IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.9828/2019 (GM-RES) SMT. SHANTHAMMA D/O LATE NANJAIAH W/O SRI. CHIKKASWAMY AGED ABOUT 44 YEARS, R/AT NO.425, 5TH MAIN ROAD, KANAKANAGAR, J.P. NAGAR POST, BENGALURU 560078.
...PETITIONER (BY SRI RAMESHA H. E., ADVOCATE) AND:
1 . THE CHAIRMAN TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS AND ASSISTANT COMMISSIONER BENGALURU SOTH DIVSIION, BENGALURU 560026.
2 . SMT. JAYAMMA, W/O LATE NANJUNDAIAH AGED ABOUT 70 YEARS R/AT NO.1525, 1ST FLOOR, 2ND CROSS, 38TH MAIN ROAD, ROSE GARDEN, J.P. NAGAR 6TH PHASE, BENGALURU 560078.
(BY SRI VIJAYKUMAR A PATIL, AGA FOR R1; SRI S GURUPRASANNDA, ADVOCATE FOR R2) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED IN CASE No.MSC/CR/17/16-17 DATED 28.11.2018 PASSED BY THE RESPONDENT-1. THE CHAIRMAN, TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS AND ASSISTANT COMMISSIONER BENGALURU SOUTH DIVISION, BENGALURU THEREBY DECLARED THE REGISTERED GIFT DEED DATED 24.08.2015 EXECUTED BY THE RESPONDENT-2 INFAVOUR OF PETITIONER HEREIN AS NULL AND VOID, AND PRODUCED AT ANNEXURE-C AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner-daughter of respondent No.2 being unsuccessful before the Assistant Commissioner- respondent No.1, who declared the Gift Deed dated 24.8.2015 executed by respondent No.2 in favour of petitioner as null and void by the impugned order dated 28th November, 2018 made in MSC/CR/17/2016-17, has filed the present writ petition.
2. It is the case of the petitioner that respondent No.2, who is her mother, executed a Gift Deed dated 24.8.2016 in her favour for Harishina Kunkuma out of love and affection and she was taking care of her mother-2nd respondent. When the things stood thus, the 2nd respondent-mother filed a petition under Section 23(1) of the Maintenance and Welfare of parents and Senior Citizen Act, 2007 (‘the Act’ for short) before the 1st respondent seeking cancellation of the said Gift Deed raising various contentions. The petitioner filed objections and contested the matter. The 2nd respondent without considering the objections proceeded to pass the impugned order allowing the petition filed by the mother declaring that the Gift Deed executed in favour of the petitioner by respondent No.2 as null and void. That apart, one Krishnappa filed a suit i.e., O.S.No.5882/2016 for partition and injunction against respondent No.2 and Others and the same was compromised. Accordingly, the 2nd respondent got to her share, a portion of the residential house in which she was residing and hence, she got registered in the name of another daughter Smt. Sundaramma and she is also receiving rents from the portion of said building i.e., around Rs.30,000/- per month and further she is having other fixed deposits of lakhs of rupees in her name. In order to substantiate the said ground, though petitioner produced Bank Pass Book of the 2nd respondent and the order of compromise in O.S.5882/2016 before the 1st respondent, the same were not considered. Aggrieved by the said order, an appeal came to be filed before the District Commissioner, which also came to be dismissed as withdrawn by the present petitioner as not maintainable. Hence, the petitioner is before this Court for the relief sought for.
3. The 2nd respondent-mother filed objections to the main writ petition and contended that the writ petition filed by the petitioner is not maintainable and is liable to be dismissed. She would further contend that the petitioner being her daughter had assured that she would look after her needs, provide maintenance, basic amenities, medical and other physical needs, but petitioner on the false premise and assurance got her signature on the disputed Gift Deed dated 24.8.2015 misusing her innocence, ignorance and illiteracy. By playing fraud, undue influence and by misrepresentation, the petitioner has got executed the disputed Gift Deed. Therefore, she filed an application before the 1st respondent to declare the said Gift Deed dated 24.8.2015 as null and void and cannot be acted upon. The 1st respondent considering the entire material has judiciously exercised his power and passed the impugned order dated 28.11.2018 and the same is in accordance with law. Therefore, the petitioner is not entitled to any relief. It is further contended that the 2nd respondent had no intention at any time to execute the Gift Deed in favour of the petitioner, but the petitioner though being her daughter, has not maintained cordial and hormonial relationship with her and there is absolutely no love and affection between them. Hence question of executing the Gift Deed out of love and affection does not arise. Therefore, she sought to dismiss the writ petition.
4. I have heard the learned Counsel for the parties to the lis.
5. Sri H.E. Ramesha, learned Counsel for the petitioner contended with vehemence that the impugned order passed by the 2nd respondent is contrary, violative of the principles of natural justice and cannot be sustained. He would further contend that the ingredients of the provisions of Section 23(1) of the Act is not attracted in the present case and there was no condition for providing basic amenities and basic physical needs to the 2nd respondent in the Gift Deed, when infact the 2nd respondent has executed the same in favour of the petitioner as Harishina Kunkuma. As such, the question of playing fraud on the 2nd respondent would not arise, since the provisions of Section 23(1) of the above said Act has no application to the facts and circumstances of the present case. Inspite of executing the Gift Deed by the 2nd respondent in favour of the petitioner, filing an application by the 2nd respondent before the Assistant Commissioner under the provisions of Section 23(1) of the Act would not arise and the Assistant Commissioner ought to have rejected the application filed by the mother as not maintainable. It is further contended that the Tribunal has not taken into consideration the contents of the Gift Deed when it was voluntarily gifted as Harishina Kunkuma by the 2nd respondent and it ought to have been rejected the application. Therefore, he sought to allow the writ petition.
6. Per contra, Sri S. Guru Prasanna, learned counsel for Respondent No.2 sought to justify the impugned order passed by the 1st respondent and contended that the petitioner under the guise of false promise of providing basic amenities and basic physical needs and taking advantage that her mother (2nd respondent) is uneducated and having no male support, played fraud on her and obtained registered gift deed dated 24.8.2015 subsequent to the Act came into force. Therefore, he sought to dismiss the writ Petition.
7. Sri Vijaykumar A. Patil, learned AGA while supporting the impugned order passed by the 1st respondent contended that the Assistant Commissioner, who is the competent authority under the provisions of the Act, considering the entire material on record and based on the pleadings, recorded a finding that the present petitioner after obtaining the gift deed, has failed to discharge her duties and keep up her promise with a malafide intention to knock off the schedule property and has totally neglected the 2nd respondent. Therefore, the Tribunal was justified in passing the impugned order exercising the powers under the provisions of Section 23(1) of the Act. The same is in accordance with law. This Court cannot interfere with the impugned order exercising the powers under Articles 226 and 227 of the Constitution of India and therefore, he sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is not in dispute with regard to the relationship between the petitioner and the 2nd respondent as daughter and mother. It is also not in dispute that as on the date of the Act came into force, the 2nd respondent was the owner of the property in question, which is the subject matter of the application before the Assistant Commissioner i.e., residential property bearing No.3531 situated at Kumaraswamy lay-out II Stage, Bengaluru measuring East to West 20 feet and North to South 30 feet, totally measuring 600 square feet. According to the petitioner, the 2nd respondent voluntarily executed the registered gift deed in her favour out of love and affection for Harishina & Kunkuma.
9. In the application filed by the 2nd respondent under Section 23(1) of the Act before the Assistant Commissioner, the 2nd respondent has clearly stated that she was the absolute owner of the residential immovable property, which is morefully described in the application. She further contended that she is an uneducated lady and having no male support and the present petitioner who is one of her daughters under the guise of false promise of providing basic amenities and basic physical needs, played fraud on her and managed to obtain registered gift deed dated 24.8.2015 i.e, after the Act came in to force. Further, the petitioner was not at all residing in the said property as shown in the gift deed dated 24.8.2015 and in fact the petitioner let out the residential building, which is existing in the schedule property to a tenant and getting monthly rent of Rs.4,000/- and the petitioner is collecting the rent from the present tenant and enjoying the same, thereby depriving the 2nd respondent of the benefits and income derived from the schedule property. It is further contended in the application that the petitioner being a daughter, has failed to discharge her duties and keep up her promise with a malafide intention to knock off the schedule property and has started ill-treating the 2nd respondent and also neglected her moral obligation to provide basic amenities and basic physical needs to the 2nd respondent.
10. Though the learned counsel for the petitioner contended that there was no condition in the gift deed to provide basic amenities and physical needs to the 2nd respondent and in fact the 2nd respondent has executed the same in favour of the petitioner for Harishina & Kunkuma and the petitioner never played fraud on the 2nd respondent as alleged, the said contention cannot be accepted. As admitted by the petitioner, the gift deed came to be executed on 24.8.2015 after the Act came into force. The 2nd respondent filed application before the Assistant Commissioner under Section 23(1) of the Act mainly alleging that the gift deed obtained by the petitioner by playing fraud and taking advantage that the 2nd respondent is uneducated lady and has no male support. The mother was the absolute owner of the property as on the date of the Act came into force and admittedly the gift deed executed after the Act came into force on 24.8.2005.
11. The provisions of Section 23(1) of the Act stipulates that 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 refused 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. The Legislatures enacted the provisions of the Act mainly with an intention to protect the senior citizens, who have attained the age of 60 years as contemplated under the provisions of Section 2(h) of the Act. The whole object of the Act is only to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto. By whole reading of the provisions of the Act, there is no need to mention the condition in the document and once the person who has executed the document after the Act came into force files an application alleging that fraud played on her, that itself is enough to come to the conclusion that the document obtained by fraud or coercion. Therefore, the contention of the petitioner cannot be accepted.
12. The Tribunal considering the entire material on record, has recorded a finding as under:
“On perusal of the pleadings of both sides and documents I opine that, if at all respondent has taken care of her age old mother, the petitioner would not have approached this Hon’ble Tribunal seeking justice. The petitioner would have gifted the schedule property, so that at her fag end of life the respondent will take care petitioner providing basic amenities and basic physical needs. But petitioner is before this Tribunal for cancellation of Gift Deed. It is quite apparent that, the respondent upon obtaining the aforementioned Gift Deed, has failed to discharge her duties and keep up her promise with a malafide intention to knock off the schedule property and respondent has totally neglected the petitioner and has started ill- treating the petitioner and she has failed and neglected her moral obligation to provide basic amentias and basic physical needs to the petitioner as promised by her.”
13. The legislators enacted the provisions of the ‘Act’ and ‘Rules’ thereunder to ensure proper care and safety of senior citizens. Inspite of the said provisions enacted by the legislature, the “Court or the Authority cannot follow the proposition of “wait and watch” by sitting on the fence and it is not expected that the senior citizens will run from pillar to post and the assault and abuses by their children would be allowed to be continued and senior citizens cannot be used as commodity or chattel by their children.” Therefore, the Court has to interfere to implement the spirit of the provisions of the Act and the Rules to protect the safety of the senior citizens.
14. In view of the aforesaid reasons, the Assistant Commissioner is justified in passing the impugned order exercising the powers under the provisions of Section 23 of the Act. The petitioner has not made out any ground to interfere with the impugned order passed by the Tribunal, exercising the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
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