Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, applies exclusively to "senior citizens." A person who qualifies as a "parent" but is not a "senior citizen" cannot seek the cancellation of a property transfer under this specific section.

Digitally signed by SUVARNA T

Location: HIGH COURT OF KARNATAKA

THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE IMPUGNED ORDER DATED 20.07.2018 PASSED BY THE R1 IN CASE NO.MSC/CR/60/2017.18 FOUND AT ANNEXURE-A, ALLOW THIS WRIT PETITION WITH COSTS.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

ORAL ORDER

The present writ petition is filed aggrieved by the order passed in Case No.MSC/CR/60/2017-18 dated 20.07.2018 by the respondent No.1/Assistant Commissioner, under the Maintenance and Welfare of Parents and Senior Citizens Act, by cancelling the Gift Deed dated 20.01.2016 and subsequent Gift Deed dated 03.08.2016.

The petitioner No.1 is the wife of one Dharmalingaraju and petitioner No.2 is the son of Dharmalingaraju. The respondent No.2 is the daughter and respondent No.3 is the purchaser of the property. The husband of petitioner No.1 and father of petitioner No.2 and respondent No.2 had executed a Gift Deed in favour of his wife on 20.01.2016. After that, the husband of petitioner No.1 has given a complaint on 03.08.2016 stating that due to diabetes, his right leg was amputated and he was thrown out of the house by the petitioners and on the same day, the petitioners have given a statement that she will take care of her husband and will not throw him out. Thereafter, petitioner No.1 has executed a Gift Deed in favour of petitioner No.2 on 03.08.2016. Thereafter, the husband of petitioner No.1 had approached the Assistant Commissioner seeking cancellation of both the documents.

The respondent No.1/Assistant Commissioner, by order impugned, had cancelled the documents and it was observed that the petition is filed by the petitioner therein who is a senior citizen. He has transferred his property on 20.01.2016 by way of a Gift Deed to the petitioner No.1 herein. She in turn to deprive the right of the husband has transferred the same to petitioner No.2 herein. It is observed that the Tribunal is constituted under Section 7 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (for short 'Act') to follow a summary procedure and may declare that the transfer by the senior citizen in favour of the petitioners herein by exercising fraud or coercion or undue influence. In this case, the husband with his hard earned money had acquired the scheduled property. But because of the callous attitude of his wife and son, he is suffering. The wife only pleaded before the Police that the husband is taken care of with love and affection, but the same is nothing but a lip service. If the petitioners had taken care of the aged and disabled man, he would not have taken shelter at the orphanage. The husband has provided sufficient documents in support of his case. In view of the same, the application filed by the husband under Section 23 of the Act was allowed by setting aside the Gift Deeds executed by the husband in favour of the wife and the Gift Deed executed by her in favour of the son.

Learned counsel appearing for the petitioners submits that as on the date when the application is filed, the husband is not a senior citizen. The property that is gifted is to the wife in the year 2016. The wife in turn has gifted the property in favour of the son. The transaction that had taken place i.e., the Gift Deed between the wife and the husband would not come under the provisions of the Act. It is submitted that according to the husband, there is a fraud played by the wife and the only remedy that is available to the husband is to file a civil suit. But he cannot approach the Assistant Commissioner under the Act. The order impugned is beyond the jurisdiction that is conferred on the Assistant Commissioner. It is submitted that before the Assistant Commissioner, no notice is served on the petitioners. In that regard, learned counsel has placed the order shee