N.D. Vanamala v. State Of Karnataka

`3,000/- every month to the fourth respondent to look after herself and is taking care of her day to day affairs.

3. It is the further case of the petitioner that, on 08.07.2015, her mother-fourth respondent, without any conditions, executed an absolute gift deed in favour of the petitioner with respect to the house property bearing No.29, L-335, 30, L-335/1, Sub No.29, L-335/A and 30, L-335/1 measuring East to West 55 feet, North to South 12 feet out of which ground floor measures East to West 19 ½ feet, North to South 12 feet; first floor measures East to West 19 ½ feet, North to South 12 feet; and second floor measures East to West 19 ½ feet, North to South 12 feet, situated at Ashoka Road, Lashker Mohall, Mysuru City. The said gift deed was registered in the office of the Sub Registrar, Mysuru East, as per Annexure-A.

4. When the things stood thus, without knowing what is going on, the fourth respondent signed a

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complaint prepared by the fifth respondent and submitted it to the third respondent. In the complaint, the fourth respondent was forced to allege that the petitioner has neglected the fourth respondent and hence, prayed to cancel the gift deed. It is further contended that the third respondent took up the matter under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, ('Act' for short), but failed to comply with Section 8 of the 'Act'. As per Section 8 of the Act, the third respondent has got all such powers of the Civil Court for the purpose of taking evidence on oath and of enforcing attendance of witnesses, as such, the third respondent was supposed to follow 'summary procedure'. Without following the procedure contemplated under Sections 6(6) and 8 of the 'Act', the third respondent has proceeded to pass the impugned order declaring the gift deed dated 08.07.2015 as null and void. Aggrieved by the said order of the third respondent-Assistant Commissioner,

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the petitioner filed an appeal before the second respondent- Deputy Commissioner invoking the provisions of Section 16 of the 'Act'. The said appeal was dismissed as not maintainable. Hence the present writ petition is filed.

5. The learned counsel for the fourth respondent submits that the respondent No.4 has filed objections to I.A. No.1/2018 and in the said objections, she has taken contentions negating the pleadings made in the writ petition and it is specifically contended that the fourth respondent is the sole and absolute owner in possession and enjoyment of the property stated supra and since the petitioner was illegally interfering with the possession and enjoyment of the property, the fourth respondent filed a suit for temporary injunction in O.S. No.1249/2017 and the Trial Court granted injunction on 15.12.2017. It is further contended that the petitioner was taking care of the fourth respondent and

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in anticipation that the petitioner would take care of her in future, the fourth respondent executed a gift deed dated 08.07.2015 in favor of the petitioner. After execution of the gift deed, the petitioner started to neglect the fourth respondent and did not take care of the basic necessities. Having no other option, the fourth respondent approached the third respondent seeking cancellation of the gift deed dated 08.07.2015 and the same was allowed. It is further contended that the petitioner and fifth respondent are the children of fourth respondent. After demise of the husband of the fourth respondent, family partition was effected on 26.06.2015. Under the said partition, all the three members i.e., the petitioner, respondent Nos.4 and 5 got one property each out of three properties. Later, the petitioner convinced the fourth respondent that she will take care of all her basic needs and she would be permitted to stay in the property which has fallen to her share. Having trusted the petitioner, the fourth

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respondent started living with the petitioner and initially the petitioner took good care of fourth respondent. Subsequently, petitioner convinced the fourth respondent that she would ensure that all her needs would be taken care during her life time and in turn requested to transfer the property that has fallen to the share of the fourth respondent in favour of the petitioner. Having trusted the petitioner, the fourth respondent executed the gift deed dated 08.07.2015 wherein it is categorically stated that 'in view of the fact that the petitioner was taking good care of the fourth respondent, she is executing the gift deed'. It is further contended that in view of the gift deed executed, it was expected that the petitioner shall take good care of the fourth respondent and the same would amount to a pre condition while executing the gift deed. After execution of the gift deed, the petitioner changed her behaviour and started harassing her own mother-the fourth respondent. The fourth respondent came to know that

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the initial love and affection was shown only to grab the property. Therefore, the fourth respondent filed an application before the third respondent-Assistant Commissioner for cancellation of gift deed. The third respondent rightly allowed the application and therefore, sought to dismiss the writ petition.

6. I have heard the learned counsel for the parties to the lis.

7. Sri Abubacker Shafi, learned counsel for the petitioner contended that the impugned order passed by the third respondent is erroneous and contrary to the material on record and is liable to be set-aside. He would further contend that the third respondent failed to notice the contents of the gift deed, which is unconditional and absolute. Therefore, the third respondent does not have jurisdiction to consider the case of the fourth respondent and the fourth respondent has to approach the competent Civil Court seeking

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cancellation of the gift deed. Therefore, the impugned order passed by the third respondent cannot be sustained.

8. He further contended that the third respondent erred in not considering the provisions of Section 6(6) of the 'Act' and no enquiry is conducted. He further contended that the third respondent failed to take note of the fact that the petitioner has been paying `3,000/- every month to the fourth respondent in addition to taking care of her day to day needs. Therefore, he sought to quash the impugned orders passed by the third respondent. Learned counsel for the petitioner fairly submits that the appeal filed by the petitioner before the Deputy Commissioner was rightly dismissed. Therefore, the attack is only against the order passed by the third respondent-Assistant Commissioner.

9. In support of his contention, the learned counsel for the petitioner relied upon the judgment of the

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Bombay High Court in the case of Rahul vs. Gotu Nana reported in LAWS (BOM) 2018 6 122. He referred to paragraph 21. It was a case filed by the third party in respect of civil rights. Therefore, the Bombay High Court held that the provisions of Sections 4 and 23 of the Act are not applicable. The facts of the said case have no application to the facts of the present case.

10. Per contra, Smt. Sridevi, learned counsel appearing for the fourth respondent sought to justify the impugned order. While reiterating the contentions taken in the statement of objections, she contended that the petitioner has not taken care of her own mother - fourth respondent. Therefore, the fourth respondent filed an application under Section 23 of the 'Act' before the third respondent. Petitioner has not produced any material before this Court or before the Assistant Commissioner to establish the fact that she was paying

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`3,000/- every month for her maintenance. The provisions of Sections 6(6) and 8(2) of the Act relied upon by the learned counsel for the petitioner applies only in a case where the application is filed under Section 5 of the 'Act'. The third respondent, considering the entire material on record, exercising his powers under the provisions of Section 23 of the 'Act', has passed the impugned order. 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. Learned counsel relied upon the judgment of the High Court of Kerala at Ernakulam in the case Shabeen Martin and another vs. Muriel and another reported in AIR 2017 (NOC 1061) 362.

11. Sri M.A.Subramani, learned High Court Government Pleader, while supporting the order passed by the third respondent, contended that the object of the 'Act' is to protect the senior citizens. The gift deed is

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executed after coming into force of the Act. The 'Act' applies, if the relatives or the daughter fail to perform their obligations of looking after the elder persons. The order passed by the Assistant Commissioner is just and proper and this Court cannot interfere with the impugned order. Therefore, he sought to dismiss the writ petition.

12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in this writ petition is:

"Whether the Assistant Commissioner is justified in canceling the gift deed dated 08.07.2015 exercising the power under the provisions of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007?

13. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the papers, carefully.

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14. The admitted facts are that, the petitioner and fifth respondent are the daughter and son of the fourth respondent. It is the specific case of the petitioner that she was taking care of her mother- the fourth respondent. Out of love and affection, the fourth respondent executed a registered gift deed in favour of the petitioner on 08.07.2015 in respect of the property stated supra and only at the instance of the fifth respondent, the fourth respondent filed an application before the third respondent.

15. The substance of the case of the fourth respondent before the third respondent is that the fourth respondent is aged about 78 years, the respondents before the Assistant Commissioner are her children. She executed a gift deed in favour of her daughter believing that she would take care of her. But her daughter has failed to take care of her and therefore, she wanted to cancel the gift deed.

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16. In view of the rival contentions urged by the learned counsel for the parties, it is relevant to discuss the statement of objects and reasons to enact the 'Act', which reads as under:

"Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim

maintenance under the Code of Criminal Procedure, 1973, the procedure is both time- consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents."

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17. Therefore, the parliament enacted The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which came into force w.e.f. 29^thDecember 2007 and the Government of Karnataka in exercise of the powers under sub Section (3) of Section 1 of the 'Act' appoints the 01^stday of April 2008 as the day on which the provisions of the said Act shall come into force in the State of Karnataka.

18. The definition of the words 'children', 'parent' 'relative', 'senior citizens' and 'welfare' under Sections 2(a), (d), (g), (h) and (k) reads as under:

"2(a) "children" includes son, daughter, grandson and grand- daughter but does not include a minor;

2(d) "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;

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(2(g). "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; 2(h). "senior Citizen" means any person being a citizen of India, who has attained the age of sixty years or above;

2(k). "welfare" means provision for food, health care, recreation centers and other amenities necessary for the senior citizens."

19. Further, Sections 23 and 24, reads as under:

"23. Transfer of property to be void in certain circumstances.-

1. Where any senior citizen who, after the 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 to the 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.

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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 the 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.

24. Exposure and abandonment of senior citizen.-

Whoever, having the care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with

imprisonment of either

description for a term which may extend to three months or fine which may extend to five

thousand rupees or with both."

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20. A combined reading of the said provisions makes it clear that even if the property has been transferred by way of gift or otherwise, the transferee shall provide the basic amenities and basic physical needs to the transferor and if the 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. Likewise, whoever having the care and protection of the senior citizen, leaves such senior citizen in any place with the intention of wholly abandoning such senior citizen, is punishable with imprisonment or fine or both.

21. Admittedly in the present case, it is the specific case of the fourth respondent that she is a widow, aged about 82 years as on today and 78 years as on the date of filing application before the Assistant Commissioner

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and she has been ignored, abandoned and not taken care of by the petitioner after obtaining a registered gift deed. Though a contention was taken by the learned counsel for the petitioner that no condition was mentioned in the gift deed that the petitioner should take care of the fourth respondent and therefore, the Assistant Commissioner has no jurisdiction to nullify the registered gift deed under Section 23 of the 'Act', cannot be accepted, for the simple reason that the words used in Section 23 of the 'Act' clearly depicts that, 'where any senior citizen who, after the commencement of the 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 to the 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

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under undue influence and shall at the option of the transferor be declared void by the Tribunal'.

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

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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, 4^thand 5^threspondents, 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.

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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.

24. It is also relevant to mention here that the fourth respondent also filed O.S.No.1249/2017 against the present petitioner for permanent injunction in respect of her property in question and the same is pending adjudication. The petitioner also filed O.S.No. 1242/2017 for injunction against the fourth respondent in respect of the very property in question. It is unfortunate that the petitioner has suppressed the said material facts of the pendency of suits between the

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parties. It clearly depicts that the petitioner has not come to the Court with clean hands, heart and mind. On that ground alone, the writ petition is liable to be rejected. It is relevant to state at this stage that the jurisdiction of Civil Court is barred in respect of any matter covered under the provisions of the 'Act', in view of the provisions of Section 27 of the 'Act'.

25. Taking into consideration the above facts and circumstances, the point raised for consideration in the above writ petition has to be answered in the Affirmative holding that the Assistant Commissioner is justified in canceling the gift deed dated 08.07.2015, exercising the powers conferred under the provisions of Section 23 of the 'Act'.

26. "It is well settled that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the elder persons. Old age is incurable, increase of disease, you

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do not heal old age, you protect it, you promote it, you extend it." Admittedly in the present case, the children of the 4^threspondent are educated, but they are not taking care of the mother and the petitioner who is the daughter of the 4^threspondent/mother got the gift deed from the 4^threspondent on the pretext that she will take care of the 4^threspondent throughout her life and after getting the gift deed in her favour, the petitioner deprived the basic amenities and physical needs to the 4^threspondent. Therefore, the 4^threspondent was driven before the Assistant Commissioner/3^rd respondent invoking the provisions of the 'Act'. "It is high time for the heartless sons/daughters etc., to know that the life consists of reaction, resound and reflection. What they are doing to their parents today would get back exactly tomorrow. What is the use of their education, power-position and wealth, when it does not help them to change their destiny. When the bad

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thoughts enter their mind; their education, intelligence, power and wealth become futile and meaningless."

27. "There are no greater gods than parents. There is no greater Dharma than compassion, there is no enemy greater than anger, there is no wealth greater than good reputation, bad reputation is death itself. Even according to Manusmruthi, No person can repay his parents even in 100 years for all the troubles that they go through to give birth to him/her and raise him/ her to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then does any religious worship done by you will bear some fruit."

28. The object of the 'Act' is not to punish a person for neglecting to maintain those whom he is bound to maintain. It is to provide simple, inexpensive and speedy remedy to the parents and senior citizens, who are in distress, by a summary procedure. The

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provisions of the Act have to be liberally construed as the primary object is to give social justice to parents and senior citizens by compelling those who can support those who are unable to support themselves. They are intended to achieve this social purpose.

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:

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"AiÀÄzÁ AiÀÄzÁ»zsÀªÀÄð¸Àå UÁè¤ s̈ÀðªÀw ¨sÁgÀvÀ C¨sÀÄåzÁ£ÀªÀÄzsÀªÀÄð¸Àå vÀzÁvÁä£ÁA ¸ÀÈeÁªÀÄåºÀA ¥ÀjvÁæuÁAiÀÄ ¸ÁzsÀÆ£ÁA «£Á±ÁAiÀÄ ZÀ zÀĵÀÌvø ÁA zsÀªÀÄð ¸ÀA¸ÁÞ¥À£ÁxÁðAiÀÄ ¸ÀA s̈ÀªÁ«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.

30. By careful reading of the definition of the words 'children', 'maintenance', 'parent', 'relative', 'senior citizens' and 'welfare' as contemplated under Section 2(a),(b),(d),(g),(h) and (k) of the 'Act', it clearly depicts that the word 'children' includes son, daughter, grandson, 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

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case may be, whether or not the father or the mother is a senior citizen; 'relative' means any legal heir of childless senior citizen who is not a minor and is in possession of or would inherit his property after his death; 'senior citizens' means any person being a senior citizen of India, who has attained the age of sixty years or above including the citizens of India outside India; and 'welfare' means provision for food, healthcare, recreation centres and other amenities necessary for the senior citizens. 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 Sections 2(a) and 2(g) of the 'Act'. Though there is no special provision for providing 'welfare' to the senior citizen, the scheme of the 'Act' itself gives a room

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for the Tribunal to protect the 'welfare' of a senior citizen. It is open for the Tribunal to impose a liability for providing 'welfare measures' on whom the Tribunal deems fit that it can be imposed, based on the accepted relationship between the parties. Otherwise, the very purpose and object of the Act would be defeated.

31. The children forget the fact that the child become adult and the adult become old. That is the process of life and ultimately, the life is like a horse cart. Sri D.V.Gundappa in "Mankuthimmana Kagga" at verse- 600 has said as under:

"§zÀÄPÀÄ dlPÁ§Ar, «¢Aü iÀÄzÀgÀ ¸ÁºÉç PÀÄzÀÄgÉ ¤Ã£ï, CªÀ£ÀÄ ¥ÉüÀÝAvÉ ¥ÀAiÀÄtÂUÀgÀÄ ªÀÄzÀĪÉUÉÆà ªÀĸÀtPÉÆà ºÉÆÃUÉAzÀ PÀqÉUÉÆÃqÀÄ ¥ÀzÀ PÀĹAiÉÄ £É®«ºÀÄzÀÄ- ªÀÄAPÀÄwªÀÄä"

Which means:

"Life is like a Tonga. Providence is the master.

You are the horse. Passengers are chosen by the master.

So, you will have brief company of whom He Chooses for you.

The ride could be to a wedding or a funeral. You are not to ask-just run.

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If your legs fail, don't' worry there is Ground below to support you"- Mankuthimma

32. It is also relevant to state that the parents also should understand that their children are supreme asset of the nation. A proper education encompassing skill development, recreation and cultural activity has a positive impact on the child. The children are the most important human resources whose development has a direct impact on the development of the nation for the child today with suitable health, sound education and constructive environment is the productive key member of the society. The children are the treasures of their parents and parents should develop love and affection towards the children, grand children, burying their egoistic attitude and they should concentrate towards 'dhyana' at the fag end of their life. Our history reveals that there are parents who sacrificed their lives to the children and the children who sacrificed their life to the parents. It is only a mutual love and affection between

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the two. If there is love and affection between two, there cannot be any rift in the family and there would be no question of either children going against the parents or parents going against the children to the Court to protect their rights including invoking the provisions of the 'Act'. The parents shall create a good atmosphere in the family by their love and affection to regain the confidence of children, daughter-in-law, grand children. The children also should understand the fact that without their parents, they would not have been on the earth and would not have enjoyed the educational prospects including job, wealth and other luxuriousness. It is only the parents' contribution.

33. It is relevant at this stage to extract the verse-174 from "Mankuthimmana Kagga", which is as under:

"vÀAzÉ ªÀÄPÀ̽UÉ ºÀzÀUÉlÄÖzÀ£ÀÄ PÁuÉAiÀiÁ ºÉÆA¢gÀªÀgÀªÀgÀºÀAvÉAiÀÄÄ ªÉƼÉAiÀÄĪÀ£ÀPÀ vÀAzÉAiÀiÁgï ªÀÄPÀ̼Ágï £Á£ÉA§ÄzÉzÀÄݤ¯É §AzsÀ ªÀÄÄjªÀÅzÀÄ §½PÀ ªÀÄAPÀÄwªÀÄä."

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The English translation of the said verse is:

Have you seen rift between parents and children?

They live in harmony until self-importance takes over,

What of father and what of son, when ego reigns?

Then, the relationship is blighted-Mankuthimma.

34. In view of the aforesaid reasons and circumstances, taking into consideration the object of the Act, the impugned order passed by the Assistant Commissioner-third respondent is just and proper and the petitioner has not made out any ground to interfere with the impugned orders in exercise of power under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed.

35. In view of the dismissal of the writ petition, I.A.No.1/2018 for stay is also dismissed. Ordered accordingly.

Sd/-

JUDGE

kcm

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