Dismissed

Smt Munivenkatamma @ Venkatamma v. the State of Karnataka

Karnataka HC27 Jun 2024WA/1328/2021

Case brief

AI extract

What is this about?

Daughters challenged the Tribunal's cancellation of their father's registered gift deed under Section 23(1) of the Senior Citizens Act, contending no maintenance condition was in the deed and natural justice was violated. Holding that oral assurances pleaded in the complaint sufficed and notice was duly served, the Division Bench dismissed the writ appeal.

What the court decided

AI extract

Smt Munivenkatamma @ Venkatamma Vs the State of Karnataka — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:24155-DB WA No. 1328 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT APPEAL NO. 1328 OF 2021 (GM-RES)

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BETWEEN:

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SMT. MUNIVENKATAMMA @ VENKATAMMA REPRESENTED BY LR’S

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1(a). DASABHOVI

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HUSBAND OF LATE MUNIVENKATAMMA @ VENKATAMMA

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AGED ABOUT 75 YEARS

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Digitally signed by K G RENUKAMBA Location: High Court of Karnataka

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1(b). JAYALAKSHMI D/O DASABHOVI AGED ABOUT 42 YEARS

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1(c). RATHNAMMA D/O DASABHOVI AGED ABOUT 38 YEARS

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1(d). MANJUNATHA S/O DASABHOVI

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AGED ABOUT 35 YEARS

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APPELLANT NO.1(a) TO (d) ARE RESIDING AT: R/O DODDABADAGERE HAROHALLI, KANAKAPURA TALUK RAMNAGAR DISTRICT – 562 117

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SMT. YELLAMMA W/O RAMAIAH AGED ABOUT 53 YEARS R/AT: RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK – 562 117

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SMT. SAKAMMA W/O SRI. GOPAL AGED ABOUT 40 YEARS R/AT: RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK – 562 117

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…APPELLANTS

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(BY SRI. K R KRISHNAMURTHY., ADV FOR A2 & A3 AND ALSO FOR LRS OF A1(A) TO (D))

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AND:

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THE STATE OF KARNATAKA DEPARTMETN OF REVENUE VIKASA SOUDHA AMBEDKAR VEEDHI BENGALURU - 560 001

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REP BY ITS PRINCIPAL SECRETARY

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ASSISTANT COMMISSIONER SENIOR CITIZEN MAINTENANCE APPELLATE TRIBUNAL RAMANAGARA SUB-DIVISION RAMANAGARA – 562 159

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SRI. KARIYAPPA S/O. LATE. CHIKKA KARIYAPPA REPRESENTED BY LR’S

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3(a). VENKATAMMA @ DODDAMMA AGED ABOUT 72 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562 112

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3(b). KAMALAMMA W/O. NANJAPPA AGED ABOUT 50 YEARS R/O KADAVEKEREDODDI VILLAGE MALAGALU POST KASABA HOBLI KANAKAPURA TALUK - 562 117

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3(c). NAGAMMA AGED ABOUT 48 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562 112

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3(d). SHARADAMMA W/O NANJAPPA AGED ABOUT 42 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562 112

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3(e). RANJITHA W/O SURESH D/O NANJAPPA AGED ABOUT 25 YEARS R/O KADAVEKEREDODDI VILLAGE MALAGALU POST KASABA HOBLI KANAKAPURA TALUK - 562 117

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3(f). KIRAN N S/O NANJAPPA

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AGED ABOUT 23 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562 112

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3(g). VENKATASWAMY S/O KARIYAPPA AGED ABOUT 39 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562 112

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3(g)(1). MANGAMMA @ MANJULA W/O VENKATASWAMY AGED ABOUT 40 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK – 562 112

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3(g)(2). KANAKA D/O VENKATASWAMY AGED ABOUT 26 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK - 562112

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3(g)(3). KAVYA D/O VENKATASWAMY AGED ABOUT 24 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBL KANAKAPURA TALUK – 562 112

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3(g)(4). KAVITHA D/O VENKATASWAMY W/O DHANANJAYA

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AGED ABOUT 24 YEARS R/O RAMASAGARA VILLAGE MEDAMARANAHALLI DHAKLE HAROHALLI HOBLI KANAKAPURA TALUK – 562 112 ALSO AT SIDDANAPALAYA VILLAGE KASABA HOBLI ANEKAL TALUK – 586 206 4. LOKESH S/O DASABHOVI AGED ABOUT 38 YEARS R/O DODDABADAGERE HAROHALLI KANAKPURA TALUK RAMNAGAR DISTRICT

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RAJU D S/O DESABHOVI AGED ABOUT 52 YEARS R/O DODDABADAGERE HAROHALLI KANAKPURA TALUK RAMNAGAR DISTRICT

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…RESPONDENTS

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(BY SRI. DEVARAJ C.H., GOVT. ADV FOR R1 & R2; SRI. K.NARASIMHA MURTHY, ADV FOR R3(D), R3(G)(1) & (3) AND R3(F); V/O/D 9/2/2023 NOTICE ON R3(B) & (E) ARE HELD SUFFICIENT; V/O/D 17/8/2023 NOTICE ON R3(G)(4) IS HELD HELD SUFFICIENT; R3(A), R3(C), R3(D), R3(G)(2), R4 AND R5 ARE SERVED AND UNREPRESENTED)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 10.08.2021 PASSED IN WP NO.14496/2021 AND FURTHER BE PLEASED TO ALLOW THE WRIT PETITION NO.14496/2021, AS PRAYED FOR, BY QUASHING THE ORDER DATED 26.07.2021 PASSED BY THE 2ND RESPONDENT ASSISTANT COMMISSIONER IN HIRIYA NAA.RA.KAA.NO./02/2021-22 AND ETC.,

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, V KAMESWAR RAO J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal has been filed by the petitioners/ appellants challenging the order dated 10.08.2021 passed in W.P.No.14496/2021 (GM-RES), whereby the learned Single Judge has dismissed the petition by stating in paragraph No.5 of the impugned order as under:

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“5. Petitioner's case is that third respondent is financially sound and Assistant Commissioner ought to have called upon third respondent to produce his details of assets and Bank particulars. The said argument is wholly untenable because, the owner of the property has alleged fraud and misrepresentation.”

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The submission of Mr. K.R. Krishnamurthy, learned

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counsel appearing for the appellants (appellant no.1 substituted by legal representatives) is that the appellants

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are the daughters of respondent No.3 (who is substituted by legal representatives in the appeal). Respondent No.3 executed a registered gift deed dated 23.08.2018 with respect to land bearing Sy.No.89/5, measuring 32 guntas, situated at Ramasagara Village, Medamaranahalli Dhakle, Harohalli Hobli, Kanakapura Taluk. On 06.11.2020, he preferred a petition before the Assistant Commissioner, Senior Citizen Maintenance Appellate Tribunal (respondent No.2) under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Act’ for short) seeking cancellation of the gift deed on the ground that the gift deed is obtained by making misrepresentation that the petitioners/appellants are not taking care of him and hence, the gift deed is deemed to have been obtained by fraud and undue influence. According to him, respondent No.2 declared the gift deed dated 23.08.2018 as void by exercising powers under Section 23 of the Act, which is totally erroneous. In as much as Section 23

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(1) which has been invoked by respondent No.3, stipulates the following two conditions to be satisfied:

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(i) gift deed must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to respondent No.3-the transferor; and

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(ii) the appellants refused or failed to provide such amenities and physical needs to respondent No.3-the transferor.

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According to Mr. Murthy, no such condition/clause has been stipulated in the gift deed dated 23.08.2018. So, according to him, respondent No.2 could not have considered the petition at all. In support of his submission, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Sudesh Chhikara -Vs.- Ramti Devi and Another¹ , more particularly paragraphs No.12 to 14.

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On the other hand, learned counsel for respondent No.3 would justify the order of respondent No.2/Tribunal by stating the findings of the learned Single Judge and the respondent no.2 are findings of fact to hold that the gift deed was executed with an understanding that the appellants/petitioners shall provide the basic needs to

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1 2022 SCC Online SC 1684

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respondent No.3, which have not been provided. In fact, they have cheated him by obtaining his signatures. That apart, he states that when the Tribunal as well as the learned Single Judge have held in favour of respondent No.3, this Court in the appellate jurisdiction would not like to differ from the view taken by the said authorities and dismiss the appeal.

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Having heard the learned counsel for the parties, the only issue that arises for consideration is whether the learned Single Judge is justified in rejecting the petition filed by the petitioners/appellants and thereby upholding the order of the Tribunal dated 26.07.2021?

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The plea of Mr. Murthy is primarily that respondent No.2/Tribunal could not have set aside the gift deed when the two conditions stipulated under section 23(1) of the Act have not been satisfied. This submission of Mr. Murthy is not appealing for the reason that though the gift deed did not stipulate that the same is being executed on an understanding that the petitioners/appellants shall maintain respondent No.3, but respondent No.3 in his

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complaint before respondent No.2 did state that the gift deed has been executed based on oral assurances of the appellants/petitioners. Paragraph No.7 of the English translation of the same as filed by the petitioners/appellants reads as under:

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“7. The Appellant submit that the Respondents, to the appellant given oral assurances and they refused to fulfill the appellant fundamental facilities and the Respondents are failure to fulfill their given assurance to the Appellant and continued not given any protection to the Appellant leading his life and the appellant refused from censure and the appellant become mentally and physically harassment made from the Respondents.”

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The aforesaid paragraph do indicate that the petitioners i.e., the appellants, despite oral assurance, refused to give any protection to respondent No.3. We find even respondent No.2/Tribunal has set aside the gift deed, based on a finding that petitioners/appellants have not maintained respondent No.3. Mr. Murthy’s submission is, the consideration that the appellants would maintain the respondent No.3 should have been specifically mentioned in the gift deed. In the absence of any such stipulation in the

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gift deed, even if the complaint filed by respondent No.3 states so and the Tribunal gives such a finding, the same would not help the case of respondent No.3, is not appealing more particularly in view of paragraph No.15 of the judgment in the case of Sudesh Chhikara (supra). We reproduce herewith paragraphs No.12 to 15 of the said judgment as under:

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“12. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise". For attracting sub-section (1) of Section 23, the following two conditions must be fulfilled:

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a. The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and

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b. the transferee refuses or fails to provide such amenities and physical needs to the transferor.

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13. If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.

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14. 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 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 sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal.

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15. 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 22nd 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 sub- section (1) of Section 23. In the present case, as stated earlier, it is not even pleaded

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by respondent no.1 that the release deed was executed subject to such a condition.”

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(emphasis supplied)

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A reading of paragraph No.15 would make it clear

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that it is not necessary that the transfer deed must state that the appellants shall maintain respondent No.3. It is enough if such a case is set up in the complaint filed before the Tribunal/respondent No.2, which in fact has been setup by respondent No.3 and there is a finding in that regard by the Tribunal. So it follows the requirements of sub-section (1) of Section 23 have been satisfied. This we say so, because the Hon’ble Supreme Court in paragraph No.15 says, “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 xx xx” and also “Even in the impugned order dated 22^nd May 2018 passed by the Maintenance Tribunal, no such finding has been recorded”.

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During the course of his submissions, Mr. Murthy would contend that the order passed by the Tribunal/respondent No.2 was in violation of Principles of

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Natural Justice. This submission of Mr. Murthy is primarily for the reason that the order passed by the Tribunal was without issuing notice to appellants No.2 and 3 herein. For this purpose, we had called for the record of the Tribunal. It clearly emerges that all the petitioners/ appellants were issued notice which were received by them. In fact, one of the appellants Mrs. Munivenkatamma had appeared before the Tribunal and in token thereof, had put her thumb impression during the hearing on 15.04.2021.

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In view of our above discussion, we are of the view that the appeal filed by the appellants/petitioners is without any merit and the same is liable to be dismissed. It is ordered accordingly. No costs.

Sd/JUDGE

Sd/JUDGE

List No.: 1 Sl No.: 22

Smt Munivenkatamma @ Venkatamma v. the State of Karnataka

Case brief

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What the court decided

Smt Munivenkatamma @ Venkatamma v. the State of Karnataka

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