Smt. Sowmya Vs Assistant Commissioner

SMT. SOWMYA W/O. LATE AJAY. N, AGED ABOUT 25 YEARS, NO. 29, KHATA NO. 43, 7^TH CROSS, NAGANATHAPURA LAYOUT, HOSA ROAD, ELECTRONIC CITY POST, BENGALURU-560 100.

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…PETITIONER

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(BY SRI. L.S.CHIKKANAGOUDAR, ADVOCATE FOR SRI.GOPALAKRISHNA GOWDA I., ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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ASSISTANT COMMISSIONER BENGALURU SOUTH SUB-DIVISION, KANDAYA BHAVAN, CAUVERI BHAVAN, BENGALURU-560 009.

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SRI. K. K. NARAYANAN S/O. LATE SRI. K. KUNJU, AGED ABOUT 57 YEARS, R/AT NO. 30, KHATA 7^TH CROSS, NAGANATHAPURA LAYOUT, HOSA ROAD, ELECTRONIC CITY POST,

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NC: 2026:KHC:28188 WP No. 18783 of 2022

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BANGALORE-560 100.

…RESPONDENTS

(BY SRI. SRINIVAS KUMAR., HCGP FOR R1; SRI. CHETHAN KUMAR., ADVOCATE FOR SRI. H.C. SHIVARAMU., ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 03.06.2022 VIDE REFERENCE NUMBER MSC(SC).CR.07/2021-22 PASSED BY THE R1 AS PRODUCED AT ANNEXURE-A AND CONSEQUENTLY TO ISSUE WRIT OF MANDAMUS BY DIRECTING THE SUBREGISTRAR, BEGUR TO RESTORE ENTRY OF THE REGISTERED GIFT DEED DATED 04.08.2015 REGISTERED AS DOCUMENT NO.BGR-1-02852/15-16 STORED IN C.D.NO.BGRD266 (ANNEXURE-B) IF ITS ENTRY IS NOT NULLIFIED IN PURSUANCE OF THE SAID IMPUGNED ORDER.

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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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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioner being aggrieved by the order dated 03.06.2022 passed by the respondent No.1/Assistant Commissioner under Section 5 read with Section 23 of the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 (for short `Act') canceling the Deed of Gift dated 04.08.2015 that was executed by respondent No.2 in favour of his son-Ajay N., (husband of petitioner herein) is before this Court.

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2. By the aforesaid Deed of Gift, respondent No.2 herein had conveyed a vacant site measuring 30x40, bearing House No.29, Khata No.43, New No.29/43 situated at Naganathapura Gramatana, Mohan Reddy Layout, Naganathapura Village, Beguru Hobli, Bangalore South Taluk.

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3. Subsequently respondent No.2 filed petition under Section 5 read with Section 23 of the Act alleging that the said property is his self-acquired property and that he has got two sons and a daughter namely Sri.Arjun Narayan, Smt.Amitha and Sri.Ajay. Their first son and the daughter after their marriage have been living separately and Sri.Ajay was living with him. Said Ajay had obtained the Deed of Gift on the pretext of raising loan assuring that he would return the said property after necessary formalities were completed. As such, out of love and affection and faith that the Deed of Gift would

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be nominal, respondent No.2 executed the same in favour of said Ajay. Said Ajay constructed three floors of residential building on the said site. Unfortunately said Ajay was diagnosed of Brain Tumor and passed away on 09.08.2018. That soon after the ceremony, petitioner herein who is the daughter-inlaw(wife of said Ajay)kicked the respondent No.2 and his wife

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out of the house. However with the intervention of neighbours and the jurisdictional police they are able to live in a single bedroom house in the ground floor of the said property. That the petitioner herein has instituted proceedings under the Domestic Violence Act in Crl.Misc.No.181/2018, which is pending disposal. Under the circumstances, they have no other option but to approach the Tribunal seeking nullification of the said Deed of Gift dated 04.08.2015 and for consequential relief.

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4. In response to the above, petitioner herein filed detailed objections questioning the very maintainability of the petition under Section 23 of the Act. It is contended that her husband, the donee under the said Deed of Gift had availed the loan and constructed the residential house. That she has filed a suit in O.S.No.1881/2018 for relief of declaration which is pending consideration before Civil Court. That the respondent No.2 himself is earning Rs.1,50,000/- per month from the provision stores as such, there is no need or necessity for payment of any maintenance. That the respondent No.2 has received the insurance amount in a sum of Rs.5,45,906/- from the Life Insurance Corporation as well as Rs.29,35,414 from

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the employer of her husband Sri.Ajay namely Dell

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International. That apart petitioner herein had availed loan of Rs.10,00,000/- for the treatment of deceased Ajay which she is forced to repay on the demand being made by the bank. Hence, sought for dismissal.

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5. Respondent No.1/Assistant Commissioner however accepted the case of the respondent No.2 and proceeded to cancel the deed of gift which was executed in favour of deceased Ajay, the husband of the petitioner.

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6. Being aggrieved, the present petition.

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7. Learned counsel for the petitioner taking this Court through the records submit that the order impugned does not stand scrutiny of law as no grounds either under Section 5 requiring payment of maintenance amount or under Section 23 of the Act warranting cancellation of the Deed of Gift were made out. He also points out to photographs produced at Annexures C and D showing the property apparently belonging to possessed and owned by respondent No.2 herein and also the shop portion of said property from which the respondent No.2 stated to be deriving the rentals. He submits that the respondent No.2 having received amount payable on account of

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death of deceased Ajay from the LIC as well as from Dell International, cannot cry he being left high and dry for his maintenance. Hence, seeks for allowing of the petition.

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8. Per contra learned counsel appearing for the respondent No.2, justifying the order submits that since Ajay, the donee and after his demise his wife/petitioner herein neglected to maintain the respondent No.2 and since respondent No.2 had repaid the loan amount on behalf of Sri.Ajay and he having no other source of income, had no other option but to approach the Tribunal seeking cancellation of

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Deed of Gift to meet his financial needs. The respondent No.1/Assistant Commissioner after consideration of the facts

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and law has rightly allowed the same, canceling the deed of gift warranting no interference.

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9. Heard and perused the records.

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10. Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read as under:

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"23. Transfer of property to be void in certain circumstances.—

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(1) Where any senior citizen who, after the commencement of this Act, has transferred by way

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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 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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11. The Apex Court in the case of SUDESH CHHIKARA

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Vs RAMTI DEVI AND ANOTHER reported in ( 2024) 14 SCC

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225 at paragraphs 14 and 15 held as under:

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"14. 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

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physical needs to the transferor.

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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

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transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.

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15. 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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12. Perusal of Deed of Gift stated to have been executed

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by respondent No.2 in favour of his deceased son- Ajay N., produced at Annexure-B do not indicate there being any condition attached for payment of maintenance or providing amenities to the respondent No.2. The document is simple and out and out Deed of Gift executed purely out of love and affection towards said Ajay.

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13. Admittedly what was conveyed was vacant site measuring 30x40 and said Ajay had raised loan and put up construction of three floors of residential house thereon. Said Ajay unfortunately passed away due to Brain Tumor on 09.08.2018. It is also admitted fact that upon his demise the life insurance amount of Rs.5,45,906/- has been received by respondent No.2 being his father. In addition he has also received Rs.29,35,414/- from the employer of the said

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deceased Dell International Services (India) P. Ltd. There is no denial of respondent No.2 owning separate property as shown in Annexures-C and D. It appears after demise of said Ajay N., the property has devolved upon his widowed wife, the petitioner herein and the relationship has turned sour, resulting in this acrimonious situation of filing the petition and seeking cancellation of deed of gift.

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14. The Assistant Commissioner, without adverting to the requirement of Section 24 of the Act, which warrants satisfaction of twin condition as held by the Apex Court in Chhikara supra has proceeded to cancel the Deed of Gift. Even for the purpose of Section 5 there is no reason assigned though he has taken note of the fact that insurance sum of Rs.5,45,906/- and service benefit of Rs.29,35,414/- has been received by respondent No.2. The case under the facts and circumstances and the law noted above would not fall either for grant of maintenance or for cancellation of Deed of Gift. No grounds justifying the order cancelling the Deed of Gift made out by respondent No.2.

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Petition succeeds and is allowed. Order dated

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03.06.2022 at Annexure-A passed by respondent No.1 is set aside.

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(M.G.S. KAMAL) JUDGE

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SBN

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List No.: 1 Sl No.: 45

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ORAL ORDER ON "FOR BEING SPOKEN TO"

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Heard learned Senior counsel further on behalf of the respondent No.2. He submits that there are other civil suits pending between the parties and mediation process is on and if an opportunity is granted, the dispute subject matter of the present petition would also be resolved.

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On the merits he submits, though the Deed of Gift was not sought to be cancelled during the lifetime of the original donee, a legal issue would arise namely, in a property which yields rental income, the donor has inherent derivative interest and though there is no explicit clause in the Gift Deed,

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yet the donor is entitled to seek invocation of provisions of the Act, 2007. He relies upon the order dated 02.02.2026 passed by the Coordinate Bench of this Court in the case of Sri.Venkataiah Vs The State of Karnataka and others in support of this submission.

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In response, learned counsel for the petitioner submits notwithstanding the order passed by this Court allowing the petition, the parties can explore the possibility of settlement and the petitioner will fully co-operate in said process.

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The submission is placed on record.

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As regards submission on merits made by learned Senior counsel for the respondent No.2 on to the order passed by Co-ordinate Bench of this Court in the case of Venkataiah ( supra ), this Court is of the considered view that the said order is of no avail to the facts and circumstances of the instant case which are distinct and different from the subject matter of the present petition.

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