated 16.02.2017, in respect of 107 square yards of the house site which is part of the plaint schedule property, in favour of the writ petitioner; her second son Krishna Kumar left the house about 10

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years back and his whereabouts are not known, the petitioner has no source of livelihood and she has no income and she is a senior citizen and hence, the maintenance @ Rs.10,000/- per month may be ordered against her son i.e., 5^th respondent.

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(b) The 2^nd respondent issued notice to 5^th respondent for his appearance on 26.05.2018 and an enquiry was allegedly conducted on 27.07.2018 and ultimately 2^nd respondent passed the impugned order dated 06.08.2018 cancelling the Gift Deed dated 16.02.2017 executed by 5^th respondent in favour of his wife i.e., writ petitioner in respect of 107 square yards of site and building thereon and issued cancellation order to the Sub-Registrar, Pedana, Krishna District.

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Hence, the writ petition.

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3. The 4^th respondent filed counter opposing the writ petition contending thus:

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(a) The husband of 4^th respondent viz., Kantharao died intestate on 09.02.2006 leaving behind his estate i.e., a house bearing Door No.13-63-3 comprising 448 sq. yards in Pedana Town. After his death the property was devolved upon her two sons and a daughter. Ever since his death all his legal representatives are enjoying the said property jointly. They demolished the house with a view to effect the partition. Meanwhile disputes arose between the 4^th respondent and 5^th respondent as the 5^th respondent did not agree for partition. Hence, the 4^th respondent filed O.S.No.258/2017 on the file of the learned

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Principal Senior Civil Judge, Machilipatnam for partition. Thereafter 5^th respondent necked out the 4^th respondent from the house. In those circumstances, the 4^th respondent filed a petition before 2^nd respondent seeking maintenance against the 5^th respondent. After due enquiry, the 2^nd respondent passed an order directing the cancellation of Gift Deed executed by 5^th respondent in favour of his wife, by following Section 23 of the Senior Citizens Act, 2007.

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(b) The 5^th respondent in gross violation of the provisions of the Senior Citizens Act, 2007 transferred the property in favour of his wife by way of the Gift Deed pending partition suit as well as the maintenance petition. The said Gift Deed is nonest in the eye of law, because the 5^th respondent has no legal title to gift away a part of the plaint schedule property, pending the partition suit. The contention of the petitioner that no notice was issued to her in the maintenance petition is untenable. She thus prayed to dismiss the writ petition.

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4. Heard Sri Sai Gangadhar Chamarty, learned counsel for petitioner, and learned Government Pleader for Social Welfare representing the respondents 1 & 2, and learned Government Pleader for Revenue representing 3^rd respondent, and Smt. M.Vidyavathi, learned counsel for 4^th respondent.

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5. The main plank of the argument of the learned counsel for petitioner Sri Sai Gangadhar Chamarty is that the Gift Deed was executed by 5^th respondent long prior to the filing of maintenance

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petition. In that view, the 2^nd respondent/Tribunal ought to have issued notice to the writ petitioner calling for her objections. However, without affording a notice to her the 2^nd respondent passed the impugned order directing the Sub-Registrar, Pedana to cancel the Gift Deed executed by 5^th respondent in her favour though the petitioner is the affected person. The Tribunal has not issued notice to her and thereby violated the principles of natural justice. He thus prayed to set aside the impugned order and remit the matter back to the Tribunal.

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6. In oppugnation, learned counsel for 4^th respondent Smt. M.Vidyavathi argued that 5^th respondent in collusion with his wife i.e., 4^th respondent executed the registered Gift Deed in her favour in respect of the part of the plaint schedule property while the partition suit and maintenance petition are pending. Such execution is only to deprive his mother from having her legitimate share in the plaint schedule property. Considering that the 5^th respondent being eldest son and not providing maintenance to 4^th respondent, the Tribunal by exercising its power under Section 23 of the Senior Citizens Act, 2007 has rightly directed the Sub-Registrar, Pedana to cancel the Gift Deed executed by 5^th respondent. Learned counsel argued that though to that extent the Tribunal was right, however, in addition to the said order the Tribunal ought to have awarded a reasonable maintenance also to 4^th respondent, but failed to do so.

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7. The point for consideration is whether there are merits in the writ petition?

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8. Point : Admittedly, the 5^th respondent has executed the registered Gift Deed in favour of the writ petitioner on 16.02.2017 in respect of the site in an extent of 107 sq yards along with the house therein situated in Door No.13-65-3 in Pedana Village. The maintenance application was filed by 4^th respondent thereafter on 09.05.2018. In the said petition, she claimed the maintenance of Rs.10,000/- per month from the 5^th respondent herein, who is her elder son, and who, according to her, has deserted her by not looking after her needs in her old age. Be that it may, the order dated 06.08.2018 would show that the 2^nd respondent/Tribunal passed the order directing the Sub-Registrar, Pedana to cancel the Gift Deed executed by 5^th respondent in favour of the writ petitioner. As rightly argued by the writ petitioner, she is ultimately the affected person by virtue of the impugned order. Since the Gift Deed was executed much prior to the date of filing of the maintenance petition and order thereon, and as the writ petitioner is the affected party, in my considered view the Tribunal ought to have issued notice to her calling her objections, if any, by following the principles of natural justice. No reason is mentioned in the order for not serving the notice on her. This is the first flaw in the order impugned. Then as rightly submitted by the learned counsel for 4^th respondent, though the petition is filed for granting maintenance, the impugned order is silent on this aspect and

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the Tribunal has not granted any maintenance nor did it observe that the 4^th respondent is not entitled to any maintenance. In these circumstances, I am of the view that the impugned order is liable to be set aside and the matter needs to be remitted back to 2^nd respondent/Tribunal for fresh consideration of the matter.

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Accordingly, this Writ Petition is allowed and the impugned order in Rc.B1/483/2017 dated 06.08.2018 passed by the 2^nd respondent/Tribunal is set aside with a direction to issue notice to the writ petitioner herein calling for her objections, if any, and after hearing all the parties concerned, pass an appropriate order on merits in accordance with law by giving its findings firstly on the aspect of the Gift Deed dated 16.02.2017 executed by 5^th respondent in favour of the writ petitioner and secondly on the aspect of maintenance claimed by 4^th respondent against the 5^th respondent expeditiously, but not later than six (6) weeks from the date of receipt of a copy of this order. No costs.

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As a sequel, interlocutory applications pending, if any, shall stand closed.

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__________________________ U. DURGA PRASAD RAO, J

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02.03.2021 MVA

Kolluri Vijayalakshmi Girija Kumari v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

Kolluri Vijayalakshmi Girija Kumari v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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