Sri. B. G. Shivakumar Vs the State of Karnataka

SMT B G GEETHA D/O LATE K R GAVI TIMMEGOWDA W/O RANGASWAMY, AGED ABOUT 50 YEARS, R/AT NO 61/1, 1^ST MAIN, THIMMAKKA LAYOUT, VIJAYANAGAR, NEAR HARSH HOSPITAL, NELAMANGALA TOWN, BANGALORE RURAL DISTRICT - 560 040.

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SRI GANGARAJU S/O T GIRIYAPPA AGED ABOUT 50 YEARS R/AT RENUKADEVI NILAYA, NO 888/1, 1^ST MAIN, 4^TH CROSS, T DASARAHALLI, BENGALURU - 560 057.

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SRI KOLALI GOWDA S S/O LATE G K SEETHAIH, AGED ABOUT 47 YEARS R/AT AYODHYA DEVI NILAYA, NO 320, M.E.I LAYOUT, HESARGATTA MAIN ROAD, BAGALGUNTE, BENGALURU - 560 073.

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THE ASSISTANT COMMISIONER BANGALORE NORTH, BANGALORE - 560 001.

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…RESPONDENTS

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(BY SRI. BHOJE GOWDA T KOLLER, AGA FOR R1, R2 AND R7; SRI. V. ANAND, ADVOCATE FOR C/R3;

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HC-KAR

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SERVICE NOTICE TO R4 AND R5 ARE 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 23/11/2022 PASSED BY THE R-2 IN NO.MAG(4)/SC/CR/29/2021-22 VIDE ANNEXURE-A IN THE INTEREST OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDER, 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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Heard learned counsel for the petitioners. None appears for the contesting respondent No.3.

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2. Petitioner No.1 is the son, petitioner No.2 is the daughter-in-law respectively of respondent No.3 are before this Court being aggrieved by the order dated 23.11.2022 passed by respondent No.2, in terms of which, while allowing the appeal filed by respondent No.3 under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, Act 2007), the respondent No. 2 has declared deed of gift dated 31.07.2015 executed by respondent No.3 in favour of petitioner No.1 as null and void.

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3. Learned counsel for the petitioners referring to the

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copy of the deed of gift dated 31.07.2015 executed by respondent No.3 in favour of petitioner No.1, produced along with a memo dated 15.06.2026, particularly drawing attention of this Court to unnumbered para 2 of page 2 of the said document, submits;

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(a) that though by virtue of the said deed of gift, respondent No.3 purportedly conveyed the subject property in favour of the petitioner No.1, the said recital clearly depicts that originally the said property was purchased in the name of respondent No.3 in terms of deed of sale in 28.07.2004 and the sale consideration for the said purchase was paid by the petitioner No.1.

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(b) that the said document do not contain any condition requiring petitioner No.1 to provide amenities and maintenance to respondent No.3 as contemplated under Section 23 of the Act, 2007. That nonetheless the building existing on the said site was constructed by the petitioner No.1 and respondent No.3 is residing in the second floor of the said house.

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(c) that Assistant Commissioner before whom the respondent No.3 had filed an application initially, while rejecting her prayer for cancellation of sale deed had, however directed the petitioner to pay monthly maintenance of Rs.7,000/-. Thus, the petitioner No.1 is continuing to pay the said sum of Rs.7,000/- which is now enhanced by this Court to Rs.10,000/- vide an interim order dated 14.06.2023 and the petitioner No.1 is continuing to pay the said enhanced amount to the respondent No.3 and he has also not caused any disturbance or impediment to respondent No.3 residing in second floor of the said building.

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(d) He draws attention of this Court to the copy of the plaint in O.S No.1715/2019 which is filed by the sister of the petitioner No.1 pending consideration on the file of Principal Senior Civil Judge, Bangalore Rural District, Bangalore, in which the said sister of the petitioner No.1 has challenged the execution of present deed of gift by respondent No.3 in favour of the petitioner No.1. All the parties are prosecuting and the said matter which is pending consideration.

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(e) Under these circumstances, he submits that the

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order passed by the respondent No.2-Deputy Commissioner cannot be sustained. Hence, seeks for quash of the same.

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4. Learned HCGP appearing for the respondent Nos.1, 2 and 7 justifying the order passed by the respondent No.2Deputy Commissioner submits that the petitioner No.1 has not provided the required amenities and maintenance to respondent No.3 who is aged about 67 years and she having executed the deed of gift in favour of the petitioner No.1 in fond hope of him maintaining her. Failure on his part constrained her to approach the respondent No.2-Deputy Commissioner, which has allowed the same. That the deed of gift, according to respondent No.3 was obtained under fraudulent means. Therefore, the order cancelling the said deed of gift as null and void cannot be found fault with. Hence, seeks for dismissal of the petition.

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5. Heard. Perused the records.

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6. Perusal of document, namely deed of gift dated 31.07.2015 indicate that there are no conditions or terms

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attached or imposed on petitioner No.1 for the purpose of providing maintenance and amenities to the respondent No.3, which is the requirement as contemplated under Section 23 of the Act, 2007. There is also no dispute of the fact that respondent No.3 is indeed residing in portion of the residential building i.e. second floor of the residential house subject matter of said gift. This can be inferred even from the address given by the respondent No.3 in her petition before the respondent No.7-Assistant Commissioner as well as before the respondent No.2-Deputy Commissioner, which is one and the same as that of the petitioners herein.

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7. Section 23 of the Act, 2007 reads 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 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;

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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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The Apex Court in the case of SUDESH

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CHHIKARA vs. RAMTI DEVI AND ANOTHER reported in

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( 2024) 14 SCC 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 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 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 subsection (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal."

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9. The reasons assigned by the respondent No.2Deputy Commissioner to set aside the order passed by respondent No.7-Assistant Commissioner, as could be seen at unnumbered para 2 of page 6 of the impugned order dated 23.11.2022, which reads as under;

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"Further specific contention the appellant is that, the second respondent has obtained the gift deed by misrepresentation and fraudulent manner. However, the said specific allegation has not been denied by second respondent. On the other hand it is contented that Item No.2 of the property acquired by his father, Gavi Thimmegowda and Item No.1 has been acquired by this appellant with the help of respondent No.2. But, to substantiate the said contention he has not placed any material documents and also failed to substantiate that, if the above statement is correct, why he has obtained gift deed, in respect to the subject properties. It shows that, there is no force in the contention of the respondent No.2 and respondent No.3. Accordingly, the gift deed dated 31.07.2015 so far as the above house List No.218, Site No.36."

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10. The impugned order does not advert to the requirement of law as noted above. It is settled position that the respondent No.2- Deputy Commissioner does not have jurisdiction to adjudicate the issue involving allegation of fraud and misrepresentation, which can only be adjudicated by competent Court of Civil jurisdiction. In any event, a suit in OS No.1715/2019 has been filed challenging the execution of very deed of gift. Thus, the petitioners have made out a case

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for interference as the impugned order passed by the respondent No.2-Deputy Commissioner do not meet the requirement of law as narrated above.

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11. Since the petitioners have no objection in respondent No.3, continue to reside in second floor of the premises till her lifetime and since he is also paying the monthly maintenance of Rs.10,000/-, and his undertaking to continue to pay the said amount and not to cause any obstruction or inconvenience to the respondent No.3, this Court deems it appropriate to set aside the order of the respondent No.2 -Deputy Commissioner to the extent declaring the deed of gift dated 31.07.2015 as null and void.

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12. Accordingly, the following;

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ORDER

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i. Petition is allowed .

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ii. Order dated 23.11.2022 passed by the respondent

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No.2-Deputy Commissioner vide Annexure-A is set aside to the extent declaring the deed of gift dated 31.07.2015 is null and void.

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iii. It is made clear that the order passed in this matter shall not come in the way of disposal of the pending suit in O.S No.1715/2019 in accordance with law.

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iv. The petitioner shall continue to pay monthly maintenance of Rs.10,000/- without default to the respondent No.3 and also cause any obstruction, impediment and inconvenience in she continuing to reside the second floor of the premises.

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Sd/(M.G.S. KAMAL) JUDGE

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RU, List No.: 1 Sl No.: 13

Sri. B. G. Shivakumar v. the State of Karnataka

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Sri. B. G. Shivakumar v. the State of Karnataka

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