Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NOs.14441-442/2016 (GM-RES) BETWEEN:
1 . S. PRASHANTH KUMAR S/O SUBRAMANYAM (LATE) AGED ABOUT 46 YEARS OCC:BUSINESS R/AT:#362/8TH CROSS WEAVERS COLONY BANNERGHATTA ROAD BANGALORE - 83.
2 . KARTHIK P S/O S. PRASHANTH KUMAR AGED ABOUT 26 YEARS OCC:BUSINESS NO:158, 9TH CROSS WEAVERS COLONY, B.G. ROAD GOTTEGERE POST BANGALORE - 83.
(BY SRI. K.MANOHARACHARI, ADVOCATE) AND:
1 . THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT BANGALORE - 01.
2 . THE CHAIRMAN OF TRIBUNAL/ ASSISTANT COMMISSIONER BANGALORE SOUTH SUB-DIVISION AT BANGALORE - 14.
...PETITIONERS 3 . VISHALAKSHAMMA W/O:LATE SUBRAMANYAM (LATE) AGED ABOUT 60 YEARS R/AT SATHYANAMA ADHIKABHIR SATHYASANGA ASHRAMA TRUST NO:11/18, 8TH CROSS H. SIDDAIAH ROAD, BANGALORE - 27.
…RESPONDENTS (BY SRI. SHIVA PRABHU S. HIREMATH, AGA FOR R-1 & R-2;
SRI. H.V. HARISH, ADVOCATE FOR R-3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:06.02.2016 BEING PASSED BY R-1 ANNEX-K AND TO QUASH THE ORDER DATED:13.01.2014 PASSED BY R-2 AT ANNEX-D.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R First petitioner is the son of third respondent and second petitioner is the grand son. Third respondent filed an application under Section 4 read with Sections 16, 21 and 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Rule 21 of the Rules 2009 (for short ‘Act’) made thereunder seeking maintenance contending interalia she is a widow having no source of income for livelihood and the property owned by her measuring 30 X 40ft. wherein a house had been constructed and situated at Sy.No.106, bearing No.158, Gottigere village, Uttarahalli Taluk, Bangalore South Taluk was gifted by her on 23.12.2008 to her son on the assurance that she would be taken care of by her only son during evening of her life which turned out to be false. It was also contended on execution of gift deed he had failed to maintain and taken care of her needs and requirement and for seeking maintenance she filed the petitions aforestated.
2. On service of notice respondent therein i.e., first petitioner herein appeared and filed his written arguments and contended that his mother has sufficient source of income for her livelihood and she has two houses in her name in the city of Bengaluru situated at Chikkanamma gudi, Weavers Colony, Bannerghatta road, Bengaluru and she is also receiving rental income of Rs.18,000/- p.m. from the said property. It is also contended that property which has been gifted in his favour is not the property of his mother and it was purchased by Smt.Gowramma his grand mother over which he had a right. It was also contended that pursuant to gift deed executed by mother of first petitioner, she had gifted the same to him on 21.01.2013.
3. The Assistant Commissioner by order dated 13.01.2014 declared gift deed executed by third respondent in favour of her son is null and void vide Annexure-D. Being aggrieved by said order an appeal came to be filed by both son and mother. Insofar as appeal filed by the son came to be dismissed as not maintainable vide order dated 14.03.2016 and appeal filed by the mother in Appeal No.M.A.G(4)Misc./C.R- 207/2014-15 came to be allowed by order dated 06.02.2016 vide Annexure-K, whereunder the first petitioner herein has been directed to maintain his mother and order passed by the Assistant Commissioner declaring gift deed as null and void came to be affirmed. Hence, son along with grand son has filed present writ petitions.
4. I have heard the arguments of Sryuths K.Manoharachari, learned counsel appearing for petitioners, Shivaprabhu S.Hiremath, learned Government Advocate appearing for respondent Nos.1 and 2 and H.V.Harish, learned counsel appearing for respondent No.3. Perused the records.
5. It is the contention of Sri.K.Manoharachari, learned counsel appearing for petitioners that at no point of time first petitioner has refused to maintain his mother i.e., third respondent and she had executed a gift deed in favour of first petitioner the same could not have been declared as null and void and same is contrary to Section 23 of the Act, and it is also prayed that Section 23(1) of the Act be declared as discriminatory, arbitrary and unconstitutional. He has also prayed for quashing of the impugned orders passed by Assistant Commissioner as affirmed by the Deputy Commissioner.
6. Per contra learned Government Advocate appearing for respondent Nos. 1 and 2 would contend that Act is intra virus of constitution and same has been enacted for the benefit of senior citizens and hence he prays for rejection of these petitions.
7. Sri.H.V.Harish, learned counsel appearing for third respondent would support the impugned orders and prays for dismissal of these writ petitions.
8. Having heard the learned Advocates appearing for parties and on perusal of impugned orders it requires to be noticed at the outset that the Act in question came to be introduced by the Union Government by Act No.56 of 2007 after having noticed that aging has become a major social challenge because of declining joint family system. A Large number of elderly persons, particularly widowed women are not being looked after by their families. In many a circumstance they have been perforced to spend their twilight years of life all alone and are exposed to emotional neglect and trauma and in certain circumstances they had been left as destitute to mend for themselves. In order to combat this social menace and challenge posed, legislature in their wisdom thought fit to introduce the Act in question. The provisions found in the said enactment is for ensuring simple, in-expensive and speedy disposal of claims by suffering parents is achieved.
9. This court is perforced to make an observation that India is known for its cultural ethos and has been guiding the entire world by not only preaching but also practising as to how pious obligations of the children is to be discharged by their parents, despite there being isolated incidents of neglect of aged parents by their children. It was this miniscule populace which was taken note of by the law makers for bringing in impugned enactment. On account of rise in incidents of aged persons being neglected, law makers to meet said challenge and in order to ensure that aged persons who are either being neglected by their children or left in the lurch to fend for themselves and to make provision for protection of their life and property possessed and owned by them, introduced the Act in question.
10. A Statute or an enactment must be so construed so as to make it effective and operative on the principle explained in the maxim ut res magis valeat quam pereat. It is on applying this principle the courts while pronouncing upon constitutionality of a statute starts with a presumption of constitutionality and prefer a construction which keeps the statute within competence of the legislature. If a statutory provision is open for more than one interpretation, the court chooses that interpretation which represents the true intention of legislature which is also referred to as “legal meaning of the statutory provision”. In fact, a statute is an edict of legislation and conventional way of interpreting or constructing the statute is to seek intention of its maker. In other words, a statute is to be construed according to the intent of them that make it workable and it is solemn duty of the Courts to act upon through intention of legislation on the principles of sententia legis which reads as under:
“The intention of Legislature thus assimilates two aspects: in one aspect it carries the concept of ‘meaning’, i.e., what the words mean and in another aspect, it conveys the concept of ‘purpose and object’ or the ‘reason and spirit’ pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.”
11. Keeping these salutary principles in mind, the challenge to the constitutional validity of the Act which is laid in these petitions when examined, particularly to section 23 of the Act, it requires to be considered for the purposes of outright rejection, for reasons specified hereinbelow. As could be seen from the statement of objects and reasons behind enactment the intent there was to cast the obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also to enforce their right. A senior citizen who has transferred the property by way of gift or otherwise in favour of son or daughter with a fond of hope of the basic amenities and physical needs of the transferee would be provided, is thereafter abandoned or not taken care of by the transferee or fails to discharge the obligations, such acts have been construed as an act of fraud by deeming provision or the property is deemed to have been transferred by coercion or under undue influence. In such circumstances the transferor would be entitled to seek for declaration of such transfer as void. Section 23 of the Act reads:
“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 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.
(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.
(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.”
(Emphasis supplied) 12. A plain reading of Section 23(1) indicate that on commencement of the Act, a senior citizen who has transferred his/her property by way of gift deed or otherwise, subject to the condition that transferee shall provide basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs upon such transfer, then transfer of such property shall be deemed to have been obtained or made by fraud or coercion or undue influence.
13. Reading of this provision itself would indicate that it is not the legislative intent that document evidencing transfer either by gift or otherwise, should itself contain a express condition that transferee shall provide basic amenities and physical needs of the transferor. On the other hand, if there is evidence available to the satisfaction of the authorities under the Act that ingredient of Section 23 is satisfied in a given case it is always open to the authorities to invoke their power under Section 23 of the Act to invalidate the document/s/deed in question before them.
14. It is this understanding of the provision of Section 23 of the Act which would advance the purport, intent and object of the Act. On the other hand if contention raised by the learned counsel appearing for petitioners is accepted it will not only defeat the very purport and object of the act but it will also truncate the purpose for which enactment was brought about. Hence, this court is of the considered view that contention raised by learned counsel appearing for petitioners with regard to the constitutional validity of the Act in general and Section 23 in particular requires to be rejected and accordingly it stands rejected. In other words, the constitutional validity of Act in question is held to be intra virus by repelling contention of same being ultra virus.
15. Now turning my attention to the facts or merits of the case it would not detain this Court too long to brush aside the contention of petitioner. Third respondent-mother has executed a gift deed in respect of the property belonging to her in favour of her only son on 23.12.2008 and he in turn has gifted said property to his son on 21.01.2013. Very plea raised by first petitioner before authority is that property in question is not the exclusive property of his mother and it was owned by his grand mother and as such she could not have executed gift deed in his favour by conveying the subject property to him. If it were to be so, then there was no need or necessity for him to execute a deed in favour of his son. Very fact that he has executed gift deed in favour of his son on 21.01.2013 would clearly indicate that he has acted upon the gift deed dated 23.12.2008 executed by his mother in his favour or in other words he has accepted that third respondent namely his mother to be the true owner having exclusive right over the property in question. That apart, on execution of the gift deed in his favour he has failed to take care of his mother-third respondent which resulted in his mother knocking at the doors of the Assistant Commissioner by invoking the provisions of the Act seeking maintenance. In fact at first instance she had not sought for gift deed being declared as null and void. The, Deputy Director of Women And Child Development has forwarded a letter to the tribunal recommending to cancel the gift deed executed by mother in favour of her son which also came to be considered by the Assistant Commissioner and taking note of the objections raised by first petitioner- son and entire facts which was unravelled during the course of the proceedings has resulted in impugned order being passed declaring the gift deed executed by third respondent in favour of first petitioner as null and void. However, no direction was issued to the first petitioner-son to maintain his mother, though he had arrived at a conclusion that first petitioner had failed in his duty as a son to take care of his mother. This order found favour with the Deputy Commissioner to the extent of declaring the gift deed executed by third respondent in favour of first petitioner as null and void and on account of there being no direction issued to son to maintain his mother, Deputy Commissioner has issued further direction by allowing the appeal filed by the mother and directing the first petitioner to maintain his mother. Contention of learned counsel appearing for petitioners that respondent amongst other properties owned had sold one of the property on 06.05.2015 for a sum of Rs.7,80,000/- and this fact was sufficient enough to arrive at a conclusion that she was capable of maintaining herself, requires to be considered for being brushed aside, since it is the pious obligation cast on the son to maintain his mother and in the instant case, he being the only son it is not only his pious obligation but also moral obligation to take care of his aged mother. However, under the guise of taking care of her, he had induced her to execute gift deed of the property owned by her and after obtaining gift of the property has neglected her. Hence, she was perforced to approach the authorities. As such, said contention does not merit consideration and it stands rejected. Said finding recorded by the authorities do not call for interference as it does not suffer from any infirmity either on facts or in law.
For the reasons aforestated, I proceed to pass the following:
Next >