SRI. K. R. PRAVEEN v. THE PRINCIPLE SECRETARY DEPARTMENT OF REVENUE STATE OF KARNATAKA, VIDHANA SOUDHA

2. SRI. RAMACHANDRA S/O. LATE THAMMAIAH, AGED ABOUT 79 YEARS, BOTH ARE RESIDING AT NO. 15/33, 2ND MAIN, MARENAHALLI, VIJAYANAGAR, BANGALORE-560 040, (BY SRI. M SHIVAPRAKASH, ADVOCATE) …PETITIONERS AND:

THE PRINCIPLE SECRETARY DEPARTMENT OF REVENUE STATE OF KARNATAKA, VIDHANA SOUDHA, BANGALORE-560 001.

THE CHAIRMAN MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS TRIBUNAL AND ASSISTANT COMMISSIONER, BANGALORE NORTH SUB DIVISION, BANGALORE-560 001. - 2 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR

SMT. N. MADHURAMBA W/O. SRI. RAMACHANDRA, AGED ABOUT 63 YEARS, R/AT NO. 15/33, 2ND MAIN, MARENAHALLI, VIJAYANAGAR, BANGALORE-560 040. (BY SRI.ELAM PARUTTI G.ADVOCATE FOR SRI. S. NAGARAJ., ADVOCATE FOR R3 SRI. SRINIVAS KUMAR., HCGP FOR R1 & R2) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE RECORDS FROM THE OFFICE OF THE RESPONDENT NUMBER 2 IN RESPECT OF ORDER PASSED IN CASE NO MSC/CR/104/2020-21 DATED 15/07/2021 AND ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL ORDER Being aggrieved by Order dated 15.07.2021 passed by the respondent No.2 allowing the petition filed by respondent No.3 under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, resulting in declaration of the Deed of Gift dated 05.04.2006 executed by respondent No.3 in favour of petitioner No.1 in respect of property bearing No.15/33 situated on 2nd Main, Marenahalli, Vijayanagar, - 3 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR Bangalore, as null and avoid, the petitioners are before this Court.

2. Petitioner No.2 is the father and respondent No.3 is the mother respectively of petitioner No.1.

3. Case in the petitioners is that the aforesaid property originally belonged to petitioner No.2 who had conveyed the same in favour of his wife-respondent No.3 in terms of Deed of Gift dated 23.08.2004. Thereafter respondent No.3 conveyed the aforesaid property in favour of petitioner No.1- her son.

A petition under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, came to be filed by respondent No.3 alleging that the petitioners herein have completely her in providing basic maintenance, requirements and amenities. It is further alleged that the Deed of Gift dated 05.04.2006 was obtained by the petitioner No.1 from respondent No.3 herein under pressure, undue influence, coercion and threat. Hence sought for necessary orders.

Respondent No.2/Assistant Commissioner accepting the case of respondent No.3 proceeded to allow the said - 4 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR petition, cancelling the Deed of Gift and directing restoration of the property in favour of respondent No.3 and also with the direction to deliver the original title documents. With further direction to the petitioner No.1 herein to pay Rs.5,000/- to the respondent No.3 till her demise. Aggrieved by the same, the present petition.

Heard and perused the records.

The ground on which the cancellation of Deed of Gift dated 05.04.2006 is sought by respondent No.3 is that the petitioner No.1 herein being her son had obtained the said document by exerting force, undue influence and neglecting to maintain the respondent No.3.

Reasons assigned by the respondent No.2/Assistant Commissioner to grant the said relief as found in the impugned order in unnumbered paragraph at page 3 read as under: "The history of this case reveals that, the Petitioner acquire the property under Gift Deed executed by her husband dated 23.08.2004. Thus, the Petitioner is absolute owner of the property. The Respondent cunningly got executed another Gift Deed in his favour on 05.04.2006 which is under dispute and not maintaining the Petitioner and fully neglected her and not providing basic requirements. It is a fit case to cancel the Gift Deed and restore the property to the Petitioner. Further, Petitioner claims a monthly maintenance of Rs.25,000/- from the Respondent. She has not produced any documents in - 5 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR respect of financial sources of Respondent. For the ends of justice it is sufficient to award monthly maintenance of Rs.5,000/-. With these observations I proceed to pass the following order. "

Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 read as under: "23. Transfer of property to be void in certain circumstances.— (1) Where any senior citizen who, after 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 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. (2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right. (3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5." - 6 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR

The Apex Court in the case of SUDESH CHHIKARA Vs RAMTI DEVI AND ANOTHER reported in (2024) 14 SCC 225 at paragraphs 14 and 15 held as under: "14. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression “by way of gift or otherwise”. For attracting sub-section (1) of Section 23, the following two conditions must be fulfilled: (a) The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and (b) The transferee refuses or fails to provide such amenities and physical needs to the transferor. If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.

15. When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal. "

In the instant case perusal of the Deed of Gift dated

05.04.2006 executed by respondent No.3 in favour of petitioner No.1 do not contain any clause as contemplated in Section 23.

There is no provision, authority or jurisdiction vested with the respondent No.2/Assistant Commissioner to set aside or declare the Deed of Gift to be null and void on the alleged premise of same having been obtained cunningly. - 7 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR Maintenance and Welfare of Parents and Senior Citizens Act, 2007 does not vest such jurisdiction with the Assistant Commissioner.

Though the impugned order further directs the petitioner to pay Rs.5,000/- per month, learned counsel for petitioners submits the petitioner No.1 is paying Rs.15,000/- per month. That apart he further submits respondent No.3 is continuing to reside in the portion of the said property, subject matter of the Deed of Gift. He further submits the petitioners would not disturb the residence/possession of the respondent No.3 from the portion of the property in which she is continuing to reside till her lifetime.

Submission is placed on record.

Accordingly, following: ORDER (i) Petition is allowed. (ii) Order dated 15.07.2021 at Annexure-G passed by the respondent No.2 is set aside. - 8 - NC: 2026:KHC:28189 WP No. 18649 of 2022 HC-KAR (iii) Petitioner No.1 shall continue to pay Rs.15,000/- per month towards maintenance of respondent No.3 and shall not cause any disturbance or inconvenience in her continue to reside in the subject property during her lifetime. Sd/- (M.G.S. KAMAL) JUDGE SBN List No.: 1 Sl No.: 43