IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.49984/2019(GM-RES) BETWEEN:
SRI RAGHAV KRISHNA JETTY S/O. LATE. M.R. KRISHNA SWAMY, AGED ABOUT 39 YEARS, DOOR NO. 53, DUNDAS COURT 29, DOWELLS STREET, LONDON, U. K., REP BY HIS GPA HOLDER, UTTAM PADIVAL, S/O. M. J. PADIVAL, AGED ABOUT 39 YEARS ...PETITIONER (BY SRI N. NAGARAJ RAO, ADVOCATE FOR SRI GOVINDARAJ K. JOISA, ADVOCATE) AND:
1 . STATE OF KARNATAKA DEPARTMENT OF REVENUE, AMBEDKAR VEEDHI, BENGALURU 560001.
REP. BY ITS CHIEF SECRETARY 2 . THE ASSISTANT COMMISSIONER THE TRIBUNAL FOR MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS, PANDAVAPURA SUB DIVISON, MANDYA DISTRICT 571434 3 . SMT. M. K. RADHA W/O. LATE. M. R. KRISHNA SWAMY, AGED ABOUT 72 YEARS, DOOR No.42, VENKATALINGAIAH LAYOUT, SIDDARTHA NAGARA, MYSORE 570011.
4 . SRI RAMPRASAD S/O. LATE. M. R. KRISHNA SWAMY, AGED ABOUT 51 YEARS, R/AT SHREE KRISHNA KUTEER, C-003, PRINCE TOWN, NO. 2, SHETTIHALLI, NEW AIR FORCE TECHNICAL COLLEGE, JALAHALLI WEST, BENGALURLU 560015.
…RESPONDENTS (BY SRI K. DILIP KUMAR, HCGP FOR R1 & R2; R3 AND R4 ARE SERVED BUT UNREPRESENTED) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.04.2019 PASSED ON THE FILE OF R-2 ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The unsuccessful son filed the present writ petition against the order dated 23.4.2019 passed by the 2nd respondent – Assistant Commissioner declaring the gift deed dated 2.11.2012 as null and void and cannot be enforceable.
2. It is the case of the petitioner that he had completed his graduation at Mysore and went to Australia for higher studies by obtaining the Education loan from the Bank. In the year 2002, the petitioner completed Master of Business Administration (‘MBA’), a post-graduation degree at Australia and secured appointment in United Kingdom and worked there from 2002 to 2005. In the year 2005, the petitioner returned to Australia. The Australian Company sent him to work in London Head Office in the year 2009.
3. It is further case of the petitioner that the petitioner invested huge money from his earnings to purchase the house at Nazarabad Moholla, Mysuru and properties at Mahadevapura, Srirangapatna, Mandya district and other places. The entire consideration amount was paid by the petitioner and the property was registered and the sale deed was executed in the name of his mother – M.K. Radha (3rd respondent). Subsequently in the year- 2012, the petitioner came to India and the mother of the petitioner herself executed gift deed in favour of the petitioner out of love and affection without any undue influence as per Annexure-C on 2.11.2012 and the petitioner has been in possession and enjoyment of the property since from the date of execution of the gift deed.
4. It is further case of the petitioner that his father passed away in May-2017 due to ill-health at Mysuru. The petitioner, his sister and the 4th respondent had performed the obsequies of their father. After rituals, the Respondent No.4 promised that he will take care of their mother and take her to his residence at Bengaluru. Subsequently, when the petitioner returned to India again and called the 4th respondent, it was surprised to know that once again the 3rd respondent shifted to Mysuru house. Later, the respondent No.4 has not allowed the petitioner or his sister to contact their mother for one or the other reason. Subsequently, the 3rd respondent – mother filed application before the Assistant Commissioner invoking the provisions of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (‘the Act’ for short) to declare the gift deed as null and void. The petitioner filed objections before the 2nd respondent – Assistant Commissioner. The Assistant Commissioner considering the entire material on record, has passed the impugned order. Hence, the present writ petition is filed for the relief sought for.
5. I have heard the learned counsel for the parties to the lis.
6. Sri N. Nagaraj Rao, learned counsel for the petitioner contended that though the property purchased in the name of mother, the entire amount contributed by the petitioner and therefore, the petitioner’s mother out of love and affection executed the gift deed in favour of the petitioner. There is no coercion or undue influence and therefore, the very application filed by the 3rd respondent before the Assistant Commissioner was not maintainable. He would further contend that brother of the petitioner (4th respondent) also filed O.S. No.796/2017 for partition and separate possession and the property in dispute in the present writ petition, is also included in the said suit as one of the suit schedule properties claiming he is entitled to one-fourth share. He would further contend that the property purchased in the name of mother out of the contribution by the petitioner and therefore, the provisions of the Act is not applicable.
7. He further contended that the 2nd respondent failed to notice that the application filed by the respondent No.3 only with an intention to overcome the illegal act of the 4th respondent instigating the respondent No.3 by emotionally blackmailing her. The application has not been filed voluntarily by the 3rd respondent (mother), but at the instance of the 4th respondent (petitioner’s elder brother). He would further contend that the impugned order passed by the 2nd respondent declaring the gift deed as null and void, is without any basis and cannot be sustained. Therefore, he sought to allow the writ petition.
8. Respondent Nos.2 and 3 though served, remained unrepresented.
9. Learned Government Advocate for Respondent No.2 – Assistant Commissioner contended that admittedly the gift deed came to be executed on 2.11.2012 after the Act came into force. In the application filed by the 3rd respondent before the Assistant Commissioner, it is specifically stated that the petitioner obtained the gift deed by playing fraud on the 3rd respondent. It is also contended that by giving false assurance and playing fraud on the mother, the petitioner obtained the gift deed subsequent to the Act came into force and therefore, the gift deed is null and void. Accordingly, the Assistant Commissioner considering the entire material on record, rightly allowed the application filed by the 3rd respondent (mother) and therefore, he sought to dismiss the writ petition.
10. Having heard the learned counsel for the parties, it is an undisputed fact that initially the property in question was in the name of the 3rd respondent, who executed the gift deed in favour of the petitioner on 2.11.2012 subsequent to the Act came into force. It is the case of the mother (present 3rd respondent) before the Assistant Commissioner that based on the assurance given by the petitioner and based on the false promise, he obtained the gift deed playing fraud on her and subsequently, he neglected to take care of her. The Tribunal considering the entire material on record has come to the conclusion that the petitioner has failed to take care of her mother (3rd respondent) and the gift deed executed after the Act came into force and therefore, declared the gift deed as null and void by the impugned order.
11. In view of the admitted facts that the property belongs to the 3rd respondent and the gift deed came to be executed after the Act came into force, the Assistant Commissioner exercising the powers under the provisions of Section-23 of the Act passed the impugned order.
12. This Court while considering the provisions of the Act in the case of N.D. Vanamala vs. The State of Karnataka, rep. by its Chief Secretary and others reported in ILR 2019 KAR. 247 held at paragraphs 22, 23 and 29 as under:
“22. Admittedly in the present case, the gift deed was executed by the fourth respondent under the bonafide belief that the petitioner being her daughter will take care of her during her old age. But, after obtaining the gift deed, the petitioner has shown her real colour and deprived the basic amenities and physical needs to the fourth respondent. Therefore, the fourth respondent filed an application before the Assistant Commissioner seeking cancellation of the gift deed executed by her in favour of the petitioner. The contention of the counsel for petitioner that there must be a condition in the gift deed to take care of the transferor cannot be accepted. If such contention is accepted, then the very purpose of enacting the ‘Act’ by the legislators and introducing Sections 23 and 24 in the Act would become futile. That is not the intention of the legislators while enacting the ‘Act’. The main object of the ‘Act’ is to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India and to protect the Senior Citizens at the fag end of their life. Even otherwise, it is the Duty and Dharma of the children to take care of their aged parents.
23. In the case on hand, the properties were divided among the petitioner, 4th and 5th respondents, equally, in a partition dated 26.06.2015. The fourth respondent being the mother, transferred the property fallen to her share in favour of the petitioner under the bonafide belief that the petitioner will take care of the fourth respondent in her old age. But the petitioner has failed to take care of the fourth respondent. Therefore, the impugned order passed by the third respondent- Assistant Commissioner exercising his powers under Section 23(1) of the ‘Act’ is in accordance with law. Even the second respondent- Deputy Commissioner has rightly dismissed the appeal filed by the petitioner under the provisions of Section 16 of the ‘Act’. The right of Appeal under the ‘Act’ is limited to senior citizens or parents or guardians only. Only they can be treated as aggrieved persons. Appeal filed by son, daughter, daughter-in-law, grandson and grand daughter against whom the order is passed by the Tribunal is not maintainable.
29. 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.” The circumstances warrants that the Court has to act as a guardian to protect Dharma. At this juncture, it is apt to extract verse 7-8 of Chapter 4 of the Bhagavadgeetha, which says:
“AiÀÄzÁ AiÀÄzÁ»zsÀªÀÄð¸Àå UÁ褨sÀðªÀw ¨sÁgÀvÀ C¨sÀÄåzÁ£ÀªÀÄzsÀªÀÄð¸Àå vÀzÁvÁä£ÁA ¸ÀÈeÁªÀÄåºÀA ¥ÀjvÁæuÁAiÀÄ ¸ÁzsÀÆ£ÁA «£Á±ÁAiÀÄ ZÀ zÀĵÀÌøvÁA zsÀªÀÄð ¸ÀA¸ÁÞ¥À£ÁxÁðAiÀÄ ¸ÀA¨sÀªÁ«Ä AiÀÄÄUÉà AiÀÄÄUÉÃ!”
which means:
Whenever there is decay of righteousness, O Bharata, And there is exaltation of unrighteousness, then I myself come forth;
For the protection of the good, for the destruction of evil-doers, For the sake of firmly establishing righteousness, I am born from age to age.”
13. Though the learned counsel for the petitioner contended that suit filed by the 4th respondent in O.S. No.796/2017 against the present petitioner and the 3rd respondent (mother) is pending and the schedule property involved in the present writ petition is also the subject matter of the said suit, the same cannot be a ground to allow the present writ petition. It is always open for the petitioner and the parties to the litigation to take whatever defence they want in the suit. It is for the Civil Court to decide the suit in accordance with law.
14. In view of the aforesaid reasons, the petitioner has not made out any ground to interfere with the impugned order passed by the Assistant Commissioner under the provisions of Section-23 of the Act, in exercise of the powers under the provisions of Articles 226 and 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-