Mr Harry Cutinha Vs the Assistant Commissioner

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1 - NC: 2025:KHC:12971 WP No. 23467 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH, 2025

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 23467 OF 2018 (GM-RES)

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BETWEEN:

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MR. HARRY CUTINHA, AGED 65 YEARS, SON OF FRANCIS CUTINHA, RESIDING AT DOOR NO.26-4-159, NEAR ADAM KUDRU SCHOOL, JAPPINAMOGARU VILLAGE, PERMANNUR POST, MANGALURU TALUK - 575 017.

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Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

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MR. IVAN JEEVAN CUTINHA, AGED 42 YEARS, SON OF HARRY CUTINHA, RESIDING AT DOOR NO.26-4-159, NEAR ADAM KUDRU SCHOOL, JAPPINAMOGARU VILLAGE, PERMANNUR POST, MANGALURU TALUK - 575 017.

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MRS. ZEENA D'SOUZA, AGED 31 YEARS, WIFE OF IVAN JEEVAN CUTINHA, RESIDING AT DOOR NO.26-4-159, NEAR ADAM KUDRU SCHOOL, JAPPINAMOGARU VILLAGE, PERMANNUR POST, MANGALUR TALUK - 575 017.

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…PETITIONERS

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(BY SRI. P.P. HEGDE, SR. ADVOCATE FOR SMT. RACHITHA RAJASHEKAR, ADVOCATE)

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AND:

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THE ASSISTANT COMMISSIONER, SUB DIVISION, MANGALURU & EX-OFFICIO PRESIDENT, MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL, MANGALURU (SET UP UNDER SECTION 7 OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007) - 575 001, D.K. DISTRICT.

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MRS. MOLLY CUTINHA, AGED ABOUT 59 YEARS, WIFE OF HARRY CUTINHA, RESIDING NEAR ADAM KUDRU SCHOOL, JAPPINAMOGARU VILLAGE, PERMANNUR POST, MANGALURU TALUK - 575 017.

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…RESPONDENTS

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(BY SRI. SACHIN B.S, ADVOCATE FOR R2; SRI. MAHANTESH SHETTAR, AGA FOR R1)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED ORDER DATED 12.03.2018 PASSED BY RESPONDENT NO.1/ASSISTANT COMMISSION, SUB DIVISION, MANGALURU IN PROCEEDINGS AGAINST THE PETITIONER NO.1 WHICH IS PRODUCED AT ANNEXURE-H AND ETC.,

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

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NC: 2025:KHC:12971 WP No. 23467 of 2018

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CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The petitioners are before this Court, seeking for the following reliefs:

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"i) Issue a writ of certiorari, quashing the impugned order dated 12-03-2018 passed by Respondent No.1/Assistant Commission, Sub Division, Mangaluru in Proceedings No. ¹.¢.¸ï.JA.J¸ï.¹.¹Dgï 35/17-18 against the petitioner No.1 which is produced at Annexure 'H';

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ii) And grant such other and further reliefs as this Hon'ble Court deems fit to grant under the circumstances of the case, in the interest of justice."

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The 1^st petitioner is the husband, 2^nd petitioner is the son and 3^rd petitioner is daughter-in-law of respondent No.2, there being certain disputes between the husband and wife i.e., petitioner No.1 and respondent No.2. Respondent No.2 has filed proceedings before the Karnataka State Human Rights Commission and also filed proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005, in

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M.C.No.85/2013, a suit in O.S.No.4/2017 in the

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Family Court, Mangaluru, restraining the petitioners from dispossessing her from residential house bearing Door No.26-4-159B. She also filed a proceeding before the Assistant Commissioner-respondent No.1 seeking for a direction against the petitioners from removing her from the house, as also for an amount of Rs.20,000/- as monthly maintenance.

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The Assistant Commissioner vide impugned order dated 12.03.2018, taking into consideration the defence of petitioner No.1 herein that the said property has been settled in favour of his 2^nd son, had set aside the settlement deed and it is challenging the same, petitioners are before this Court.

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The submission of Sri.P. P. Hegde, learned counsel for the petitioners firstly is that no relief has been sought for as regards the settlement

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deed. Secondly, the settlement deed has been executed by the 1^st petitioner in favour of his 2^nd son. Respondent No.2 is not a party to the settlement deed nor the owner of property settled under the settlement deed. Hence, the Assistant Commissioner passing any order in relation thereto would not arise. Lastly, he submits that no relief has been sought for as regarding the settlement deed, the Assistant commissioner could not have passed such an order.

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Learned counsel for respondent No.2 would submit that respondent No.2 is under threat of being thrown out of the house and sought for the aforesaid relief. The settlement deed has been setup as defence by the husband, the Assistant Commissioner has rightly set aside the settlement deed so as to enable her to continue to be in possession of property. He submits that

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the said order has been made subject to M.C.No.85/2013, which has been filed by respondent No.2 as regards similar reliefs. Thus he submits that the order passed by the Assistant Commissioner being proper and correct, need not be interfered with in the present matter.

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Heard Sri.P. P. Hegde, learned Senior counsel appearing for the petitioners and Sri. Sachin B. S., learned counsel appearing for respondent No.2, perused the materials.

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As can be seen from the application filed by respondent No.2, though there is no provision which is mentioned in the said application. It has been filed seeking for a direction to the petitioners not to dispossess her from the house and for an amount of Rs.20,000/as maintenance. In the said application filed there is no relief which has been sought for as regards

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the settlement deed. It is only on the application being filed that the petitioners more particularly 1^st petitioner look up a defence that 1^st petitioner is not the owner of the premises, the property having been settled in favour of his 2^nd son who was not a party to the proceedings. The said 2^nd son is the owner of the premises no order can be passed in respect of the said premises, insofar as the petitioners are concerned. It is taking into account this aspect, considering that respondent No.2 is allegedly in occupation of the premises that the 1^st respondent set aside the settlement deed executed by 1^st petitioner in favour of his 2^nd son.

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There are two kinds of proceedings which could be filed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short herein referred as 'the Act'). The first one being

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under Section 5 of the Act, for Maintenance and the second being under Section 23 of the Act, for declaration of transfer of property to be void in certain circumstances. What is being sought for in the present matter is as regards the right to residence and right to maintenance, which would come under Section 5 of the Act, which reads as under:

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" 5. An application for maintenance: (1) An application for maintenance under section 4, may be made-

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a. by a senior citizen or a parent, as the case may be; or

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b. if he is incapable, by any other person or organization authorized by him; or

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c. the Tribunal may take cognizance suo motu.

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Explanation: For the purposes of this section "organisation" means any voluntary association registered under the Societies Registration Act, 1860, (21 of 1860), or any other law for the time being in force.

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(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct.

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(3) On receipt of an application for maintenance under sub-section(1), after giving notice of the application to the children or relative and after giving the parties an

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opportunity of being heard, hold an inquiry for determining the amount of maintenance

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(4) An application filed under sub-section (2) for the monthly allowance for the maintenance and expenses for proceeding shall be disposed of within ninety days from the date of the service of notice of the application to such person:

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Provided that the Tribunal may extend the said period, once for a maximum period of thirty days in exceptional circumstances for reasons to be recorded in writing.

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(5) An application for maintenance under sub-section (1) may be filed against one or more persons:

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Provided that such children or relative may implead the other person liable to maintain parent in the application for maintenance.

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(6) Where a maintenance order was made against more than one person, the death of one of them does not affect the liability of others to continue paying maintenance.

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(7) Any such allowance for the maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or expenses of proceeding, as the case may be.

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(8) If, children or relative so ordered fail, without sufficient cause to comply with the order, any such Tribunal may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole, or any part of each month's allowance for the maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made whichever is earlier:

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Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Tribunal to levy such amount within a period of three months from the date on which it became due."

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A perusal of Section 5 of the Act does not

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indicate any power vested with the Assistant Commissioner to set aside any document. It only provides the powers of the Assistant Commissioner to allow the application directing the children or relative to make monthly allowance for interim maintenance and thereafter, for final maintenance as indicated therein. Section 5(2) of the Act is reproduced here under for easy reference:

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"(2) The Tribunal may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this section, order such children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizen including parent as the Tribunal may from time to time direct."

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A perusal of Section 23 of the Act would indicate

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that an application could be made by a Senior Citizen, if such Senior Citizen has transferred by way of gift or advise his property subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the

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transferor and such transferee refuses or fails to provide such amenities and physical needs. Thus, the essential ingredient thereof is that the Senior Citizen ought to have transferred the property.

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In the present case, the Senior Citizen respondent No.2 is neither the owner nor the transferor of the property. It is petitioner No.1 who is the owner and transferor, who has settled the property in favour of his 2nd son. Respondent No.2 though a Senior Citizen not being a owner or transferor, cannot maintain any proceedings under Section 23 of the Act.

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If that be so, the Assistant Commissioner could not have exercised powers under section 23 of the Act to set aside a sale deed executed by the owner thereof, of which the 2nd respondentapplicant was not the owner.

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Thus, the said impugned order passed by 1st respondent-Assistant Commissioner, firstly could not have been passed when no application under section 23 was filed. Secondly, the transferor being the 1^st petitioner and not the applicant no order setting aside a settlement deed of which the applicant was not a party could have been passed.

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Insofar as the right of respondent No.2 to decide in the matter or as regards the claim for maintenance, these aspects have not been dealt with by the 1^st respondent. The 1^st respondent has completely misconstrued himself and set aside the settlement deed without considering the relief which has been sought for by the petitioners.

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In that view of the matter, I am of the considered opinion that the matter would have to be remitted to 1^st respondent, to consider the

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relief which have been sought for by 2^nd respondent on merits.

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Though the submission of learned Senior Counsel Sri.P. P. Hegde, is that separate proceedings under Protection of Women from Domestic Violence Act, 2005, as also a suit has been filed prior to the filing of the proceedings and orders have been passed therein that would not in my considered opinion dis-entitle a Senior Citizen to seek for relief under Section 5 of the Act. It is for respondent No.1 to consider the relief sought for in accordance with law on merits and pass necessary orders. This Court has not expressed any opinion on merits of the

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claim made by respondent No.2 and or the defence of the petitioners. It is for respondent No.1 to consider both the aspects and pass necessary orders in accordance with law. Hence, I pass the following:

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ORDER

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i. The writ petition is partly allowed.

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ii. A writ of certiorari was issued by impugned order dated 12.03.2018 passed by respondent No.1/Assistant Commissioner, Sub Division, Mangaluru in Procedings No. ¹.¢.¸ï.JA.J¸ï.¹.¹Dgï 35/17-18 against the petitioner No.1 at Annexure-H is quashed.

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iii. The matter is remitted to the respondent No.1/Assistant Commissioner to consider the claim of respondent No.2 as regards residence and maintenance only, needless to say, since respondent No.2 continues to be in possession.

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