B.G. Mahesh and Others vs The State of Karnataka and Others

A.S. Bopanna, J.—1. The petitioners in W.P. No. 54648-49/2013 are assailing the order dated 21.10.2013 passed by the Deputy Commissioner to the extent of the direction issued to petitioners No. 1 and 2 herein to pay the maintenance to respondent No. 4 who is their sister.

The petitioner in W.P. No. 6704/2014 is assailing the very same order passed by the Deputy Commissioner insofar as directing the petitioner herein who is another brother to pay a sum of Rs. 4,000/- per month to respondent No. 6 i.e., the sister. The orders passed by the Assistant Commissioner as well as the Deputy Commissioner is under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (''Act, 2007'' for short).

Since the array of the parties are different in these petitions and the contentions in that regard relating to the property has been urged, it would be appropriate to refer the parties by their names for the purpose of convenience and clarity.

Smt. Gurumallamma @ Moogamma is the sister of Sri B.G. Mahesh, Sri B.M. Shivappa and Sri B.M. Basavanna. Sri B.G. Mahesh and Sri B.M. Shivappa are the petitioners in W.P. No. 54648/2013, while Sri Basavanna is the petitioner in W.P. No. 6704/2014. The relationship between the parties is not in dispute. Smt. Gurumallamma @ Moogamma claiming that the properties owned by the family are being enjoyed only by her brothers and she is left with no maintenance for herself had filed the petition before the Assistant Commissioner claiming maintenance under the Act, 2007. The Assistant Commissioner on taking note of the contentions had directed Sri B.G. Mahesh and Sri B.M. Shivappa to pay a sum of Rs. 3,000/- and Rs. 2,000/- respectively to Smt. Gurumallamma @ Moogamma. Sri B.G. Mahesh and Sri B.M. Shivappa claiming to be aggrieved had filed an appeal before the Deputy Commissioner. The Deputy Commissioner has modified the order of the Assistant Commissioner and has held that Sri B.G. Mahesh and Sri B.M. Shivappa to pay a sum of Rs. 2,500/- and Rs. 1,500/- respectively while Sri B.M. Basavanna is directed to pay a sum of Rs. 4,000/-. Since Sri B.G. Mahesh and Sri B.M. Shivappa as also Sri. B.M. Basavanna are aggrieved by the orders passed by the Deputy Commissioner, a consideration in that regard is required to be made.

The fact that certain properties have been left behind by their father does not appear to be in serious dispute. Sri B.G. Mahesh and Sri B.M. Shivappa would however contend that the properties were partitioned amongst the brothers under a document dated 02.06.1988 whereunder a larger share has been granted to Sri Basavanna on the understanding that he would look after Smt. Gurumallamma @ Moogamma, his sister out of the additional extent of the property granted to him. The said contention is however disputed by Sri B.M. Basavanna who contends that he was employed and he has his own income from which he has acquired properties and as such, the partition as well an additional share being granted to him for the purpose of maintenance has been denied.

Learned counsel appearing for Sri B.G. Mahesh and Sri B.M. Shivappa has referred to the said documents and also to the nature of consideration as made by the Deputy Commissioner with reference to M.R. No. 29/87-88 wherein it is indicated that an extent of 6 acres 17 guntas is in possession of Sri B.M. Basavanna.

Learned senior counsel appearing for Sri B.M. Basavanna would however refer to the order passed by the Assistant Commissioner wherein the Assistant Commissioner has referred to different survey numbers under which each of the brothers are holding the properties and in that light, it is contended that the extent held by Sri B.M. Basavanna is not as claimed by Sri B.G. Mahesh and Sri B.M. Shivappa and therefore the order passed by the Assistant Commissioner is justified and the Deputy Commissioner has committed an error in that regard is his contention.

Having taken note of the rival contentions, what cannot be lost sight is that if any one of the observations that is either made by the Assistant Commissioner or the one made by the Deputy Commissioner is taken into consideration, the fact that certain of the properties which belong to the family are being enjoyed by three brothers viz, Sri B.G. Mahesh, Sri B.M. Shivappa and Sri B.M. Basavanna separately cannot be in dispute.

In a proceedings of the present nature, neither was it appropriate for the Assistant Commissioner, Deputy Commissioner nor would it be appropriate for this Court to advert into the details of the correctness or otherwise of the contentions relating to the prior partition or the extent of properties in possession of each of the brothers and the cultivation that is being made in that regard. Those are aspects which would arise for consideration in the suit in O.S. No. 81/2011 which is filed by Smt. Gurumallamma @ Moogamma claiming for partition and separate possession of her share of the property. In the said suit, all these aspects would be adverted to and the Civil Court would come to the conclusion on that aspect. However, at this point, when it is clear that Smt. Gurumallamma @ Moogamma has not been given possession of any share in the property, at this point, it is only the three brothers who are enjoying the said property, until the suit is decided in any event, the three brothers are required to provide for maintenance to their sister since the entitlement for maintenance under the Act, 2007 will be available when it is not shown that she has her own source to maintain herself.

Therefore, without reference to the exact extent of the property held by each of them, the order passed by the Deputy Commissioner is modified to hold that Sri B.G. Mahesh, Sri B.M. Shivappa and shall pay a sum of Rs. 2,000/- each to Smt. Gurumallamma @ Moogamma to be calculated from the date the Assistant Commissioner had passed the order and continue to pay the same till the suit is disposed of before the trial Court and any share is given to her. The trial Court shall make all efforts to dispose of the suit as expeditiously as possible, but not later than nine months from the date on which a copy of this order is furnished to the trial Court.

With the said modification to the order impugned, these petitions stand disposed of.