IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.52010 OF 2016 (GM-RES) BETWEEN:
SRI. M.B. NAGARAJU S/O LATE BORAIAH AGED ABOUT 50 YEARS R/AT MALLAGHATTA WARD NO.2, BEGUR ROAD KUNIGAL-572130.
… PETITIONER (By Mr. V. LAKSHMINARAYAN, SENIOR COUNSEL FOR Smt. SHILPA RANI, ADV.,) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY REVENUE DEPARTMENT M.S. BUILDINGS DR. B.R. AMBEDKAR ROAD BENGALURU-560 001.
2. MAINTENANCE TRIBUNAL AND THE ASSISTANT COMMISSIONER TUMAKURU SUB DIVISION TUMAKURU-572101.
3. SRI. NANJAPPA S/O LATE BORAIAH AGED ABOUT 61 YEARS R/AT MALLAGHATTA WARD NO.2, BEGUR ROAD KUNIGAL-572130.
… RESPONDENTS (By Mr. Y.D. HARSHA, AGA FOR R1 & R2 NOTICE TO R3 SERVED AND UNREPRESENTED) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned order dated 20.8.2016 passed by the maintenance tribunal and Asst. Commissioner, Tumakuru Sub-Division, Tumakuru as per Annex-E & etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER Sri.V.Lakshminarayan, learned Senior counsel for Smt.Shilpa Rani, learned counsel for the petitioner.
Sri.Y.D.Harsha, learned Additional Government Advocate for the respondent Nos.1 and 2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 20.08.2016 passed by the Assistant Commissioner under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’ for short).
5. Learned Senior counsel for the petitioner submitted that the application under Section 23(1) of the Act against the petitioner was filed by respondent No.3 who happens to be the brother of the petitioner. It is further submitted that the brother of the petitioner had purchased the property in question by registered sale deed dated 01.12.2006 and the same was conveyed to the petitioner by a gift deed dated 23.02.2011 which does not contain the stipulation that the petitioner is under an obligation to maintain respondent No.3. The aforesaid submission is not disputed by the learned Additional Government Advocate.
6. I have considered the submissions made by both the sides. Section 23(1) and (2) of the Act, reads as under:
“23(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.”
7. Thus, from perusal of Section 23(1) and (2) of the Act, it is evident that the transaction can be declared null and void provided the same contains a stipulation that the transferee shall maintain the senior citizen. Admittedly, in the aforesaid case, the gift deed dated 23.02.2011 does not contain any such stipulation. Therefore, the provisions of Section 23(1) and (2) of the Act are not attracted to the fact situation of the case and the provisions of the Act has no bearing to the factual matrix of the case. Therefore, the impugned order dated 20.08.2016 passed by the Assistant Commissioner under the provisions of the Act is hereby quashed. In the result, the petition is allowed. Needless to state that the respondent No.3 shall be at liberty to take recourse to such remedy as may be available to him under the law.
Sd/- JUDGE RV