Allowed

Sri Akhilesh v. the Assistant Commissioner

Karnataka HC9 Sept 2024WP/11686/2019

Case brief

AI extract

What is this about?

A senior citizen's application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act to cancel a gift deed to her adopted son was quashed. The gift deed contained no condition to provide basic amenities, a civil court had upheld the gift deed, and third-party interests had been created.

What did the court decide?

Writ petition allowed; order dated 30.01.2019 in Case No.MSC/CR/19/2018-19 passed by respondent No.1 quashed.

Sri Akhilesh Vs the Assistant Commissioner — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:36900 WP No. 11686 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE K. V. ARAVIND

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WRIT PETITION No. 11686 OF 2019 (GM-RES)

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BETWEEN:

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SRI AKHILESH, AGED ABOUT 23 YEARS, S/O T. JAYALAKSHMI, R/AT No.633, WEST OF CHORD ROAD, 2^ND STAGE, BASAVESHWARANAGARA, BENGALURU-560004.

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…PETITIONER

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(BY SRI MALLIKARJUN N.K., ADVOCATE FOR SRI A. SAMPATH, ADVOCATE)

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AND:

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Digitally signed by VALLI MARIMUTHU Location: High Court of Karnataka

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THE ASSISTANT COMMISSIONER BENGALURU NORTH SUB-DIVISION, BENGALURU-560001.

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SMT. JAYALAKSHMI, D/O LATE T.V.THIMMEGOWDA, AGED ABOUT 73 YEARS, R/AT No.64/1/2, HANUMAPPA GARDEN, ALLALASANDRA, GKVK LAYOUT, YELAHANKA, BANGALORE-560064.

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SRI GOPAL, S/O LATE PAPANNA, AGED ABOUT 64 YEARS, R/AT No.633, WEST OF CHORD ROAD,

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2 - NC: 2024:KHC:36900 WP No. 11686 of 2019

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2^ND STAGE, BASAVESHWARANAGARA, BENGALURU-560002.

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…RESPONDENTS

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(BY SRI S.H. RAGHAVENDRA, AGA FOR R1; SRI MAHAMMADALI, ADVOCATE FOR SRI K.P. BHUVAN, ADVOCATE FOR R2; V/O DATED 04.02.2020 NOTICE TO R3 IS DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 30.1.2019 PASSED BY R-1 IN CASE No.MSC/CR/19/2018-19, A COPY OF WHICH IS ENCLOSED AS ANNEXURE-H.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL ORDER

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The instant petition to quash the order No.MSC/CR/19/2018-19, dated 30.01.2019 passed by respondent No.1-Assistant Commissioner.

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The petitioner is the adopted son of respondent No.2. The petitioner was adopted by the Deed of Adoption dated 13.07.2005. Respondent No.2 gifted the property at Basaveshwar Nagar in favour of the petitioner under Gift Deed dated 17.09.2011. Respondent No.2 cancelled the gift deed on

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NC: 2024:KHC:36900 WP No. 11686 of 2019

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13.04.2012. Thereafter sold the property in favour of Smt. Gayathri Mohan and Smt. Manjula Vijayakumar under sale deed dated 05.04.2013.

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The petitioner preferred O.S.No.4592/2013 with a prayer to set aside the sale deed and deed of cancellation of gift. The suit is decreed on 27.03.2018.

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Respondent No.2 filed an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act (for short 'Act') to cancel the deed of gift dated 17.09.2011. Respondent No.1 by order dated 30.01.2019 declared the gift deed as null and void and issued the consequential directions.

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Sri Mallikarjun N.K., learned counsel appearing on behalf of Sri A Sampath, learned counsel for the petitioner submits that the gift deed is unconditional. There is no condition to provide basic amenities to respondent No.2. It is further submitted that the gift deed was cancelled and respondent No.2 executed sale deed in favour of third parties. On execution of the sale deed, respondent No.2 has no right or interest in the property. At the instance of the petitioner, the

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4 - NC: 2024:KHC:36900 WP No. 11686 of 2019

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civil Court declared the sale deed and the cancellation of gift deed as null and void.

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5.1 It is submitted that once the civil Court declares the gift deed as valid, it is not within the competence of respondent No.1 to declare the gift deed as null and void.

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Sri S H Raghavendra, learned Additional Government Advocate appearing for respondent No.1 supports the impugned order.

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Sri Mohammed Ali, learned counsel appearing on behalf of Sri K.P. Bhuvan, learned counsel appearing for respondent No.2, submits that the petitioner was adopted by respondent No.2, and the property was gifted with the hope that she would be taken care of by the petitioner by providing basic amenities. The petitioner, having failed to maintain the welfare of respondent No.2, the gift deed was cancelled, and the sale deed was executed. It is submitted that the civil Court has declared the cancellation of the gift deed and sale deed as null and void, thereby restoring the gift deed. It is submitted that as the gift deed was executed with the hope of being taken care of by the petitioner, the petitioner has failed to do so, the

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5 - NC: 2024:KHC:36900 WP No. 11686 of 2019

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application under Section 23 is maintainable, and the gift deed is rightly declared as null and void.

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Notice to respondent No.3 is dispensed by order dated 04.02.2020.

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Considered the submissions of learned counsel for the parties and perused the writ papers.

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Respondent No. 2 adopted the petitioner on 13.07.2005, and the adoption is valid as of that date. Respondent No. 2 gifted the property in question to the petitioner on 17.09.2011, which was cancelled on 13.04.2012. Respondent No. 2 has also executed further sale deeds in favour of third parties.

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The cancellation of the gift deed dated 13.04.2012 and the sale deed dated 05.04.2013 are declared null and void by the competent civil Court in O.S.No.4592/2013 in judgment and decree dated 27.03.2018. As a result of the decree, the gift deed dated 17.09.2011 is restored.

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The Court is required to examine two aspects. Firstly, the maintainability of an application under Section 23 of the Act.

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Secondly, the right of respondent No.2 to seek cancellation of gift deed.

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The maintainability of the application under the Act for cancellation of the gift deed is subject to compliance of two conditions. Firstly, the gift deed should contain a condition that the donee shall provide the donor with basic amenities and physical needs. Secondly, the transferee/donee should refuse or fail to provide such amenities and physical needs to the transferor/donor. The above condition is held to be mandatory by the Hon'ble Supreme Court in Sudesh Chhikara vs. Ramti Devi and another [(2022) SCC OnLine SC 1684] . On scrutiny of the gift deed on record, the Court finds that such no condition is imposed. In the absence of the condition, it is to be held that application under the Act is not maintainable.

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Respondent No.2 has relinquished her right in the property in the first instance by executing gift deed. Without going into the correctness of the cancellation of the gift deed, if it is to be considered that she acquired the right on cancellation of the gift deed, respondent No.2 has executed a sale deed in

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NC: 2024:KHC:36900 WP No. 11686 of 2019

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favour of third parties, thereby relinquishing all her rights in the property.

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The restoration of gift deed is at the instance of the petitioner and as per the judgment and decree of the civil Court. The Civil Court, while declaring the deed of cancellation of gift and sale deed as null and void, upheld the gift deed. Once a gift deed is declared to be valid by the civil Court, it is not open for respondent No.1 to declare the gift as null and void under the Act. If such an exercise or remedy is permitted, it would lead to respondent No.1 sitting in appeal against the judgment and decree of a competent civil Court.

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One more aspect is that respondent No.2 has created third-party interest by executing a sale deed in favour of the third parties. The Civil Court in O.S.No.4592/2013 has declared that the sale deed is not binding on the petitioner. The sale deed continues to bind respondent No.1. The legal position is that once third-party interest is created, an application under the Act is not maintainable; the same needs no reiteration.

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In the backdrop of the above reasons, the order of respondent No.1 dated 30.01.2019 in case

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No.MSC/CR/19/2018-19, Annexure-H is unsustainable.

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18. Accordingly, the following,

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Order

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i) Writ petition is allowed.

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ii) The order No.MSC/CR/19/2018-19 dated 30.01.2019 passed by respondent No.1 - Assistant Commissioner at Annexure-H is quashed.

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Sd/(K. V. ARAVIND) JUDGE

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VBS/MV

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List No.: 1 Sl No.: 39

Sri Akhilesh v. the Assistant Commissioner

Case brief

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Sri Akhilesh v. the Assistant Commissioner

Case brief

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