FOR P-2) v. SRI LOHITASWA BANAKAR., ADVOCATE FOR R2 & R-3)

2. SRI GURUMALLAPPA S/O LATE BELLAPPA, AGED ABOUT 90 YEARS, R/AT MUNDLUPURA VILLAGE, CHAMARAJANAGAR DISTRICT.

3. SMT MANJULA W/O REVANNA AGED ABOUT 50 YEARS, R/AT MANDLUPURA VILLAGE CHAMARAJANAGAR DIST. (BY SMT.SARITHA KULKARNI .,HCGP FOR R-1; SRI K.S.MALLIKARJUNAIAH & SRI J.S.SOMASHEKHAR., ADVOCATE FOR R-2 & R-3; SRI.H.B.CHANDRASHEKAR., ADVOCATE FOR R-2 & R-3 (N0C); SRI LOHITASWA BANAKAR., ADVOCATE FOR R2 & R-3) …RESPONDENTS THIS WRIT PETITION IS FILED ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD.17.7.2020 PASSED BY THE R-1 IN M.A.G.C.R.09/2020- 21 PRODUCED AT ANNEXURE-A AS ILLEGAL. IN WP NO.601/2021: BETWEEN: SMT NAGALAMBIKA D/O SRI BASAVARAJU AGED ABOUT 32 YEARS R/O 6254 WARD NO.7, MUDLUPURA CHAMRAJANAGAR-571 313 (BY SRI. VEERABHADRA SWAMY, ADVOCATE) …PETITIONER AND:

1. THE ASSISTANT COMMISSIONER, THE CHAIRMAN, MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL - 3 - NC: 2024:KHC:26554 WP No. 11228 of 2020 C/W WP No. 601 of 2021 KOLLEGALA SUB DIVISION KOLLEGALA CHAMARAJANAGARA DISTRICT-571 313 2 . SRI GURUMALLAPPA S/O LATE BELLAPPA AGED ABOUT 90 YEARS R/AT MUNDLUPURA VILLAGE CHAMARAJANAGARA DISTRCIT-571 313 3 . SMT MANJULA W/O REVANNA AGED ABOUT 50 YEARS R/AT MUNDLUPURA VILLAGE CHAMARAJANAGAR DISTRCIT-571 313 4 . SRI CHENNAJAPPA S/O GURUMALLAPPA AGED ABOUT 65 YEARS R/AT PARVATHI NILAYA BEHIND VHP SCHOOL COURT ROAD CHAMARAJANAGAR DISTRCIT-571 313 5 . SRI BASAVARAJAPPA S/O GURUMALLAPPA AGED ABOUT 61 YEARS R/AT MUNDLUPURA VILLAGE UTHARAHALLI POST CHAMARAJANAGAR DISTRCIT-571313 (BY SMT.SARITHA KULKARNI .,HCGP FOR R-1; SRI K.S.MALLIKARJUNAIAH., ADVOCATE FOR R-2 & R-3; SRI.R.C.NAGARAJ., ADVOCATE FOR R-4 & R-5) …RESPONDENTS THIS WRIT PETITION IS FILED ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED IN M.A.G.C.R.09/2020-21, PRODUCED AT ANNEXURE-A.

17.07.2020 PASSED BY THE R-1 THESE PETITIONS, ARE COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 4 - NC: 2024:KHC:26554 WP No. 11228 of 2020 C/W WP No. 601 of 2021 ORDER These petitions challenge the order dated 17.07.2020 passed by the 1st respondent, vide Annexure-A, in exercise of the powers under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 ('the Act' for short), by which the gift deeds executed in favor of the petitioners were canceled on the grounds that they have not provided basic amenities/physical needs.

2. The 2nd respondent in Writ Petition No.11228/2020 executed registered gift deeds in favor of the petitioners, thereby consigning the properties enumerated therein. Respondent No.2 in Writ Petition No.601/2021 executed a registered gift deed in favor the petitioner on 03.12.2009, consigning the property enumerated therein. Respondent No.2 in both petitions filed objections under Section 23 of the Act for the cancellation of the gift deeds, stating that the petitioners have failed to provide basic amenities/physical needs, thus violating the clause contained in the gift deeds. The Respondent No.1, in the exercise of powers under Section 23 of the Act, canceled the gift deeds. Taking exception to the same, these writ petitions have been filed.

3. Sri R.S. Ravi, learned senior counsel representing petitioner No.2, and Sri R.C. Nagaraja, learned counsel for petitioner No.1 in W.P. No.11228/2020, along with Sri Veerabhada Swamy, learned counsel for the petitioner in W.P. No.601/2021, argued that in the absence of any clause in the gift deeds to - 5 - NC: 2024:KHC:26554 WP No. 11228 of 2020 C/W WP No. 601 of 2021 provide basic amenities/physical needs, the cancellation of the gift deeds executed in favor of the petitioners lacks authority. Learned senior counsel further argued that the gift deed dated 11.07.2005 executed favor of the 2nd petitioner in Writ Petition No.11228/2020 was prior to the commencement of the Act and therefore the cancellation of the gift deed is without jurisdiction. He placed reliance on the dictum of the Hon’ble Supreme Court in the case of Sudesh Chhikara vs. Ramti Devi & Anr., reported in 2022 LiveLaw (SC) 1011.

4. Per contra, learned counsel for Respondent No.2 vehemently contends that the 2nd respondent is a senior citizen, aged about 95 years, and he has no residential property to reside in. The gift deeds were executed with the condition that the petitioners had to provide for the maintenance of the 2nd respondent. The petitioners having not provided any maintenance, the 1st respondent has rightly passed the impugned order, and the same does not warrant any interference.

5. The arguments advanced by the learned counsel for the parties have been duly considered.

6. A perusal of the gift deeds indicates that the petitioners in W.P. No.11228/2020 are the children of the 2nd respondent, and the petitioner in W.P. No.601/2021 is the granddaughter of the 2nd respondent. There is no clause in the gift deeds that the petitioners - 6 - NC: 2024:KHC:26554 WP No. 11228 of 2020 C/W WP No. 601 of 2021 were obligated to provide basic amenities/physical needs to Respondent No.2.

7. The Hon'ble Supreme Court in the case of Sudesh Chihikara cited supra, with reference to Section 23, ruled that if the twin conditions in Section 23 are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud, coercion, or undue influence. Such a transfer then becomes voidable at the instance of the transferor, and the Tribunal gets jurisdiction to declare the transfer as void. It was further ruled that in the absence of any condition that the release deed therein was executed subject to a condition that the transferees would provide the basic amenities and basic physical needs to the transferor therein, the provisions of the Act are not applicable.

8. Therefore, in view of the specific provisions contained in Section 23 of the Act and also the legal principles established by the Hon’ble Apex Court in the aforesaid case, the impugned order passed by the 1st respondent is contrary to the provisions contained in the Act and is not legally sustainable.

9. The petitioners in W.P. No.11228/2020 have deposited a sum of Rs.1,00,000/- each before this Court following the interim order passed on 27.07.2022, and each of the petitioners is paying a sum of Rs.10,000/- to Respondent No.2 towards monthly maintenance. The Respondent No.2 in these petitions is entitled to - 7 - NC: 2024:KHC:26554 WP No. 11228 of 2020 C/W WP No. 601 of 2021 receive monthly maintenance of Rs.10,000/- from each of the petitioners in Writ Petition No.11228/2020 during his lifetime.

10. Accordingly, I pass the following: i) The petitions are allowed. O R D E R ii) The impugned order dated 17.7.2020 passed by the 1st respondent in MAGCR 09/2020-21, is hereby quashed. Consequently, the petitioners are entitled for restoration of their names in the revenue records in respect of subject properties. iii) Respondent No.2 is permitted to withdraw the amount in deposit before this Court. Sd/- JUDGE GSS