Madras High Court
Natchimuthu vs The District Collector on 28 June, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.17272 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2024
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.17272 of 2021
and
W.M.P. Nos. 18295 and 18296 of 2021
1. Natchimuthu
2. Chinnappan ... Petitioners
Vs
1. The District Collector,
Tiruppur District,
Tiruppur.
2. The Revenue Divisional Officer,
Udumalpet,
Tiruppur District.
3. Kaliammal ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, calling for the records relating to
impugned order dated 30.07.2021 passed by the first respondent in Na. Ka.
No. 19893/2020/E1, quash the same.
1/9
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W.P.No.17272 of 2021
For Petitioners : Mr. D.R.Arun Kumar
For Respondents : Mr. S.J.Mohamed Sathik,
Government Advocate (for R1 & R2)
Mr. B.Srinivasan (for R3)
ORDER
This Writ Petition has been filed challenging the order dated
30.07.2021 passed by the first respondent.
2. The third respondent married one Karuppuchamy and they gave
birth to the petitioners and one daughter. The petitioners as well as her
daughter got married and living separately. The petitioners failed to look
after their father and he is in custody of only daughter. The petitioners did
not even provide food and medical facilities. While that being so, on
27.02.2020, the petitioners by misrepresenting and also on compulsion, the
third respondent had executed settlement deeds in respect of the properties,
which were purchased by her. Immediately on 28.08.2020, the first
petitioner executed a sale deed in favour of the third party in respect of part
of the property. Therefore, the third respondent and her husband are in street
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and they were not provided any maintenance and also medical facilities.
Subsequently, the third respondent filed a complaint under Section 23 of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007
(hereinafter referred to as 'the Act' for short) before the second respondent.
The second respondent after due enquiry without declaring the settlement
deeds which were executed by the third respondent in favour of the
petitioner as void, ordered maintenance of Rs.7,000/- by the first petitioner
and a sum of Rs.3,000/- by the second petitioner payable to the third
respondent. Aggrieved by the same, the third respondent filed appeal before
the first respondent and after due enquiry, the first respondent cancelled the
settlement deeds, which were executed by the third respondent in favour of
the petitioners under Section 23(1) of the Act. Aggrieved by the same, the
present Writ Petition has been filed.
3. The learned counsel for the petitioners submitted that when the
third respondent made specific allegations of fraud, she has to prove the
fraud before the authority concerned. The Order 6 Rule 4 of CPC
contemplates, the third respondent should provide necessary particulars such
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as, exemplified in the forms aforesaid, particulars (with dates and items if
necessary) shall be stated in the pleading. Whereas, the complaint lodged by
the third respondent fails to provide specific particulars and events in
support of the allegations of the fraud. He further stated that the settlement
deeds do not contain any conditions requiring the maintenance of the third
respondent upon their execution.
4. In support of his contentions, the learned counsel for the
petitioners relied upon the Hon'ble Supreme Court of India in the case of
Sudesh Chhikara -vs- Ramti Devi (Order dated 06.12.2022 in Civil Appeal
No. 174 of 2021), 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
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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.
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
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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 (1) of Section 23 were not satisfied.
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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.”
5. 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
settlor or transferee to maintain settlor or transferee.
6. In view of the above, this Court finds no infirmity or illegality in
the impugned order passed by the first respondent and the Writ Petition is
devoid of merits and it is liable to be dismissed.
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7. Accordingly, this Writ Petition is dismissed. Consequently, the
connected Miscellaneous Petitions are closed. No costs.
28.06.2024
Index:Yes/No
Neutral Citation/Yes/No
kv
To
1. The District Collector,
Tiruppur District,
Tiruppur.
2. The Revenue Divisional Officer,
Udumalpet,
Tiruppur District.
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G.K.ILANTHIRAIYAN, J.
kv
28.06.2024
https://www.mhc.tn.gov.in/judis
