Madras High Court
R.Sekkappan vs S.Kannappan ...1St on 12 June, 2023
W.A(MD)No.809 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.A(MD)No.809 of 2023
and
C.M.P(MD)Nos.6627 and 6628 of 2023
R.Sekkappan ... Appellant/4th Respondent
-vs-
1.S.Kannappan ...1st Respondent/writ petitioner
2.The Revenenue Divisional Officer cum
Tribunal of Maintenance and Welfare of
Parents and Senior Citizens,
Madurai, Madurai.
3.The Sub-Registrar,
Madurai South,
Department of Registration,
Madurai, Madurai District.
4.The Registrar of Firms,
Madurai South,
171, Palace Road,
Madurai, Madurai District.
5.Mr.Sugi Premala,
The Revenue Divisional Officer cum
Tribunal of Maintenance and Welfare of
Parents and Senior Citizens,
Madurai, Madurai District.
... Respondents 2 to 5/
Respondents 1, 2,3 and 5
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W.A(MD)No.809 of 2023
PRAYER: Appeal filed under Clause 15 of Letters Patent, to set aside
the order dated 03.01.2023 in W.P(MD)No.15838 of 2022.
For Appellant : Mr.N.Vinitha for
Mr.S.Ramsundarvijayaraj
For R-1 : Mr.V.Raghavachari,
Senior Counsel for
Mr.T.Cibi Chakraborthy
For R-2 : Mr.V.Nirmal Kumar,
Government Advocate
For R-3 : Mr.M.Prakash,
Additional Government Pleader
JUDGMENT
[Judgment of the Court was made by R.SUBRAMANIAN, J.]
Being aggrieved by the order of the Writ Court, dated 03.01.2023
in W.P(MD)No.15838 of 2022, the appellant has filed this writ appeal.
2. The appellant seeks to canvass the correctness of the order of
the Writ Court in allowing the writ petition quashing the orders of the
competent authority under the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 (hereinafter referred to as “the Act”). In and
by the said order, the authority had chosen to set aside the sale deed of
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W.A(MD)No.809 of 2023
the year 2005 and the reconstitution of the partnership deed dated
26.04.2021. The appellant sought for setting aside those documents
under Section 23 of the Act on certain grounds. The authority had set
aside the documents on the ground that the first respondent has not
maintained his parents properly and that, he had obtained the
documents without paying any money. The Writ Court had held that
the exercise carried out by the authority is in excess of its jurisdiction.
3. Section 23 of the enactment reads as follows:
“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
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W.A(MD)No.809 of 2023
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.”
4. Considering the scope of the said Section, one of us (Justice
R.SUBRAMANIAN) in W.P(MD)No.32650 of 2022, has held that Section
23 of the Act, can be invoked only in respect of the documents which
are executed after coming into force of the Act and the document should
be a gift or a transfer which contains a stipulation that the transferee
or the settlee must maintain the senior citizen/s who executes the
document.
5. On facts, we find that the the sale deed of the year 2005 is the
document executed prior coming into force of the Act. As far as the deed
of reconstitution of Partnership, which is of the year 2021 is concerned,
it does not contain an undertaking by the first respondent to maintain
the appellant and his wife. Therefore, the said judgment will squarely
apply to the facts of the case. We are supported in our view by the
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W.A(MD)No.809 of 2023
judgment of the Hon'ble Supreme Court in Sudesh Chhikara vs.
Ramti Devi and Another reported in 2022 SCC OnLine SC 1684,
wherein, after considering the language of Section 23 of the Act, the
Hon'ble Supreme Court had held as follows:
“13. 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.
14. Careful perusal of the petition under Section 23,
filed by respondent no.1, shows that it is not even pleaded that
the release deed was executed subject to a condition that the
transferees (the daughters of respondent no.1) would provide
the basic amenities and basic physical needs to respondent
no.1. Even in the impugned order dated 22nd May 2018 passed
by the Maintenance Tribunal, no such finding has been
recorded. It seems that oral evidence was not adduced by the
parties. As can be seen from the impugned judgment of the
Tribunal, immediately after a reply was filed by the appellant
that the petition was fixed for arguments. Effecting transfer
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W.A(MD)No.809 of 2023
subject to a condition of providing the basic amenities and
basic physical needs to the transferor – senior citizen is sine
qua non for applicability of sub-section (1) of Section 23. In the
present case, as stated earlier, it is not even pleaded by
respondent no.1 that the release deed was executed subject to
such a condition.
6. In view of the said pronouncement of the Hon'ble Supreme
Court, we do not think that we can fault the Writ Court for having
allowed the writ petition setting aside the orders of the authority. The
writ appeal therefore fails and it is accordingly, dismissed. No Costs.
Consequently, connected miscellaneous petitions are closed.
[R.S.M., J.] [L.V.G., J.]
12.06.2023
NCC :Yes/No
Index :Yes/No
PM
To:
1.The Revenenue Divisional Officer cum
Tribunal of Maintenance and Welfare of
Parents and Senior Citizens,
Madurai, Madurai.
2.The Sub-Registrar,
Madurai South,
Department of Registration,
Madurai, Madurai District.
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W.A(MD)No.809 of 2023
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
pm
W.A(MD)No.809 of 2023
12.06.2023
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