Disposed

Shantha Prakash v. The Assistant Commissioner

Karnataka HC5 Apr 2022WP/3386/2020

Case brief

AI extract

What is this about?

The High Court quashed a Corrigendum Order passed by the Assistant Commissioner. Although the initial order granted maintenance rights in kind to a senior citizen, the impugned order subsequently cancelled a gift deed without an application. The Court held the Assistant Commissioner lacked jurisdiction to modify the initial order or pass a subsequent order without application, rendering the Corrig

What did the court decide?

The Corrigendum Order dated 31.12.2019 in proceedings MAGCR 1/2018-19 bearing No. MAG:CR:01/2018-19 was set aside.

Shantha Prakash Vs The Assistant Commissioner — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2022

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BEFORE

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THE HON' BLE MR. JUSTICE S.G. PANDIT

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WRIT PETITION No.3386/2020 (GM-RES)

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BETWEEN:

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SHANTHA PRAKASH AGED 49 YEARS S/O LATE SHANTHARAJU S.C.STREET, SIDDAIANAPURA KOLLEGALA CHAMARAJANAGAR DISTRICT.

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...PETITIONER

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(BY SRI KARUMBAIAH T.A., ADV.)

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AND:

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THE ASSISTANT COMMISSIONER AND THE CHAIRMAN OF THE COMMITTEE FOR SENIOR CITIZENS KOLLEGAL SUB DIVISION KOLLEGALA CHAMARAJANAGAR DISTRICT.

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CHIKKARANGAMMA AGED 73 YEARS W/O LATE CHANTHARAJU R/AT THIRVENI NILAYA NO.1/359 I.E.L.C G.P.MALLAPPAPURAM BANGALORE ROAD KOLLEGALA CHAMARAJANAGAR DISTRICT.

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…RESPONDENTS

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(BY SMT. A.R.SHARADAMBA, AGA FOR R1 SMT. P.C.SUNITHA, ADV. FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNX-C THE ORDER DATED 27.08.2019 IN PROCEEDINGS NO. MAGCR 1/2018-19 AND ALSO ANNX-D THE ORDER DATED 31.12.2019 IN PROCEEDINGS NO.MAGCR 1/2018-19 PASSED BY THE R1 AND DISMISS THE PETITION FILED BY THE R2.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

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O R D E R

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Petitioner, who is son of 2^nd respondent is before

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this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the order (Annexure-C) dated 27.08.2019 in proceedings No.MAGCR 1/2018-19 and also the order (Annexure-D) dated 31.12.2019 in proceedings No.MAGCR 1/2018-19 passed by the 1^st respondent.

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Heard Sri Karumbaiah T.A., learned counsel for the petitioner, Smt. A.R. Sharadamba, learned AGA for 1^st respondent and Smt.P.C. Sunitha, learned counsel for the 2^nd respondent. Perused the writ petition papers.

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Sri T.A. Karumbaiah, learned counsel for the petitioner, at the out set, submits that petitioner would

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not press for prayer to quash Annexure-C in

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proceedings No.MAGCR 1/2018-19 dated 27.08.2019.

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Submission of the learned counsel for the

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petitioner is placed on record.

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Sri T.A. Karumbaiah, learned counsel for the petitioner submits that 2^nd respondent-mother of the petitioner made an application under Sections 4 and 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short ‘ the Act’ ) before the 1^st respondent. The 1^st respondent issued notice to the petitioner, and after hearing the parties, passed order (Annexure-C) dated 27.08.2019 holding that the 2^nd respondent- mother would be entitled for one house in the ground floor as well as one shop in the ground floor of property bearing No.134, measuring East to West 33 feet and North to South 29 ½ feet and one House situated at first floor and one shop to Suhas and Meghana, son and daugther of the petitioner. But subsequently without any notice and without

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jurisdiction, the 1^st respondent passed Corrigendum Order (Annexure-D) dated 31.12.2019 cancelling the Gift Deed (Annexure-B) dated 20.02.2014 executed by the 2^nd respondent in favour of the petitioner.

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Sri Karumbaiah, learned counsel for the petitioner contends that once the 1^st respondent passed an order as at Annexure-C dated 27.08.2019, he becomes functus officio and he would not get jurisdiction to pass any other order in the nature of Corrigendum Order that too in the absence of any application. Further he submits that 1^st respondent has no jurisdiction to review the order, as well as to tinker with the order, once passed. Thus he prays for allowing the writ petition quashing Annexure-D order dated 31.12.2019.

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Learned counsel for the 2^nd respondent submits that Corrigendum Order Annexure-D dated 31.12.2019 would not make any difference to the petitioner, if order passed under Annexure-C dated 27.08.2019 is maintained. Therefore, she submits that 1^st respondent

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passed Corrigendum Order only to correct or to clarify the operative portion, which was left out in the order dated 27.08.2019. Learned counsel further submits that petitioner’s prayer was to set aside the Gift Deed, which was left out while passing the order (Annexure-C) dated 27.08.2019. The Corrigendum Order (AnnexureD) makes no difference to the petitioner insofar as the property gifted to son and daughter of the petitioner is concerned. Thus she prays for dismissing the writ petition.

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Learned AGA for the 1^st respondent was unable to point out any provision under the Act, empowering the 1^st respondent-the Assistant Commissioner to tinker with the order, once passed or to effect any correction or review.

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The 2^nd respondent-Mother of the petitioner made an application under Section 4 of the Act before the 1^st respondent-the Assistant Commissioner. Section 23 of the Act reads as follows :-

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“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.

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(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part 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.

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(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to subsection (1) of section 5.”

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A careful reading of the above provision makes it clear that any transfer by way of gift or otherwise, the property of the Senior Citizen 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.

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As could be seen from the order (Annexure-C) dated 27.08.2019 the prayer of the 2^nd respondent was to declare the gift deed as void.

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The 1^st respondent taking note of the contentions of the parties and after hearing both the parties passed the order holding that the 2^nd respondent would be entitled for one house situated in the ground floor as well as one shop, and the house situated in the first floor and one shop would be gifted to Suhas and

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Meghana, son and daughter of the petitioner, in property bearing No.134, measuring East to West 33 feet and North to South 29 ½ feet. Thereafter, without there being any application, more than three months thereafter, the 1^st respondent passed an order canceling the gift deed dated 20.02.2014 executed by the 2^nd respondent in favour of the petitioner. The Act would not provide such power to modify the order or to pass further order without there being any application. Rule 14 of the Act, prescribes the action by the Tribunal in other cases. Once the 1^st respondent passes an order, the 1^st respondent becomes functus officio. If the application of the Senior Citizen is rejected or aggrieved by the order passed by the 1^st respondent, Section 16 of the Act provides appeal remedy to the senior citizens or parents. If the Tribunal grants relief to the senior citizens or parents, the order becomes final and the Act would not provide for any appeal.

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In the above circumstances, I am of the view, the

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Corrigendum Order (Annexure-D) dated 31.12.2019 is

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one without jurisdiction and the same requires to be set aside.

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Accordingly, the writ petition is disposed of. The Corrigendum Order (Annexure-D) bearing

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No.MAG:CR:01/2018-19 dated 31.12.2019 is set aside.

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Sd/JUDGE

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NG* CT:bms

Shantha Prakash v. The Assistant Commissioner

Case brief

What is this about?

What did the court decide?

Shantha Prakash v. The Assistant Commissioner

Case brief

What is this about?

What did the court decide?

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