Madras High Court
R.Haridoss vs The District Collector/ on 4 June, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.21653 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.06.2024
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.21653 of 2021
and
W.M.P.No.22833 of 2021
R.Haridoss .... Petitioner
Vs
1. The District Collector/
The Appellate Authority
Thiruvannamalai District Parent and
Senior Citizens Welfare and Maintenance
Dispute Redressal Tribunal,
Tiruvannamalai – 606 604.
2. Revenue Divisional Officer/
Sub Divisional Member,
Parent and Senior Citizens Welfare and Maintenance
Dispute Redressal Tribunal,
Tiruvannamalai Revenue Division,
Tiruvannamalai.
3. Rayar .... Respondents
Prayer:- Writ Petition filed under Article 226 of Constitution of India
for the issuance of Writ of Certiorari, calling for the records of the first
respondent in Case No.I3/38548/2021 dated 24.08.2021 cancelling the
settlement deed Doc.No.2963/2019 executed in favour of the petitioner
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Page 1 of 16
W.P.No.21653 of 2021
in so far as it relates to 0.82.0 Ares in Survey No.111/3A of Udayanandal
Village, Tiruvannamalai District and to quash the same.
For Petitioner : M/s.Radhagopalan,
Senior Counsel
for M/s.G.P.Bhargavi
For R1 & R2 : Mr.S.J.Mohammed Sathik
Government Advocate
For R3 : Mr.P.Veeraraghavan
ORDER
This Writ Petition has been filed challenging the order
passed by the first respondent dated 24.08.2021, thereby cancelling the
settlement deed by the third respondent in favour of the petitioner.
2. Heard the learned counsel appearing on either side and
perused the materials available on record.
3. The petitioner is the son of the third respondent. The
third respondent owned property to an extent of 3.66 acres. He had
executed a settlement deed in favour of the petitioner by a settlement
deed dated 25.09.2019 registered vide Document No.2963 of 2019.
Immediately, on 24.10.2019, the third respondent filed a petition under
Section 23 of The Maintenance and Welfare of Parents and Senior
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Citizens Act, 2007 (hereinafter referred as the “Act”), to cancel the
settlement deed executed in favour of the petitioner before the first
respondent. The said application was forwarded to the second
respondent and the second respondent conducted a detailed enquiry.
However, after recording the statements from all the family members, the
second respondent concluded that the petitioner is ready to maintain the
third respondent and the property, which was settled in favour of the
petitioner, is in possession and enjoyment of the third respondent herein.
Therefore, the petition filed by the third respondent was closed.
Aggrieved by the same, the third respondent preferred an appeal before
the first respondent. After considering the facts and circumstances, the
first respondent allowed the appeal filed by the third respondent and
cancelled the settlement deed executed in favour of the petitioner.
Aggrieved by the same, the petitioner filed this present writ petition.
4. The learned Senior Counsel appearing for the petitioner
submitted that the third respondent had executed a sale deed in favour of
the petitioner in respect of the property comprised in Survey No.111/3
admeasuring 0.86.0 hectares out of which 0.82.0 hectares and the same
has been now cancelled under Section 23(1) of the Act.
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5. A perusal of the statement recorded from the family
members reveals that the petitioner is ready to maintain the third
respondent and also willing to pay a sum of Rs.5,000/- as monthly
maintenance to the third respondent. Further the third respondent is
living separately for the past twenty years.
6. A perusal of the settlement deed reveals that there was no
specific clause in respect of maintenance of the third respondent as
consideration. In order to invoke the provision under Section 23(1) of
the Act, two conditions must be fulfilled. The settlement deed shall
contain a condition clause to maintain the settlor by the settlee. Further,
there must be a violation of the said condition to apply Section 23(1) of
the Act to cancel the settlement deed. In fact, as per Section 23(2) of the
Act, 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. When the petitioner
is always ready and willing to maintain the third respondent and also he
is willing to pay a sum of Rs.5,000/- as monthly maintenance to the third
respondent, who has refused to receive the same, the petitioner cannot be
blamed. Further, the third respondent is still in possession and
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enjoyment of the property, which was already settled in favour of the
petitioner. Therefore, the first respondent ought not to have allowed the
petition filed by the third respondent.
7. In support of his contention, she relied upon the
Judgment passed by this Court in W.P.(MD) No.27135 of 2023 in the
case of Sankarappan Vs. The Appellate Authority under the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
This Court relied upon the Judgment of the Hon'ble Supreme Court of
India in the case of Sudesh Chhikara Vs. Ramti Devi reported in 2022
SCC Online 1684 and also the Judgment passed by this Court in
W.P.No.28190 of 2022 dated 08.09.2023 in the case of Mohammed
Dayan Vs. The District Collector, Tiruppur District, where in, it was
held that in order to invoke Section 23(1) of the 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.
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8. This Court had already dealt with the very same issue in a
detailed manner. It is relevant to extract the provision under Section 23
of the Act, which 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 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.”
11. Section 23 of the Act provides that when a
property has been transferred by way gift or otherwise by
the senior citizen on the condition that the transferee or
ownee shall provide the basic amenities and basic
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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 from Tribunal that such transfer was void.”
9. In the case on hand, the third respondent had executed a
settlement deed in favour of the petitioner and the recital of the
settlement deed revealed that being pleased with the care, love, affection,
respect and good behaviour, the third respondent had executed the
settlement deed in favour of the petitioner. Further, though no
consideration was passed for the execution of the 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 third respondent in the settlement deed would
expect, in the natural course of human conduct, that the settlee viz., the
petitioner, 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.
10. Thus, in the absence of any other circumstances, it must
be presumed that the settlor expects continuation of the care and love
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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 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. Further, Section 23 (2) 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.
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11. It is also relevant to rely upon the judgement of this
Court in W.P.No.28190 of 2022 dated 08.09.2023 in the case of
Mohamed Dayan -vs- District Collector, wherein, 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, it was held as follows:-
“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
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medical facilities, food, shelter and other
requirements with dignity in commensuration with the
status of the family and 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 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
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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 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
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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 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
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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 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, 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.
44. In respect of the judgment relied on by the
petitioner in the case of Sudesh Chhikara vs. Ramti
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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
petitioner is of no avail as far as the present facts and
circumstances of the case on hand is concerned.”
12. The above case is squarely applicable to the case on
hand. That apart, the specific case of the third respondent is that on
25.09.2019, on compulstion with coercion, he was taken to the Registrar
Office and threatened to execute the settlement deed in favour of the
petitioner. Thereafter, the third respondent and his wife were not
maintained by the petitioner and the petitioner also failed to repay the
loan amount which was borrowed to dig up the well and also borewell.
Therefore, the third respondent had executed the settlement deed out of
love and affection to support the petitioner and for the betterment of his
future life. Without there being any recital, the natural expectation of a
father is that he should be maintained by his son till his life time.
Therefore, the recital shown in the settlement deed would be enough to
satisfy the requirements of Section 23(1) of the Act. Hence, this Court
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finds no infirmity or illegality in the orders passed by the Tribunal.
Thus, the writ petition is devoid of merits and is liable to be dismissed.
13. Accordingly, this writ petition stands dismissed.
Consequently, connected miscellaneous petition is closed. No costs.
04.06.2024
Internet : Yes
Index : Yes/No
Speaking/Non-speaking order
Neutral Citation : Yes/No
Lpp
To
1. The District Collector/
The Appellate Authority
Thiruvannamalai District Parent and
Senior Citizens Welfare and Maintenance
Dispute Redressal Tribunal,
Tiruvannamalai – 606 604.
2. Revenue Divisional Officer/
Sub Divisional Member,
Parent and Senior Citizens Welfare and Maintenance
Dispute Redressal Tribunal,
Tiruvannamalai Revenue Division,
Tiruvannamalai.
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G.K.ILANTHIRAIYAN, J.
Lpp
04.06.2024
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