SUDESH CHHIKARA versus RAMTI DEVI & ANR

[2022] 17 S.C.R. 876

[2022] 17 S.C.R.

SUDESH CHHIKARA

RAMTI DEVI & ANR.

(Civil Appeal No. 174 of 2021)

BDECEMBER 06, 2022

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Maintenance and Welfare of Parents and Senior Citizens Act,2007:s. 23 – Transfer of property to be void in certain circumstances– Applicability of s. 23(1) – When – Held: Effecting transfer subjectCto condition of providing the basic amenities and basic physicalneeds to the transferor-senior citizen is sine qua non for applicabilityof sub-section (1) of s. 23 – When transferee refuses or fails toprovide such amenities and physical needs to the transferor, thetransfer shall be deemed to have been made by fraud or coercionDor undue influence, and becomes voidable at the instance of thetransferor and the Maintenance Tribunal – Very often, senior citizenexecutes gift or release or otherwise in favour of his or hernear and dear ones, out of love and affection without any expectationin return, condition of looking after the senior citizen is notnecessarily attached to it – Thus, when it is alleged that the conditionsEmentioned in s. 23(1) are attached to transfer, existence of suchconditions must be established before the tribunal – Perusal of thepetition u/s. 23 filed by respondent no.1-senior citizen shows that itwas not even pleaded by respondent no.1 that the release deed wasexecuted subject to condition that the transferees-daughters ofFsenior citizen would provide the basic amenities and basic physicalneeds to the senior citizen – No such finding was recorded by thetribunal – It was merely pleaded that the daughter had no intentionto take care of her mother – Thus, the order of the tribunal and theHigh Court cannot be sustained and, set aside.

GCIVIL APPELLATE JURISDICTION: Civil Appeal No. 174 of2021.

From the Judgment and Order dated 21.05.2019 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition No. 16581 of2018.

Kanhaiya Singhal, Chetan Bhardwaj, Prasanna, Udit Bakshi, PriyalAGarg, Ajay Kumar, Advs. for the Appellant.

Sunil Fernandes, P. Ramesh, Ms. Nupur Kumar, Ms. Diksha Dadu,Surya Nath Pandey, Divakar Kumar, Gagan Gupta, Advs. for theRespondents.

The Judgment of the Court was delivered by

ABHAY S. OKA, J.

FACTUAL DETAILS

1. This appeal arises out of petition filed by respondent no.1under Section 23 of the Maintenance and Welfare of Parents and SeniorCCitizens Act, 2007 (for short, ‘the 2007 Act’).

2. Respondent no.1 acquired land bearing Khewat no.87, Khatonino.124, Khasra no.315 measuring 1 bigha 18 biswa. She also acquired aland bearing Khewat No.247, Khasra No.269 (4 bighas 0 biswa) totallymeasuring 5 bighas and 3 biswa in Village Basai, Tehsil and DistrictDGurugram, Haryana. She claimed that the acquisition was by way ofinheritance from her father. The family tree of the parties is as under:

3. Respondent no.1 executed release deed in respect of partof the subject property in favour of her daughters (the appellant andsecond respondent’s mother). The said release deed (no.18151) wasexecuted on 14[th] November 2008 and was duly registered. As per thesaid release deed, the daughters became the owners of one-third shareeach in the property subject matter of the release deed. It is also brought

Aon record that on 24[th] March 2009, the respondent no.1 executed anotherrelease deed (no.25502) in respect of one-fourth share in the landsbearing Khasra No.269. The said release deed was executed byrespondent no.1 in favour of her son Sunder. Another release deed(no.25504) was executed by respondent no.1 in favour of her son Sunderon the same day in respect of one-half share in the lands bearing KhasraBNo.315, Khasra No.314 and Khasra No.341. Both the release deedswere registered. Respondent no.1, the appellant and the secondrespondent’s mother filed Civil Suit no.175 of 2010 in the Civil Courtessentially for challenging the release deed dated 24[th] March 2009(no.25504). The Civil Court by judgment and decree dated 17[th] JulyC2015 declared the release deed dated 24[th] March 2009 as null and void.The Civil Court held that the release deed shall not bind respondent no.1,the appellant and the mother of respondent no.2. Civil Suit no.234 of2010 was filed by respondent no.1, the appellant and the secondrespondent’s mother for the same relief in respect of the other releasedeed (no.25502). similar decree was passed in this suit on 19[th] MarchD2015.

4. According to the case of respondent no.1, her son Sunder andgrandson Manish preferred appeals against the aforesaid decrees. Duringthe pendency of the appeals, they sold the property subject matter of therelease deeds dated 24[th] March 2009 to third party.E

5. Respondent no.1 filed petition under Section 23 of the 2007Act before the Maintenance Tribunal (Sub-Divisional Magistrate). Inthe petition, respondent no.1 stated that her relationship with her son anddaughters was strained and therefore, her son and daughters were notmaintaining her. The contention of respondent no.1 was that the releaseFdeed executed by her in favour of her two daughters on 14[th] November2008 was illegal and void. Accordingly, prayer was made in the petitionunder Section 23 for cancellation of the said release deed dated 14[th]November 2008.

6. The petition under Section 23 filed by respondent no.1 wasGcontested by the appellant. The Maintenance Tribunal finally decidedthe petition by judgment and order dated 22[nd] May 2018. It was held thatthe release deed dated 14[th] November 2008 was null and void. TheMaintenance Tribunal recorded finding that respondent no.1’s childrenwere not willing to take her care.

7. The present appellant along with respondent no.2 challengedthe order of the Maintenance Tribunal by way of writ petition beforethe High Court. By the impugned judgment, the order of the MaintenanceTribunal has been confirmed.

SUBMISSIONS

8. The learned counsel appearing for the appellant urged that theHigh Court has not adverted to the facts of the case at all. He pointedout that respondent no.1’s son withdrew the appeals preferred by himagainst the decrees passed in the civil suits filed by respondent no.1 bywhich release deeds executed in his favour were held to be null andvoid. His submission is that respondent no.1’s son has joined hands withher and under his pressure that respondent no.1 filed the petition underSection 23. He submitted that there is no material placed on recordbefore the Maintenance Tribunal and the High Court to even indicatethat the execution of the release deed was vitiated by fraud or coercionor undue influence. Another submission is that the Maintenance Tribunaldid not hold any inquiry as contemplated by the 2007 Act. He submittedthat the ingredients of Section 23 were not established.9. The learned counsel for the appellant further submitted that thefact that the appellant is widow and was not residing with respondentno.1, has been completely overlooked by the Maintenance Tribunal. Hesubmitted that it was obvious that the petition under Section 23 was filedby respondent no.1 at the instance of her son. He pointed out that in thecivil suits filed by respondent no.1, both the appellant and her sister(respondent no.2’s mother) were co-plaintiffs with respondent no.1. Thelearned counsel submitted that the High Court has not even adverted tothe merits of the challenge while passing the impugned judgment.

10. The learned counsel appearing for respondent no.1 invitedour attention to the findings recorded by the Maintenance Tribunal. Hepointed out that the property obtained by the appellant and her sisterunder the release deed was sold by them to one Shri Anil Gahlot. Hesubmitted that even the said purchaser has filed an affidavit before theTribunal recording his no objection for the grant of the relief sought byrespondent no.1. He submitted that as noted by the Maintenance Tribunal,respondent no.1 filed an affidavit unequivocally stating that she will nottransfer by way of gift or release any property in favour of her son ordaughter. The learned counsel submitted that this shows that respondent

Ano.1 - mother has not acted at the instance of her son. He urged that theTribunal after holding due inquiry has held in favour of respondent no.1who is more than 80 years old. He submitted that High Court has rightlynot interfered in writ jurisdiction.

CONSIDERATION OF SUBMISSIONSB

11. We have given careful consideration to the submissions. Beforedealing with the factual aspects, it is necessary to advert to the legalaspects. The Sub-Divisional Magistrate acting as the MaintenanceTribunal under the 2007 Act has invoked the power under Section 23 todeclare that the subject release deed was void. The 2007 Act has beenCenacted for the purposes of making effective provisions for themaintenance and welfare of parents and senior citizens guaranteed andrecognized under the Constitution of India. The Maintenance Tribunalhas been established under Section 7 to exercise various powers underthe 2007 Act. Section 8 provides that the Maintenance Tribunal, subjectDto any rules which may be framed by the Government, has to adopt suchsummary procedure while holding inquiry, as it deems fit. Apart from thepower to grant maintenance, the Tribunal exercises important jurisdictionunder Section 23 of the 2007 Act which reads thus:

“23. Transfer of property to be void in certainEcircumstances.— (1) Where any senior citizen who, afterthe commencement of this Act, has transferred by way ofgift or otherwise, his property, subject to the conditionthat the transferee shall provide the basic amenities andbasic physical needs to the transferor and such transfereerefuses or fails to provide such amenities and physicalFneeds, the said transfer of property shall be deemed tohave been made by fraud or coercion or under undueinfluence and shall at the option of the transferor bedeclared void by the Tribunal.

(2) Where any senior citizen has right to receive maintenanceout of an estate and such estate or part thereof is transferred,the right to receive maintenance may be enforced against thetransferee if the transferee has notice of the right, or if thetransfer is gratuitous; but not against the transferee forconsideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rightsunder sub-sections (1) and (2), action may be taken on hisbehalf by any of the organisation referred to in Explanation tosub-section (1) of section 5.”

(emphasis added)

12. Sub-section (1) of Section 23 covers all kinds of transfers asis clear from the use of the expression “by way of gift or otherwise”.For attracting sub-section (1) of Section 23, the following two conditionsmust be fulfilled:

a.The transfer must have been made subject to the conditionthat the transferee shall provide the basic amenities andbasic physical needs to the transferor; and

b.the transferee refuses or fails to provide such amenitiesand physical needs to the transferor.

If both the aforesaid conditions are satisfied, by legal fiction, thetransfer shall be deemed to have been made by fraud or coercion orundue influence. Such transfer then becomes voidable at the instanceof the transferor and the Maintenance Tribunal gets jurisdiction to declarethe transfer as void.

13. When senior citizen parts with his or her property by executinga gift or release or otherwise in favour of his or her near and dearones, condition of looking after the senior citizen is not necessarilyattached to it. On the contrary, very often, such transfers are made outof love and affection without any expectation in return. Therefore, whenit is alleged that the conditions mentioned in sub-section (1) of Section23 are attached to transfer, existence of such conditions must beestablished before the Tribunal.

14. Careful perusal of the petition under Section 23 filed byrespondent no.1 shows that it is not even pleaded that the release deedwas executed subject to condition that the transferees (the daughtersof respondent no.1) would provide the basic amenities and basic physicalneeds to respondent no.1. Even in the impugned order dated 22[nd] May2018 passed by the Maintenance Tribunal, no such finding has beenrecorded. It seems that oral evidence was not adduced by the parties.As can be seen from the impugned judgment of the Tribunal, immediatelyafter reply was filed by the appellant that the petition was fixed for

Aarguments. Effecting transfer subject to condition of providing thebasic amenities and basic physical needs to the transferor – senior citizenis sine qua non for applicability of sub-section (1) of Section 23. In thepresent case, as stated earlier, it is not even pleaded by respondent no.1that the release deed was executed subject to such condition.

B15. We have perused the counter affidavit filed by respondentno.1. Even in the counter, it is not pleaded that the release was subject tosuch condition. It is merely pleaded that the appellant had no intentionto take care of her mother. Thus, the order of the Maintenance Tribunalcannot be sustained as the twin conditions incorporated in sub-Section(1) of Section 23 were not satisfied. Unfortunately, the High Court hasCnot adverted to the merits of the case at all.

16. There is an application for intervention on behalf of developer.The intervenor claims that he is bona fide buyer of part of the landsubject matter of the release deed from the appellant and that he hascarried out substantial work of development. It is not necessary for us toDdeal with the rights claimed by the intervenor. All questions regardingthe rights claimed by the intervenor are left open to be decided inappropriate proceedings.

17. Hence, for the reasons recorded above, the appeal is allowed.The impugned order dated 22[nd] May 2018 passed by the MaintenanceETribunal as well as the order dated 21[st] May 2019 passed by the HighCourt are hereby set aside and the petition filed by respondent no.1under Section 23 of the 2007 Act stands dismissed. There shall be noorder as to costs.

FNidhi Jain

Appeal allowed.