Full Judgment Text
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WP No. 27088 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF APRIL, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 27088 OF 2019 (GM-RES)
BETWEEN:
SRI. B.Y. SANTOSH RAJ URS
S/O B YELLAPPA,
AGED ABOUT 34 YEARS,
R/AT # 318, ARASU MANSION,
TH TH
12 A MAIN ROAD, 6 BLOCK,
RAJAJINAGAR, BENGALURU-560 010.
…PETITIONER
(BY SRI. N GOWTHAM RAGHUNATH., ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB DIVISION
AND CHAIRMAN,
TRIBUNAL OF MAINTENCE AND
WELFARE OF PARENTS AND SENIOR CITIZEN,
KANDAYA BHAVANA,
KEMPEGOWDA ROAD,
BENGALURU-560 009.
2. SRI. B YELLAPPA,
S/O LATE BYALAPPA,
AGED ABOUT 68 YEARS,
R/AT #67/1, MANGALA NILAYA,
RD
3 MAIN ROAD, BDA ITTAMADU LAYOUT,
RD
BSK 3 STAGE, BANASHANKARI,
BENGALURU-560 085.
Digitally signed
by SUVARNA T
Location: HIGH
COURT OF
KARNATAKA
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3. SMT. MANGALA B Y,
W/O VIKRAM RAVINDRANATHAN,
D/O B YELLAPPA,
AGED ABOUT 41 YEARS,
R/AT # 67/1, MANGALA NILAYA,
RD
3 MAIN ROAD, BDA ITTAMADU LAYOUT,
RD
BSK 3 STAGE, BANASHANKARI,
BENGALURU-560 085.
…RESPONDENTS
(BY SRI.MAHANTESH SHETTAR., AGA FOR R1;
SRI. B YELLAPPA(R2 IN PERSON);
R3 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE ENTIRE RECORDS FROM THE FILE OF R-1 IN RELATED
TO CASE NO.MSC/CR/40/2018-19 AND QUASH THE ORDER
DATED 12.06.2019 PASSED BY R-1 IN CASE
NO.MSC/CR/40/2018-19;AS PER ANNEXURE-P AND
CONSEQUENTLY DISMISS CASE NO.MSC/CR/40/2018-19; DT.
12.06.19 ANNEXURE-P ON THE FILE OF R-1.
THIS WRIT PETITION, COMING ON FOR PRELIMIANRY
HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN
AS UNDER:s
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
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ORAL ORDER
The present writ petition is filed seeking the following
prayer.
“Wherefore, the petitioner most
respectfully prays that this Hon’ble Court be
pleased to:-
a. Call for the entire records from the file
of respondent No.1 in related to case
No.MSC/CR/40/2018-19;
b. Issue a writ in the nature of certiorari or
any other writ to quash the order dated
12.06.2019 passed by respondent No.1 r-1 in
case No.MSC/CR/40/2018-19 as per
Annexure-P;
c. Consequently dismiss case
No.MSC/CR/40/2018-19 dated 12.06.2019
Annexure-P on the file of respondent No.1.
d. Pass any appropriate writ, order or
direction as this Hon’ble Court deem it fit and
proper in the facts and circumstances of the
case and allow this writ petition with costs, in
the ends of justice and equity.”
2. The petitioner before this Court is the son. The
second respondent is a father. Third respondent is the daughter
of respondent No.2. The father has filed an application under
Section 23 of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’
for short) before the Assistant Commissioner seeking
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cancellation of the gift deed dated 23.11.2012 which is
registered on 12.07.2013 pertaining to the scheduled property
in favour of the son i.e. the petitioner herein and further sought
direction to quit and deliver the vacant possession of the
property to the father. The parties are referred to as father and
son for the sake of convenience.
3. It is the case of the father that he is the absolute
owner of the property and out of love and affection towards his
son he has executed a gift deed in the year 2012, which is
registered on 12.07.2013. It is the case of the father that after
obtaining the gift deed, his son became very greedy and violent
against him and started harassment and assault very
frequently, due to which the relationship between the father
and the son became stale and reached to worse situation. Even
the father has filed a police complaint with the jurisdictional
police. The father has mercilessly thrown-out from the house
on 07.01.2017 keeping all belongings and presently he is
staying with his daughter. Hence, he has come before this
Court with the relief as discussed above.
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4. It is the case of the son that the father has
voluntarily left the house, even though he is providing all basic
necessities to the father. It is a case of the son that during the
year 2015-16, without no reason, the father started behaving
detrimentally to the interest of the family members by listening
to the third persons who are unconnected with the family. He
started listening to the daughter and the son-in-law and they
polluted the mind of the father and ultimately the father started
to communicate by writing notices to all his children. Further
the wife and the son were isolated. When nothing has rectified,
the father has left the family. It is the case of the son that the
mother is staying along with him and father has left the
company and according to the son, such a relief cannot be
granted by the Assistant Commissioner. The Assistant
Commissioner by order impugned by exercising the powers
conferred under the Act has cancelled the gift deed dated
12.07.2013 and declared it as null and void and directed the
jurisdictional Sub-Register to comply with the order. While
passing the order, the Assistant Commissioner has discussed
the purport of the Act and Section 23 of the Act. It is observed
that the reasons behind approaching the Tribunal by the senior
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citizens for the reasons that they have been neglected by their
children and for other reasons. The Act is the special beneficial
act for the welfare of the senior citizen. It is quite apparent
from the records that the son may have been harassing the
father due to which the father approached the police station
several times. If at all the son has taken care of the father with
love and affection as previously taken care, he would not have
approached the police station several times and the tribunal
seeking justice against the son and hence the petition is very
much maintainable and accordingly passed the order.
Aggrieved thereby, the son is before this Court.
5. Learned counsel appearing for the son submits that
under Section 23 of the Act, the Assistant Commissioner has no
such jurisdiction to set aside the gift deed in the facts and
circumstances of the case, where there is no condition in the
gift deed that the son has to take care of the father. A gift deed
executed in the year 2013 cannot be cancelled in the year
2019. He had relied on the judgment of the Hon’ble Apex Court
1
in Sudesh Chhikara Vs. Mati Devi & Anr in paragraph Nos.12,
13, 14. He also relied on another judgment of the Hon’ble Apex
1
Civil Appeal No.174/2021 dated 06.12.2022
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2
Court in Urmila Dixit Vs. Sunil Sharan Dixit and ors in
paragraph Nos.20, 21, 22 and 24. Further, he has relied on
another judgment of the Division Bench of this Court in
Sri V Anjinappa @ V.V Anjinappa Vs. Smt. V.A Lakshmi and
3
others , which has followed the judgment of the Hon’ble Apex
Court in Sudesh Chhikara’s case referred to supra. Relying on
these judgments, submits that the gift deed does not attract
the conditions laid downunder Section 23 of the Act and the
Assistant Commissioner has no power to declare the gift deed
as null and void.
6. The father who has appeared as party-in-person
has relied on the judgment of the Hon’ble Apex Court in Urmila
Dixit case as well as Sudesh Chhikara’s cases referred to
supra. Further, he has also relied on the judgement of the
division bench of the Madras High Court in S.Mala Vs. District
4
Arbitrator & District Collector, Nagapatinam District in
paragraph Nos. 23, 24, 25, 29 and 33. He has relied on the
judgment of Co-ordinate Bench of this Court in Venkataiah Vs.
2
Civil Appeal No.10927/2024 dated 02.01.2025
3
W.A.No.1154/2022 dated 19.08.2024
4
W.A.No.3582/2024 dated 06.03.2025
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State of Karnataka and he relied on paragraph No.18 to
18.14, where it is observed that an explicit recital in the gift
deed obligating the donee to maintain the senior citizen is not
mandatory for invoking Section 23(1) of the Act because such
obligation can be inferred from the surrounding circumstances
and conduct of the parties. Relying on this judgment, it is
submitted that the order passed by the Assistant Commissioner
is legal and valid and in consonance with the provisions of the
Act.
7. Learned AGA submits that considering the fact that
the father is thrown out of the house and has not been taken
care and considering the conduct of the parties and the plight
of the senior citizen, an order has been passed by the Assistant
Commissioner by cancelling the gift deed that is executed in
favour of the son. It is submitted that the order that is passed
by the Assistant Commissioner is in consonance with the
provisions of the Senior Citizens Act and that no interference is
called for.
8. Having heard the learned counsels on either side,
perused the material on record. The undisputed facts in this
5
2026 SCC Online Kar 489
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case are that a gift deed of the year 2012 was executed on
12.07.2013. The application under Section 23 of the Act is filed
before the Assistant Commissioner in the year 2018. While
passing the order impugned, what has been observed by the
Assistant Commissioner is that he has discussed about the
object of the Act and further, father has given complaint to the
police on several occasions, if son is taking care of the father
and if he had been good with the father, he would not have
filed a complaint and the Assistant Commissioner has said that
in these circumstances, it has to be inferred that the son is not
taking care of the father. As such the gift deed has to be set
void ab
aside and accordingly has set aside and held that it is
initio
.
9. The Hon’ble Apex Court in Urmila Dixit case and
even in Sudesh Chhikara’s case referred to supra has discussed
the scope of Section 23 of the Act. At this juncture, it is
appropriate to extract Section 23 of the Act.
“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
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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.
(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.”
10. The Hon’ble Apex Court in the said judgment
considering the respective contentions of the parties, has
specifically dealt with the scope of Section 23 of the Act and
also has observed that, to satisfy Section 23(1) of the Act, the
parties shall fulfil that 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. If
the transferee refuses or fails to provide such amenities and
physical needs to the transferor, the transfer shall be deemed
to have been made by fraud or coercion or undue influence and
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it becomes voidable. The Hon’ble Apex Court has observed that
whenever an application is filed under Section 23 of the Act
such conditions must be established in the said deed. The
father has relied on the judgments of the Madras High Court in
S.Mala’s case and also a judgment of a Co-ordinate Bench of
this Court in Venkataiah’s case referred to supra. In those
cases, the interpretation that is given to Section 23 of the Act is
contrary to the judgment of the Hon’ble Apex Court in Sudesh
Chhikara’s case referred to supra. When the particular
provision is interpreted by the Hon'ble Apex Court in a
particular manner, when the law laid down by the Hon'ble Apex
Court is the law of the land, it is imperative that the Courts are
bound to follow the same. In those circumstances, this Court
cannot follow the judgments of the Co-ordinate Bench of this
Court or the Division Bench of the Madras High Court. In these
circumstances in the light of the law laid down by the Hon'ble
Apex Court in Sudesh Chhikara’s case referred to supra, there
is no condition in the said gift deed and once there is no
condition, it fails to satisfy the conditions laid down under
Section 23(1) of the Act. Hence, this Court is passing the
following:
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ORDER
i. Accordingly, the writ petition is allowed.
ii. The order passed by the Assistant
Commissioner is set aside.
iii. It is left open to the father/party-in-person to
avail appropriate remedy, if any, in accordance
with law.
iv. All pending I.As., in the writ petition shall stand
closed.
SD/-
(LALITHA KANNEGANTI)
JUDGE
PKN
List No.: 1 Sl No.: 40