IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.36601/2017 & 42708-709/2017 C/W WRIT PETITION NO.21447/2017 (GM-RES) WRIT PETITION NOs.36601/2017 & 42708-709/2017 BETWEEN:
1. SRI. NANJUNDAPPA S/O K M KARIBASAPPA AGED ABOUT 58 YEARS R/AT. KESTUR VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572128.
2. SMT GIRIJADEVI G W/O K. NANJUNDAPPA AGED ABOUT 77 YEARS R/AT KESTUR VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572128.
… PETITIONERS (BY SMT. S. SUSHEELA, SR. COUNSEL FOR SRI. SOMANATH H, ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY SECRETARY DEPARTMENT OF REVENUE BENGALURU-560001.
2. THE DEPUTY COMMISSIONER TUMKUR TUMKUR DISTRICT-572101.
3. THE ASSISTANT COMMISSIONER TUMKUR SUB DIVISION TUMKUR DISTRICT-572101.
4. THE TAHASILDAR KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572101.
5. THE REVENUE INSPECTOR KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572101.
6. SRI K N SIDDALINGASWAMY AGED ABOUT 58 YEARS S/O NANJUNDAPPA K R/AT KESTUR VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572128.
7. SRI K N PRABHUDEVA S/O NANJUNDAPPA K AGED ABOUT 50 YEARS R/AT KESTUR VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DISTRICT-572128.
(BY MR. Y.D. HARSHA, AGA FOR R1 TO R5 … RESPONDENTS MR. PADMANABHA V. MAHALE, SR. COUNSEL FOR MR. S. VENUGOPALA, ADV., FOR R7 R6 SERVED AND UNREPRESENTED) - - -
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEX-C DTD.20.8.2016 PASSED BY THE R-3 AND TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, TUMKUR DISTRICT/R-2. QUASH ANNEX-F DTD.20.12.2016 PASSED BY THE R-2 AND TRIBUNAL UNDER THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, TUMKUR DISTRICT & ETC.
WRIT PETITION NO.21447/2017 BETWEEN:
SRI K N PRABHUDEV SON OF K NANJUNDAPPA AGED ABOUT 50 YEARS RESIDING AT KESTUR VILLAGE KORA HOBLI TUMKUR DSITRICT-572 138.
… PETITIONER (BY MR. PADMANABHA V. MAHALE, SR. COUNSEL FOR MR. S. VENUGOPALA, ADV.) AND:
1. THE CHIEF SECRETARY TO THE GOVERNMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-506 001.
2. THE DEPUTY COMMISSIONER TUMKUR DSITRICT TUMAKUR-572 138.
3. THE ASSISTANT COMMISSIONER TUMKUR SUB-DIVISION TUMAKUR-572 138.
4. SRI K NANJUNDAPPA SON OF LATE K M BARIBASAPPA AGED ABOUT 84 YEARS.
5. SMT G GIRIJADEVI WIFE OF K NANJUNDAPPA AGED ABOUT 75 YEARS.
6. SRI. K.N. SIDDALINGASWAMY SON OF K NANJUNDAPPA AGED ABOUT 54 YEARS.
RESPONDENT NOS.4 TO 6 ARE RESIDING AT KESTUR VILLAGE KORA HOBLI, TUMKUR TALUK TUMKUR DSITRICT-572 138.
… RESPONDENTS (BY MR. Y.D. HARSHA, AGA FOR R1 TO R3 SMT. SUSHEELA, SR. COUNSEL FOR MR. SOMANATH H, ADV., FOR R4 & R5 R6 SERVED AND UNREPRESENTED) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUSH THE ANNEXURE-A IMPUGNED ORDER DTD:20.12.2016 PASSED IN THE APPEAL ON THE FILE OF THE DEPUTY COMMISSIONER, TUMKUR DISTRICT TUMKUR AND DISMISS THE SAID APPEAL FILED BY THE R-4 & 5 & ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 19.03.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:
ORDER Mr.S.Susheela, learned senior counsel for Mr.Somanath H., learned counsel for the petitioners.
Mr.Y.D.Harsha, learned Additional Government Advocate counsel for respondent Nos.1 to 5.
Mr.Padmanabha V. Mahale Learned Senior Counsel for Mr.S.Venugopala, learned counsel for respondent No.7.
2. The writ petitions are admitted for hearing.
With consent of the learned counsel for the parties, the same are heard finally.
3. In these petitions under Articles 226 & 227 of Constitution of India, the petitioners inter alia seek a writ of certiorari for quashment of orders dated 20.08.2016 & 20.12.2016 passed by the Assistant Commissioner and Deputy Commissioner under the provisions of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’ for short). The petitioner also seeks a writ of mandamus directing the respondents to restore the entries in the revenue records in the name of the petitioner in respect of Sy.Nos.93/1, 96/2, 96/3, 98/2, 100/1 khatha No.55, 42, 43, 126, 128, 130, 131 & 132/1 situated in Kesthur Village and Mavukere Village Kora Hobli, Tumkur Taluk, Tumkur District by nullifying the partition dated 24.01.1998 and 28.04.2008. In order to appreciate the petitioners challenge to the impugned order few facts need mention, which are stated infra:
The petitioners are husband and wife. The respondent Nos.6 & 7 are the children of the petitioners. Admittedly, the petitioners are senior citizens. It is averred in the writ petition that on 24.01.1998, the respondent No.6 fraudulently and by misrepresentation got executed a partition deed, by which the properties viz., land bearing Sy.No.93/1, 96/2, 96/3, 98/2, 100/1- 1A-02, Khatha No.55 with house and agricultural properties measuring 15 acres 2 guntas and 1 site with a house as well as lands measuring 15 acres and 7 guntas were allotted amongst petitioner No.1 and respondent Nos.6 & 7. Admittedly, petitioner No.2 was not a party to the partition deed. Thereafter, on 28.04.2008, another partition deed was executed between the petitioners and respondent No.7. Under the aforesaid partition, which was reduced into writing on 28.04.2008, the petitioners were allotted land bearing Sy.No.93/1 and Khata No.55 along with a site and a house. Whereas, respondent No.7 was allotted lands bearing Sy.No.93/1, 96/2, 96/3, 98/2 and 100/1 measuring 12 acres and 13 guntas as well as one house. A sum of Rs.2 Lakhs each was allotted to two daughters of the petitioners under the aforesaid deed. Admittedly, the daughters of the petitioners have filed a suit for partition viz., O.S.No.272/2014, which is pending before the Trial Court in which the petitioners and respondent Nos.6 & 7 have been impleaded as parties.
4. The petitioners filed an application under Section 23 of the Act seeking a relief of nullification of the partition deeds dated 24.01.1998 and 28.04.2008 to the extent by which some of the properties were allotted in favour of respondent Nos.6 and 7. the respondent No.6 did not file any objection to the application filed by the petitioners. The claim of the petitioners was contested by respondent No.7. The Assistant Commissioner by an order dated 20.08.2016 partly allowed the application filed by the petitioners. The Assistant Commissioner directed the respondent Nos.6 & 7 as well as daughters of the petitioner to pay a sum of Rs.2,500/- p.m. to the petitioners. Being aggrieved the petitioners filed an appeal before the Deputy Commissioner. The Deputy Commissioner by order dated 20.12.2016 directed respondent Nos.6 & 7 to ensure that names of their parents are recorded jointly in the records in respect of 1 acre land each and a house until their death. In the aforesaid factual background, the petitioners have approached this Court.
5. Learned Senior Counsel for the petitioners submitted that expression ‘has transferred by way of gift or otherwise’ used in Section 23 (1) of the Act has to be read in the light of object of the Act as well as bearing in mind the fact that the provisions of the Act have an overriding effect. It is further submitted that the word ‘otherwise’ under Section 23(1) of the Act would not only include transfer of ownership but also includes transfer of possession by way of lease deed, mortgage, gift or sale deed. It is further argued that in the context of the object of the word the expression ‘transfer’ would not include gift only. It is further submitted that since there has been no enumeration of specific words belonging to specific class, therefore, the principle of ejusdem generic cannot be construed to implead the expression ‘otherwise’ used in Section 23(1) of the Act. It is further submitted that the principle of harmonious construction has to be implied to interpret the expression ‘otherwise’. It is further submitted that even the settlement deed and relinquishment deed has been construed by different High Courts to be a transfer of property by a senior citizen within the meaning of Section 23 (1) of the Act. It is further submitted that the partition deeds have been executed by playing fraud as the Stridhan property of petitioner No.2 could not have been subject matter of partition between the fathers and sons which was executed on 24.01.1998. In support of aforesaid submissions, Learned Senior Counsel for the petitioners has placed reliance on decision of High Court of Chattisgarh in ‘PRAMOD RANJANKAR AND ANOTHER VS. ARUNASHANKAR AND OTHERS’, CRMP NO.600/2018, a decision of the Delhi High Court in ‘MOHD. ZAKARIA VS. INAMUL HAQUE & ORS’, W.P(C) 9422/2015, decision of the High Court of Punjab in ‘SWARAN SINGH VS. SUB DIVSIIONAL MAGISTRATE CUM MAINTENANCE TRIBUNAL’, CWP NO.1985 OF 2017, decision of the Delhi High Court in ‘SUNNY PAUL & ANR. VS. STATE NCT OF DELHI & ORS.’, WP (C) 10463/2015, decision of the Supreme Court in ‘MUNICIPAL CORPORATION OF DELHI VS. TEK CHAND BHATIA’, AIR 1980 SC 360 and decision of the High Court of Karnataka in ‘SKANDA SHARATH VS. ASST. COMMISSIONER, TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS AND ORS.’, W.P.NO.1171/2019.
6. On the other hand, Learned Senior Counsel for the respondent No.7 has submitted that the partition acknowledges pre existing rights in the property and therefore cannot be construed to be a transfer within the meaning of transfer of property by a senior citizen within the meaning of Section 23(1) of the Act. It is further submitted that the Deputy Commissioner had no jurisdiction to issue the impugned directions as contained in the order dated 20.12.2016. It is further submitted that in any case the provisions of the act has no retrospective application therefore, the same could not have been made applicable in respect of the partition deed executed in the year 1998. It is further submitted that the respondent No.7 has already put the petitioners in possession of the house and he is living in a cow shed. It is also submitted that the respondent No.7 is ready and willing to take care of the parents and is ready and willing to meet the medical expenses which may be incurred by the petitioners and to pay the amount of maintenance to the petitioners. It is also submitted that the respondent No.7 is ready and willing to provide all the amenities in the house, which is in occupation of the petitioners presently to make their stay comfortable and is ready and wiling to abide by such directions as may be issued by this Court for maintenance of the petitioners.
7. I have considered the rival submissions made on both the sides and have perused the record. The Act has been enacted as the legislature was conscious of the condition that in changing social scenario, elderly persons were exposed to emotional neglect and to the lack of physical and financial support. The provisions of the Act provide for simple inexpensive and speedy provisions to claim maintenance for senior citizens and the parents who need more attention and care. The Act casts an obligation on the persons to inherit the properties of their aged relatives to maintain such aged relatives. From the perusal of statement of objects and reasons of the Act, it is evident that the Act has been enacted to provide for appropriate mechanism to be set up to give need based maintenance to the parents and senior citizens, for providing better medical facilities to the senior citizens, for institutionalisation of a suitable mechanism for protection of life and liberty of older persons and for setting up of old age homes in every district.
8. At this stage, it is apposite to take note of the relevant provisions of the Act viz., Section 2(f), Section 4(1) and Section 23(1) of the Act.
2(f) “property” means property of any kind, whether movable or immovable, ancestral or self- acquired, tangible or intangible and includes rights or interests in such property.
4. Maintenance of parents and senior citizens – (1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under Section 5 in case of,-
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of Section 2.
Section 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.
From perusal of Section 23(1), it is evident that if a senior citizen after the commencement of the provisions of the Act transfers any property by way of gifts or otherwise with the condition that the transferee shall provide basic amenities and basic physical needs and such transferee fails or refuses to provide such amenities and physical needs the such transfer of property shall be deemed to have made by fraud or under undue influence and the transfer be declared void at the option of the senior citizen.
9. The issues, which arises for consideration in the instant petition are: firstly, whether the expression ‘transfer or otherwise’ would include partition as well having regard to object of the Act, secondly whether the Act would apply in respect of the transaction which has taken place before commencement of the Act. In the light of the aforesaid well settled principles with regard to statutory interpretation if Section 23(1) of the Act is perused, it is axiomatic that there has to be a transfer by way of gift or otherwise by a senior citizen after the commencement of the Act. The concept of partition has a well settled legal connotation. Partition is a redistribution or adjustment of pre existing rights among co owners/coparceners resulting in a division of lands or other properties jointly held by them into different lots or proportions and delivery thereof to the respective allottees. The effect of such a division is that joint ownership is terminated and the respective shares of the parties vest in them in severalty. The separation of a share is a species of partition. [SEE: ‘SHUBH KARAN BUBNA VS. SITA SARAN BUBNA’, (2009) 9 SCC 689]. The partition by no stretch of imagination can be treated to be a transfer and can be said to be covered under the expression ‘otherwise’. Therefore, the provisions of Section 23(1) of the Act, in the fact situation of the case are not attracted as the parties had entered into a partition deed on 24.01.1998 and 28.04.2008. The provisions of the Act do not apply in respect of a transaction entered into by a senior citizen prior to commencement of the Act as Section 23(1) clearly applies to a situation where a senior citizen transfers the property by way of gift or otherwise after the commencement of the Act. Therefore, the provisions of the Act in any case cannot be made applicable in respect of partition deed dated 24.01.1998. So far as partition deed dated 28.04.2008 is concerned the same is not covered within the meaning of section 23(1) of the Act as it is not a transfer. It is well settled rule of statutory interpretation that a Judge must not alter the material of which the Act is woven but he can and should iron out the creases [See: ‘SEEFORD COURT ESTATES LTD. VS. ASHER’, (1949) 2 All.E.R.155].
the Supreme Court cited a passage from ‘MAGOR & ST. MELLONS RDC VS. NEW PORT CORPORATION’, (1951) 2 All ER 839, in ‘BANGALORE WATER SUPPLY AND SEWERAGE BOARD VS. A. RAJAPPA’, AIR 1978 SC 548 which reads: “The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but even if they are, the power & duty of the Court to travel outside them on a voyage of discovery are strictly limited”. [See: Principles of Statutory Interpretation, Justice G.P.Singh 13th Edition Page 73] 10. The submission made by Learned Senior Counsel for the petitioner that the word ‘otherwise’ used in Section 23(1) of the Act should be read so as to include partition deed as well does not deserve acceptance as the same would be contrary to the well settled legal position and this Court in the guise of interpretation and taking into account the object of the Act cannot do violence with the provisions of the expressions employed by the legislature in the Act, which is contrary to the statutory provision itself. It is well settled Rule of Statutory Interpretation that the doctrine of Harmonious construction cannot be invoked if the same amounts to doing violence to the language employed by the Legislature. [See: ‘GITHA HARIHARAN VS. RESERVE BANK OF INDIA’, 1999 (2) SCC 228]. The question of applicability of principle of ejusdem genris need not be gone into. Similarly, this Court in proceeding arising out of the provision of the Act cannot adjudicate the question whether the partition deeds had been executed by playing fraud.
11. In view of preceding analysis, no case for interference with the impugned order is made out. However, it is directed that respondent No.7 shall provide all the amenities as undertaken by him before this Court in the house of which the possession has already been handed over to the petitioners and shall ensure that the stay of the petitioners is comfortable and shall take care of well being of the petitioners and shall bear all the medical expenses which may be incurred by the petitioners. The aforesaid direction is being issued in view of undertaking by the Learned Senior Counsel for the respondent before this Court that respondent No.7 is ready to wiling and abide by such directions issued by this Court.
With the aforesaid directions, the petition is disposed of.
Sd/- JUDGE SS