Madras High Court
R.Srinivasan vs The District Collector on 14 August, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.9414 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.08.2024
PRONOUNCED ON : 14.08.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.9414 of 2024
and W.M.P.Nos.10424 & 10425 of 2024
R.Srinivasan ... Petitioner
-Vs-
1. The District Collector,
Office of the Chennai Collectorate,
Chennai – 600 001.
2. The District Revenue Officer,
Office of Chennai Collectorate,
Chennai – 600 001.
3. S. Rajan
4. R.Geetha
5. Sumathi Dcruz
6. P.Rekha
7. S.Sathish Kumar
8. S.Mohanaraj
(R4 to R8 are impleaded as per
order dated 25.06.2024 in
WMP.No.16585 of 2024 in
W.P.No.9414 of 2024) ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for the
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Page 1 of 23
W.P.No.9414 of 2024
impugned order passed by the first respondent in Sa.Mu.Na.Ka.No.1821/
A1/2023 dated 31.10.2023 which confirms order of the second
respondent bearing Na.Ka.No.A7/1615/2023 dated 20.07.2023 and
quash the same and direct the third respondent to provide
accommodation in the property at No.18, Periyaplayathamman Kovil
Street, Maduma Nagar, Perambur, Chennai – 600 011, and cancel the
settlement deed bearing No.2273 of 2019 dated 12.07.2019, registered in
Sembiam Sub Register Office, settled by the petitioner.
For Petitioner : Mr.V.Manisekaran
For Respondents
For R1 & R2 : Mr.M.S.Arasa Kumar
Government Advocate
For R3 : Mr.A.Palaniappan
For R4 to R7 : No appearance
ORDER
This writ petition has been filed challenging the order passed
by the first respondent dated 31.10.2023, confirming the order passed by
the second respondent dated 20.07.2023, thereby dismissing the
complaint lodged by the petitioner seeking cancellation of the settlement
deed dated 12.07.2019, under the Maintenance and Welfare of Parents
and Senior Citizen Act, 2017 (hereinafter referred to as “the Act”).
2. The petitioner is the father and the respondents 3 to 8 are the
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sons and daughters. The petitioner got married one S.Baby and gave birth
to three daughters and one son viz., the third respondent herein. He also
married her own sister viz., Shantha as second wife and gave birth to two
sons. The petitioner was doing wholesale paper business and out of the
income from the said business, the petitioner brought up his children in
good manner and educated them well and also got them married. Out of
his earnings, the petitioner had purchased several properties in his name
and also in the name of his two wives.
3. While being so, the petitioner settled three properties in
favour of his elder son viz., the third respondent herein, by way of three
settlement deeds. On the date of execution of third settlement deed viz.,
on 12.07.2019, the third respondent had executed undertaking affidavit
and agreed to collect all the rents from the property settled in favour of
the third respondent by the petitioner for his livelihood. However, after
execution of settlement deed, the third respondent refused to give the
rental income to the petitioner and his wife as agreed by the undertaking
affidavit.
4. Further, the petitioner mortgaged other properties and
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availed loan to the tune of Rs.30,00,000/- for the third respondent's
business in the name of “New Star Foundation”. Now the third
respondent is doing well in the said business. However, the third
respondent refused to permit the petitioner to collect the rents from the
settled property for his livelihood. He also failed to maintain the petitioner
and his wife and now they are residing in a rental premises. Therefore,
the petitioner was constrained to lodge complaint before the second
respondent under Section 23 of the Act.
5. The second respondent after enquiry, rejected the complaint
filed by the petitioner on the ground that the petitioner is receiving the
rental amount from the settled property. Aggrieved by the same, the
petitioner preferred an appeal before the first respondent and the same
was also dismissed on the very same ground and also observed that the
petitioner can able to maintain himself from the income derived from the
settled property.
6. The learned counsel appearing for the petitioner submitted
that the petitioner was not permitted to collect any rent from the property
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settled in favour of the third respondent. Further, the petitioner is residing
in the rental premises and he is struggling even for his daily livelihood.
He also produced photographs to show that the third respondent is well
off and having huge house and new variant cars. He is also running
sophisticated life. That apart, the petitioner and his wife are suffering
from all their old age aliments and they could not able to meet out their
medical expenses.
7. The learned counsel appearing for the third respondent
submitted that there is no proof to show that the petitioner has right to
collect rent from the property settled in favour of the third respondent.
That apart, the petitioner owned other properties and he has permanent
income. The petitioner had pick and choose the third respondent alone
and filed the complaint under Section 23 of the Act. The petitioner also
settled so many properties in favour of other sons and daughters and they
have not maintained the petitioner. However, the petitioner did not file
any complaint as against them. The third respondent is being the son of
his first wife, the petitioner is treating him as differently.
7.1. He further submitted that the petitioner failed to fulfill the
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two conditions as contemplated under Section 23 of the Act. The
settlement deed dated 12.07.2019, does not contain any clause that the
third respondent shall have to maintain the petitioner till his life time. In
the absence of the said condition, the complaint itself is not maintainable
under Section 23 of the Act. In support of his contention, he relied upon
the judgment of the Hon'ble Supreme Court of India in the case of
Sudesh Chhikara Vs. Ramti Devi in Order dated 06.12.2022 in Civil
Appeal No. 174 of 2021, which reads as follows:-
“12. Sub-section (1) of Section 23 covers all kinds of
transfers as is clear from the use of the expression “by way
of gift or otherwise”. For attracting sub-section (1) of
Section 23, the following two conditions must be fulfilled:
a. The transfer must have been made subject to the condition
that the transferee shall provide the basic amenities and
basic physical needs to the transferor; and
b. the transferee refuses or fails to provide such amenities
and physical needs to the transferor.
13. If both the aforesaid conditions are satisfied, by a
legal fiction, the transfer shall be deemed to have been made
by fraud or coercion or undue influence. Such a transfer then
becomes voidable at the instance of the transferor and the
Maintenance Tribunal gets jurisdiction to declare the
transfer as void.
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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.
15. 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 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
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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 (1) of Section 23 were not satisfied.
Unfortunately, the High Court has not adverted to the merits
of the case at all.
17. There is an application for intervention on behalf
of a developer. The intervenor claims that he is a bona fide
buyer of a part of the land subject matter of the release deed
from the appellant and that he has carried out substantial
work of development. It is not necessary for us to deal with
the rights claimed by the intervenor. All questions regarding
the rights claimed by the intervenor are left open to be
decided in appropriate proceedings.”
Thus, it is clear from the above judgment that there are two essential pre-
conditions in order to invoke the provisions of Section 23 of the Act and
that the documents should have been executed after coming into force of
the Act and it should contain a clause imposing an obligation on the
settlee or transferee to maintain settlor or transferor.
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8. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
9. The petitioner lodged complaint to cancel the settlement
deed executed in favour of the third respondent on 12.07.2019 vide
document No.2273/2019. On perusal of the settlement deed executed in
favour of the third respondent revealed that the petitioner had settled the
property in order to make arrangement for the third respondent during his
life time to settle him down. It was executed due to love and affection on
the third respondent. It is relevant to extract Section 23 of the Act 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 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
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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-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. ”
Therefore, if the settlee failed to provide basic amenities and basic
physical needs to the settlor and such settlee refuses or fails to provide
such amenities and physical needs, the said settlement of subject property
shall be deemed to have been made by fraud or coercion or under undue
influence.
10. Section 23 of the Act provides that when a property has been
transferred by way of gift or otherwise by the senior citizen on the
condition that the transferee or ownee shall provide the basic amenities
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and basic physical needs to the transferor or the owner, but such
transferee or ownee subsequently fails to provide such amenities, then it
would be deemed that the transfer was made by fraud, or coercion or
under undue influence and the transferor would have the option of
obtaining declaration that such transfer was void. In the case on hand, the
father has settled the subject property to the son out of love and affection
and as a reward for the respect, reward and care that the son had shown
to the father. It is relevant to extract the relevant portion of the settlement
deed dated 12.07.2019 as follows:-
@////mg;go Mz;L mDgtpj;J tUfpd;w
2397 rJuo gug;gst[ bfhz;l fjt[ vz;/18?k;
vz;Qqs;s kida[k; mjpyl';fpa tPL. kpd;
,izg;g[ cs;glt[khd brhj;jpid. eP vdJ
FkhuuhdgoahYk;. cd; kPJ vdf;F ,Uf;Fk;
md;g[. gw;W. ghrk;. tpRthrk; cs;sjpd;
fhuzkhft[k;. cdJ tU';fhy thH;fi
; ff;F
xU Vw;ghL bra;J itf;f ntz;Lk; vd;fpw
bjspthd jpl rpe;jida[lDk;. ahUila
J}z;Ljy; ,y;yhkYk; ,e;j brl;oy;bkz;l;
gj;jpuj;ij ,d;iwa njjpapy; cdJ
bgaUf;F gjpt[ bra;Jf; bfhLj;Jtpl;nld;/@
11. On a perusal of the settlement deed, it reveals that being
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pleased with the care, love, affection, respect and good behaviour, the
father had executed settlement deed as a reward in favour of his son and
in discharge of his responsibilities towards the son, he has also given
future security to the son. Further, though no consideration was passed
for execution of settlement deed, the consideration for executing the
settlement deed is based on human conduct, caring and conscious. The
transfer was made admittedly out of love and affection. The settlor in the
settlement deed would expect in the natural course of human conduct that
the settlee continues to behave in the same manner as behaved before
execution of the settlement deed. Therefore, it would form part of
condition of the transaction for future conduct as well.
12. Thus, in the absence of any other circumstances, it must be
presumed that the settlor expects continuation of the care and love from
the settlee even after the execution of the settlement deed in the same
manner, the settlor was taken care prior to the execution of the settlement
deed. Further, the intention of the Legislature and terms of the Act would
declare certain transfer as void, taking note of the fact that by taking
advantage of the emotionally dependent senior citizens, relatives grab the
property on the pretext of providing emotional support. Therefore, the
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Legislature thought that such transaction could be declared as void, as the
conduct leading to the transaction was based on malice or fraud.
Therefore, the condition referred under Section 23 has to be understood
based on the conduct of the settlor and not with reference to the specific
stipulation in the deed of transfer. Therefore, it is sufficient if the settlee
breached the promise given to the settlor at the time of execution of the
settlement deed.
13. Further, sub-Section 2 of Section 23 of the Act envisages the
situation where a senior citizen has a right to receive the maintenance out
of an estate. Where such a right exists, the right of maintenance can be
enforced, where the estate or a portion of it is transferred against a
transferor, who has noticed the right or if the transfer is gracious. The
right however cannot be enforced against a transferee for consideration
without notice of right. It is also relevant to rely upon the judgement of
this Court in the case of Mohamed Dayan Vs. District Collector., order
dated 08.09.2023 made in W.P.No.28190 of 2022 in which this Court,
after discussing various judgements of the Hon'ble Supreme Court of
India and various judgements of High Court including the cases referred
by the learned Senior Counsel for the petitioner, held as follows:-
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“33. Close reading of the principles considered by
the various High Courts and the Supreme Court, there is no
ambiguity with reference to the purpose and object sought
to be achieved under the provisions of the Senior Citizen
Act. Section 4(2) of the Act, unambiguously stipulates that
the obligation of the children or the relative, as the case
may be, to maintain a senior citizen extends to the needs of
such citizen so that senior citizen may lead a normal life.
34. In the context of the adoption of the phrase “lead
a normal life” Rule 20(2)(i) of the Maintenance of Senior
Citizen Rules, enumerates that “it shall be the duty of the
District Collector to ensure that life and property of senior
citizens of the District are protected and they are able to
live with security and dignity”. Therefore, normal life
includes security and dignity. Thus the normal life as
indicated under Section 4(2) of the Act, is not mere life, but
a life with security and dignity. In the context of Article 21
of the Constitution of India, life includes decent medical
facility, food, shelter with dignity and security. All such
combined necessities of human life is falling under the term
“Normal Life” emboldened under Section 4(2) of the Senior
Citizen Act. Therefore, simply providing food and shelter
would be insufficient. But life includes providing of decent
medical facilities, food, shelter and other requirements with
dignity in commensuration with the status of the family and
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taking into consideration of the living style of the senior
citizen throughout.
35. Therefore, the children defending their case
merely on the ground that they are willing to provide food
and shelter, cannot be taken as a ground for the purpose of
sustaining the Settlement Deed executed by the senior
citizen. The requirement of the provisions are to be
complied in its real spirit and in the event of an iota of
doubt, the Authority Competent is empowered to cancel the
Settlement Deed or Gift Deed, as the case may be, in order
to protect the normal life of senior citizen.
36. Section 4(3) denotes, the obligation of the
children to maintain his or her parent extends to the needs
of such parent either father or mother or both, as the case
may be, so that such parents may lead a normal life.
Therefore, it is an obligation on the part of the children to
maintain his or her parents and ensure the parents to lead
a normal life. In the event of complaint, the Authorities
Competent are expected to ensure that the senior citizen
and their life and dignity are protected. The above
provision is to be read in conjunction with the Rules framed
under the Act.
37. Rule 20 of the Maintenance of Senior Citizen
Rules, provide duties and powers of the District Collector.
The District Collector is casted upon the duty to ensure that
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the life and property of citizens of the District are protected
and other people to live with security and dignity.
Therefore, it is the statutory duty on the part of the District
Collector to protect the safety and security of senior citizens
in his District. Thus the complaint filed by the senior
citizen, cannot be treated lightly. Such complaints are to be
enquired into in a pragmatic manner, so as to understand
the real grievances of the senior citizen and accordingly,
all appropriate actions are to be initiated to provide safety,
security and to protect the dignity of the senior citizen.
38. The Kerala High Court observed in the case of
Radhamani and Others (cited supra), Section 23(1) of the
Senior Citizen Act, cannot be interpreted to the
disadvantage of the senior citizen. Section 23(1) of the Act
contemplates that “Where any senior citizen who, after the
commencement of this Act, has 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”.
The phrase “ subject to the condition that the transferee
shall provide the basic amenities” does not mean that the
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Gift or Settlement Deed should contain any such condition
expressly. “Subject to the condition” as employed in
Section 23(1), is to be holistically understood with
reference to the subsequent phrase i.e., “deemed to have
been made by fraud or coercion or undue influence”. Both
the phrases would amplify that the deeming clause should
be considered so as to form an opinion that the phrase
“subject to condition” amounts to an implied condition to
maintain the senior citizen and any violation would be
sufficient for the purpose of invoking Section 23(1) of the
Act, to cancel the Gift or Settlement Deed executed by the
senior citizen.
39. To elaborate, the phrase “subject to condition”
employed under Section 23(1) of the Act, is to be
understood with reference to the love and affection by the
senior citizen towards the person in favour of whom such
Gift or Settlement Deed has been executed.
40. “Love and Affection” is an implied condition in
the context of Section 23(1) of the Act, and therefore, there
need not be any express condition in the Settlement Deed
for the purpose of maintaining the senior citizen. Refusal of
maintenance after executing the Settlement Deed or Gift
Deed, is the ground for invoking the deemed ground of
fraud or coercion or undue influence. When the deeming
clause has been incorporated under the provisions of
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Section 23(1) of the Act, 'Love and Affection' to be
construed as the consideration for executing the Gift or
Settlement Deed. Thus the condition need not be expressly
made in the document and the love and affection, which
resulted in execution of the Deed by the senior citizen is to
be construed as a condition for the purpose of invoking the
deeming clause for declaring the document as fraud or
coercion or undue influence.
41. The entire purpose and object of the Senior
Citizens Act, is to consider the human conduct towards
them. When the human conduct is indifferent towards senior
citizen and their security and dignity are not protected,
then the provisions of the Act, is to be pressed into service
to safeguard the security and dignity of senior citizen.
Therefore, the purposive interpretation of the provisions
are of paramount importance and Section 23 of the Act,
cannot be mis-utilised for the purpose of rejecting the
complaint filed by the senior citizen on the ground that
there is no express condition for maintaining the senior
citizen. Even in the absence of any express condition in the
document, “Love and Affection” being the consideration for
execution of Gift or Settlement Deed, such love and
affection becomes a deeming consideration and any
violation is a ground to invoke Section 23(1) of the Act.
Thus there is no infirmity in respect of the order passed by
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the second respondent in the present case.
42. The human conduct in the context of the senior
citizen Act, is to be understood considering the relationship
between the senior citizen and the beneficiaries of the Gift
or Settlement Deed. Mostly the parents are executing the
document in favour of their children. Since they may not be
in a position to maintain the property at their old-age and
more-so, they are intending to visibly express their love and
affection towards their children by settling their properties.
In some cases, the parents during their old-age are settling
their property in order to avoid conflict between their
children and to ensure that all children get equal share. If
at all the parents decide to settle the property in favour of a
son or daughter, then they are doing so, only with love and
affection and with a fond hope that they will be taken care
of by the son or daughter during their old-age. Thus love
and affection, being the consideration and implied
condition, within the meaning of Section 23(1) of the Act.
The subsequent non-maintenance of senior citizen would
attract Section 23(1) of the Act and the Authorities in such
circumstances are empowered to declare the document as
null and void.
43. Therefore, Section 23 is referable as a conduct of
the transferee prior to and after execution of the Deed of
Gift or Settlement, as the case may be. For all purposes,
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Section 23 is to be understood taking note of the conduct of
the transferee and not with reference to the specific
stipulation of condition in the Deed of Gift or Settlement.”
The above case is squarely applicable to the case on hand. In respect of
the judgment relied on by the third respondent in the case of Sudesh
Chhikara vs. Ramti Devi and Another (cited supra), the Three Judges
Bench of the Hon'ble Supreme Court of India in the case of S.Vanitha vs.
Deputy Commissioner, Bengaluru Urban and District and Others
(cited supra) is to be followed. There are several judgments to establish
that the purpose and object of the Senior Citizens Act, is to be complied
with in its letter and spirit in order to protect the life, security and dignity
of senior citizens. Thus the judgment relied on by the third respondent is
of no avail as far as the present facts and circumstances of the case on
hand is concerned.
14. On perusal of the complaint lodged by the petitioner revealed
that the third respondent had driven out the petitioner from his house.
Therefore, there are specific allegations in order to attract the provision
under Section 23 of the Act. Unfortunately, both the respondents 1 & 2
failed to consider the above aspects and mechanically dismissed the
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complaint lodged by the petitioner. In view of the above reasons stated,
this Court finds infirmity and illegality in the orders passed by the
respondents 1 & 2 as such, the impugned orders cannot be sustained and
are liable to be quashed.
15. Accordingly, the order passed by the first respondent dated
31.10.2023, and the order passed by the second respondent dated
20.07.2023, are hereby quashed. The complaint lodged by the petitioner
is allowed and the settlement deed dated 12.07.2019 registered vide
document No.2273 of 2019, executed in favour of the third respondent, is
declared as null and void. The possession of the subject property shall be
handed over to the petitioner by the third respondent, within a period of
six weeks from the date of receipt of a copy of this Order.
16. With the above directions, the Writ Petition stands allowed.
Consequently, connected miscellaneous petitions are closed. There shall
be no order as to costs.
14.08.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
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rts
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G.K.ILANTHIRAIYAN. J,
rts
To
1. The District Collector,
Office of the Chennai Collectorate,
Chennai – 600 001.
2. The District Revenue Officer,
Office of Chennai Collectorate,
Chennai – 600 001.
ORDER IN
W.P.No.9414 of 2024 and
W.M.P.Nos.10424 & 10425 of 2024
14.08.2024
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