Karnataka High Court
Sri.K. Lokesh vs The Bangalore District Maintenance And … on 20 December, 2024
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WA No. 254 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
PRESENT
R
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT APPEAL No. 254 OF 2024 (GM-RES)
BETWEEN:
1 . SRI K. LOKESH,
S/O LATE P. KRISHNA,
AGED ABOUT 43 YEARS,
R/AT No.28, SUBBANNA GARDEN,
1ST MAIN ROAD,
BANNERGHATTA ROAD,
ADUGODI POST,
BENGALURU-560030.
...APPELLANT
Digitally signed
by VALLI (BY SRI PUTTIGE R. RAMESH, SENOR ADVOCATE FOR
MARIMUTHU SRI A. SRIKANTH, ADVOCATE
Location: High
Court of AND:
Karnataka
1. THE BANGALORE DISTRICT MAINTENANCE
AND WELFARE OF PARENTS AND SENIOR CITIZENS
APPELLATE TRIBUNAL AND SPECIAL
DEPUTY COMMISSIONER-1,
BENGALURU NORTH SUB DIVISION,
BENGALURU-560009.
2. SRI AYYAPPA,
S/O LATE P. KRISHNA,
AGED ABOUT 45 YEARS,
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R/AT No.28, SUBBANNA GARDEN,
HOSUR ROAD, ADUGODI,
BENGALURU-560030.
3. THE ASSISTANT COMMISSIONER,
BENGALURU SOUTH SUB-DIVISION,
BENGALURU-560009.
4. SRI P. KRISHNA,
SINCE DEAD BY HIS LRS
SMT. LATHA K.,
D/O LATE P. KRISHNA,
AGED ABOUT 42 YEARS,
R/A No.6/36, S. S. NILAYA,
1ST CROSS, AYYAPPA GARDEN,
ADUGODI POST,
BENGALURU-560030.
...RESPONDENTS
(BY SRI K.S. HARISH, GOVERNMENT ADVOCATE FOR R1 & R3;
SRI RANGANATH REDDY, ADVOCATE FOR C/R2;
V/O DATED 21.10.2024, R4 IS DELETED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER IN WP No.3165/2023, DATED 02/02/2024.
THIS WRIT APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, JUDGMENT WAS PRONOUNCED
AS UNDER:
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WA No. 254 of 2024
CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
N. V. ANJARIA
and
HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE MR. JUSTICE K. V. ARAVIND)
Heard learned Senior Advocate Mr. Puttige R. Ramesh
assisted by learned advocate Mr. A. Srikanth for the appellant,
learned Government Advocate Mr. K.S. Harish for respondent
Nos.1 and 3 and learned advocate Mr. Ranganath Reddy for
respondent No.2.
2. This intra-court appeal under Section 4 of the Karnataka High
Court Act, 1961, impugning the order in Writ Petition No.3165 of
2024, dated 02.02.2024.
FACTS IN BRIEF
3. The brief facts leading to this appeal are that the appellant-
writ petitioner is the son of late P. Krishna. Respondent No.2 is
his sibling. Late P. Krishna executed Gift Deed dated 27.02.2019
in favour of respondent No.2. The property in question is a
residential property bearing No.28/1 in Sy.No.17/3 situated at
Subbanna Garden, Adugodi Corporation, Ward No.70,
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Shanthinagar Ward, Bengaluru, measuring East to West 37’6″ and
North to South 40′. Late P. Krishna filed a petition under Sections
4, 5 and 23 of the Maintenance and Welfare of Parents and Senior
Citizens Act, 2007 (for short ‘Act’) before respondent No.3-
Assistant Commissioner, alleging fraudulent gift deed and denial of
basic amenities by his son. The Assistant Commissioner by order
dated 27.02.2023 allowed the petition by directing to cancel the Gift
Deed dated 27.02.2019 and Rectification Deed dated 02.04.2019.
4. Late P. Krishna thereafter bequeathed the property in favour
of his second son, K. Lokesh, the petitioner, through a registered
Will dated 14.07.2023.
5. Respondent No.2 preferred appeal before the Deputy
Commissioner under Section 16 of the Act. The Deputy
Commissioner allowed the appeal by order dated 14.08.2023 by
setting aside the order of the Assistant Commissioner dated
27.02.2023. As late P. Krishna died on 14.07.2023, i.e. during the
pendency of the appeal, the appellant and his sister were
impleaded as legal representatives.
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6. The appellant preferred Writ Petition No.18763 of 2023
challenging the order of the Deputy Commissioner dated
14.08.2023. Learned Single Judge set aside the order and
remitted the matter to the Deputy Commissioner/appellate authority
for fresh consideration.
7. The Deputy Commissioner, on remand, reconsidered the
matter and by order dated 24.01.2024 allowed the appeal by
setting aside the order dated 27.02.2023 passed by the Assistant
Commissioner. Further directions were issued to the Sub-Registrar
to make necessary entries in the Registers, and concerned
authorities were directed to restore the Katha and other documents
in the name of respondent No.2.
8. The appellant aggrieved by the order dated 24.01.2024
passed by the Deputy Commissioner preferred Writ Petition
No.3165 of 2024. Learned Single Judge by order dated
02.02.2024 set aside the orders of the Assistant Commissioner and
Deputy Commissioner and permitted the appellant and respondent
No.2 to agitate their rights before the competent Court of law.
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SUBMISSIONS
9. Learned Senior Advocate Mr. Puttige R. Ramesh assisted by
learned advocate Mr. A. Srikanth appearing for the appellant made
the following submissions.
9.1 The appeal filed by respondent No.2 before the Deputy
Commissioner under Section 16 of the Act is not maintainable.
The appeal provision under Section 16 of the Act enables only
senior citizen or a parent to prefer an appeal to the Appellate
Tribunal. Respondent No.2 is not a senior citizen or a parent in the
context of Section 16 of Act.
9.2 Any order passed in an appeal is not sustainable when such
an appeal is not maintainable. Learned Single Judge while setting
aside the order of the Deputy Commissioner committed an error in
setting aside the order passed by the Assistant Commissioner.
9.3 The rights in the property conferred on respondent No.2
through gift deed are not available in view of the gift deed being set
aside by the Assistant Commissioner and the rights in such
property vested with the appellant through a subsequent
registered Will dated 14.07.2023.
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9.4 The Deputy Commissioner, in the exercise of jurisdiction
under the Act, cannot annul the rights vested with the appellant
under the registered Will unless the Will is set aside in the manner
known to law.
9.5 Learned Single Judge, while setting aside the order of the
Assistant Commissioner, has restored the gift deed set aside at the
instance of late P. Krishna, as a result, annulled the rights vested
with the appellant under the Will, which is not permissible under
Article 226 of the Constitution of India.
9.6 Learned Senior Advocate for the appellant relied on the
following judgments,
(i) N. D. Vanamala Vs. The State of Karnataka and
others, (ILR 2019 KAR 247)
(ii) N. D. Vanamala Vs. State of Karnataka and
others, (Writ Appeal No. 96/2019) – DB
(iii) Sudesh Chhikara vs. Ramti Devi and another,
[(2022 SCC OnLine SC 1684)]
(iv) M. Venugoapl vs. The District Magistrate-cum-
District Collector, Kanyakumari District and
others, [(2014(5) CTC 162]
(v) Rajeshkumar Bansraj Gandhi and Another Vs.
State of Gujarat and Others, [(AIR 2016 Guj 129)]
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(vi) Nayana Sudhir Shah and others vs. Sudhir Premji
Shah and others, [ 2020(5) Mh.L.J. 605]
(v) Dinesh Bhanudas Chandanshive vs. State of
Maharashtra and others, [(2024 SCC OnLine Bom
336)]
10. Learned advocate Mr. Ranganath Reddy appearing for the
contesting private respondent No.2 made following submissions.
10.1 Section 23 of the Act is attracted when an express recital is
made undertaking an obligation to provide basic amenities and
basic physical needs. If such conditions are not expressly stated in
the transfer deed, Section 23 of the Act cannot be invoked to
declare such transfer as void.
10.2 The Gift Deed dated 27.02.2019 in favour of respondent
No.2 is unconditional. There is no condition to provide basic
amenities or basic physical needs. As such, there is no failure or
refusal to provide such amenities and basic physical needs.
However, respondent No.2 extended the best facilities by providing
the amenities.
10.3 The father has invoked Section 23 of the Act under the
misdirection of the siblings aiming at the property in question. The
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proceedings initiated to cancel the gift deed and the execution of
the Will would demonstrate the substance/motive behind the
proceedings initiated under Section 23 of the Act.
10.4 Existence of two conditions are sine qua non to avail the
remedy under Section 23 of the Act. The first condition is, to
provide basic amenities and basic physical needs. The second
condition is, failure or refusal to provide such amenities and basic
physical needs. As both conditions are not available in the present
case, the order of the Assistant Commissioner declaring the gift
deed as void is not sustainable.
10.5 It is further submitted that the right to senior citizens under
Section 23 of the Act is a personal right. The right to protection
under the Act would exhaust itself with the death of the senior
citizen. Such right cannot be extended/continued by the legal
heirs. The proceedings would get abated on the death of the
senior citizen.
10.6 Respondent No.2, having no other remedy provided to
question the order of the Assistant Commissioner, has invoked
remedy under Section 16 of the Act by filing an appeal before the
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Deputy Commissioner. In view of the settled position as held by
various High Courts, the appeal under Section 16 of the Act at the
instance of donee/transferee is maintainable.
10.7 Learned advocate for respondent No.2 relied on the following
judgments,
(i) Paramjit Kumar Saroya vs. The Union of India
and another, (AIR 2014 Punjab and Haryana 121)
(ii) Rita Roy vs. Maintenance Tribunal and Sub
Divisional Officer (Revenue) and Others, [( 2023)
1 CgLJ 322]
(iii) Akhilesh Kumar and another vs. State of U P and
others, [(2019)8 ADJ 731]
(iv) K.G. Suresh vs. Union of India, [(2021) 2 KHC
687]
(v) Balbir Kaur vs. Presiding Officer – cum- S.D.M. of
the Maintenance and Welfare of Senior Citizen
Tribunal and others, [(2016) AIR (Punjab) 4]
(vi) Maya Devi and others vs. Vishweshwar Dayal and
others, [(2023) 2 DNJ 868]
(vii) Smt. Roopam @ Jyoti Sharma and another vs.
District Magistrate Lucknow and others, [(2022) 4
AllLJ 138]
(viii) Amit kumar vs. Kiran Sharma and another,
[(2021) 3 CivCC 760]
(ix) Balamurugan vs. Rukmani, [(C.R.P.(PD)(MD)
No.437 of 2015 and M.P.(MD) Nos.1 and 2 of
2015]
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(x) Sudesh Chhikara vs. State(Govt. of NCT of Delhi)
[(2018) 10 AD (Delhi) 384]
(xi) Smt. M. Sunitha (Vidyasri) vs. Smt. M.
Shashikala Mugadura, ( W.P. No. 147056/2020)
11. Learned Government Advocate Mr. K.S. Harish appearing
for respondent Nos.1 and 3 submits that as the donor late
P.Krishna expired during the pendency of the appeal before the
Deputy Commissioner, the legal representatives are permitted to
defend the appeal. It is further submitted that the peculiar facts are
involved and the order passed by the learned Single Judge is to
balance the parties’ interests and are justifiable.
POINTS FOR CONSIDERATION
12. Having heard learned advocates for the parties and on
consideration of the submissions, the following two points arise for
consideration of the Court.
(i) Whether respondent No.2 has right of appeal under
Section 16 of the Act?
(ii) Whether the order of learned Single Judge in the facts
is justifiable?.
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ANALYSIS
Re. Point No.(i)
13. For convenience, relevant provisions are outlined below.
Sections 23 and 16 of the Act of 2007 read as,
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.
(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-section (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.
16. Appeals.–(1) 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:
Provided that on appeal, the children or relative who is
required to pay any amount in terms of such maintenance
order shall continue to pay to such parent the amount so
ordered, in the manner directed by the Appellate Tribunal:
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WA No. 254 of 2024Provided further that the Appellate Tribunal may, entertain
the appeals after the expiry of the said period of sixty days,
if it is satisfied that the appellant was prevented by
sufficient cause from preferring the appeal in time.
(2) On receipt of an appeal, the Appellate Tribunal shall,
cause a notice to be served upon the respondent.
(3) The Appellate Tribunal may call for the record of
proceedings from the Tribunal against whose order the
appeal is preferred.
(4) The Appellate Tribunal may, after examining the appeal
and the records called for either allow or reject the appeal.
(5) The Appellate Tribunal shall, adjudicate and decide
upon the appeal filed against the order of the Tribunal and
the order of the Appellate Tribunal shall be final:
Provided that no appeal shall be rejected unless an
opportunity has been given to both the parties of being
heard in person or through a duly authorised
representative.
(6) The Appellate Tribunal shall make an endeavour to
pronounce its order in writing within one month of the
receipt of an appeal.
(7) A copy of every order made under sub-section (5) shall
be sent to both the parties free of cost.
14. Section 23 stipulates that if a senior citizen transfers
property, whether as a gift or otherwise, with the condition that the
transferee will provide basic amenities and physical needs and the
transferee subsequently fails or refuses to fulfill these obligations,
the senior citizen may request that the transfer be declared void.
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15. Section 16 provides a senior citizen or parent the right to
appeal against an order passed under Section 23. However, in this
case, the Deputy Commissioner entertained the appeal at the
request of the transferee. The appellant has argued that such an
appeal is not maintainable and that any order passed in such an
appeal would not withstand legal scrutiny.
16. The learned advocate for respondent No. 2 has cited
judgments from various High Courts to argue that an appeal filed
by children or transferees is maintainable under Section 16 of the
Act. However, before examining the judgments relied upon, the
Court deems it appropriate to first analyze the provisions based on
their plain text and intended meaning.
17. When an order is issued under Section 23 of the Act, either
the senior citizen or the transferee may be considered an
aggrieved party. The statute provides a remedy of appeal against
such an order, which is governed by Section 16 of the Act. While
two parties may potentially be affected by an order under Section
23, the appeal remedy explicitly applies to the senior citizen or
parent. The language of Section 16 is clear and leaves no room for
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ambiguity or confusion in its interpretation. There is no difficulty in
reading Section 16 of the Act in its plain text.
18. The language of Section 16 of the Act is plain, clear, and
unambiguous. This provision specifically and unequivocally grants
the right of appeal exclusively to senior citizens. Extending this
right to any other person, including the transferee, is not
permissible. Interpreting Section 23 of the Act to provide a right of
appeal to the transferee or any other person would amount to
rewriting the provision, a function that lies beyond the jurisdiction of
the Court. Granting such a right to the transferee would contradict
the legislative intent behind the Act.
19. There is no dispute with the legal principle that when a
statutory provision is ambiguous, interpretative tools can be used to
resolve the ambiguity. If, after such an exercise, the Court finds
ambiguity, the interpretation should aim to fulfill the purpose of the
provision. However, Section 16 of the Act is clear and
unambiguous, leaving no necessity to resort to interpretation tools.
20. In Rajeshkumar Bansraj Gandhi (supra), the Gujarat High
Court held as,
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“10. A bare reading of the aforesaid provision suggests
that though the appeal is available to the Appellate
Tribunal, such appeal can be filed by any senior citizen or
parent. By express provision therefore the Legislature
appears to have limited right to appeal for the limited class
of persons, namely senior citizens or parents. It is this
class of persons which are treated as aggrieved for the
purpose of preferring appeal. In circumstances, the
contention of learned advocate for the petitioners in
counter to the submission about availability of alternative
remedy of appeal could be countenanced. In view of the
provision and further in view of the totality of facts and
circumstances including that the petitioners were ousted
the possession of the house proceedings, in this
proceeding under the Act for Maintenance and Welfare of
Parents and Senior Citizens, exercise of writ jurisdiction in
respect of the impugned order is only proper.”
21. In Nayana Sudhir Shah (supra), the Bombay High Court
held as under,
“26. It is the settled position of law by a catena of
Judgments that, a statute is an edict of the Legislature and
the conventional way of interpreting or construing a statute
is to seek the ‘intention’ of its maker. A statute is to be
construed according to the intent of them, that make it and
the duty of judicature is to act upon the true intention of the
Legislature. If a statutory provision is open to more than
one interpretation, the Court has to choose that
interpretation which represents the true intention of the
Legislature, in other words the ‘legal meaning’ or ‘true
meaning’ of the statutory provision. The statute must be
read as a whole in its context. It is now firmly established
that, the intention of the legislature must be found by
reading the statute as a whole. …”
“27. The relevant provisions of this Act which have been
quoted/reproduced hereinabove therefore will have to be
construed harmoniously to promote the cause of the
‘Senior Citizens’ under this Act. The Act is enacted for a
particular class of citizens i.e. Senior Citizens and Parents,
with an avowed object to provide them maintenance by
adopting simple inexpensive and speedy remedy. It is the
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settled position of law that, the provisions of a statute has
to be interpreted in a manner which will give ultimate effect
to the intention of legislature in enacting it and not to
frustrate it.”
22. In Dinesh Banudas Chandanshive (supra), the Bombay
High Court held as,
“25. Insofar as the contention of the petitioner is
concerned that merely because a remedy of an appeal is
not provided to the petitioner, Section 16 of the Act
becomes arbitrary and illegal, is wholly untenable. A
legislative provision cannot be struck down on such count
in the absence of any substantive ground acceptable in law
being made out by the petitioner, so as to assail the
provisions to be unconstitutional. The provisions also
cannot become bad only because the petitioner feels so. A
right of an appeal is to be conferred by law. The legislature
in its wisdom has refrained from providing a right of an
appeal except to the senior citizens. In any event, it cannot
be said that the petitioner has no legal remedy.”
23. In the judgments cited by respondent No. 2, it has been held
that an appeal filed by children or the transferee is maintainable
under Section 16 of the Act. Before expressing the Court’s view on
this matter, it is pertinent to examine the object and reasons behind
enacting the Act. The statement of object and reasons can be
found from the judgment herein below.
24. In Rajeshkumar Bansraj Gandhi (supra),
“17. The statement of object and reasons of the Act
reads as under,
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‘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 order 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 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.”
25. As the title of the Act suggests, the provisions of the Act deal
with maintenance and welfare of parents and senior citizens. The
Act is enacted for the welfare of a class of citizens with an object to
provide immediate relief towards their amenities and basic physical
needs. The aim was not only to provide amenities and basic
physical needs, however with another broader object of speedy
and inexpensive remedy.
26. When the text of Section 16 of the Act is read and
understood in light of the object and reasons behind the legislation,
it becomes abundantly clear that Parliament intended to provide
the remedy of appeal under Section 16 solely to senior citizens or
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parents. Any alternative interpretation would lead to an absurd
outcome, which is not permissible.
27. This view is further justifiable for another reason. If the
children or transferee is aggrieved by an order under Section 23 of
the Act, they are not without a remedy. They can always invoke
Article 226 of the Constitution of India. While this may result in two
separate proceedings before different forums, such a situation
cannot be used as a basis to extend the right of appeal under
Section 16 of the Act to a different class of persons, as this right
was not provided by Parliament.
28. The proposition that a statute is to be read, understood and
construed in its plain text without deeming or ignoring any words
needs no reiteration. Further, while interpreting the provisions, it is
for the Court to apply the law on its plain text. This proposition has
an exception to invoke interpretation tools, when a statute leads to
ambiguity. However, language of Section 16 of the Act is clear in
its plain text without any ambiguity, which needs no further
interpretation. The right of appeal Inheres in no one and therefore
an appeal for its maintainability must have the clear authority of
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law. That explains why the right of appeal is prescribed as a
creature of statute.
29. As observed earlier, there are two classes of persons
involved in the adjudication process under Section 23 of the Act:
the transferor and the transferee. In this context, the transferor
refers to senior citizens and parents, while the transferee includes
children or third parties. The legislature has granted the right of
appeal only to senior citizens and parents, with no such right
extended to children or third parties.
30. The Court must also consider the potential violation of Article
14 of the Constitution of India. In evaluating any claim of
discrimination, the reasonableness of the classification is a critical
factor. As established by various courts, Article 14 prohibits class
legislation, but not classification. For a classification to be
permissible, it must be based on an intelligible differentia that
distinguishes the persons or things grouped together from others
left out and the differentia must have a rational connection to the
objective the statute seeks to achieve.
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31. If equality and uniformity exist within each group, the law will
not be deemed discriminatory, even if, due to specific
circumstances, some individuals within the class receive an
advantage over others, so long as they are not singled out for
special treatment. Therefore, the provision granting the right of
appeal solely to senior citizens or parents cannot be interpreted to
include children or third parties as having the right of appeal.
32. The Hon’ble Supreme Court in Illachi Devi (D) by LRs. and
Others vs. Jain Society, Protection of Orphans India and
others, [(2003) 8 SCC 413], has held as,
“40. It is a well-settled principle of law that a plain meaning
must be attributed to a statute. Also, a statute must be
construed according to the intention of the legislature. The
golden rule of interpretation of a statute is that it has to be
given its literal and natural meaning. The intention of the
legislature must be found out from the language employed
in the statute itself. The question is not what is supposed to
have been intended but what has been said.”
44. It is equally well settled that when the legislature has
employed plain and unambiguous language, the court is
not concerned with the consequences arising therefrom.
Recourse to interpretation of statutes may be resorted to
only when the meaning of the statute is obscure. The court
is not concerned with the reason as to why the legislature
thought it fit to lay emphasis on one category of suitors
than the others. A statute must be read in its entirety for
the purpose of finding out the purport and object thereof.
The court, in the event of its coming to the conclusion that
a literal meaning is possible to be rendered, would not
embark upon the exercise of judicial interpretation thereof
and nothing is to be added or taken from a statute unless it
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is held that the same would lead to an absurdity or
manifest injustice. It is well established that a disabling
legislation must be characterized by clarity and precision.
In the present instance, the prohibitions laid down by
Sections 223 and 236 of the Act are categorical and
comprehensive, and leave no scope for creative
interpretation.
33. In Padma Sundara Rao (dead) and others vs. State of
T.N. and others, [(2002) 3 SCC 533], it is held as,
“12. The rival pleas regarding rewriting of statute and
casus omissus need careful consideration. It is well-settled
principle in law that the court cannot read anything into a
statutory provision which is plain and unambiguous. A
statute is an edict of the legislature. The language
employed in a statute is the determinative factor of
legislative intent. The first and primary rule of construction
is that the intention of the legislation must be found in the
words used by the legislature itself. The question is not
what may be supposed and has been intended but what
has been said. “Statutes should be construed, not as
theorems of Euclid”, Judge Learned Hand said, “but words
must be construed with some imagination of the purposes
which lie behind them”.
34. In Harbhajan Singh vs. Press Council of India and
others, [(2002) 3 SCC 722], it is held as,
“7. …. The legislature does not waste its words. Ordinary,
grammatical and full meaning is to be assigned to the
words used while interpreting a provision to honour the rule
– the legislature chooses appropriate words to express
what it intends, and therefore, must be attributed with such
intention as is conveyed by the words employed so long as
this does not result in absurdity or anomaly or unless
material – intrinsic or external – is available to permit a
departure from the rule. …”
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35. In M/s. Grasim Industries Ltd., vs. Collector of Customs
Bombay, [(2002) 4 SCC 297], it is held as,
“10. No words or expressions used in any statute can be
said to be redundant or superfluous. In matters of
interpretation one should not concentrate too much on one
word and pay too little attention to other words. No
provision in the statute and no word in any section can be
construed in isolation. Every provision and every word
must be looked at generally and in the context in which it is
used. It is said that every statute is an edict of the
legislature. The elementary principle of interpreting any
word while considering a statute is to gather the mens or
sententia legis of the legislature. Where the words are
clear and there is no obscurity, and there is no ambiguity
and the intention of the legislature is clearly conveyed,
there is no scope for the court to take upon itself the task
of amending or altering the statutory provisions.”
36. In Dr. Baliram Waman Hiray (Dr.) vs. Justice B.
Lentin and others, [AIR 1988 SC 2267], it is held as,
“27. Law must be definite, and certain. If any of the
features of the law can usefully be regarded as
normative, it is such basic postulates as the
requirement of consistency in judicial decision-making.
It is this requirement of consistency that gives to the
law much of its rigour. At the same time, there is need
for flexibility. Professor H.L.A. Hart regarded as one of
the leading thinkers of our time observes in his
influential book ‘The Concept of Law’, depicting the
difficult task of a judge to strike a balance between
certainty and flexibility:
‘Where there is obscurity in the language of
a statute, it results in confusion and
disorder. No doubt the courts so frame their
judgments as to give the impression that
their decisions are the necessary
consequence of predetermined rules. In
very simple cases it may be so; but in the
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WA No. 254 of 2024vast majority of cases that trouble the
courts, neither statute nor precedents in
which the rules are legitimately contained
allow of only one result. In most important
cases there is always a choice. The judge
has to choose between alternative
meanings to be given to the words of a
statute or between rival interpretations of
what a precedent amounts to. It is only the
tradition that judges “find” and do not
“make” law that conceals this, and presents
their decisions as if they were deductions
smoothly made from clear pre-existing rules
without intrusion of the judge’s choice.’ ”
37. In Competition Commission of India vs. Steel Authority
of India Ltd. and others, (2010) 10 SCC 744, it is held as,
“50. The principle of “appeal being a statutory right and no
party having a right to file appeal except in accordance
with the prescribed procedure” is now well settled. The
right of appeal may be lost to a party in face of relevant
provisions of law in appropriate cases. It being a creation
of a statute, legislature has to decide whether the right to
appeal should be unconditional or conditional. Such law
does not violate Article 14 of the Constitution. An appeal to
be maintainable must have its genesis in the authority of
law. Reference may be made to M. Ramnarain (P) Ltd. v.
State Trading Corpn. of India Ltd. [(1983) 3 SCC 75] and
Gujarat Agro Industries Co. Ltd. v. Municipal Corpn. of the
City of Ahmedabad [(1999) 4 SCC 468] .
51. Right of appeal is neither a natural nor an inherent right
vested in a party. It is a substantive statutory right
regulated by the statute creating it. Kondiba Dagadu
Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] and
Kashmir Singh v. Harnam Singh [(2008) 12 SCC 796 : AIR
2008 SC 1749] may be referred to on this point. Thus, it is
evident that the right to appeal is not a right which can be
assumed by logical analysis much less by exercise of
inherent jurisdiction. It essentially should be provided by
the law in force. In absence of any specific provision
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WA No. 254 of 2024creating a right in a party to file an appeal, such right can
neither be assumed nor inferred in favour of the party.
52. A statute is stated to be the edict of legislature. It
expresses the will of legislature and the function of the
court is to interpret the document according to the intent of
those who made it. It is a settled rule of construction of
statute that the provisions should be interpreted by
applying plain rule of construction. The courts normally
would not imply anything which is inconsistent with the
words expressly used by the statute. In other words, the
court would keep in mind that its function is jus dicere, not
jus dare. The right of appeal being creation of the statute
and being a statutory right does not invite unnecessarily
liberal or strict construction. The best norm would be to
give literal construction keeping the legislative intent in
mind.”
“56. Thus, the court can safely apply rule of plain
construction and legislative intent in light of the object
sought to be achieved by the enactment. While interpreting
the provisions of the Act, it is not necessary for the court to
implant, or to exclude the words, or overemphasise
language of the provision where it is plain and simple. The
provisions of the Act should be permitted to have their full
operation rather than causing any impediment in their
application by unnecessarily expanding the scope of the
provisions by implication.”
38. In light of the above analysis, the only reasonable
interpretation of Section 16 of the Act is that the right of appeal is
vested exclusively in senior citizens or parents, and not in any
other individuals, including children or transferees.
39. Having held that Section 16 of the Act grants the right of
appeal only to senior citizens or parents, the contention of
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respondent No.2 is unsustainable. The appeal under Section 16
of the Act before the Deputy Commissioner by respondent No.2 is
held to be not maintainable.
40. In light of the conclusion reached by this Court, the
judgments of different High Courts with the contrary view providing
right of appeal to the children/transferee, this Court respectfully
disagree to endorse such view.
41. Learned advocate for respondent No.2 relied on various
judgments of different High Courts to contend that appeal under
Section 16 of the Act is maintainable by other than the senior
citizen. The first judgment is of Punjab and Haryana High Court in
Paramjit Kumar Saroya (supra). The other judgments relied on
are rendered by following the judgment of Punjab and Haryana
High Court. It is suffice to this judgment is dealt. It would be
repetition if other relied judgments are separately dealt, which
exercise is unnecessary with due respect.
42. The Punjab and Haryana High Court has held that Section
16(1) of the Act grants the right of appeal to any affected person.
The reasoning behind this conclusion is that the omission of other
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parties from the provision is an accidental oversight, rather than a
deliberate exclusion. Additionally, the Court noted that there is no
explicit provision in the Act that denies the right of appeal to other
parties.
43. The Court finds difficult to concur with the above reasoning
which provides right of appeal to any of the affected parties. As
held by the Hon’ble Supreme Court, the golden rule of
interpretation of a statute is that, it has to be given its literal and
natural meaning. The first and primary rule of construction is that,
the intention of the legislature must be found in the words used by
the legislature itself. The question is not what may be supposed
and has been intended but what has been said. When the
legislature has employed a plain and unambiguous language, the
Court is not concerned with the consequences arising therefrom.
The Court is not concerned with the reason as to why the
legislature thought it fit to lay emphasis on one category of suitors
than the others.
44. Further, the principle that appeal being a statutory right and
no party have a right to file appeal except in accordance with the
prescribed procedure is well-settled. The right of appeal may be
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lost to a party in face of relevant provisions of law in appropriate
cases. Thus, the right to appeal is not a right which can be
assumed by logical analysis much less by exercise of inherent
jurisdiction. It should essentially be provided by the law in force. In
absence of any specific provision creating a right in a party to file
an appeal, such right can neither be assumed nor inferred in favour
of the party.
45. The reasoning of the Punjab and Harayana High Court that
there is no negative provision in the Act denying the right of appeal
to other party cannot be countenanced. As observed herein-
above, it is held by the Hon’ble Supreme Court that when right to
appeal is not created, such right cannot be assumed by logical
analysis or in a situation where there is no provision restricting
such right to appeal. When right to appeal is created/provided to
class, it is only to be understood that other class is excluded or not
provided with such right. The provision need not in specific debar
other class from right of appeal.
Re. Point No.(ii)
46. Learned Single Judge while examining the order passed by
the Deputy Commissioner has set aside both the orders of the
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Assistant Commissioner and the Deputy Commissioner with a
direction to both the parties to agitate their rights before the
competent Court of law. The order of learned Single Judge is
without any justifiable reasoning. However, in view of the finding
herein-above on the maintainability of appeal under Section 16 of
the Act, the order of learned Single Judge can be justified to the
extent, setting aside the order of the Deputy Commissioner.
However, it is difficult to find any reason or justification in the order
of learned Single Judge in setting aside the order of the Assistant
Commissioner. To this extent the order of learned Single Judge
suffers from excessive, is not sustainable and is to be set aside.
47. Learned advocate for respondent No.2 has raised a
contention that Section 23 of the Act is not available to be invoked
by late P. Krishna (father) for non-compliance of its conditions. It
is the submission that the gift deed is unconditional and the issue
of violation/refusal/failure to provide basic amenities and basic
physical needs would not arise. The Court finds substance in this
submission.
48. In Sudesh Chikara (supra), 2022 SCC Online SC 1684, it is
held as under,
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” 14. 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 sub-section (1) of Section
23 are attached to a transfer, existence of such
conditions must be established before the Tribunal.”
49. The contention raised cannot be examined by this Court in
the present appeal. Respondent No. 2 has invoked the remedy of
appeal under Section 16, seeking to set aside the order declaring
the gift deed void. The order in the appeal under Section 16 of the
Act was overturned by the learned Single Judge. However,
Respondent No. 2 has not challenged the order under Section 23
of the Act that declared the gift deed void. Another reason to
supplement for this conclusion is this Court’s view that children or
transferees do not have the right of appeal under Section 16 of the
Act. As a result, the appeal filed by Respondent No. 2 under
Section 16 is not maintainable. Any further actions would be purely
consequential.
50. The appellant claims right, title, and interest under a
registered Will dated 14.07.2023, while Respondent No. 2 asserts
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right, title, and interest under a Gift Deed dated 27.02.2019.
Respondent No. 2 has filed an appeal under Section 16 of the Act,
which has been held to be not maintainable. Consequently, the
order in the appeal under Section 16 is set aside. Given that the
appeal is not maintainable, Respondent No. 2 may pursue any
other legal remedy available against the order passed by the
Assistant Commissioner. The primary issue will once again be the
effect of the registered Will. Which is left to the parties to invoke
appropriate remedy.
51. In the given circumstances, as the Court is not called upon to
examine the validity of the order passed by the Assistant
Commissioner or the registered Will, it refrains from making any
observations on these issues. Addressing these matters at this
stage could potentially affect the parties’ rights in any future legal
proceedings. Nevertheless, the parties are free to pursue their
grievances before the relevant forum, in accordance with the law.
52. Conclusion
(i) It is held that Section 16 of the Act can be invoked only
by senior citizen or a parent.
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(ii) Right of appeal under Section 16 of the Act is not
available to any other party.
In light of the above reasons, the appeal is allowed-in-part.
The order of the learned Single Judge is set aside to the extent
mentioned. Accordingly, writ appeal is disposed of.
Sd/-
(N. V. ANJARIA)
CHIEF JUSTICE
Sd/-
(K. V. ARAVIND)
JUDGE
MV
List No.: 2 Sl No.: 3