Madras High Court

S.Sundarraj vs The District Collector on 5 January, 2024

Author: G.R.Swaminathan

Bench: G.R.Swaminathan

1 W.P.(MD)NO.6078 OF 2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.01.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.6078 of 2020 AND
W.M.P.(MD)No.5263 of 2020

S.Sundarraj ... Petitioner
Vs.
1. The District Collector,
Madurai District.

2. The Revenue Divisional Officer,
Madurai District.

3. The Sub Registrar,
Thirumangalam,
Madurai District.

4. N.Murugesan
(R-4 is deleted vide order dated 04.05.2020)

5. S.Solappan

6. Puspam @ Perumalakkal ... Respondents

Prayer: Writ petition filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified Mandamus,
calling for the records pertaining to the impugned order dated
02.03.2020 in Ne.Mu.No.482/2020/A1 passed by the 2nd
respondent and quash the same and consequentially to forbear the
respondents 1 and 2 from invoking Section 23(1) of the
Maintenance and Welfare of Parents and Senior Citizens Act 2007
to cancel or to declare as void the settlement deed dated
26.10.2016 registered as Document No.5749/2016 on the file of the
3rd respondent.

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1/14
2 W.P.(MD)NO.6078 OF 2020

For Petitioner : Mr.J.Barathan
For R-1 to R-3 : Mr.M.Lingadurai,
Special Government Pleader.

For R-5 & R-6 : Dr.C.Guhaseelarupan

***

ORDER

Heard both sides.

2. The writ petitioner is the son of respondents 5 and 6.

The parents executed settlement deed dated 26.10.2016 in favour

of the petitioner settling the petition-mentioned land measuring 48

cents(document No.5642/2016). Subsequently, the parents filed a

petition before the Maintenance Tribunal for cancelling the

document. The Maintenance Tribunal vide proceedings dated

02.03.2020 cancelling the settlement deed. Challenging the same,

the present writ petition came to be filed.

3. The learned counsel appearing for the writ petitioner

reiterated all the contentions set out in the affidavit filed in support

of the writ petition and called upon this Court to grant relief as

prayed for.

4. The learned Special Government pleader as well as the

learned counsel for respondents 5 and 6 submitted that the

impugned order does not warrant interference. The learned

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counsel appearing for respondents 5 and 6 submitted that the

parents are become very old and that they are not able to maintain

themselves.

5. I carefully considered the rival contentions and went

through the materials on record.

6. A copy of the settlement deed dated 26.10.2016 has

been enclosed in the typed set of papers. It does not contain any

condition as envisarged under Section 23 of the Maintenance and

Welfare of Parents and Senior Citzens Act. The Hon'ble Supreme

Court in the decision reported in 2022 SCC OnLine SC 1684

(Sudesh Chhikara V. Ramti Devi and Another had held as

follows:-

“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

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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.”

7. The learned counsel appearing for respondents 5 and 6

relied on the order reported in 2023 SCC OnLine Mad 6079

(Mohamed Dayan V. The District Collector, Tiruppur

District, W.P.No.28190 of 2022 dated 08.09.2023). After

referring to the said decision, I had held vide order dated

10.11.2023 W.P(MD)No.27135 of 2023 (Sankarappan Vs.

The Appellate Authority under the Maintenance and Welfare

of Parents and Senior Citizens Act, 2007) as follows:-

“6.With utmost respect, I must hold that https://www.mhc.tn.gov.in/judis

this judgment runs counter to the judgment of the

Hon'ble Division Bench of the Madurai Bench of the

Madras High Court rendered in WA(MD) No.809 of

2023 on 12.06.2023 (R.Sekkappan Vs. S.Kannappan

and Ors). It was held therein that Section 23 of the

Act can be invoked only in respect of the documents

which contain a stipulation that the transferee or

settlee must maintain the senior citizen/s who

executes the document. The same view has been

taken by the Hon'ble High Court of Calcutta in

Himangshu Mondal V. Sachirani Mondal (2023

SCC OnLine Cal 695). After referring Radhamani

V. State of Kerala and Sudesh Chhikara v. Ramti

Devi, it was held as follows :

“17. If the deed of gift in question revolve

around allegations of misrepresentation and fraud,

that can only be the subject matter of a civil suit.

Section 23 of the Act of 2007, cannot confer

jurisdiction on a Magistrate or Sub-divisional Officer

to exercise the power of a regular civil court as

envisaged in the Code of Civil Procedure,

particularly when the pre-condition of Section 23

are not met. The language of the deed of gift does

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not speak that the transfer contemplated in the deed

of gift being conditional upon the transferee

providing the basic amenities and/or basic physical

needs of the transferor. Previous good conduct of

the transferee could be a reason for the gift but

could not be construed as a condition of basic

amenities or physical needs being provided by the

donees to the donor......”

The learned Judge also referred to the

earlier decision of the Division Bench of the Calcutta

High Court in Debashish Mukheree @ Zen Acharya

v. Dr. Sanjib Mukherjee reported in (2018) 1 CHN

481 (Cal) in which it was held as follows :

“12.We have carefully gone through a copy

of the deed of gift dated 29th April, 2015. It is clear

that the flat in question was gifted absolutely and

unconditionally to the appellant reserving no right

at all to the donor being the mother of the appellant.

No conditions were attached that the appellant

would have to provide basic amenities and basic

physical needs to the transferor. Accordingly in our

opinion, section 23 of the Act can have no manner of

application to the facts of the present case”.

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7.In Pokar Ram v. Maintenance

Tribunal cum Sub Divisional Magistrate,

Jodhpur (S.B. Civil Writ Petition No.1841 of 2019

dated 23.02.2023), the Rajasthan High Court held

that for exercising jurisdiction under Section 23 of

the Act, an explicit condition binding the transferee

to provide the basic amenities and basic physical

needs to the transferor has to be incorporated in the

deed of transfer of property.

8.The next question that calls for

consideration is whether in S.Vanitha v. the

Deputy Commissioner (2021) 15 SCC 730, it had

been laid down that the deed of transfer need not

contain any express recital as envisaged by Section

23of the Act and that it can be a matter for

investigation and inference by the Maintenance

Tribunal. I could not find any proposition in

S.Vanitha that can sustain the ratio laid down in

Mohamed Dayan. Vanitha is more on the interplay

between the Domestic Violence Act and the Senior

Citizens Act.

9.The issue can be approached from yet

another perspective. Section 9 of the Transfer of

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Properties Act, 1882 is to the effect that a transfer

of property may be made without writing in every

case in which a writing is not expressly required by

law. Section 54 of the T.P Act, 1882 contemplates

that any sale of property above the value of one

hundred rupees must be made only by a registered

instrument. Section 123 of the Act also contemplates

that gift of immovable property should be effected

only by a registered instrument. A deed of

settlement also has to be in writing. Section 92 of

the Indian Evidence Act, 1872 would forbid

adducing evidence of any oral agreement or

statement for the purpose of contradicting, varying,

adding to or subtracting from the terms of a

document relating to disposition of property

required by law to be reduced to the form of a

document. If a document falling within the scope of

Section 91 and 92 of the Indian Evidence Act is

unconditional, then, its executant cannot

subsequently claim that there was an implied

condition. A deed of transfer envisaged by Section

23 of the Senior Citizens Act would definitely fall

within the scope of Section 91 and 92 of the Indian

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Evidence Act.

10.In the case on hand, in the gift

settlement deeds executed by the petitioner in

favour of his son, there is no condition obliging the

fourth respondent to provide for the basic amenities

and basic physical needs of the writ petitioner. The

petitioner had executed them out of love and

affection. He had undertaken not to cancel the same

for any reason. The transfer is unconditional and

absolute.

11.I, therefore, hold that to invoke Section

23 of the Senior Citizens Act, there must be an

express recital in the deed of transfer that the

transferee is under an obligation to provide the

basic amenities and basic physical needs to the

transferor. If this condition is not expressly

incorporated or found in the deed of transfer, the

jurisdiction of the Maintenance Tribunal will not be

available under Section 23 of the Act. The only

remedy open to the transferor is to move the

jurisdictional Civil Court for relief.''

8. The learned counsel appearing for the petitioner points

out that the Hon'ble Division Bench in the decision reported in

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2023 (6) CTC 870 (D.Devi V. Inspector General of

Registration) had held as follows:-

“ 13. As indicated earlier, the interpretation of Section 23 is central to this dispute. Section 23 is set out below:

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. (Emphasis added) (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.

From the above provision, it follows that Section 23 https://www.mhc.tn.gov.in/judis

can be invoked only if certain conditions are satisfied. The said conditions are:

(i) A senior citizen should transfer the property by way of a gift or otherwise;

(ii) Such transfer should be after the commencement of the Senior Citizens Act; and

(iii) Such transfer should be on condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and the transferee should refuse or fail to provide such amenities and physical needs.

The text of the provision also clearly indicates that the above conditions are cumulative. If all the above conditions are satisfied, the legal fiction is triggered by virtue of which it is deemed-and, therefore, need not be proved-that the transfer is vitiated by fraud or coercion or undue influence. Consequently, the transferee gets the option to avoid the transfer by having the same declared void by the Tribunal formed under the Senior Citizens Act. “

9. Two Hon'ble Division Benches had held that if the

condition as envisarged under Section 23 of the Act is not

incorporated in the settlement deed, Section 23 of the Act cannot

be invoked by the Maintenance Tribunal for cancelling the same.

This aspect of the matter has not been taken note of by the

Maintenance Tribunal. In this view of the matter, the order

impugned in this writ petition is set aside.

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10. It is stated that during the intervening period, the

property in question had been settled in favour of the daughters by

the parents (document Nos.5018/2022). Obviously, the execution of

the settlement deed in favour of the daughters was pursuant to the

order dated 02.03.2020 passed by the Maintenance Tribunal. Since

the impugned order has been set aside as a corollary and

consequence, execution of the settlement of the parents in favour of

the daughters also will have to be nullified. Since the daughters are

not before this Court, this Court will not be justified in passing any

positive declaration. It is seen that the petitioner had already filed

O.S.No.16 of 2020 before the Principal District Munsif,

Thirumangalam. The learned trial Judge is directed to dispose of

the said suit within a period of three months from the date of

receipt of a copy of this order. The petitioner can very well produce

this writ order before the learned trial Munsif and get appropriate

decree in his favour.

11. The issue cannot rest there. Since the parents settled

48 cents of the land in favour of the petitioner, the petitioner has a

duty to take care of his parents. The petitioner is present before

this Court and he categorically states that he is earning hardly

Rs.14,000/-. He has a family(wife and two daughters) to maintain.

The petitioner states that the parents are residing in their own

house and that he was residing along with them till four years ago.

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If the parents take him take, the petitioner's family will maintain

and take care of the parents. This undertaking given by the

petitioner is placed on record. I hope the differences between the

parents and the son and his family would be amicably resolved. If

the arrangement proposed by the petitioner does not take place, it

is open to the parents to approach the Maintenance Tribunal to

claim appropriate relief. As and when any such petition is filed, the

same will be disposed of by the Maintenance Tribunal within a

period of two months thereafter. This writ petition stands allowed

on these terms. No costs. Consequently, connected miscellaneous

petition is closed.




                                                                             05.01.2024

                     NCC      : Yes / No
                     Index    : Yes / No
                     Internet : Yes/ No
                     PMU

Note : Issue order copy on 09.01.2024.

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