Writ Petition No. 386 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:6579 WP No. 386 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 386 OF 2023 (GM-RES) BETWEEN: SRI. C ARASOJI RAO S/O LATE C CHIDAMBAR RAO AGED ABOUT 76 YEARS, R/AT NO.51/1, KENCHANAHALLI VILLAGE RAJARAJESHWARI NAGAR, BENGALURU-560098 (BY SRI. SUBRAMANYA R., A/W SRI. K P BHUVAN., ADVOCATE) AND: …PETITIONER 1. THE BANGALORE DISTRICT MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS APPELLANT TRIBUNAL AND SPECIAL DEPUTY COMMISSIONER -1 BANGALORE NORTH SUB DIVISION BANGALORE-560009 Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA 2. THE CHAIRMAN MAINTENANCE AND WELFARE OF PARENTS & SENIOR CITIZENS TRIBUNAL AND ASSISTANT COMMISSIONER BENGALURU SOUTH SUB DIVISION AT BENGALURU-01 3. SMT PARVATHI BAI W/O NARASIMHA MURTHY D/O LATE VENKU BAI - 2 - NC: 2025:KHC:6579 WP No. 386 of 2023 AGED ABOUT 60 YEARS R/AT NO.89, 1ST MAIN, 2ND CROSS KENCHENAHALI R R NAGAR BENGALURU-560096
Legal Reasoning
Deputy Commissioner having considered the appeal filed by the private respondents herein found that the petitioner was not seeking maintenance at the hands of the private respondents herein. He was only seeking cancellation of the two gift deeds. - 5 - NC: 2025:KHC:6579 WP No. 386 of 2023 However, it was also found that the two gift deeds did not contain any covenant which were sine qua non in terms of Section 23 of Act, 2007. Therefore, the Deputy Commissioner allowed the appeal while setting aside the orders passed by the Assistant Commissioner. 4. However, learned Counsel for the petitioner submits that having regard to Section 16 of the Act, 2007 which provides for an appeal, a Division Bench of this Court in the case of Sri K.Lokesh Vs. The Bangalore District Maintenance and Welfare of Parents of Senior Citizens Appellate Tribunal, in W.P.No.254/2024 dated 20.12.2024 has held that the only reasonable interpretation of Section 16 of the Act, is that the right of appeal is vested exclusively in senior citizens or parents, and not in any other individuals, including children or transferees. Further, it is pointed out that the Hon’ble Division Bench found fault in the decision of the learned Single Judge in issuing a direction to both the parties to agitate their rights before the competent Civil Court. The Division Bench therefore upheld the orders passed by the learned Single Judge to the extent of holding that an appeal under Section 16 could not have been filed by the children or - 6 - NC: 2025:KHC:6579 WP No. 386 of 2023 transferees but it also found that it is difficult to find any reason or justification in the order of the learned Single Judge in setting aside the order of the Assistant Commissioner. The learned Counsel would therefore submit that this writ petition should be allowed while setting aside the orders passed by the Deputy Commissioner by holding that an appeal could not have been maintained by the private respondents herein having regard to the law declared by the Hon’ble Division Bench. 5. This Court is placed in a piquant situation where though notice is served on the private respondents they are not present before this Court. On the other hand, it was pointed out that caveat petition having been filed by learned Counsel Sri Shivaswamy, he has entered appearance for the private respondents. One another reason why the Court finds that there is some reason to consider the case of the private respondents, is that the impugned order was passed by the Deputy Commissioner on 23.11.2022, long before the law was laid down by the Division Bench i.e., on 20.12.2024 in W.A.No.254/2024. This Court also finds that in the impugned orders, the Deputy Commissioner has found that the petitioner has a wife and son, but he is not seeking maintenance at the - 7 - NC: 2025:KHC:6579 WP No. 386 of 2023 hands of the son in whose favour the petitioner also had gifted an immovable property under registered gift deed dated 22.11.2011. The question therefore is whether the provisions of the Act, could be invoked by the petitioner only to seek cancellation of the two gift deeds executed at an undisputed point of time. Secondly, this Court in a recent decision in W.P.No.1795/2022 dated 23.01.2025, has also held that having regard to the definition of the word ‘relative’ as found in Section 2(g) of the Act, it would mean 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’. Going by the said definition, this Court has held that even a daughter-in-law cannot be sued under the provisions of this Act, either for seeking maintenance or for seeking annulment of a registered document. Here is a case where the petitioner has filed a petition under Section 5 only seeking to annul or cancel the two gift deeds executed by the petitioner in favour of his two sisters in the year 2017. On going through the two gift deeds, this Court also finds that no such covenant is found in the document which would meet the requirement of Section 23 of the Act, 2007. - 8 - NC: 2025:KHC:6579 WP No. 386 of 2023 [Emphasis supplied] 6. Having regard to the totality of the situation, this Court is of the considered opinion that though the writ petition is required to be allowed insofar as the challenge raised to the order in appeal filed before the Deputy Commissioner having regard to the subsequent decision of the Division Bench of his Court rendered as recently as on 20th December 2024 and the impugned order herein being passed long back on 23.11.2022, however, in the absence of any contesting respondents herein, the writ petition is required to be allowed only insofar as the jurisdiction of the Deputy Commissioner in entertaining such an appeal at the hands of the private respondents herein. 7. Nevertheless, it was also incumbent upon the Assistant Commissioner to have considered the question of maintainability of the petition at the hands of the petitioner herein as against his sister and their children. 8. Accordingly, this Court would proceed to pass the following: i)
Arguments
4. SRI KRISHNA RAO S/O LATE VENKU BAI AGED ABOUT 52 YEARS 5. SRI SHIVAJI RAO S/O LATE VENKU BAI AGED ABOUT 50 YEARS RESPONDENTS NO.4 & 5 BOTH ARE R/AT NO.58, 17TH CROSS, 9TH MAIN ROAD, PADAYRAYANAPURA BANGALORE-560026 6. SMT PADMA BAI D/O LATE VENKU BAI AGED ABOUT 54 YEARS 7. SMT KAMALA BAI D/O LATE VENKU BAI AGED ABOUT 47 YEARS RESPONDENTS NO.6 & 7 BOTH ARE R/AT NO.58, 17TH CROSS, 9TH MAIN ROAD, PADAYRAYANAPURA BANGALORE-560026 …RESPONDENTS (BY SRI.H.K.KENCHE GOWDA., AGA FOR R1 & R2 SRI. SHIVASWAMY., ADVOCATE FOR R3 TO R5 SRI. RAVINDRA M.R., ADVOCATE FOR R6 & R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.11.2022 PASSED BY THE R1 IN CASE NO. - 3 - NC: 2025:KHC:6579 WP No. 386 of 2023 MAG (4)/SC/ CR/ 01 /2022-23 AS PER ANNEXURE- D AND CONFIRMING THE ORDER IN CASE NO. MSC (SC) CR.07/2020- 21 PASSED BY THE R2 AS PER ANNEXURE –C AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER The petitioner, who originally filed a petition under Section 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (hereinafter referred to as the Act, 2007 for short) is before this Court aggrieved of the order dated 23.04.2022 passed by the Appellate Authority, the Special Deputy Commissioner-I, Bengaluru North Sub-Division, Bengaluru. 2. Learned Counsel for the petitioner submits that the petitioner filed the petition invoking Section 5 of the Act, 2007, contending that since his wife and children neglected to maintain the petitioner, he went and resided with his sisters Smt.Parvathi Bai and Smt.Venku Bai. In a partition that took place in the year 2015, the petitioner got to his share some immovable properties and within two years from the date of acquisition of the properties, his sisters coerced and forced him - 4 - NC: 2025:KHC:6579 WP No. 386 of 2023 to part with the two immovable properties and accordingly he executed two gift deeds dated 17.04.2017 parting with the two pieces of property in favour of his two sisters. However, immediately after the gift deeds were executed in favour of the two sisters they too neglected the petitioner and now there is no one to take care of the petitioner and therefore, he filed the petition invoking the provisions of the Act, 2007. 3. On issuance of notice, the private respondents herein contested the matter. Respondent No.3 is Smt.Parvathi Bai, the sister of the petitioner and respondent No.4 to 7 who were arrayed as respondents No.2 to 5 before the Assistant Commissioner are the children of Smt.Venku Bai in whose favour the petitioner had gifted one piece of immovable property. Though the matter was contested, the Assistant Commissioner proceeded to allow the petition and cancelled both the gift deeds. Feeling aggrieved, the private respondents herein filed an appeal before the Deputy Commissioner. The
Decision
The writ petition is allowed in part. ORDER - 9 - NC: 2025:KHC:6579 WP No. 386 of 2023 ii) The impugned order dated 23.11.2022 passed by the Special Deputy Commissioner-I, Bangalore North Sub-Division, in MAG(4)/SC/CR/01/2022- 23 is quashed and set aside. iii) However, the matter stands remitted back to the Assistant Commissioner for reconsideration of the question of maintainability of the petition before the Assistant Commissioner in view of the observations made hereinabove. This would also enable an opportunity to the private respondents herein to contest the matter. The order of Assistant Commissioner dated 05.04.2022 in MSC(SC)CR.07/2020-2021 is also accordingly set aside while remanding the matter back to the Assistant Commissioner for fresh consideration. Ordered accordingly. Needless to observe that the private respondents shall not deal with the property or alienate the properties in dispute till reconsideration at the hands of the Assistant Commissioner. Sd/- (R DEVDAS) JUDGE JT/- CT: JL