IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.31274/2018(GM-RES) SMT. VIDYA MAHESH, W/O SRI.P. N. MAHESH, AGED ABOUT 33 YEARS, R/AT NO.4, ANJANADRI, KANAKAPURA MAIN ROAD, NEAR AYYAPPA TEMPLE, U.K.R.LAYOUT, YALACHENAHALLI, BENGALURU-560078.
(BY SRI PRAKASH T. HEBBAR, ADVOCATE) AND:
1 . THE STATE OF KARNATAKA REVENUE DEPARTMENT, M.S.BUILDING, 5TH FLOOR, DR. AMBEDKAR ROAD, BENGALURU-560001.
REPRESENTED BY ITS SECRETARY 2 . THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, KEMPEGOWDA ROAD, BENGALURU-560009.
3 . THE MAINTENANCE TRIBUNAL BENGALURU SOUTH, REPRESENTED BY THE ASSISTANT COMMISSIONER AND SUB-DIVISIONAL EXECUTIVE MAGISTRATE, BENGALURU SUB DIVISION, ...PETITIONER KANDAYA BHAVAN, KEMPEGOWDA ROAD, BENGALURU-560009 4 . SHRI.P.M.ANANDAKRISHNA SHETTY S/O LATE P. A. MUDDUKRISHNA SHETTY, AGED ABOUT 65 YEARS, R/AT NO.4, ANJANADRI, KANAKAPURA MAIN ROAD, NEAR AYYAPPA TEMPLE, UKR LAYOUT, YALACHENAHALLI, BENGALURU-560078.
5 . MRS. A. VEDASHREE MOHAN W/O SHRI. MOHAN, AGED ABOUT 27 YEARS, R/AT NO.4, ANJANADRI, KANAKAPURA MAIN ROAD, NEAR AYYAPPA TEMPLE, UKR LAYOUT, YALACHENAHALLI, BENGALURU-560078.
…RESPONDENTS (BY SRI M. VINODKUMAR ADDITIONAL GOVERNMENT ADVOCATE FOR R1 TO R3;
SRI MANJUNATH K. S., ADVOCATE FOR C/R4) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 9.7.2018 PASSED BY R-2 IN CASE No.MAG(4)/MISC./CR:36/2018-19 FROM THE FILE OF R-2 DEPUTY COMMISSIONER, PERUSE THE SAME, HEAR THE PARTIES AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner, who is the daughter of the 4th respondent, has filed the present writ petition, for a writ of certiorari to quash the Order dated 09.07.2018 passed by the respondent No.2-Deputy Commissioner, confirming the Order passed by the respondent No.3- Maintenance Tribunal-Assistant Commissioner dated 21.03.2018 as per Annexure-B.
2. It is the case of the petitioner that her father- respondent No.4, executed a Family Settlement (Partition) Deed dated 06.02.2014 and put the petitioner in possession of the house property, voluntarily. Accordingly, on 20.01.2017, khatha was changed in the name of the petitioner and she has been paying the taxes to the concerned authorities. When things stood thus, the respondent No.4 filed a petition under Section 5 read with Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, before the 3rd respondent, who, by the Order dated 21.03.2018 invalidated the Family Settlement (Partition) Deed dated 06.02.2014 executed by the 4th respondent in favour of the petitioner. Aggrieved by the said Order, the petitioner filed an appeal before the Deputy Commissioner. The Deputy Commissioner, by the Order dated 09.07.2018, confirmed the order passed by the Assistant Commissioner and dismissed the appeal. Hence the present writ petition is filed for the relief sought for.
3. The 4th respondent filed the statement of objections to the writ petition and has contended that the he has been treating the petitioner and her husband with love and affection since the date of their marriage in the year 2005. Since 2007 onwards, he extended financial assistance upto the tune of `50,00,000/- from time to time till the execution of the settlement deed with the fond hope that their family would be set right.
However, the son-in-law is greedy and is behind money. He is suffering from psoriasis since 35 years and he needs constant attendant for his ailment from time to time. During the life time of his first wife, she was treating him with all love and affections. During her life time, he brought the petitioner’s family to stay in his house so that their financial position would improve. His wife died on 10.09.2012. When the petitioner and her husband put pressure on the 4th respondent for gifting the petition house for their financial need, he was not prepared to succumb to their pressure. Thereafter, the daughter started ill-treating him. Therefore, he was compelled to execute the settlement deed at the advice of his elders for his safety and good will. It is further stated by the 4th respondent that he lodged a complaint dated 24.08.2014 against his daughter and son-in-law before the jurisdictional police. Ultimately, he was forced to file a private complaint before the IV ACMM, Bengaluru, in PCR No.8297/2015. After investigation, the jurisdictional police filed charge sheet against the daughter and son-in-law, in C.C.No.20754/2017 and the accused are on bail and the said matter is still pending adjudication before the Sessions Court. Subsequently, he filed similar complaint in the year 2014 for manhandling and causing threat to his life by his daughter and son-in-law. The jurisdictional police filed charge sheet against the present petitioner and son-in-law. Thereafter, he filed an application under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 before the 3rd respondent. The Tribunal, considering the entire material on record, proceeded to pass the impugned order and the same is in accordance with law. The petitioner is not entitled to any relief before this Court, and therefore, sought to dismiss the writ petition.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Prakash T. Hebbar, learned counsel for the petitioner contended that the impugned Order passed by the Assistant Commissioner and the Deputy Commissioner annulling the Family Settlement (Partition) Deed dated 06.02.2014 are erroneous and contrary to the material on record. Before the Assistant Commissioner, absolutely there is no defence available to the adversaries and without considering any of the contentions raised by the petitioner, the impugned Order has been passed. The Family Settlement (Partition) Deed dated 06.02.2014 is a registered document executed by the 4th respondent in favour of the petitioner and that cannot be annulled as the petitioner has fulfilled two conditions out of three conditions mentioned in the said deed.
6. He further contended that the petitioner has performed the marriage of her sister at her own cost and also purchased a site in her name and thereby, fulfilled the conditions. The petitioner had agreed to pay `50 lakhs to 4th respondent. Even now the petitioner is ready to pay `50 lakhs to the 4th respondent. It is further contended that, in view of the registered deed stated supra, the provisions of Section 23 of the Act are not applicable to the facts and circumstances of the case. Even assuming that the provisions of Section 23 of the Act are applicable, the 4th respondent has not fulfilled the conditions stipulated under Section 23(1) of the Act. Therefore, the impugned Order passed by the Assistant Commissioner annulling the registered Family Settlement (Partition) Deed dated 06.02.2014 confirmed by the Deputy Commissioner are erroneous and cannot be sustained.
7. He further contended that the Assistant Commissioner has not given sufficient opportunity to the petitioner as contemplated under Rule 15 of the Maintenance and Welfare of Parents and Senior Citizens Rules, 2009. Therefore, he sought to allow the writ petition.
8. Per contra, Sri M.Vinodkumar, learned Additional Government Advocate sought to justify the impugned Order passed by the Assistant Commissioner as per Annexure-B annulling the registered Family Settlement (Partition) Deed dated 06.02.2014. He contended that in paragraph 17 of the settlement (partition) deed, it is specifically stated that, ‘the second party and third party herein, daughters of the first party (4th respondent herein), out of gratitude and as a matter of bounden duty declare solemnly on oath that they shall endeavor in all seriousness to look after the well being of the first party (4th respondent herein) although his life without causing any mental or health problems. Further, they also have understood clearly that they are also have a duty to him under the public LAWS of our Country, and they would solemnly complain with them’. The same has not been complied with. Therefore, the 4th respondent was compelled to file an application under Section 23 of the Act.
9. He further contended that, admittedly, the alleged settlement deed came into existence on 06.02.2014, i.e., after coming into force of the ‘Act’. Therefore, the Assistant Commissioner, considering the material on record, has rightly annulled the settlement deed as there is violation of the provisions of the Act. Even otherwise, once the property belongs to 4th respondent, it is for him to take care of the property and since the allegation is made against the daughters that they are not taking care of the father, under the scheme of the Act, the application has to be allowed. Accordingly, the Assistant Commissioner has rightly passed the impugned Order and the Deputy Commissioner has rightly confirmed the said order.
10. Sri Manjunath.K.S, learned counsel for respondent No.4, while justifying the impugned order passed by the Assistant Commissioner, contended that, it was specifically agreed to pay `50 lakhs in the family partition deed. Though it was written, subsequently was struck down on the assurance of the daughter that she will pay the amount. Since the amount was not paid, one of the condition was not fulfilled. The same is stated by the 4th respondent in the application filed under Section 23 of the Act. He pointed out paragraphs 10, 11 and 12, of the petition filed by the 4th respondent alleging violation. He further contended that the daughters as well as son-in-law have harassed the 4th respondent. Therefore, the 4th respondent was compelled the file PCR and subsequently, after investigation police filed charge sheet in C.C.No. 20754/2016 and the same is pending. He further contended that the daughter also filed O.S.No. 1213/2017 for injunction, which came to be dismissed as not maintainable. Therefore, he contended that the order passed by the Assistant Commissioner is just and proper and this Court cannot interfere and therefore, sought to dismiss the writ petition.
11. Having heard the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:
“Whether the Order passed by the Assistant Commissioner dated 21.03.2018 annulling the Family Settlement (Partition) Deed dated 06.02.2014 as void and invalid confirmed by the Deputy Commissioner by the Order dated 09.07.2018 is justified in the facts and circumstances of the case?
12. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record, carefully.
13. It is undisputed fact that the present petitioner and 5th respondent are the daughters of 4th respondent. It is also not in dispute that the property in question belongs to 4th respondent who has acquired the same out of his own funds and it is not a joint family property. It is also not in dispute that the 4th respondent executed the Family Settlement (partition) deed dated 06.02.2014, in respect of ‘A’ and ‘B’ schedule properties in favour of the present petitioner, subject to certain conditions as stipulated at paragraphs 14 to 17, which reads as under:
14. Whereas the second party hereby declares that the third party will have every right to proceed against the second party for specific performance in a Court of Law, in the event of her failing to comply with her own promises she has declared, undertaken and agreed to be performed as averred in paras 13 and 14 above written.
15. Whereas in view of paras 12, 13,14 and 15 above, all the parties to this deed have unanimously agreed to absolve the first party of his moral and legal duty and responsibility to perform the marriage of the third party and to incur the expenditure thereof.
16. It is also agreed that the second party namely A. Vidya Mahesh shall not have any right or whatsoever to alienate her share ‘a’ and also share ‘b’ which she acquired now, either by way of sale, outright or conditional. She however, is at liberty to pledge or mortgage her share for raising any loan for her business or any other purpose, from any of the financial institutions and redeem the said property so pledged/mortgage by repaying the loan subsequently.
17. Whereas the second party and third party herein, daughters of the first party out of gratitude and as a matter of bounden duty declare hereby solemnly on oath that they shall endeavor in all seriousness to look after the well-being of the first party father, although his life without causing any mental or health problems. Further, they also have understood clearly that they are also have a duty to him under the public LAWS of our Country and they would solemnly complain with them.
14. Though, at condition No.10, it was stated that the petitioner and 5th respondent agreed to pay `50 lakhs to the 4th respondent, subsequently, it was struck down. It is the specific case of the 4th respondent before the Assistant Commissioner that the petitioner, her husband and the 5th respondent pressurized the 4th respondent to execute the Family Settlement (Partition) Deed dated 06.02.2014. According to 4th respondent, the present petitioner and the 5th respondent have not complied with the conditions mentioned in the settlement deed. Even otherwise, the property is purchased by the 4th respondent; and the petitioner and the 5th respondent are not taking care of the 4th respondent. Therefore, the 4th respondent has invoked the provisions of Section 23 of the Act for annulment of the document.
15. It is undisputed fact that the alleged settlement deed came to be executed on 06.02.2014, i.e., after the Act came into force, w.e.f. 29th December 2007. It is also not in dispute that the 4th respondent is a senior citizen as contemplated under Section 2(h) of the Act who has completed 60 years of age as on the date of filing the application before the Assistant Commissioner. It is the specific allegation made by the 4th respondent that the petitioner and 5th respondent, both daughters, have not taken care of him and the property belongs to him. The petitioner and the 5th respondent obtained the Family Settlement (Partition) Deed dated 06.02.2014 by pressurizing and by playing fraud. Therefore, he wanted to annul the document.
16. Though, Sri Prakash T Hebbar, learned counsel for the petitioner contended that the registered document executed by the 4th respondent in favour of the present petitioner cannot be annulled and the provisions of Section 23 of the Act is not applicable, that cannot be accepted for the simple reason that, admittedly, the 4th respondent is the absolute owner of the property in question and he executed the family settlement deed in favour of his daughters with certain conditions. According to the 4th respondent the said conditions have been violated, and the deed came to be executed after the ‘Act’ came into force.
17. The Assistant Commissioner, after giving sufficient opportunity to both the parties and after framing proper issues for discussion, has proceeded to pass the impugned order and recorded a finding that, ‘on careful reading of clauses 9, 10, 13, 14 and 17 of the said registered settlement deed, it is clear that the petitioner put a condition to their daughters that they should take care of him during his old age and in default, the said deed should be cancelled. Quoting the said default clauses available in the settlement deed, it was vehemently argued by the learned counsel for the petitioner that the respondents herein have neglected and failed to take care of their own father’. Considering the provisions of Section 23(1) of the ‘Act’, the Assistant Commissioner recorded a finding that, ‘after the commencement of the Act, a senior citizen has transferred his property by way of a gift deed or otherwise subject to the condition that the transferee shall provide basic amenities and physical needs to transferor and said transferee refuses or fails to provide such amenities and physical needs, transfer of such properties shall be deemed to have been made by fraud or coercion or under undue influence’.
18. 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 to protect the senior citizens at the fag end of their life.
19. Admittedly, the settlement deed executed by the 4th respondent is subject to certain conditions. According to 4th respondent, his daughters have violated the said conditions. But according to the daughters, i.e., petitioner and 5th respondent, they have not violated any of the conditions. However, the fact remains that the property belongs to 4th respondent who has executed the document after the Act came into force. Once there is violation of certain conditions mentioned in the deed, naturally, the person who executed the document can approach the competent authority under the provisions of the Act for annulment of the document. Therefore, the 4th respondent approached the 3rd respondent to annul the Family Settlement (Partition) Deed dated 06.02.2014.
20. A careful perusal of the provisions of Sections 2(a), 2(b), 2(d), 2(g), 2(h), 2(k) of the Act clearly indicates that, ‘children’ includes son, daughter, grandson and grand- daughter but does not include a minor; ‘maintenance’ includes provision for food, clothing, residence and medical attendance and treatment; ‘parent’ means father or mother whether biological, adoptive or step- father or step-mother, as the case may be, whether or not the father or the mother is a senior citizen; ‘relative’ means any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death; ‘senior citizen’ means any person being a citizen of India, who has attained the age of sixty years or above; ‘welfare’ means provisions for food, health care, recreation centres and other amenities necessary for the senior citizens.
21. The welfare measures can be imposed against any person, based on the accepted relationship between the parties involving mutual obligations for a considerable time, though such persons may not have legal obligation to pay the maintenance. The ‘maintenance’, of course, can be ordered only against the persons mentioned as ‘children’ or ‘relative as defined under Section 2(a) and 2(g) of the Act.
22. The Assistant Commissioner, considering the entire material on record, has come to the conclusion that the petitioner and the 5th respondent obtained the Family Settlement (Partition) Deed dated 06.02.2014, from the 4th respondent, after the ‘Act’ came into force which is nothing but playing fraud on the 4th respondent who is the owner of the property in question and proceeded to pass the impugned Order dated 23.08.2018 allowing the petition and annulled the document dated 06.02.2014 permitting the 4th respondent to get the said deed cancelled before the Sub Registrar, if he so deems fit and proper.
23. It is also not in dispute that the petitioner filed appeal before the Deputy Commissioner under the provisions of Section 16 of the ‘Act’. The very appeal filed by the petitioner before the Deputy Commissioner was not maintainable, since, a careful reading of the said provision clearly indicates that, ‘any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal’. Therefore, the petitioner who is the daughter is not an aggrieved party. Therefore, the appeal filed before the Deputy Commissioner was not maintainable and rightly, came to be dismissed.
24. The Assistant Commissioner, considering the entire material on record, has come to the conclusion that there is violation of the provisions of Section 23 of the Act and proceeded to pass the impugned Order which came to be confirmed by the Deputy Commissioner. The same is in accordance with law. Accordingly, the point raised for consideration is answered in the affirmative holding that the Assistant Commissioner is justified in annulling the Family Settlement (Partition) Deed dated 06.02.2014, confirmed by the Deputy Commissioner. The petitioner has not made out any ground to interfere with the impugned Orders, in exercise of powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed.
Sd/- JUDGE kcm