Allowed

Mrs Juliana D'Souza v. the Assistant Commissioner

Karnataka HC6 Jan 2023WP/11624/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a Writ Petition under Articles 226 and 227 quashing an order that cancelled a sale deed. The court held that an absolute sale deed without conditions regarding basic amenities cannot be declared void under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

What did the court decide?

The order dated 09.03.2015 passed by the Assistant Commissioner, Sub-Division, Mangaluru in Proceedings No. JA.J¸ï.¹.¹Dgï(»£Á): 48/14-15 is quashed.

Mrs Juliana D'Souza Vs the Assistant Commissioner — Maintenance and Alimony | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI

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WRIT PETITION No.11624 OF 2017 (GM-RES)

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BETWEEN:

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MRS. JULIANA D'SOUZA W/O ROBERT D' SOUZA, AGED ABOUT 60 YEARS, R/AT SHANTHIKAD HOUSE, HOSANGADY VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT. ... PETITIONER

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(BY SRI P.P.HEGDE, SENIOR ADVOCATE FOR SRI VENKATESH SOMAREDDI, ADVOCATE)

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AND:

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THE ASSISTANT COMMISSIONER, SUB DIVISION, MANGALURU & EX-OFFICIO PRESIDENT, MAINTENDANCE AND WELFARE OF PARENTS AND

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SENIOR CITIZENS TRIBUNAL, MANGALURU (SETUP UNDER SECTION 7 OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007), D.K.DISTRICT - 575 001.

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THE DEPUTY COMMISSIONER, DAKSHINA KANNADA DISTRICT, MANGALURU - 575 001.

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MRS.STELLA D'SOUZA,

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AGED 84 YEARS, D/O LATE JEROME D'SOUZA,

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R/AT SOUZA VILLAGE, DEVARA PADAVU, VAMANJUR, MANGALURU TALUK.

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3(a). SMT.JATTHU D' SOUZA, W/O LATE RAMAPPA AGED ABOUT 73 YEARS, NO.1-198, THIRUVALLI VAMANJOOR, DAKSHINA KANNADA - 575 528.

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3(b). SMT.ELVEERA MORAS W/O VINCENT MORAS, AGED ABOUT 51 YEARS, NO.2-193, PILIKUMERI, KUDUPUR ROAD, KUDUPU VILLAGE POST, THIRUVALLI, VAMANJOOR, DAKSHINA KANNADA - 575 528. ... RESPONDENTS

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[(BY SMT.A.R.SHARADAMABA, AGA FOR R1 & R2; SRI K.MANOHARA CHARI, ADVOCATE FOR R3 (a & b)]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER 09.03.2015 PASSED BY RESPONDENT NO.1/ASSISTANT COMMISSIONER, SUB DIVISION, MANGALURU IN PROCEEDINGS NO.JA.J¸ï.¹.¹Dgï(».£Á):48/14-15 AGAINST THE PETITIONER WHICH IS PRODUCED AT ANNEXURE-A.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Sri.P.P.Hegde., learned Senior counsel on behalf of

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Sri.Venkatesh Somareddi., for petitioner, learned AGA for respondents 1 & 2 and Sri.K.Manohara Chari., learned

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counsel for respondents 3(a) & (b) have appeared in person.

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The petitioner has invoked the writ jurisdiction under Articles 226 and 227 of the Constitution of India to issue a Writ of Certiorari to quash the impugned order dated:09.03.2015 passed by the Assistant Commissioner, Sub-Division, Mangaluru in Proceedings No. JA.J¸ï.¹.¹Dgï(»£Á):48/14-15 vide Annexure-A.

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Sri.P.P.Hegde., learned Senior counsel for petitioner submits that Mrs.Juliana D.Souza - the petitioner has purchased the 5 cents of land in Survey no.21/2B2 situated in Thiruvail Village of Mangaluru Taluk from Mrs.Stella D'Souza - the original third respondent as per sale deed dated:30.08.2011 for a consideration of Rs.3,13,000/- (Rupees Three Lakh Thirteen Thousand only).

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One Dr.Ravindranath Shanbhag, President of Human Rights Protection Foundation on behalf of Mrs.Stella

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D'Souza initiated proceedings under Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'the Act'). The Assistant Commissioner, Sub Division, Mangaluru & Ex-Officio President, Maintenance and Welfare of Parents and Senior Citizens Tribunal, Mangaluru - first respondent vide order dated:09.03.2015 allowed the petition and cancelled the sale deed.

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Learned Senior counsel Sri.P.P.Hegde., submitted that the Tribunal constituted under the Act can declare any transaction as void and cancel the sale deed only if the transfer by way of sale deed is subject to the condition that the transferee shall provide basic amenities and basic physical needs to the transferor. In the instant case, the sale deed is absolute and it is out and out the sale deed for consideration of Rs.3,13,000/(Rupees Three Lakh Thirteen Thousand only) and the sale deed does not contain any such condition. Therefore, the impugned order is unsustainable in law.

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Learned Senior counsel has placed reliance on the following decisions:

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i. SUDESH CHHIKARA VS. RAMTI DEVI & ANOTHER - CIVIL APPEAL NO.174/2021.

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ii. SMT.G.R.JAYALATHA VS. THE CHIEF SECRETARY, GOVT. OF KARNATAKA & OTHERS - W.P.NO.52019/2015.

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iii. SMT.N.D.VANAMALA VS. STATE OF KARNATAKA & OTHERS - W.A.NO.96/2019 IN W.P.NO.54488/2017.

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Learned AGA argued supported the order

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passed by the Assistant Commissioner.

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Sri.K.Manohara Chari., learned counsel for respondents 3(a) and (b) strenuously urged that Mrs.Stella D'Souza - the original third respondent was aged 80 years and she has not executed the sale deed in favor of petitioner. Counsel drew attention of the Court to the application filed under Section 23 of the Act. Counsel also submitted that in the application, a clear statement is made that Mrs.Stella D'Souza had no intention to sell the

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property and the petitioner has obtained the alleged sale deed by fraud when Mrs.Stella D'Souza was aged 80 years.

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Counsel also submitted that certain criminal proceedings are also initiated in this regard. Counsel therefore, submits that the Assistant Commissioner taking note of the said facts, is justified in declaring the sale deed as null and void and has rightly cancelled the sale deed which is alleged to have been executed by Mrs.Stella D'Souza in favor of Mrs.Juliana D'Souza.

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Counsel vehemently urged that the Assistant Commissioner order is just and proper and the petitioner has not made out any good grounds to interfere with the order passed by the Assistant Commissioner. Accordingly, he prayed for dismissal of the petition.

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During the pendency of the Writ Petition, Mrs.Stella D'Souza - the original third respondent died and her legal representatives were brought on record.

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Heard, the contentions urged on behalf of the respective parties and perused the writ papers and also the annexures with utmost care.

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Sri.P.P.Hegde., learned Senior counsel for the petitioner is right in his submission that transfer by way of absolute sale deed can be declared as void only if such transfer is made subject to condition that transferee shall provide basic amenities and basic physical needs to the transferor.

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A bare perusal of sale deed shows that the sale is absolute and no such condition is imposed in the sale deed. In the circumstances the impugned order passed by the Assistant Commissioner, Sub-Division Mangaluru is unsustainable in law.

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Accordingly, the Writ Petition is allowed . Writ of certiorari is ordered. The order dated:09.03.2015 passed by the Assistant Commissioner, Sub-Division, Mangaluru in

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Proceedings No. JA.J¸ï.¹.¹Dgï(»£Á): 48/14-15 vide

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Annexure-A is quashed.

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Sd/JUDGE

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TKN

Mrs Juliana D'Souza v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

Mrs Juliana D'Souza v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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