IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE P. S. DINESH KUMAR WRIT PETITION NO.52019/2015 (GM-RES) BETWEEN:
SMT.G.R.JAYALATHA, W/O.SRI H.UDAYASHANKAR, AGED ABOUT 60 YEARS, R/AT NO.143/2, SANTOSHA NILAYA, 3RD MAIN ROAD,BETWEEN 8 AND 9TH CROSS, CHAMARAJPET, BENGALURU – 560 018. .. PETITIONER (BY SRI VASUDEVA IYENGAR K.T., ADVOCATE) AND:
1. THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, AMBEDKAR VEEDI, BENGALURU – 560 001.
2. THE ASSISTANT COMMISSIONER, TUMKUR SUB DIVISION, TUMKUR.
3. SMT.H.SWARNAMBA, SINCE DECEASED BY HER L.Rs.
3(a) SMT.KUMUDA, W/O.LATE SRI CHANDRASHEKAR G.R. AGED 66 YEARS, 3(b) SMT.BHAGYASHREE, W/.O.LATE SRI G.R.CHANDRASHEKAR, AGED ABOUT 60 YEARS, 3(c) SRI DEVAPRAKASH, S/O.LATE SRI G.R.CHANDRASHEKAR, AGED ABOUT 28 YEARS, 3(d) SMT.POORNIMA, D/O.LATE SRI G.R.CHANDRASHEKAR, AGED ABOUT 25 YEARS, 3(e) SRI DIXIT, S/O.LATE SRI G.R.CHANDRASHEKAR, AGED ABOUT 18 YEARS, ALL ARE RESIDING AT NO.2772, SIDDAGANGA LAYOUT, MLA SIVANANJAPPA ROAD, TUMKUR. .. RESPONDENTS (BY SMT.M.C.NAGASHREE, AGA. FOR R1 & R2 SRI SANGAMESH R.B., ADVOCATE FOR R3 – ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO HOLD AND SET THE SECTION 23 OF THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007 PROVIDING FOR THE POWERS CONFERRING UPON THE MAINTENANCE TRIBUNAL, AS UNCONSTITUTIONAL REGARDING TO SET ASIDE ANY TRANSFER OF GIFT, TRANSFER SHALL BE VOID ETC., TO THE EXTENT THAT GIFT AND OTHER TRANSFER MADE NULL AND VOID, SINCE IT IS IN CLEAR VIOLATION OF VARIOUS SECTION OF THE TRANSFER OF PROPERTY ACT AND OTHER LAWS AND SET ASIDE THE IMPUGNED ORDER DATED 13.10.2015 PRODUCED AT ANNEXURE-A ISSUED BY RESPONDENT NO.2 AS ILLEGAL.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri Vasudeva Iyengar, learned advocate for the petitioner and Smt.M.C.Nagashree, learned Additional Government Advocate for respondents 1 and 2. None appears for the private respondents.
2. Sri Vasudeva Iyengar, learned advocate for the petitioner submitted that petitioner’s mother Smt.H.Swarnamba executed a registered Gift Deed in petitioner’s favour on 05.06.2009 in respect of site bearing No.F-3 measuring 60’ X 40’ situated at Siddaganga layout, Sivananjappa Road, Tumkur Town. Smt.Swarnamba initiated proceedings under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short, ‘the Act’). By order dated 13.10.2015, the Assistant Commissioner, Tumkur, has declared the Gift Deed as void and directed for transfer of khata in the name of Swarnamba in respect of site in question. Learned advocate further submitted that the Tribunal constituted under the Act can declare any transaction as ‘void’ only if, the transfer by way of gift is subject to condition that the transferee shall provide basic amenities and basic physical needs to the transferor. In the instant case, the Gift Deed is unconditional and absolute. It does not contain any such condition. Therefore, the impugned order is unsustainable in law.
3. Learned Additional Government Advocate argued in support of the impugned order.
4. During the pendency of this writ petition, Smt.Swarnamba passed away. Her legal representatives have been brought on record.
5. I have carefully considered the rival submissions and perused the records.
6. Sri.Vasudeva Iyengar, learned advocate for the petitioner is right in his submission that transfer by way of gift can be declared as void only if such transfer is made subject to the condition that transferee shall provide basic amenities and basic physical needs to the transferor. Perusal of the Gift Deed shows that the gift is absolute and no such condition is imposed in the Gift Deed. In the circumstances, the impugned order is unsustainable in law. Hence, the impugned order is quashed. Writ Petition is accordingly allowed.
Sd/- JUDGE PKS