Neellamma Vs the District Commissioner and Ors.

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI, QUASHING THE ORDER DATED 28.11.2023 PASSED BY RESPONDENT NO.1 IN REVISION PETITION NO.47/2023 (ANNEXURE-F).

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IN W.P.NO.200619/2024:

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BETWEEN:

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VISHWANATH REDDY S/O LATE VEERANGOUDA

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AGE: 51 YEARS, OCC: PRIVATE SERVICE R/O AMRESHWAR KIRANA SHOP

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NEAR CINEMA THEATER, SIDDAPUR

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TQ: KARATAGI DIST: KOPPAL.

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AMAREGOUDA S/O LATE VEERANAGOUDA AGE: 50 YEARS, OCC: GOVT EMPLOYEE R/O MANVI DIST: RAICHUR.

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…PETITIONERS

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(BY SRI. ARUN CHOUDARPURKAR, ADVOCATE)

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AND:

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THE STATE THROUGH DEPUTY COMMISSIONER / APPELLATE TRIBUNAL OF MAINTENANCE AND

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WELFARE OF PARENTS AND SENIOR CITIZENS RAICHUR – 584 101.

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THE ASSISTANT COMMISSIONER RAICHUR – 584 101.

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SMT. NEELAMMA W/O LATE VEERANAGOUDA AGE: 77 YEARS, OCC: HOUSEWIFE R/O VANDALI TQ: DEVADURGA DIST: RAICHUR – 584 101.

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…RESPONDENTS

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(BY SMT. MAYAT.R, HCGP FOR R-1 & R-2; SRI. SHARANAGOWDA V. PATIL AND

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SRI. SANTOSHKUMAR B. PATIL, ADVOCATE FOR R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE CERTIORARI QUASHING THE IMPUGNED ORDER DATED 28.11.2023 IN REVISION PETITON NO.47/2023 PASSED BY RESPONDENT NO.1 AS PER ANNEXURE-B AND ALLOW THE REVISION PETITION NO.47/2023, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE PETITIONS COMING ON FOR ORDERS , THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR)

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Both these petitions arise out of the proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, ‘the Act of 2007’) instituted by the mother – petitioner (in

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W.P.No.200679/2024) against her sons, respondent Nos.3 and 4 (in W.P.No.200679/2024).

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Heard learned counsel for the petitioner and learned

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HCGP and learned counsel for the respondents and perused the material on record.

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Petitioner in W.P.No.200679/2024 – Neelamma

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instituted proceedings before the respondent No.2 – Assistant Commissioner under the said Act of 2007 seeking cancellation of the registered Relinquishment Deed and Gift Deed both dated 18.02.2021 executed by her in favour of her sons, respondent Nos.3 & 4 and for other reliefs.

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The said proceedings were contested by respondent Nos.3 and 4 in W.P.No.200679/2024 and culminated in an order dated 03.10.2023. In the said order, respondent No.2 declared that the Relinquishment Deed and Gift Deed executed by the petitioner (in W.P.No.200679/2024) in favour of respondent Nos.3 and 4 (in W.P.No.200679/2024) is null and void and also directed respondent Nos.3 and 4 to pay monthly maintenance in a sum of Rs.10,000/- each to the petitioner. Aggrieved by the said order dated 03.10.2023 passed by respondent No.2 – Assistant

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Commissioner, respondent Nos.3 and 4 filed revision petition before respondent No.1 – Appellate Authority and after contest, the said Revision Petition No.47/2023 filed by respondent Nos.3 and 4 was allowed in-part setting aside the order of the Assistant Commissioner insofar as it relates to cancellation of Relinquishment Deed and Gift Deed. However, the order of the Assistant Commissioner insofar as it related to awarding maintenance in sum of Rs.10,000/- each in favour of the petitioner as against respondent Nos.3 and 4 was confirmed by the Appellate Authority.

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Aggrieved by the order of the Appellate Authority rejecting the claim of Neellamma for cancellation of the Relinquishment Deed and Gift Deed, Neellamma – petitioner is before this Court in W.P.No.200679/2024. So also, aggrieved by the impugned order of the Appellate Authority insofar as it relates to confirming the grant of maintenance in favour of the petitioner (in W.P.No.200679/2024), respondent Nos.3 and 4 have filed W.P.No.200619/2024.

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A perusal of the material on record, in particular, the impugned order and recitals contained in the Gift Deed and

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Relinquishment Deed will indicate that respondent No.1 – Appellate Authority has come to the correct and proper conclusion that in the absence of any recitals regarding cancellation of the Relinquishment Deed and Gift Deed in the event respondent Nos.3 and 4 did not pay maintenance, the question of cancellation of the said Relinquishment Deed and Gift Deed plea would not arise under the provisions of the said Act of 2007. While arriving at the said conclusion, that respondent No.1 – Appellate Authority held as under:

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“1) This Joint Appeal is preferred by the Appellants Vishwanath Reddy S/o Late. Veeranagouda R/o Siddhapur, Tq: Kartagi, Dist: Koppal and Amaregouda S/o Late. Veeranagouda, R/o Manvi, Dist: Raichur, under section 16 of the Maintenance and welfare of parents and Senior Citizens Act 2007, to set aside the order of the Maintenance and welfare of parents and Senior Citizens Tribunal, Raichur Dt. 3-10-2023 in file No. SUM/KAM/HI.NA/PA.PO/11/2023-24 on the grounds urged in this Appeal.

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2) Brief facts of the Appeal Memo filed by them are that, Respondent No.2 is having three sons by name one Basawantraya and Appellant Nos. 1& 2. Basawantraya is the eldest son, who is residing in Vandali village, Tq.

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Devadurga Dist. Raichur, where as Respondent No.2 is residing with her daughter Sarojamma.

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3) Respondent No.2, han executed Registered Relinquishment Deed bearing Document No. 3928/201011 18-02-2021 in D respect of the land bearing Sy.No.48 to the extent of 4 Acres 20 Guntas in favour of Appellant No.1, but Respondent No.2 falsely contended before the Maintenance Tribunal that, it was a Gift Deed and it was got executed by threatening, coercing and forcibly Took her Signature, Further, she falsely contended that, properties shown in the complaint that the above land and house bearing Panchayat No.1-73 are the ancestral properties of her father, They have not given mental and physical harassment. She is residing in the same village with her daughter Smt. Sarojamma.

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4) The Maintenance Tribunal not considered all aspects pleaded by them, not referred the Judgments submitted but illegally, cancelled the Registered Relinquishment Deed baring Document No.3929/2010-11 & Mutation MR Nos.08/2009-10 Dt. 26-02-2010 and M.R No.15/2011-12, Dt.03-05-2012 among other grounds.

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Respondent No.2 personally present before the Court, and she denied orally all the allegations made in this Appeal Memo, and prayed to dismiss the Appeal.

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5) In view of the facts and circumstances stated above, Lower court records summoned, Arguments heard from the side of Appellants, Perused the documents

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produced in this case, and I have gone through the Judgments referred by the Appellants.

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6) In view of the above said facts and circumstances of this case, now the points that arise for my consideration and determination are that.

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POINT No.1

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Whether order passed by the Maintenance Tribunal, Raichur, Dt: 03-10-2023, is arbitrary, illegal and capricious and it is liable to be set-aside?

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POINT No.2

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What order?

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7) My findings on the above points are as under,

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POINT No.1

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See the final order.

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POINT No.2

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In view of my finding on Point No.1, I proceed to pass the final order for the following Reasons.

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REASONS

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POINT No.1

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In the instant case some of the following undisputed facts in between the parties are,

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1) It is undisputed fact that Respondent No.2, Smt. Neelamma W/o Late. Veeranagouda is senior citizen who is aged about 77 years.

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2) It is undisputed fact that, Now she is residing with daughter Smt. Sarojamma D/o Late. Veeranagouda.

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3) It is also undisputed fact that, Respondent No. 2 has executed one Registered Relinquishment Deed bearing Document No. 3928/2010-11 and one Gift Deed bearing document No. 3929/2010-11 Mutation MR Nos. 08/2009-10, Dt: 26-02-2010 and M.R No. 15/2011-12 Dt. 03-05-2012 in respect of landed property bearing Sy. No.48 measuring to the extent of 4 Acres 20 Guntas and House property in favour of Appellants.

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In the present Appeal, it is not material to say that Registered deed is a Gift Deed or Registered Relinquishment Deed bearing Document Nos.3928/201011, 3929/2010-11, Keeping in mind the recital of the said deeds, it is important for me to refer the Principles of the following Judgments of the Hon'ble High court, which are referred by the Appellant.

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The Hon'ble High Court of Karnataka, decided the case of, Nanjappa Vs. State of Karnataka and others, in W.A.P No.573 (GM-RES) Dated 17th Day of March 2023.

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The main observations made in this judgment by relying on the principles laid down by the Hon'ble Supreme Court, in a case, Sudesh Chikara VS Ramati Devi, reported in LAWS (SC)-2022-12-17. PARA No.12, 13 and 14. the important observations made by the Hon'ble high Court of Karnataka in Nanjappa's case, are reproduced here with to understand correct relevant provisions

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applicable in resolving the present Dispute between the parties,

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In Para No.17

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Further it is stated as, at this stage, it is relevant to consider the provisions of Sub Section 23 of Maintenance and welfare of parents and Senior Citizens Act. 2007.

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(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 to or fails to provide such ammonites 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 the estate and such estate or part thereof is Transferred, the right to receive maintenance may be enforced 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-Section (1)and (2) action may be taken on his behalf by any of the organization referred to in Explanation to sub- Section (1) of section 5.

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In Para No.18

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It further observed as, On careful reading of the aforesaid provisions makes it clear that, all kinds of Transfers as is clear from the use of the Expression 'by way of Gift Or otherwise no an to attract the provisions of Sub-Section (1) of Section 23 of the Act, subjected to two following two conditions.

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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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In para No.19

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It Further observed as, if both the aforesaid conditions are satisfied, by a legal fiction, if transfer shall have been then such Transfer deemed to have been made by fraud or coercion or undue influence. Such a transfer, becomes voidable at the instance of the transfer and the Maintenance Tribunal gets Jurisdiction to declare the Transfer as is void."

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Para No.20

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It is observed as though a specific contentions urged by the learned Senior Counsel for the Appellant in view of the scope and object of Senior Citizen Act, it is deemed 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

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and physical needs, the said transfer of property by him would be null and void, it is undisputed fact that when a senior citizen parts with his or her property be 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 be necessarily attached to it. On the contrary. very often, such transfers are made out of love and affection without any expectation in turn. Therefore, when it is alleged that the condition mentioned in sub section (1) of section 23 of Senior Citizens Act are attached to transfer, existence of such conditions must be established before the Tribunal".

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Keeping in mind the above said principles of the Rulings, I have carefully perused of the documents executed by the Respondent no.2 in favour of appellants, who happens to be the sons of Respondent No.2, the said Registered Release Deed, and Gift Deed it does not contain any stipulation that the Appellants are under the obligation to maintain the present Respondent No.2. In the absence of the same conditions in the said Registered Release Deed bearing Document bearing No.3928/201011 and Gift Deed No: 3929/2010-11, in view of the provisions of Sub-Section (1) and (2) of Section 23 of the Senior Citizen Act, the transaction could not be declared as null and void, However, Appellants transferee shall maintain the Senior Citizen Respondent No.2, In absence any conditions of sub sections (1) and (2) of Section 23 of the Senior Citizen Act, cannot serve the purpose of Respondent No.2 to cancel the above Registered Deeds.

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Our view is fortified by the Dictum of the Hon'ble Supreme Court, in a case, Sudesh Chhikara Vs. RAMATI Devi, reported in LAWS (SC) 2022-12-17, Wherein at paragraph 12,13 and 14, it is held as under,

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Para 12,

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

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Para no.13

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When Senior Citizen parts with his or her property by executing a gift or a release or otherwise in favour of his/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 SubSection (1) of Section 23 are attached to a transfer,

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existence of such conditions must be established before Tribunal.

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Para no.14

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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 (daughters of respondent No.1) would provide 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 not adduced by the parties. As can be seen from yh impugned Judgment of the Tribunal, immediately after a reply was filed by the appellant that 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 quo non applicability of Sub-Section (1) of Section 23. In the present case. As stated earlier, it is not even pleaded by the Respondent No.1 that release deed was executed subject to such condition.

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Though in the present Case, a specific contention is being taken by the learned Senior Counsel for the Appellants that, the Respondent No.2 being the nominal owner or real owner of the landed property in question, Respondent No.2 has Executed Registered Release Deed bearing No.3928/2010-11, and Gift Deed No: 3929/201011, out of love and affection in favour of Appellants, with a

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hope that Appellants would take care of basic needs of medical necessities food and clothings and physical needs, at the time of her son set.

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It is admitted facts that Respondent No.2 is residing with her daughter Sarojamma, as Appellants attitude towards her are failed to show even love and affection and physical needs towards her. The fact remains that on the application filed by the applicant against these Appellants, the Assistant commissioner, who is the authority to exercise his jurisdiction under the provisions of SubSection (1) and (2) of Section 23 of the Senior Citizens Act but it was allowed the Application filed by the present Respondent No.2 by ignoring the conditions stipulated under the provisions of Sub-Section (1) and (2) of Section 23 of the Senior Citizens Act, as held by the Hon'ble Supreme Court in the above cited Judgment, the identical circumstances, came before the Full Bench of the Kerala High Court in the case of Subhasin Vs. District Collector. Kozilikod, Reported in AWS (KER)- 2020-9-81 at paragraph 52 has held as under.

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52. We conclude by answering the reference, that the condition as required under Section 23 (1) for the provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of Transfer, which Transfer can only be one by way of gift or which partakes the character of the gift or a similar gratuitous transfer. It is the Jurisdictional

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fact, which the Tribunal will have to look in to before invoking Section 23 (1) and proceedings on a summary. We answer the reference agreeing with the decision in W.A.No.2012 of 2012 dated 28-11-2012 [Malukrty ponnarssery Vs. P.Rajan Ponnarassery). We find Shabeen Martin Vs. Muriel [2016 (5) KHC 603] and Sundhari Vs. Revisional Divisional Officer [ 2018 khc 4655 We approve Radhamani Vs. State of Kerala [2016(1) KHC-9] which had recital in the document akin to that required under Section 23 (1).

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The said Deeds does not contain any conditions that, Appellants 1 & 2 are under the obligation to maintain the present Respondent No.2. In absence of the same, the impugned cannot be said as it is in consonance with the provisions of section 23 of the senior Citizen Act.

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Though our conscious is in favour of the welfare of the Senior Citizens. However, considering the scope and object of the Maintenance and welfare of parents and senior Citizens Act 2007, our hands are tied in view of the dictum of the Hon'ble Supreme Court in the case Sudesh Chikara, wherein while interpreting the very provisions of Sun- Section (1) of Section 23 of the Act, it has been held that the two conditions must be stipulated in the document, which is binding on all including this Court.

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The Judgments relied upon by the learned Senior Counsel for the appellant are applicable to the facts and circumstances of the present case, in view of the latest dictum, in Sudesh Chhikara Vs. RAMATI Devi, reported in LAWS(SC) 2022-12-17, (Appellants have relied).

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In view of the Principles of the above noted Judgments, The claim of the Respondent No.2 to cancel the Registered relinquishment deed referred above is against the settled principles of law and also her claim to cancel another Registered Gift Deed referred is against to the said principles, hence I am of the opinion that, Maintenance Tribunal Raichur has Committed serious error in cancelling the Documents bearing Nos.3928/201011 and document bearing no: 3929/2010-11, vide M.R.No.08/2009-10, Dt: 26-02-2010 in favour of Appellant No.1 and transfer of another property vide Mutation No M.R No.15/2011-12, Dt: 03-05-2012 is liable for rejection.

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However, by taking into considerations of the relationship of Appellants 1 & 2 with Respondent No.2, as sons and old aged mother, Appellants are duty bound to provide basic needs like food, clothing's, mental peace, physical needs medical facilities etc. so as to lead dignified life till her death.

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Other contentions raised by the Appellants regarding source of property title to Respondent No.2 are not relevant for the purpose of deciding this case, as such, those contentions have not been taken for discussion in this case.

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In view of the above facts and circumstance, Awarding maintenance amount Rs.20,000/per month to Respondent No.2 payable by Appellants Nos. 1 & 2 jointly from the date of her petition till her death in the interest of Justice and equity, accordingly, I proceed to pass the following,

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ORDER

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Joint Appeal preferred by the Appellants Vishwanath Reddy S/o Late. Veeranagouda R/o Siddhapur, Tq: Kartagi, Dist: Koppal and Amaregouda S/o Late. Veeranagouda, Manvi, Dist: Raichur, under Section 16 of the Maintenance and welfare of parents and Senior Citizens Act 2007, is allowed.

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Consequently, the order passed by the Maintenance and welfare of parents and Senior Citizens Tribunal, Raichur Dt:03-10-2023 in 2023-24 is set aside.

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Consequently, Transfer of properties vide Registered documents bearing Nos.3928/2010-11 and transfer for property No.3929/2010-11 and consequent M.R.No.08/2009-10 dated 26.02.2010 and Mutation No. M.R.No.15/2011-12 dated 03.05.2012 have been restored.

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In view of the above facts and circumstances Granting maintenance amount Rs.20,000/- per month to Respondent No.2 payable Appellants No.1 & 2 jointly from the date of her petition till her death will meet out in the interest of Justice and equity with cost of the litigation.

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This order is dictated to typist, typed, corrected and pronounced in open court on this day of 28.11.2023.”

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As can be seen from the impugned order, the Appellate Authority has placed reliance upon judgment of the Apex Court in the case of Sudesh Chikara Vs. Ramati Devi – 2022 SCC Online SC 1684 and has come to the conclusion that in the absence of the requisite conditions contained / stipulated in the document, the question of canceling the Gift Deed and Relinquishment Deed by respondent No.2 – Assistant Commissioner did not arise and the same being contrary to facts and law deserves to be set aside.

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However, the impugned order passed by the Deputy Commissioner confirming grant of maintenance of Rs.20,000/- by respondent Nos.3 and 4 to their own mother, the petitioner herein cannot be said to suffer from any illegality or infirmity nor can the same be said to have occasioned failure of justice warranting interference by this Court. Upon re-appreciation, re-consideration and re-evaluation of the entire material on record, I am of the view that the impugned order passed by the Appellate Authority insofar as it relates to confirming grant of maintenance of Rs.20,000/- by

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respondent Nos.3 and 4 to their own mother, cannot be said to have occasioned failure of justice nor suffer from any illegality or infirmity warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423.

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9. In the result, I pass the following:

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ORDER

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(i) Both petitions are hereby dismissed without interfering with the impugned order.

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(ii) Respondent Nos.3 and 4 – sons of the petitioner in W.P.No.200679/2024 are hereby directed to pay maintenance awarded by the Assistant Commissioner and confirmed by the Deputy Commissioner, to the petitioner within a period of three months from today.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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SV; List No.: 1 Sl No.: 24

Neellamma v. the District Commissioner and Ors.

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Neellamma v. the District Commissioner and Ors.

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