Madras High Court
N.Sornam vs The Appellate Authority on 7 August, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.2133 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.2133 of 2024
and W.M.P.Nos.2281 & 2287 of 2024
N.Sornam ... Petitioner
-Vs-
1. The Appellate Authority
cum the District Collector,
Namakkal District,
District Collectorate,
Thiruchengode – Namakkal – Trichy Road,
Namakkal – 637 001.
2. The Executive Magistrate &
Revenue Divisional Officer,
Thiruchengode,
RTO Office Road,
Nammak – 637 214.
3. The Sub Registrar,
Thiruchengode,
Thiruchengode-Paramathi Velur Road,
Thondikaradu, Tiruchengode,
Namakkal – 637 211.
4. G.Premalatha ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the entire
https://www.mhc.tn.gov.in/judis
Page 1 of 23
W.P.No.2133 of 2024
records pertaining to the order passed by the first respondent dated
26.03.2023 in proceedings bearing No.Na.Ka.No.762/Pe.Pa.Sa/2022,
confirming the order passed by the second respondent dated 18.10.2021
in proceedings bearing No.Pa.Mu.1650/2021/C, and quash the same and
consequently direct the third respondent to cancel the gift settlement deed
dated 17.12.2015, registered as Document No.8146 of 2015.
For Petitioner : Mr.S.I.Sharukumar
For Respondents
For R1 & R2 : Mr.P.Gurunathan
Additional Government Pleader
For R3 : Mr.P.Anandakumar
Government Advocate
For R4 : Mr.K.R.Arun Shabari
ORDER
This writ petition has been filed challenging the order 26.03.2023 on the file of the first respondent, thereby confirming the order passed by the second respondent dated 18.10.2021, thereby dismissing the complaint lodged by the petitioner seeking cancellation of the Gift Settlement deed dated 17.12.2015, under the Maintenance and Welfare of Parents and Senior Citizen Act, 2017 (hereinafter referred to as “the Act”).
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2. The petitioner got married with one Narayana Chettiyar and gave birth to four sons and two daughters. The petitioner and her husband were doing hotel business for more than 40 years and out of the income, they had given good education to their children. The fourth respondent is the grand daughter of the petitioner, who was born to their eldest son viz., T.N.Ganaprakash. They had handed over the entire management and ownership of the hotel in his favour and also the petitioner had executed settlement deed in respect of the property ad measuring 0.0016.0 sq.mt., situated at Thiruchengodu Village, Namakkal District, in favour of the fourth respondent, who is the daughter of their eldest son, by the registered settlement deed vide document No.8146 of 2015 dated 17.12.2015. It was executed under the hope that the fourth respondent would take care of the petitioner and her husband during their life time with love and affection. The said property was purchased by the petitioner and her husband out of their own income and also they put up a house in the said property. Even after the settlement deed executed in favour of the fourth respondent, they are in possession and enjoyment of the said property.
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3. While being so, unfortunately, their eldest son T.N.Ganaprakash died in a road accident on 27.05.2021. Immediately, his legal heirs including the fourth respondent have taken over the hotel business and directed the petitioner and her husband to vacate the property. She also failed to maintain the petitioner as such the petitioner filed complaint before the second respondent under Section 23 of the Act, seeking declaration that the settlement deed dated 17.12.2015 is null and void. However, the second respondent dismissed the said complaint on the ground that there was no explicit conditions as stipulated under Section 23(1) of the Act, in the settlement deed dated 17.12.2015. Aggrieved by the same, the petitioner preferred an appeal before the first respondent and the same was also dismissed on the very same ground.
4. The learned counsel appearing for the fourth respondent submitted that the petitioner failed to fulfill the two conditions as contemplated under Section 23 of the Act. The Gift Settlement deed dated 17.12.2015 does not contain any clause that the fourth respondent shall have to maintain the petitioner till her 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 https://www.mhc.tn.gov.in/judis Page 4 of 23 W.P.No.2133 of 2024 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.
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 https://www.mhc.tn.gov.in/judis Page 5 of 23 W.P.No.2133 of 2024 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 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 https://www.mhc.tn.gov.in/judis Page 6 of 23 W.P.No.2133 of 2024 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. There is no specific clause in the Settlement deed dated 17.12.2015, in order to maintain the petitioner, executed in favour of the fourth respondent. Therefore, the complaint lodged by the petitioner was rightly dismissed by the second respondent and the same was also confirmed by the first respondent. https://www.mhc.tn.gov.in/judis Page 7 of 23 W.P.No.2133 of 2024
5. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
6. The petitioner lodged complaint to cancel the Gift Settlement deed executed in favour of the fourth respondent on 17.12.2015 vide document No.8146/2015. On perusal of the settlement deed executed in favour of the fourth respondent revealed that the petitioner had settled the property in order to make arrangement for the fourth respondent during her life time to settle her down. It was executed due to love and affection on the fourth 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 influence and shall at the option of the transferor be https://www.mhc.tn.gov.in/judis Page 8 of 23 W.P.No.2133 of 2024 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.
7. 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 and basic physical needs to the transferor or the owner, but such https://www.mhc.tn.gov.in/judis Page 9 of 23 W.P.No.2133 of 2024 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 17.12.2015 as follows:-
@////,g;gt[k; ehd; cd; kPJ md;g[k;
ghrKk; bfhz;oUg;gjhYk; mJnghy; ePa[k;
vd;kPJ ghrKk; bfhz;oUg;gjhYk;. ePa[k;
vdf;F rfytpjkhd gzptpilfisa[k;
brsfhpa';fisa[k; kd';nfhzhky; bra;J
tUfpwgoahYk;. ,dpa[k; ,Jnghy; nkw;go
gzptpilfisa[k; brsfhpa';fisa[k; eP
vdf;F bra;tha; vd;w ek;gpf;ifapYk; nkYk;.
ehd; cd; kPJ bfhz;oUf;Fk; jdpg;gl;l
md;gpdhYk;. gphpaj;jhYk; ,jd; fPH brhj;J
tptuj;jpy; tpthpf;fg;gl;Ls;s brhj;Jf;is cd;
bgaUf;F vGjp itj;J cdf;F xU
epue;jukhd Mjut[ bra;J itf;f
ntz;Lbkd;w vd;Dila beLehisa
tpUg;gj;ij g{h;j;jp bra;J bfhs;Sk; bghUl;L vjph;fhyj;jpy; eP ey;yKiwapy; brsfhpakhf https://www.mhc.tn.gov.in/judis Page 10 of 23 W.P.No.2133 of 2024 thHntz;Lbkd;gjhYk; cd; bgaUf;F ,jd;
fPH; brhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s
brhj;ij ehd; jhdbrl;oy;bkz;l bra;J
itj;J ,d;nw ,jd;fH
P ; brhj;J tptuj;jpy;
tpthpf;fg;gl;Ls;s brhj;jpd; RthjPdj;ij
cd;dplk; xg;gilj;J tpl;nld;/@
8. On a perusal of the settlement deed, it reveals that being pleased with the care, love, affection, respect and good behaviour, the grandmother had executed settlement deed as a reward in favour of her granddaughter and in discharge of her responsibilities towards the granddaughter, she has also given future security to the granddaughter. 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.
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9. 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 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 settlee 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.
10. 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 https://www.mhc.tn.gov.in/judis Page 12 of 23 W.P.No.2133 of 2024 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 counsel appearing for the fourth respondent, 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 https://www.mhc.tn.gov.in/judis Page 13 of 23 W.P.No.2133 of 2024 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 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 https://www.mhc.tn.gov.in/judis Page 14 of 23 W.P.No.2133 of 2024 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 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 https://www.mhc.tn.gov.in/judis Page 15 of 23 W.P.No.2133 of 2024 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 affection by the senior citizen towards the person in favour of whom such Gift or Settlement https://www.mhc.tn.gov.in/judis Page 16 of 23 W.P.No.2133 of 2024 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 https://www.mhc.tn.gov.in/judis Page 17 of 23 W.P.No.2133 of 2024 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 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- https://www.mhc.tn.gov.in/judis Page 18 of 23 W.P.No.2133 of 2024 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.” The above case is squarely applicable to the case on hand.
11. In respect of the judgment relied on by the fourth 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 fourth respondent is of no avail as far as the present facts and circumstances of the case on hand is concerned. https://www.mhc.tn.gov.in/judis Page 19 of 23 W.P.No.2133 of 2024
12. On perusal of the statement recorded from the petitioner, it is crystal clear that the fourth respondent refused to maintain the petitioner and also driven out the petitioner from the property which was settled in favour of the fourth respondent. Now she is in street and she is struggling for her daily livelihood. 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 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.
13. Accordingly, the order passed by the first respondent dated 26.03.2023, and the order passed by the second respondent dated 18.10.2021, are hereby quashed. The complaint lodged by the petitioner is allowed and the settlement deed dated 17.12.2015 registered vide document No.8146 of 2015, executed in favour of the fourth respondent, is declared as null and void. The possession of the subject property shall be handed over to the petitioner by the fourth respondent, within a period of six weeks from the date of receipt of a copy of this Order. https://www.mhc.tn.gov.in/judis Page 20 of 23 W.P.No.2133 of 2024 https://www.mhc.tn.gov.in/judis Page 21 of 23 W.P.No.2133 of 2024
14. With the above directions, the Writ Petition stands allowed. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
07.08.2024 Index : Yes/No Speaking/Non Speaking order Neutral Citation : Yes/No rts To
1. The Appellate Authority cum the District Collector, Namakkal District, District Collectorate, Thiruchengode – Namakkal – Trichy Road, Namakkal – 637 001.
2. The Executive Magistrate & Revenue Divisional Officer, Thiruchengode, RTO Office Road, Nammak – 637 214.
3. The Sub Registrar, Thiruchengode, Thiruchengode-Paramathi Velur Road, Thondikaradu, Tiruchengode, Namakkal – 637 211.
https://www.mhc.tn.gov.in/judis Page 22 of 23 W.P.No.2133 of 2024 G.K.ILANTHIRAIYAN. J, rts W.P.No.2133 of 2024 and W.M.P.Nos.2281 & 2287 of 2024 07.08.2024 https://www.mhc.tn.gov.in/judis Page 23 of 23