Madras High Court
K.Jayakumar vs The District Magistrate & on 5 August, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.19808 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.19808 of 2021
And
W.M.P.No.21090 of 2021
K.Jayakumar ... Petitioner
Vs.
1.The District Magistrate &
District Collector,
Chengalput District.
2.The Revenue Divisional Officer,
Maintenance Tribunal
Chengalput.
3.Devikarani
4.T.S.Kathirvelu ... Respondents
Prayer:
Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorari calling for the records pertaining to the
impugned order dated 30.07.2021 in R.C.No.10432/2020/M1 passed
by the first respondent, quash the same.
For Petitioner : Mr.K.V.Babu
For Respondents : Mr.U.Baranidharan for R1 & R2
Additional Government Pleader
Mr.V.Shanmuga Sundaram for R3 & R4
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.19808 of 2021
ORDER
The petitioner has filed this writ petition seeking issuance of Writ
of Certiorari calling for the records pertaining to the impugned order
dated 30.07.2021 in R.C.No.10432/2020/M1 passed by the first
respondent and to quash the same.
2.The learned counsel appearing for the petitioner submitted
that the respondents 3 and 4 are the parents of the petitioner and
they executed irrevocable settlement deed in favour of the petitioner
on 10.07.2018. Subsequently, at the instigation of the sister of the
petitioner, respondents 3 and 4 filed complaint before the second
respondent under the provisions of the Maintenance of Senior Citizen's
and Welfare of Parents Act, 2007 for cancellation of settlement deed
and the same was allowed on 05.11.2020. Aggrieved by the same,
the petitioner filed appeal before the first respondent and the first
respondent confirmed the order passed by the second respondent.
3.The learned counsel appearing for the petitioner further
submitted that there is no condition in the settlement deed and it is an
irrevocable settlement deed, however, the second respondent
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cancelled the settlement deed and the same was confirmed by the first
respondent which is not sustainable one.
4.Per contra, the learned counsel appearing for the respondents
3 and 4 submitted that admittedly out of love and affection the
respondents 3 and 4 executed settlement deed in favour of the
petitioner and there was a condition incorporated in the settlement
deed that the petitioner has to take care of the respondents 3 and 4
but the petitioner failed to take care of them, thereby they made
complaint before the second respondent under the provisions of the
Maintenance of Senior Citizen's and Welfare of Parents Act, 2007 for
cancellation of settlement deed and the second respondent cancelled
the settlement deed and the same was confirmed by the first
respondent, which warrants no interference.
5.The learned Additional Government Pleader appearing for the
respondents 1 and 2 submitted that the issue arises in the writ petition
is no longer res integra and it has already been settled by the Hon'ble
Apex Court in the decision reported in 2022 LiveLaw (SC) 1011: 2022
SCC OnLine SC 1684 [Sudesh Chhikara Vs. Ramti Devi and another]
and by the Hon'ble Division Bench of the Madurai Bench of this Court
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in the order dated 02.09.2022 made in W.P.(MD) Nos.6889 of 2020
etc., batch [Sasikala Vs. The Revenue Divisional Officer cum Sub
Collector and another], wherein, it is held that when there is no
condition in the settlement deed, an irrevocable settlement deed
cannot be cancelled. In the present case, there is condition in the
settlement deed and the petitioner violated the condition and hence,
the impugned order warrants no interference.
6.Heard the arguments advanced on either side and perused the
materials available on record.
7.This Court perused the settlement deed dated 10.07.2018.
Admittedly out of love and affection the respondents 3 and 4 executed
settlement deed in favour of the petitioner and there is a condition
incorporated in the settlement deed that the petitioner has to take
care of the respondents 3 and 4.
8.The issue arises in the writ petition is no longer res integra and
it has already been settled by the Hon'ble Apex Court in the decision
reported in 2022 LiveLaw (SC) 1011: 2022 SCC OnLine SC 1684
[Sudesh Chhikara Vs. Ramti Devi and another] and by the Hon'ble
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Division Bench of the Madurai Bench of this Court in the order dated
02.09.2022 made in W.P.(MD) Nos.6889 of 2020 etc., batch [Sasikala
Vs. The Revenue Divisional Officer cum Sub Collector and another],
wherein, it is held that when there is no condition in the settlement
deed, an irrevocable settlement deed cannot be cancelled.
9.It is relevant to extract hereunder the relevant portions of the
decision of the Hon'ble Apex Court reported in 2022 LiveLaw (SC)
1011: 2022 SCC OnLine SC 1684 [Sudesh Chhikara Vs. Ramti
Devi and another]:
“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.
15. Careful perusal of the petition under
Section 23 filed by respondent no. 1 shows
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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 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.
16. We have perused the counter
affidavit filed by respondent no. 1. Even in the
counter, it is not pleaded that the release was
subject to such a condition. It is merely
pleaded that the appellant had no intention to
take care of her mother. Thus, the order of the
Maintenance Tribunal cannot be sustained as
the twin conditions incorporated in sub-Section
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(1) of Section 23 were not satisfied.
Unfortunately, the High Court has not adverted
to the merits of the case at all.”
10.It is also relevant to extract hereunder the relevant portions
of the order of the Hon'ble Division Bench of the Madurai Bench of this
Court dated 02.09.2022 made in W.P.(MD) Nos.6889 of 2020
etc., batch [Sasikala Vs. The Revenue Divisional Officer cum
Sub Collector and another]:
“43.The donor must specifically reserves
such right to suspend or revoke the gift deed
with the consent of donee to attract Section
126 of the Transfer of Property Act. Unless the
agreement is mutual, expressed in the recitals,
the Registering Authority cannot accept the
document for registration. However, the factual
allegations with regard to the acceptance of
gift or the issue where the gift was acted upon
or not do not come under the purview of the
Registering Officer. Hence, the Registering
Officer is not excepted to accept the document
unilaterally cancelling the gift deed, merely on
the basis of the statement of the donor or the
recitals in the document for cancellation.
46.The writ petition in W.P(MD)No.6889
of 2020 is filed by the daughter of the second
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respondent to quash the order passed by the
first respondent under Section 23 of the
Maintenance and Welfare of Parents and Senior
Citizens Act 2007. The gift deed executed by
the second respondent in favour of the writ
petitioner was unilaterally cancelled by the
second respondent father. The settlement deed
stated to have been executed by the second
respondent, dated 06.03.2015 is irrevocable
and it is a deed of settlement out of love and
affection. The second respondent has
specifically stated that he has no right to
revoke the settlement deed. From the recitals,
the settlement does not attract Section 126 of
Tamil Nadu Property Act. It is seen that the
settlor viz., the second respondent, has not put
any condition. In other words, the gift deed is
not subject to any condition or terms that the
transferor shall provide the basic amenities and
basic physical needs to the second respondent.
In such circumstances, this Court is of the view
that there is no scope for invoking the power
provided to the second respondent under
Section 23 of the Tamil Nadu Maintenance and
Welfare of Parents and Senior Citizens Act,
2007. Therefore, the order impugned is liable
to be quashed. Even though we agree that the
writ petition can be allowed, this Court is
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unable to decide the writ petition in this batch
where question referred to us is different.
Hence, the writ petition in W.P(MD)No.6889 of
2020 is de-linked and the Registry is directed
to list the matter before the appropriate
Bench.”
[Emphasis Added]
11.In the present case, there is condition in the settlement deed
and the petitioner failed to take care of the respondents 3 and 4 and
violated the said condition. Thereby the respondents 3 and 4 made
complaint before the second respondent under the provisions of the
Maintenance of Senior Citizen's and Welfare of Parents Act, 2007 for
cancellation of settlement deed and the second respondent cancelled
the settlement deed and the same was confirmed by the first
respondent and hence, the impugned order warrants no interference.
12.The writ petition is dismissed. However, the petitioner is at
liberty to work out his remedy before the civil Court in the manner
known to law. No costs. Consequently, the connected miscellaneous
petition is closed.
05.08.2024
pri
Index: Yes/ No
https://www.mhc.tn.gov.in/judis
Speaking Order: Yes/ No NCC: Yes/ No
To
1.The District Magistrate &
District Collector,
Chengalput District.
2.The Revenue Divisional Officer,
Maintenance Tribunal
Chengalput.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI,J.
pri
And
05.08.2024
https://www.mhc.tn.gov.in/judis
