The Madras High Court recently comprising of a bench of Justice R Subramanian has ruled that the property transferred by the elderly cannot be taken back under the Maintenance and Welfare of Parents and Senior Citizens Act, if the transfer documents do not contain the clause imposing the condition that the recipient(s) should look after the giver. (S Selvaraj Simpson v The District Collector and another)
Facts of the case
The writ Petition was filed under Article 226 of the Constitution of India seeking issuance of Writ of Certiorarified Mandamus, calling for the records pertaining to the official communication of the 2 nd respondent to the petitioner in Na.Ka.No.136, and to quash the same and consequently, direct the 1 st and 2 nd respondents to act on the detailed complaint given by the petitioner on 16.08.2021 to the 1 st respondent under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 within the time stipulated.
The petition prayed for a direction to the RDO in Ambattur to take cognisance of his complaint against his son, who left him in the lurch.
Courts Observation and order
The bench at the very outset observed, "Though the order challenged in the Writ Petition is one transferring proceedings to the jurisdictional Revenue Divisional Officer. A perusal of the document executed by the petitioner reveals that the petitioner cannot seek relief under the special enactment namely, Maintenance and Welfare of Parents and Senior Citizens Act, 2007."
The bench taking note of the same observed, "Section 23 of the Act declares certain transfers as void. There are two essential pre-conditions namely, the document should have been executed after the coming into for the Act and it should contain clause imposing an obligation on the settlee or transferree to maintain the settlor or transferor. Evidently, such clause is absent in the document in question therefore, the authority under Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 cannot entertain an application for cancellation of the document."
The bench dismissing the writ petition remarked, "Hence, this Writ Petition is dismissed on the conclusion that the very application before the Revenue Divisional Officer is not maintainable. It will however, open to the petitioner to launch appropriate proceedings, seeking maintenance from his son and also for cancellation of the document before the appropriate Civil Court subject to the availability of the remedy. No costs."
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