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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH DAY OF JUNE 2019

BEFORE

THE HON'BLE Mr. JUSTICE B.VEERAPPA

WRIT PETITION NO.17484 OF 2016 (GM-RES)

BETWEEN:

Smt. S. Vanitha
D/o Sri Sadashivaiah
Aged about 35 years
R/at No.31/6
Gangondonahalli Village
Lakshmipura Post
Dasanapura Hobli
Bengaluru North Taluk
... Petitioner
(By Sri. Sandesh.C.R, Advocate
for Sri Jayaraj.D.S., Advocate)

AND:

1. The Deputy Commissioner

Bengaluru Urban District
K.G. Road
Bengaluru-560 001.

2. The President-cum-Maintenance
of Welfare of Parents & Senior Citizens
Tribunal & the Assistant Commissioner
Bengaluru North Sub-Division
Kandaya Bhavan
Bengaluru-560 001.

3. Smt. Siddhagangamma
W/o. C. Puttarudraiah
Aged about 67 years
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4. Sri C. Puttarudraiah
S/o late Chikkarudraiah
Aged about 77 years

Respondents No.3 and 4 are

R/at Kambalu Village
Kambalu Post
Sompura Hobli
Nelamangala Taluk
Bengaluru Rural District-560 073.

5. Sri P. Vedamurthy
S/o. C. Puttarudraiah
Aged about 41 years
C/o Thimmarayappa
R/at No.7, 1st Floor
Near Champalamma Temple
Thotadaguddadahalli
Nagasandra Post
Dasanapura Hobli
Bengaluru-560 073.
... Respondents

(By Sri. Y.D. Harsha, AGA for R1 and R2;

Sri T.R. Subbamma, Senior Counsel along with
Sri Venugopal.N., Advocate for R3;
Sri A. Lourdu Muniyappa, Advocate for R4;
Sri P. Vedamurthy-Party-in-person R5)

This writ petition is filed under Articles 226 & 227 OF

the Constitution of India, praying to quash the order dated
29.02.2016 passed by the respondent No.1 in Appeal
No.MAG/4/Misc/CR.83/2015-16, vide Annexure-A,
directing the petitioner to vacate the premises in occupation
of the petitioner, with necessary police help and etc.

This petition coming on for orders, this day, the Court

made the following:-
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ORDER

The petitioner alleging that she is the daughter-in-

law of respondent No.3, has filed the present writ

petition seeking a writ of certiorari to quash the order

dated 29.02.2016 passed by respondent No.1 in Appeal

No.MAG/4/Misc/CR.83/2015-16, vide Annexure – A,

directing the petitioner to vacate the premises in

occupation of the petitioner, with necessary police help.

2. It is the case of the petitioner that her

father-in-law has executed sale deed in favour of her

husband measuring 1200 sq.feet, constructed a small

house, wherein the petitioner is stayed with her

daughter. Father-in-law of the petitioner has executed

the very same property in favour of mother-in-law of the

petitioner on 19.07.2010 through a registered Gift deed.

The mother-in-law of the petitioner has filed a suit for

injunction, against the petitioner in O.S. No.312/2010.

The said matter is still pending for consideration. In the

meanwhile, respondent Nos.3 and 4 have filed the

petition before respondent No.2 for evicting the

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petitioner from the said property. The petitioner has

filed objections in the year 2015. Respondent No.2,

considering the objections of the petitioner, has passed

the impugned order dated 29.02.2016 and allowed the

application filed by both father-in-law and mother-in-

law i.e., respondent Nos.3 and 4. Aggrieved by the said

order, petitioner has filed the appeal before respondent

No.1 – Deputy Commissioner, who dismissed the appeal

as not maintainable. Hence, the present writ petition is

filed.

3. I have heard the learned counsel for the

parties to the lis.

4. Sri. Sandesh C.R., learned counsel for the

petitioner has contended that the impugned order

passed by the Assistant Commissioner and confirmed

by the Deputy Commissioner is erroneous and contrary

to the same. He further contended that absolutely there

is no provision under the Act and respondent Nos.3 and

4 have to confine the proceedings only to seek

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maintenance against their children. When once, there

is no provision under law, the relief sought by

respondent Nos.3 and 4, is not maintainable and the

Assistant Commissioner ought not allowed the

application. Therefore, he sought to quash the order

passed by the Assistant Commissioner, which is

confirmed by the Deputy Commissioner.

5. He further contended that respondent Nos.3

and 4 have already filed suit in O.S. No.312/2010

before the Jurisdictional Court for permanent

injunction against the petitioner contending that

they are in possession of the property. The said

mater is still pending adjudication before the competent

civil Court. The Assistant Commissioner and the

Deputy Commissioner ought not to have proceed in the

present proceedings. He would further

contended that respondent No.5 is the husband of

the present petitioner and has deserted the petitioner

and her daughter without there being any reason.

Apart from that respondent No.5 has initiated

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proceedings for dissolution of marriage and the order of

dissolution now came to be set aside and the marriage

is still subsisting. It is only at the instance of

respondent Nos.3 and 4, respondent No.5 has deserted

and totally neglected the petitioner and her daughter,

who has no source of income, so as to take care of

herself and her daughter. Therefore, the order passed

by the Assistant Commissioner, which is confirmed by

the Deputy Commissioner are erroneous and cannot be

sustained.

6. He further contended that if the

proceedings/order passed by respondent No.2 is allowed

to continue and the petitioner will be thrown out of the

property in question, she will be on streets with her

daughter. The scope of the provisions of the Act is very

clear and the stand taken by respondent Nos.3 and 4 is

not applicable to the present case. Therefore, the order

passed by the Assistant Commissioner which is

confirmed by the Deputy Commissioner are liable to be

quashed and sought to allow the present writ petition.

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7. Per contra, Sri.T.R. Subbanna, learned

Senior counsel appearing for respondent Nos.3 and 4

has justified the impugned order passed by the

Assistant Commissioner and contended that the appeal

filed before the Deputy Commissioner by the petitioner

was not at all maintainable. The Assistant

Commissioner considering the entire material on record

has come to the conclusion that the property in

question belongs to respondent No.3 i.e., Mother-in-law

of the present petitioner and unless the gift deed

executed in her favour is set aside by the competent

Authority, respondent No.3 being mother-in-law, is

having right to continue in the property in question.

8. He further contended that the Assistant

Commissioner, considering the application has rightly

directed respondent No.1 therein - her son to pay

maintenance of Rs.10,000/- p.m. and directed

respondent No.2 the present petitioner herein to vacate

the premises of the house property bearing site No.6,

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Assessment No.5, Gangondanahalli Panchayath Khatha

No.55, Situated at Gangondanahalli Village,

Dasanapura Hobli, Bengaluru North Taluk, with the

police protection. The same is in accordance with law.

Therefore, he sought to dismiss the writ petition.

9. Having heard the learned counsel for the

parties, it is not in dispute that respondent Nos.3 and 4

i.e., mother-in-law and father-in-law of the present

petitioner are aged about 66 years and 76 years, have

filed the petition before the Assistant Commissioner for

maintenance against their son and eviction against their

daughter-in-law mainly contending that the property in

question belongs to respondent No.3 in view of the

registered gift deed dated 19.07.2010 and further

contended that respondent Nos.3 and 4 have

constructed a residential house on the site for dwelling

purpose. Accordingly, the petitioner and respondent

Nos. 3 to 5 were residing together in the said house till

2010. As there was dispute between the petitioner and

her husband, her husband left the house. Thereafter,

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the petitioner has managed to throw out respondent

Nos.3 and 4 to street mercilessly from their house on

12.08.2010. Since then, respondent Nos.3 and 4 were

residing in their native place as shown in the cause title

and the petitioner was residing in the house of

respondent Nos.3 and 4. The marriage between the

petitioner and her husband was dissolved on

05.12.2013 in M.C. No.22/2009 etc.

10. The said application was opposed by the

petitioner. The Assistant Commissioner considering the

application and objections, has recorded a finding that

there is no dispute with regard to the property in

question and originally it belongs to 2nd applicant –

Puttarudraiah therein, who was working as a teacher

and had constructed a house in the property and he has

gifted the same to the first applicant therein i.e., present

respondent No.3 – Siddagangamma herein. There is no

dispute that the marriage was dissolved in M.C.

No.22/2009 between the petitioner and her husband.

There is no dispute with regard to the fact that

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respondent No.1 therein is residing separately and the

second respondent therein i.e., the present petitioner is

living in the house of the applicants therein/respondent

Nos.3 and 4 herein and respondent No.1 therein is not

having any right over the said property. Respondent

No.2 therein being the divorced wife of respondent No.1

therein is having grievance against respondent No.1

therein for her maintenance and not against the

applicants therein.

11. Admittedly, the Assistant Commissioner

further recorded that applicants therein have not gifted

or transferred the said property either in favour of

respondent No.1 or in favour of respondent No.2

therein. Hence, the said house property is still the

absolute property of the applicants therein. Even

respondent No.2 therein has not stated that the said

house property has been attached by the Hon’ble Civil

Court in lieu of her maintenance claimed against

respondent No.1 therein. The respondent No.2 has to

seek maintenance and shelter from respondent No.1

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and not from the applicants therein as the house is

their self acquired property and they are the Senior

Citizens aged about 66 and 76 years. Therefore, the

Assistant Commissioner has directed respondent No.5

herein – son to pay maintenance of Rs.10,000/- p.m.

and respondent No.2 therein is directed to vacate the

premises of house property, which is in question.

12. The material on record clearly depicts that

aggrieved by the order passed by the Assistant

Commissioner, both the present petitioner and

respondent No.5 filed two appeals before the Deputy

Commissioner and the Deputy Commissioner has

dismissed the appeal in view of provisions of Section

16(1) of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 is reads as under:

“Any senior citizen or a parent, as the

case may be, aggrieved by an order of a
Tribunal may, within sixty days from the
date of the order, prefer an appeal to the
Appellate Tribunal”
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13. In view of admitted facts that the property in

question belongs to respondent Nos.3 and 4, who are

the senior citizens and husband and wife, have a right

to reside in their own house by virtue of the registered

gift deed dated 19.07.2010.

14. The dispute between the present petitioner

and respondent No.5 with regard to maintenance, it is

open for the present petitioner to take appropriate

action against her husband/respondent No.5 for

maintenance in accordance with law.

15. The impugned order passed by Assistant

Commissioner under the provisions of the Maintenance

and Welfare of Parents and Senior Citizens Act, 2007 is

in accordance with law. The petitioner has not made

out any good ground to interfere with the impugned

order passed by the Assistant Commissioner, which is

confirmed by the Deputy Commissioner in exercise of

power under Articles 226 and 227 of the Constitution of

India. Accordingly, writ petition is dismissed.

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16. The petitioner is directed to vacate the

premises of the house property and hand over the

vacant possession of the same to respondent No.3-

mother-in-law within two months from the date of

receipt of copy of this order.

Ordered accordingly.

Sd/-
JUDGE

VBS