Sri C R Sathyanarayana Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY RESPONDENT NO.2 IN HI.NA.KA.A/CR-02/2020-21 DATED 30.07.2021 VIDE ANNEXURE-G AND ALSO QUASH THE ORDER PASSED BY RESPONDENT NO.3 DATED 12.02.2020 IN HI.NA.CR NO.1/2019-20 VIDE ANNEXURE-F; AND ETC.

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THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS, COMING FOR PRONOUNCEMENT, THIS DAY, E.S. INDIRESH J., MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

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CAV ORDER

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In this Writ Petition, petitioners are assailing the Order dated 30.07.2021 (Annexure-G) passed by the respondent No.2 and Order dated 12.02.2020 (Annexure-F) passed by the respondent No.3, consequently, prayed for allowing the application filed by the petitioners as per Annexure-D before the respondent No.3.

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Facts in nutshell for the purpose of the adjudication of the Writ Petition are that, the petitioners have two sons and a daughter. Respondent No.4 is the second son of the petitioners. The petitioner No.1 had acquired properties as per the registered Partition Deed dated 30.06.1957, executed amongst himself and his brothers. It is also stated in the Writ Petition that, there was a registered Partition Deed dated 20.04.2013 in the family of the petitioners and their children and as such, the petition schedule property had fallen to the share of petitioner No.1, as per Annexure-A to the Writ Petition. It is further stated that, certain properties had fallen to the share of respondent No.4 as per the registered Partition Deed at Annexure-A and the respondent No.4 has let out the

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premises to the tenements. It is also stated that, the respondent No.4 had worked abroad for several years and after his return, joined the petitioners and stayed along with the petitioners. The respondent No.4 has quit his job and residing with the petitioners along with his family. It is the case of the petitioners that the respondent No.4 is gradually ill-treating the petitioners and threatened the petitioners to dispossess them from the schedule property. Hence, the petitioners have approached the respondent No.3 by filing an application as per Annexure-D. It is also stated by the petitioners that, the respondent No.4 instead of finding an alternative residence for his family members, has filed a frivolous suit in O.S.No.13/2017, seeking relief of partition and separate possession in respect of the schedule properties, inter alia, challenged the Partition Deed dated 20.04.2013. The said suit is pending consideration before the competent Court.

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It is further stated in the Writ Petition that, the respondent No.3, without considering the case of the petitioners on merits, has passed the impugned order dated 12.02.2020 (Annexure-F), rejecting the application filed by the petitioners and being aggrieved by the same, petitioners have

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approached the respondent No.2 in Appeal No.2/2020-21 and the respondent No.2 vide order dated 30.07.2021 (AnnexureG), dismissed the Appeal and being aggrieved by the same, the petitioners have presented this Writ Petition.

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I have heard Sri. G.K. Bhat, learned Senior Counsel for Sri. Sham A. Nemikal, learned counsel for the petitioners and Sri. Mahantesh Shettar, learned AGA for respondent Nos.1 to 3 and Sri. M.D. Raghunath, learned counsel for respondent No.4.

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Sri. G.K. Bhat, learned Senior Counsel appearing for the petitioners, contended that, both the respondent - authorities have erroneously appreciated the material on record without considering the object of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act') and have committed an error in arriving at a conclusion that, the suit in O.S.No.13/2017 is pending consideration before the competent Civil Court which requires to be adjudicated and the said finding recorded by both the authorities, requires to be set aside. It is further argued by the learned Senior Counsel for the petitioners by referring to the order sheet maintained by this Court, wherein an alternative

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premises has been located for the respondent No.4 to reside separately and that apart, it is argued that, a Commissioner was appointed with regard to the feasibility of dividing the schedule property and the report of the Commissioner would indicate that the schedule property is not suitable for division by metes and bounds and therefore, there is no impediment for passing an order of eviction of the respondent No.4 from the schedule property. In this regard, learned Senior Counsel appearing for the petitioners, refers to the Judgment of the Hon'ble Supreme Court in the case of KAMALAKANT MISHRA Vs. ADDITIONAL COLLECTOR AND OTHERS in SLP (C) No.42786/2025 disposed of on 12.09.2025 and argued for eviction of the respondent No.4 from the schedule property.

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Per contra, Sri. M.D. Raghunath, learned counsel for the respondent No.4, submitted that both the Courts below having taken note of the fact that the suit is pending consideration before the competent Court in O.S.No.13/2017, and therefore, the petitioners cannot seek relief of eviction of the respondent No.4. It is also argued by the learned counsel by referring to Annexure-D, that the petitioners have deliberately not mentioned the provision under which the application is filed

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under the Act and that apart not claiming the maintenance as per the provisions under the Act nor challenging any alienation of the property made in favour of respondent No.4 by the petitioners and therefore, sought to justify the impugned orders at Annexure-F and G to the Writ Petition.

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In order to buttress his arguments, learned counsel for the respondent No.4, referred to the Judgment of the Hon'ble Supreme Court in the case of SAMTOLA DEVI Vs. STATE OF U.P. AND OTHERS in SLP (C) 26651/2023 disposed of on 27.03.2025, in the case of SMT. S. VANITHA Vs. THE DEPUTY COMMISSIONER, BENGALURU URBAN DISTRICT & OTHERS in Civil Appeal No.3822/2020 disposed of on 15.12.2020 and accordingly, sought for dismissal of the Writ Petition.

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In the light of the submissions made by the learned counsel appearing for the parties, there is no dispute with regard to the relationship between the parties. Schedule property has been acquired by the petitioner No.1 as per the registered Partition Deed dated 30.06.1957. It is not in dispute that, there is a Partition Deed dated 20.04.2013 between and

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amongst the joint family members of the petitioners and respondent No.4. The respondent No.4 has filed suit in O.S.No.13/2017 before the competent Civil Court, seeking relief of partition and separate possession and further, challenged the alleged Partition Deed dated 20.04.2013 in the said suit, and further the suit is pending consideration before the Civil Court. It is to be noted that, the respondent No.4 and his family are residing along with the petitioners in the schedule property. It is not the case of the petitioners that, they have filed the application under the Act to nullify any registered document executed in favour of the respondent No.4. It is not the case of the petitioners that, the respondent No.4 is not providing the amenities and necessary requirements of petitioners nor taking care of the petitioners. The entire case of the petitioners revolves around the agony of evicting the respondent No.4 from the schedule property. In the backdrop of these aspects, I have carefully examined the finding recorded by both the respondent - authorities, in which, both the authorities having taken note of the factual aspects on record, rightly dismissed the claim made by the petitioners on the ground that, the suit in O.S.No.13/2017 is pending

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consideration before the competent Civil Court. It is also not in

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dispute that the schedule property is one of the schedule properties in the suit. The respondent No.4 has questioned the Partition Deed dated 20.04.2013 in the aforementioned suit as sham document and not binding on the respondent No.4/plaintiff therein. It is also not in dispute that the suit schedule property is the ancestral property of both the petitioners and the respondent No.4. In the case of KAMALAKANT MISHRA (supra), wherein, the appellant therein was moved out of the schedule property by the respondent therein and therefore, the Hon'ble Supreme Court passed an order to evict the child as the act of the child was in breach of the obligation to maintain the senior citizen/parent. The facts in the present case is altogether different as the parents are not claiming maintenance. In the case of SAMTOLA DEVI (supra), Hon'ble Supreme Court at paragraph No.29 to 31 held as follows:

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"29. There is no complaint or any material on record to indicate that after the aforesaid order Krishna Kumar has in any way humiliated his parents especially the appellant or has interfered with her living. It is not in dispute that he has been

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paying maintenance as directed by the Family Court. Therefore, in the facts and circumstances, if he has been living in a small portion of the house, may be of his father, in which he has no share and is continuing with the family business from the shop on the ground floor without interfering with the life of others, it does not appear to be prudent to order for his eviction as after all being a son he also has an implied license to live therein. Therefore, the Tribunal appears to be justified in permitting him to continue living therein with the rider of drawing eviction proceedings if he indulges in any untoward behavior or interferes with the life of others.

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The Senior Citizens Act vide Chapter-II provides for maintenance of parents and senior citizens. It inter alia provides a senior citizen or a parent who is unable to maintain himself from his own earning or the property owned by him shall be entitled to make an application against his parent or grand parent or against one or more of his children (not a minor) or where the senior citizen is issueless against specified relatives to fulfil his needs to enable him to lead a normal life. The Tribunal constituted under the Act on such an application may provide for the monthly allowance for the maintenance and expenses and in the event they fail to comply with the order, the Tribunal may

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for breach of the order issue a warrant for levying fines and may sentence such person to imprisonment for a term which may extend to one month or until payment is made whichever is earlier.

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The provisions of the Senior Citizens Act, nowhere specifically provides for drawing proceedings for eviction of persons from any premises owned or belonging to such a senior person. It is only on account of the observations made by this Court in S. Vanitha v. Commissioner, Bengaluru Urban District that the Tribunal under the Senior Citizens Act may also order eviction if it is necessary and expedient to ensure the protection of the senior citizens. The Tribunal thus had acquired jurisdiction to pass orders of eviction while exercising jurisdiction under Section 23 of the Senior Citizen Act which otherwise provide for treating the sale of the property to be void if it is against the interest of the senior citizen."

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It is also relevant to extract paragraph 17 in the case of

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SMT. S.VANITHA (supra) which reads as under:

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"17. The substance of sub-section (2) of Section 23, as submitted by the second and third

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respondents, is that the Tribunal had the jurisdiction to pass an order directing the eviction of the appellant who is their daughter-in-law. According to the submission, the power to order eviction is implicit in the provision guaranteeing a “right to receive maintenance out of an estate” and the enforcement of that right. In supporting the submission, they have referred to the view which has been taken by several High Courts, indicating that the Tribunal may order the eviction of a child or a relative from the property of a senior citizen, where there has been a breach of the obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act, 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be granted only after adverting to the competing claims in the dispute. It is necessary to recapitulate that the situation in the present case is that the eviction was sought of the daughter-in-law i.e. the appellant. The land, where the house has been constructed, was originally purchased by the son of the applicants who are seeking eviction of their daughter-in-law. The son had purchased the property a few months before his marriage to the

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appellant. He had subsequently transferred the property by a registered sale deed to his father and the fact that it was for the same consideration after the lapse of several years is of significance. The father, in turn, executed a gift deed in favour of his spouse. The appellant has asserted that she had been living in the house, as her matrimonial residence, until the application was filed. Her spouse has (according to her) deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non-payment of dues. Their daughter has sought admission to an engineering degree course however her father, fourth respondent has not provided any financial support. The transfers which took place cannot be viewed in isolation from the context of the ongoing matrimonial dispute which has taken place. The issue is whether the appellant as the daughter-in-law and the minor daughter could have been ousted in the above manner."

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The Hon'ble Supreme Court in the case of SUDESH CHHIKARA Vs. RAMTI DEVI AND ANOTHER (in Civil Appeal No.174/2021 disposed of on 06.12.2022), reported in 2022 LiveLaw (SC) 1011, at paragraph 11 to 14, has held as follows:

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"11. We have given careful consideration to the submissions. Before dealing with the factual aspects, it is necessary to advert to the legal aspects. The Sub-Divisional Magistrate acting as the Maintenance Tribunal under the 2007 Act has invoked the power under Section 23 to declare that the subject release deed was void. The 2007 Act has been enacted for the purpose of making effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution of India. The Maintenance Tribunal has been established under Section 7 to exercise various powers under the 2007 Act. Section 8 provides that the Maintenance Tribunal, subject to any rules which may be framed by the Government, has to adopt such summary procedure while holding inquiry, as it deems fit. Apart from the power to grant maintenance, the Tribunal exercises important jurisdiction under Section 23 of the 2007 Act which reads thus:

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“23. Transfer of property to be void in certain circumstances .—(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 or fails to provide such

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amenities 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 an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not 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-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5.”

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(emphasis supplied)

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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

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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 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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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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Careful perusal of the petition under Section 23 filed by Respondent 1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters

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of Respondent 1) would provide the basic amenities and basic physical needs to Respondent 1. Even in the impugned order dated 22-5-2018 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 by Respondent 1 that the release deed was executed subject to such a condition."

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Following the declaration of law made by the Hon'ble Supreme Court, in the aforementioned Judgments and applying the ratio to the facts on record, makes it clear that, the respondent No.4, being a member of the Joint Family consisting of the petitioners and others, cannot be ordered to be evicted under the provisions of the Act in view of pendency of the suit in O.S.No.13/2017 before the competent Court. In my opinion, in the facts and circumstances of the case, though argument is

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advanced for eviction of respondent No.4 and to locate an alternative premises for respondent No.4, however, there was no necessity for taking extreme step for ordering eviction of respondent No.4 from a portion of the house which is the subject matter in this Writ Petition and pending suit. In that view of the matter, I am of the opinion that, the finding recorded by both the authorities in the impugned orders is just and proper and there is no perversity in the impugned orders passed by respondent Nos.2 and 3, as this Court is having limited jurisdiction under Articles 226 and 227 of the Constitution of India to interfere with the finding of fact recorded by the quasi-judicial authorities.

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Hence, the Writ Petition is dismissed.

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SD/(E.S.INDIRESH) JUDGE

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sac List No.: 1 Sl No.: 31

Sri C R Sathyanarayana v. the State of Karnataka

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Sri C R Sathyanarayana v. the State of Karnataka

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