- 1 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF APRIL, 2026 BEFORE THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI WRIT PETITION NO. 16661 OF 2022 (GM-RES) BETWEEN: 1. SMT VIJAYALAKSHMI S.P., W/O S.P.SUDHAKAR AGED ABOUT 48 YEARS R/A NO.84, 4TH CROSS GANDHINAGARA HARIHARA - 577 001 DAVANGERE DISTRICT 2. SMT.REKHA W/O.NAMADEVA M.B., AGED ABOUT 46 YEARS R/AT NEELAKANTANAGAR 4TH CROSS, 5TH MAIN HARIHARA-577 001 DAVANAGERE DISTRICT …PETITIONERS (BY SRI. V.B.SIDDARAMAIAH, ADVOCATE) AND: 1. THE DEPUTY COMMISSIONER DAVANGERE DISTRICT AND APPELLATE AUTHORITY FOR THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS DAVANGERE, HARIHAR ROAD (SH - 76) DAVANGERE - 577 001 Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 2. THE TRIBUNAL OF MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS AND THE ASST. COMMISSIONER AND THE SUB -DIVISIONAL MAGISTRATE SAGARA- SUB DIVISION COURT ROAD SAGARA – 577 401 SHIVAMOGGA DISTRICT 3. SRI R.SURESH S/O LATE BABU RAO AGED ABOUT 60 YEARS 4. SMT.USHA W/O R.SURESH AGED ABOUT 56 YEARS R3 & R4 ARE R/A NEAR SWAGATH MEDICALS, BUS STAND ROAD SHIKARIPURA - 577 427 SHIVAMOGGA DISTRICT 5. SMT.DRAKSHAYANAMMA W/O GIRIRAJ K.N., AGED ABOUT 29 YEARS R/O 2ND CROSS, NEAR BEERALINGESHWARA TEMPLE NEAR VINAKAYAKA NAGARA SHIKARIPURA - 577 427 SHIVAMOGGA DISTRICT …RESPONDENTS (BY SRI.MAHANTESH SHETTAR, AGA FOR R1 & R2 SMT.NIREEKHA D.J., ADVOCATE FOR SRI.SHOWRI H.R., ADVOCATE FOR R3 & R4 R5- SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED: 18.7.2022 IN CASE BEARING NO.MAG(11)HI NAA/10/202-23 PASSED BY THE R-1 THE - 3 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 DEPUTY COMMISSIONER DAVANAGERE DISTRICT AND APPELLATE AUTHORITY FOR THE MAINTENANCE AND WELFARE OF PARENTS AND SR CITIZENS DAVANAGARERE HARIHARA ROAD(SH-76) DAVANAGERE VIDE ANNEXURE-F AND CONSEQUENTLY ALLOW THE APPEAL FILED BY THE PETITIONERS VIDE ANNEXURE-E. 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 seeking the following prayer: "PRAYER WHEREFORE, the Petitioners, above-named, humbly pray that this Hon'ble Court be pleased to: [a] Issue a Writ of Certiorari or any other writ or order or orders to set aside the Order, dated: 18.07.2022, in case bearing No.MAG (1)/ Hi Naa/10/2022-23, passed by the 1st Respondent, the Deputy Commissioner, Davanagere District & Appellate Authority for the Maintenance and Welfare of Parents and Senior Citizens, Davanagere- Harihar Road (SH-76), Davanagere, vide Annexure - F and consequently allow the appeal filed by the Petitioners, vide Annexure-E. [b] to grant such other relief or reliefs as this Hon'ble Court deems fit to grant in the facts and in the circumstances of the case by allowing the above Writ Petition, in the interest of justice and equity." 2. The facts of the case are that respondent Nos.3 and 4 are senior citizens who are issueless. The petitioners are none other than the 3rd respondent's sister's children. It is the case - 4 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 of respondent Nos.3 and 4 that the petitioners fraudulently pressed into service a Release Deed and by virtue of the same, when the respondents are being evicted from the premises, they have approached respondent No.2 and respondent No.2 has set aside the Release Deed by order dated 29.04.2022. Against that, the petitioners had filed an appeal before respondent No.1 and respondent No.1 has affirmed the order of respondent No.2. 3. Learned counsel appearing for the petitioners submits that respondent Nos.1 and 2 have no such authority to cancel the Release Deed. It is submitted that the Deed is executed after accepting the consideration. The respondent Nos.3 and 4 having received the consideration have relinquished their share in the property. It is submitted that the Release Deed which is followed by consideration will not fall under the scope of Section 23 of the Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'Act'). It is submitted that respondent No.2 has exercised the jurisdiction and beyond the powers conferred upon him under the Act. It is submitted that the order passed by respondent No.2 which is - 5 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 affirmed by respondent No.1 needs to be set aside as the same is contrary to Section 23 of the Act. 4. Learned counsel appearing for respondent Nos.3 and 4 submits that respondent Nos.3 and 4 are senior citizens. They have never executed the Release Deed. In the year 2022, when they were forced to vacate the premises, at that point of time, they came to know about the alleged Release Deed and they have filed an application before respondent No.2. It is submitted that as per Section 23 of the Act, where any senior citizen has transferred his property by way of gift or otherwise and the provision is silent about the consideration. Whether the consideration is received or not is immaterial. As fraud has been played on the senior citizens, respondent Nos.1 and 2 has authority under the provisions of the Act and as per the powers vested in them, they have passed the impugned order whereby the Release deed is set aside. Learned counsel had relied on the judgment of the Co-ordinate Bench of this Court in case of Venkataiah Vs. State of Karnataka and Others1. She had relied on paragraph No.18 of the judgment which reads thus: 1 2026 SCC OnLine Kar 489 - 6 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 "18. Answer to Point No. 2: Whether an express recital in the gift deed obligating the donees to maintain the senior citizen is mandatory for invoking Section 23(1) of the Act of 2007, or whether such obligation can be inferred from the surrounding circumstances and conduct of the parties? 18.1. The reasoning adopted by the Assistant Commissioner and subsequently affirmed by the Deputy Commissioner, that the absence of an express clause in the gift deed disentitles the Petitioner from invoking Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is legally flawed and proceeds on a fundamental misconception of the statutory scheme. 18.2. Section 23(1) does not mandate that the condition of maintenance must be expressly incorporated in the instrument of transfer. The legislative emphasis is not on the form of the condition, but on the substance of the transaction, the circumstances under which the transfer was effected, and the subsequent conduct of the transferee. 18.3. I have considered this issue in my Judgment dated 29.07.2024 in WP No. 202832 of 2019 Shobha v. Anil Kumar, and I have come to a conclusion that in view of para 14 of the decision of the Hon'ble Apex Court in Sudesh Chikkara v. Ramti Devi1, an allegation made in an application filed before the Assistant Commissioner that there was a oral understanding for the senior citizen to be taken care of, would be sufficient requirement for compliance with subsection (1) of Section 23. 18.4. In the present case, there is a clear and categorical averment by the Petitioner that the gift deed was got prepared and drafted by his daughters; that the Petitioner was unaware of the contents thereof; and that he executed the gift deed solely on the express promise held out by the daughters that they would take care of his well-being. It is not in dispute that the Petitioner is illiterate, does not know to read or write, - 7 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 and has affixed only his thumb impression to the document. 18.5. When a document is admittedly prepared and drafted by the donees, and the donor is an illiterate senior citizen, it would be wholly unrealistic and legally untenable to expect the donor to verify whether the deed contains a clause safeguarding his right to maintenance. This factual position stands further fortified by the unequivocal admission of Respondent No. 5, one of the donees, who has categorically stated that she has no objection for the petition to be allowed, thereby admitting that the gift deed was drafted by the daughters and not by the father. 18.6. In such circumstances, the omission of a maintenance clause in the gift deed cannot be treated as an informed, conscious, or voluntary waiver by the Petitioner. On the contrary, when a document is prepared exclusively by the donees, any omission that operates to the detriment of the donor necessarily calls for heightened judicial scrutiny, particularly in proceedings under a welfare statute. 18.7. The defence urged before the Assistant Commissioner and the Deputy Commissioner that the Petitioner owns other properties is wholly irrelevant for the purposes of Section 23. The existence of other properties does not dilute or extinguish the statutory duty of children to take care of the well-being of their parent. The Act does not predicate the obligation of maintenance on the indigence of the senior citizen, but on the failure of the transferee to honour the assurance of care. 18.8. The gift in the present case was executed by the Petitioner with the legitimate hope and expectation that his daughters would look after him in his old age. Once that expectation stands defeated by neglect, the donees cannot be permitted to continue to derive benefit under the gift, more so when the document itself was drafted by them and the donor is illiterate. 18.9. I am therefore of the considered opinion that the condition of maintenance under Section 23 is implicit - 8 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 when a senior citizen or parent transfers his self- acquired property particularly by way of gift or relinquishment, without consideration in favour of his son or daughter. The law must account for the social reality that senior citizens act on trust, familial assurances, and moral expectations rather than on legal formalities. 18.10. In our society, aged parents rarely insist upon written stipulations while transferring property to their children. Such transfers are ordinarily founded on social norms and moral obligations, which the Act of 2007 seeks to protect and enforce through statutory intervention. 18.11. The trusting nature of senior citizens, especially in rural Karnataka, coupled with emotional and financial dependence on their children, is a social reality expressly recognised by the Act. To insist upon an express recital of maintenance in every such gift deed would defeat the protective object of the statute and render Section 23 nugatory. 18.12. I am therefore of the considered view that the obligation to maintain a senior citizen can validly be inferred from the surrounding circumstances, the relationship between the parties, and their subsequent conduct, and that an express recital in the deed of transfer is not mandatory for invoking Section 23(1) of the Act of 2007. 18.13. For the purposes of Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the absence of an express recital in a gift deed obligating the transferee to maintain the senior citizen does not disentitle the transferor from seeking annulment of the transfer. The statute does not mandate a written condition of maintenance; what is material is whether, on the basis of pleadings, surrounding circumstances, relationship of the parties, and subsequent conduct, it can be inferred that the transfer was made on the assurance, express or implied, of care and maintenance. Where a gift deed is drafted by the donees and executed by an illiterate senior citizen - 9 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 on trust and familial assurances, an allegation of an oral understanding to provide care is sufficient compliance with Section 23(1), and insistence on an express contractual clause would defeat the protective object of the Act. 18.14. Accordingly, I answer Point No. 2 by holding that an express recital in the gift deed obligating the donees to maintain the senior citizen is not mandatory for invoking Section 23(1) of the Act of 2007, and that such obligation can be inferred from the surrounding circumstances and conduct of the parties." 5. Relying on this, it is submitted that whether there is any recital or not, the same attracts Section 23 of the Act and respondent Nos.1 and 2 had rightly passed the order and no interference is called for. 6. Learned Additional Government Advocate Sri.Mahantesh Shettar, appearing on behalf of respondent Nos.1 and 2 submits that the Division Bench of this Court in case of Nanjappa Vs. State of Karnataka and Others arising out of Writ Appeal No.573/2022 dated 17.03.2023 has taken a contra view. It is submitted that respondent Nos.1 and 2 had passed the order as per the provisions of the Act. 7. Having heard the learned counsels on either side, perused the entire material on record. Before proceeding with - 10 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 the matter, it is appropriate to look at Section 23 of the Act which reads thus: "Sec.23 Transfer of property to be void in certain circumstances 1. Where any senior citizen who, after the commencement of this Act, has 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. 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." 8. Learned counsel is relying on the judgment of the Co- ordinate Bench of this Court in Venkataiah's case referred supra. The Division Bench of this Court in Nanjappa's case referred supra had observed as follows: "18. On careful reading of the aforesaid provisions makes it clear that all kinds of transfers as is clear from - 11 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 the use of the expression 'by way of gift or otherwise' so as to attract the provisions of Sub-section (1) of Section 23 of the Senior Citizens Act, 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. 19. 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. 20. Though a specific contention is urged by the learned Senior Counsel for the appellant that in view of the scope and object of the Senior Citizens Act, it is deemed 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 made by him would be null and void, it is an undisputed fact that 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 Subsection (1) of Section 23 of the Senior Citizens Act are attached to a transfer, existence of such conditions must be established before the Tribunal. 21. In the present case, on careful perusal of the document executed by the appellant in favour of the 3rd respondent, who happens to be the brother of the appellant, it does not contain any stipulation that the 3rd respondent is under the obligation to maintain the present appellant. In the absence of the same and in - 12 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 view of the provisions of Sub-sections (1) and (2) of Section 23 of the Senior Citizens Act, the transaction could be declared as null and void provided the same contains the stipulation that the transferee shall maintain the senior citizen and the aforesaid Gift Deed does not contain any such stipulation. In the absence of any condition stipulated in the documents, the provisions of Subsections (1) and (2) of Section 23 of the Senior Citizens Act are not attracted." 9. In the light of the law laid down by the Division Bench of this Court and in the light of Section 23 of the Act, the Release Deed which is obtained after taking consideration would not fall under Section 23 of the Act and respondent Nos.1 and 2 have no jurisdiction to set aside the same. The contention of the learned counsel for the respondents that no consideration is passed and no document is executed and fraud has been played, even in that case, the remedy available to the party is to seek declaration that the same is null and void as it is obtained by fraud before the Civil Court, but under the Act, respondent Nos.1 and 2 cannot decide the same. In that view of the matter, this Court is passing the following: ORDER i. The impugned order dated 18.07.2022 in case bearing No.MAG(1)/Hi.Naa/10/2022-23 passed by - 13 - HC-KAR NC: 2026:KHC:18412 WP No. 16661 of 2022 respondent No.1, affirming the order of respondent No.2 dated 29.04.2022, is set aside. ii. The respondents are at liberty to avail the appropriate remedy in accordance with law seeking cancellation of the Release Deed. iii. Accordingly, the writ petition is allowed. iv. All I.As. in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 34