Allowed

Sri. a S David v. the Assistant Commissioner

Karnataka HC23 Sept 2023WP/16308/2019

Case brief

AI extract

What is this about?

The High Court allowed the petition to set aside an order cancelling a gift deed. Ruling that Section 23 of the 2007 Act did not apply due to lack of pleaded maintenance conditions, the Court restored the deed but ordered the petitioner to pay monthly maintenance to the senior citizen mother.

What did the court decide?

Impugned order setting aside; gift deed restored; direction to Sub-Registrar set aside; monthly maintenance of Rs. 10,000/- ordered from petitioner.

Sri. a S David Vs the Assistant Commissioner — Maintenance and Alimony | Karnataka HC (2023)

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1 - NC: 2023:KHC:34853 WP No. 16308 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 16308 OF 2019 (GM-RES)

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BETWEEN:

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SRI. A.S. DAVID AGED ABOUT 51 YEARS, S/O LATE SAMUEL PRABHAKAR, GOWNIPALLI VILLAGE, RAYALPAD HOBLI, SRINIVASAPUR TALUK KOLAR DISTRICT-563144.

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…PETITIONER

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(BY SRI. V. VINOD REDDY AND SRI. K.J. JAGADEESHA, ADVOCATES)

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AND:

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THE ASSISTANT COMMISSIONER KOLAR SUB-DIVISION, KOLAR DISTRICT-563101.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. SATYABHAMA AGED ABOUT 67 YEARS, W/O SAMUEL PRABHAKAR, GOWNIPALLI VILLAGE, RAYALPAD HOBLI, SRINIVASAPUR TALUK, KOLAR DISTRICT-563144.

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…RESPONDENTS

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(BY SRI. VENKAT SATYANARAYAN, HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.1;

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SMT. IRFANA NAZEER, ADVOCATE FOR RESPONDENT NO.2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.12.2016 PASSED IN CASE NO.ADM.CR.57/2016-17 PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-C AND ETC.

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NC: 2023:KHC:34853 WP No. 16308 of 2019

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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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ORDER

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The petitioner has challenged an order dated 16.12.2016 passed by the respondent No.1 in Case No.ADM.CR.57/2016-17 by which he cancelled a gift deed bearing No.1955/2003-04 dated 19.03.2003 executed by

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the respondent No.2 herein under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (henceforth referred to as 'the Act of 2007’) and directed the Sub-Registrar, Srinivasapura Taluk to cancel registration of the said gift deed.

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The respondent No.2 executed a gift deed dated 19.12.2003 (henceforth referred to as ‘the gift deed’) bequeathing a residential house bearing property No.132/585 and demand register No.592 situate at Gownipalli village, Rayalpadu hobli, Srinivasapura Taluk (henceforth referred to as ‘the property’) to the petitioner. Later, she filed an application under Sections 4, 5 and 23 of the Act of 2007 for cancelling the gift deed contending

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that the petitioner approached her claiming that he was in need of money to construct a house on the first floor of the existing house for which the house had to be pledged to raise a loan. Accordingly, she accompanied him to the Sub-Registrar's office at Srinivasapura to pledge the house. She alleged that she was assured that she would not be cheated and that the petitioner would repay the installments every month. She alleged that believing the words of the petitioner and without informing her other children, she went to the office of the Sub-Registrar, Srinivasapura and executed a document which was to be a deed of mortgage. She alleged that the petitioner had cheated her by getting a gift deed executed and getting the property transferred to his name. She alleged that when she questioned him, the petitioner assaulted her and abused her and drove her out of the house. She claimed that the property belonged to her and the petitioner had illegally taken over the said property. The notice of this application was served to the petitioner herein, who filed his objections contending that ever since the date of death

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of his father, his mother was residing with him and that he was taking care of his mother. He claimed that he was employed as Teacher in Higher Primary School at Addagal. He claimed that owing to the immense love and affection showered on her, his mother bequeathed the property by way of a gift deed dated 19.12.2003. He claimed that even after the execution of the gift deed, his mother continued to live with him till the year 2013. Later, his eldest brother – Sri A.S. Udaykumar requested him to send his mother to stay with him for a short period. Accordingly, he sent his mother to stay with his eldest brother. After sometime when he requested his brother to send her back, he refused to do so. The petitioner herein claimed that during his mother’s stay in her eldest son's house, she had disclosed about the execution of the gift deed and all hell broke loose as his eldest brother turned hostile and started pressurizing his mother to cancel the gift deed. He claimed that the instant application filed by his mother under Sections 4, 5 and 23 of the Act of 2007 was at the behest of his eldest brother. He claimed that

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based on the gift deed, he had availed a loan of Rs.3,00,000/- from the Union Bank of India, Gownipalli Branch and had also sold the gold jewels of his wife and spent more than Rs.8,00,000/- for construction of a house on the property in question. He claimed that he also raised a loan on the security of his salary at State Bank of Mysore, Srinivasapura branch and that he was yet to discharge the loan amount of Rs.2,00,000/-. He, therefore, contended that the application filed by his mother was ill-motivated at the instance of his eldest brother.

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The respondent No.1 held proceedings and in terms of the impugned order, cancelled the gift deed and the petitioner was directed to deliver back possession of the property to his mother.

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Being aggrieved by the aforesaid order, the petitioner is before this Court.

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Learned counsel for the petitioner submits that the petitioner has already filed a suit in O.S. No.164/2017

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for declaration of his title and for perpetual injunction and therefore, the respondent No.1 ought not to have entertained the application filed by the respondent No.2. He also submitted that the gift deed was executed on 19.12.2003 i.e., much prior to the Act of 2007 coming into force and therefore, the provisions of the Act of 2007 were not applicable with retrospective effect. He also contended that there was no condition attached to the gift deed that the respondent No.2 had to be maintained by the petitioner. The learned counsel relied upon the judgment of the Hon'ble Supreme Court in the case of Sudesh

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Chhikara v. Ramti Devi & Anr. [2022 LiveLaw (SC)

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1011] and contended that the impugned order passed by the respondent No.1 is liable to be set aside.

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Per contra, the learned counsel for the respondent No.2 contended that though the respondent No.2 had six children, none of them were looking after the respondent No.2 and she was however residing with the petitioner in the house belonging to her and that the

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petitioner had tricked her into believing that a mortgage deed had to be executed to raise a loan to construct a building and that she in good faith believed the representations of the petitioner and executed a document believing it to be a mortgage deed, which however turned out to be a gift deed. She submits that every parent is entitled to be looked after and maintained by his/her children and even if a condition is not mentioned in the gift deed, the same has to be read into it. She contended that this property was the only property available for the respondent No.2 and in order to knock off the same, the petitioner had hatched a plan to get a gift deed registered in his name. She contended that the respondent No.2 had six children and there is no special reason to execute a gift deed bequeathing the property exclusively to the petitioner and the only palpable reason is that the petitioner has tried to unlawfully take over the property through oblique means. She, therefore, contended that the impugned order passed by the respondent No.1 is just and proper. She relied upon the judgment of a coordinate

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Bench of this Court in N.D. Vanamala v. State of Karnataka, rep. by its Chief Secretary, and Others

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[ILR 2019 Kar 247].

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I have considered the submissions made by the learned counsel for the petitioner and the learned counsel for respondent No.2.

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A perusal of the gift deed dated 19.12.2003 executed by respondent No.2 in favour of the petitioner, shows that it was not subject to any condition that the petitioner has to take care of the needs and necessities of the respondent No.2. Furthermore, the gift deed itself was executed long prior to the Act of 2007 coming into force. In similar circumstances, the Hon'ble Apex Court in the case of Sudesh Chhikara (supra) held in para Nos.13 and 14 and 15 as follows:

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“ 13. When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the

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contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in subsection (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal.

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14. Careful perusal of the petition under Section 23 filed by respondent no.1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of respondent no.1) would provide the basic amenities and basic physical needs to respondent no.1. Even in the impugned order dated 22^nd May 2018 passed by the Maintenance Tribunal, no such finding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was filed by the appellant that the petition was fixed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor – senior citizen is sine qua non for applicability of subsection (1) of Section 23. In the present case,

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as stated earlier, it is not even pleaded by respondent no.1 that the release deed was executed subject to such a condition.

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15. We have perused the counter affidavit filed by respondent no.1. Even in the counter, it is not pleaded that the release was subject to such a condition. It is merely pleaded that the appellant had no intention to take care of her mother. Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied. Unfortunately, the High Court has not adverted to the merits of the case at all.”

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The law declared by the Hon’ble Apex court in the aforesaid judgment in Sudesh Chhikara’s case (supra) applies on all fours to the present case. Therefore, the impugned order passed by the respondent No.1 is liable to be set aside. However, it is always open for respondent No.2 to establish that the gift deed was obtained fraudulently. The respondent No.2 is now aged more than 75 years and perhaps has no source of income. The petitioner having been gifted with the property of the

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respondent No.2 is liable to maintain her and meet her needs and necessities. Having regard to the fact that the petitioner is employed with the State Government, this Court considers it appropriate to exercise power under Section 9 of the Act of 2007 and order the petitioner to pay monthly maintenance of Rs.10,000/- from the date of this petition till the lifetime of the respondent No.2.

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In view of the above, this petition is allowed. The impugned order dated 16.12.2016 passed by the respondent No.1 in case No.ADM.CR.57/2016-17 is set aside and the gift deed bearing No.1955/2003-04 dated 19.12.2003 (stated as dated 19.03.2003 in the impugned order) is restored. Consequently, the direction issued by the respondent No.1 to the Sub-Registrar, Srinivasapura Taluk to cancel the registration of the gift deed is also set aside. However, liberty is reserved to respondent No.2 to work out her rights in an appropriate suit in accordance with law. The petitioner shall pay a sum of Rs.10,000/- per month from the date of this petition till the lifetime of the

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respondent No.2, failing which a charge shall be created on the property which is the subject matter of the gift

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deed dated 19.12.2003.

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Sd/JUDGE

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sma List No.: 1 Sl No.: 29

Sri. a S David v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

Sri. a S David v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

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