Gujarat High Court
Ajay Jagdishchandra Dandawala vs Jayantilal Dayabhai Bhagat on 5 July, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/13553/2019 ORDER DATED: 05/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13553 of 2019
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AJAY JAGDISHCHANDRA DANDAWALA
Versus
JAYANTILAL DAYABHAI BHAGAT
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Appearance:
MR VISHWAS K SHAH(5364) for the Petitioner(s) No. 1
MS MOHINI K SHAH(775) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MR MASOOM K SHAH(6516) for the Respondent(s) No. 1.1
MR PRASHANT MANKAD(2189) for the Respondent(s) No. 1.2
MR. SHIVAM DIXIT, AGP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/07/2023
ORAL ORDER
1. Heard Mr. Vishwas Shah, the learned advocate appearing for the petitioner and Mr. Prashant Mankad, the learned advocate appearing for respondent No.1.2, Mr. Masoom Shah, the learned advocate appearing for respondent No.1.1 and Mr. Shivam Dixit, the learned AGP appearing for the respondent No.2.
2. The petitioner herein has preferred the present petition being aggrieved by the impugned order dated 24.6.2019 passed in Appeal No.1/2019 by Hon'ble Presiding Officer- Appellate Tribunal and Resident Page 1 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined Additional Collector, Surat under the Maintenance and Welfare of Parents and Senior Citizens Act ,2007 (for short "the Act").
3. Respondent No.1 herein was petitioner's maternal grandfather. The wife of respondent No.1 expired in the year 2009 and respondent No.1 expired on 16.1.2022 pending the present petition. Respondent No.1 having expired, the legal heirs of respondent No.1 came to be brought on record by order dated 13.2.2023. Respondent No.1.1. is the petitioner's mother and respondent No.1's daughter and respondent No.1.2 is the petitioner's uncle and deceased respondent No.1's son.
4. In the aforesaid set of facts, Mr. Vishwas Shah, the learned advocate submitted that respondent No.1 owned two properties i.e. property No.11 and 12, Khatodara, District: Surat. It is submitted that the property No.11 came to be gifted to the petitioner in the year 2011 by Gift Deed dated 21.6.2011 by the virtue of which the Page 2 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined property more particularly described as Mouje Khatodara RS No.30 paiki, T.P. Scheme No.6, Final Plot No.244 A,B, Plot No.11 admeasuring about 166.30 sq. mtrs City Survey No.1158 was given to the petitioner. Respondent No.1.2 being maternal uncle of the petitioner is herein is currently in possession of Plot No.12.
5. The deceased respondent No.1, preferred an application before the competent authority under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (56 of 2007), which is duly produced at Page-65 and 66, and sought the following reliefs:
"Subject: Make suo-motu legal proceeding to make old aged senior citizen applicant to get their property back in their name which was transferred subject to condition of maintenance of old aged couple lifetime full hearted failing applicant get mentally tortured and not served as cause of transfer of property made in respondent name. Please also file case of violation of above stated legal provisions against respondent.
PROPERTY detail- Mouje Khatodara, block 30p, T.P.- 6, FP- 244 A,B, PLOT NO.11 ADMEASURING ABOUT 166.30 SQ. MTRS.
Respected Sir, Page 3 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined In hope of humanity and democratic, ethical values to be maintained in an applicant case. respondent has violated terms and condition of property transfer made subject to maintenance and serving old aged parent, so cause of said application made to justify applicants.
Applicants are above 88 years and had transferred their property in name of their nominee with hope and with condition that respondent will serve them as family parent in their home and will take due care of them life time looking to their age and they violated so when they approached us to get justice we had made this application on their behalf made for reference.
Said application made with hope to make suo-motu legal proceeding against respondent with special court judge nominated for confidential inquiry of said applicant make immediate suo-motu legal action in said matter.
As per said law, looking to jurisdiction preview its under district magistrate so hereby applied for justice and immediate action.
Hope to prevail humanity and democracy through your hearted action please."
6. The Sub-Divisional Magistrate, Surat passed order dated 25.1.2019 in MSC Application No.14/2018, which is produced at Page-77, and the said order reads thus: Page 4 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023
NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined "Order The application of the complainant is granted. In exercise of the power conferred upon me under section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 vide Circular No: VNP-10-2009-CS-11-(284997)- Chh dated 21/03/2013 of the Department of Social Justice and Empowerment, Government of Gujarat, after the commencement of the said Act, if the property has been transferred as a gift or in any other manner and the transferee of the property does not provide basic amenities and physical needs etc., the said transfer of property shall be deemed to have been made by fraud or undue coercion and shall at the option of the transferor be declared void by the Tribunal. Thus, as the complainant has not provided any other option except to receive back his property, there is no scope for settlement. Therefore, as per the said Section, the order is passed to transfer to the name of the complainant the property of land of Plot No.11 with City Survey No.1158, admeasuring 166.30 sq.m., located at F.P. No.244-A-B, T.P. Scheme No.6, R.S. No.30 Paiki at moje Khatodara after revoking the registered Gift Deed No.9250 dated 21/06/2011 executed with respect to the property including the Amla Building.
"If any party is aggrieved by this order, he may, within 60 days from the date of the order, prefer a revision application to Presiding Officer, Appellate Tribunal and in the court of the Resident Additional Collector, Surat under section 16 of the said Act."
7. Being aggrieved by the aforesaid order passed by Page 5 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined the SDM, Surat, dated 25.1.2019, the petitioner herein preferred an appeal being Appeal No.1 of 2019 before the respondent No.2 which came to be rejected by the appellate authority by confirming the order passed by the SDM, Surat. The said order dated 24.6.2019 passed by the appellate Tribunal reads thus:
"Order "Considering the entire facts mentioned above, since the appeal of the applicant/complainant does not appear liable to be accepted, the same is rejected. Further, as it does not appear necessary to intervene into the order dated 25/01/19 of the Maintenance Tribunal and Sub-Divisional City Prant, Surat, the order is passed to confirm the same and to return the possession of the gifted property of moje Khatodara, Block No.30 paiki, T.P. No.6, F.P. No.244 A/B, Plot No-11 with construction admeasuring 166.30 sq.m. as per the said order."
This order is passed today on 24/06/2019 with my signature and seal.
The parties concerned be informed of this order."
8. Being aggrieved by the impugned orders passed by the respondent authorities, as referred above, the petitioner has approached this Court by filing the present Page 6 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined petition mainly on the ground that the petitioner is in receipt of the Gift Deed for the property, as referred above, by Gift Deed dated 21.6.2011, from the deceased respondent No.1. The said Gift Deed has no clause wherein the petitioner herein is required to maintain maternal grandfather. Reliance is placed on Gift Deed which is produced at Page-26. It was submitted that inspite of the order passed by the respondent authority, the petitioner's mother i.e. respondent No.1.1, was maintaining the deceased respondent No.1, till the respondent No.1 expired.
8.1 Mr. Vishwas has placed reliance on the order passed by the Hon'ble Apex Court in Civil Appeal No.174 of 2021 dated 6.12.2022. Placing reliance on the same, it was submitted that in absence of any clause in the Gift Deed to maintain respondent No.1, it was otherwise not the duty of the petitioner herein to maintain respondent No.1, however, till the demise of respondent No.1, the respondent No.1 was always maintained by respondent No.1.1., who is the mother of the petitioner herein. It was Page 7 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined submitted that respondent No.1.2 being son of the deceased respondent No.1, is in possession of Plot No.12 for which there is no dispute.
8.2 It was submitted that orders impugned passed by respondent authorities are beyond the scope of Section 23 of the Act and the Gift Deed dated 26.6.2011, which is directed to be cancelled, has no Clause wherein the petitioner is required to maintain the maternal grandfather. It was submitted that the said Gift Deed was entered into by the maternal grandfather with love and affection and, therefore, considering the ratio as laid down by the Hon'ble Supreme Court, the respondent authority could not have directed the same to be cancelled.
9. Mr. Masoom Shah, the learned advocate appearing for the respondent No.1.1 supported the submission made by Mr. Vishwas Shah, the learned advocate appearing for the petitioner.
10. Mr. Prashant Mankad, the learned advocate Page 8 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined appearing for the respondent No. 1.2 was not in a position to controvert the submissions advanced by Mr. Vishwas Shah, learned advocate appearing for the petitioner herein.
11. Considering the submissions advanced by the learned advocates appearing for the respective parties, in the opinion of this Court, before adjudicating the matter on merits, it is apposite to consider the factual position. 11.1 Respondent No.1 expired pending the present proceedings, therefore, the question of modifying the orders impugned would not arise, however, by virtue of impugned orders, the Gift Deed is directed to be cancelled. This Court has also considered that the said Gift Deed dated 21.6.2011 is accepted by both the respondent Nos.1 and respondent No.2 herein who have candidly submitted that the Gift Deed was never under challenge by either of the respondents and, therefore, the question of validity of the said Gift Deed does not arise. Page 9 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023
NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined
12. Under such circumstances, this Court deems it fit to refer to the ratio laid down by the Hon'ble Supreme Court in the case of Sudesh Chhikara v. Ramti Devi & Anr. passed in Civil Appeal No. 174 of 2021 vide order dated 6.12.2022. It is apposite to refer to the relevant paragraphs No.5,6,11,12,13,14,15 and 16 which read thus:
"5. Respondent no.1 filed a petition under Section 23 of the 2007 Act before the Maintenance Tribunal (Sub-Divisional Magistrate). In the petition, respondent no.1 stated that her relationship with her son and daughters was strained and therefore, her son and daughters were not maintaining her. The contention of respondent no.1 was that the release deed executed by her in favour of her two daughters on 14th November 2008 was illegal and void. Accordingly, a prayer was made in the petition under Section 23 for cancellation of the said release deed dated 14th November 2008.
6. The petition under Section 23 filed by respondent no.1 was contested by the appellant. The Maintenance Tribunal finally decided the petition by judgment and order dated 22 nd May 2018. It was held that the release deed dated 14 th November 2008 was null and void. The Maintenance Tribunal recorded a finding that respondent no.1's children were not willing to take her care.
CONSIDERATION OF SUBMISSIONS Page 10 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined
11. We have given careful consideration to the submissions. Before dealing with the factual aspects, it is necessary to advert to the legal aspects. The Sub-Divisional Magistrate acting as the Maintenance Tribunal under the 2007 Act has invoked the power under Section 23 to declare that the subject release deed was void. The 2007 Act has been enacted for the purposes of making effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India. The Maintenance Tribunal has been established under Section 7 to exercise various powers under the 2007 Act. Section 8 provides that the Maintenance Tribunal, subject to any rules which may be framed by the Government, has to adopt such summary procedure while holding inquiry, as it deems fit. Apart from the power to grant maintenance, the Tribunal exercises important jurisdiction under Section 23 of the 2007 Act which reads thus:
"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.Page 11 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023
NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined (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." (emphasis added)
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.
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 Page 12 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined Maintenance Tribunal gets jurisdiction to declare the transfer as void.
13. 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.
14. 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.
15. We have perused the counter affidavit filed by respondent no.1. Even in the counter, it is not pleaded that the release Page 13 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined 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. Unfortunately, the High Court has not adverted to the merits of the case at all.
16. 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.
13. In the facts of the present case, deceased respondent No.1, by Gift Deed dated 21.6.2011, gifted property No.11, described hereinabove, to the petitioner herein. The said Gift Deed has no specific clause wherein the petitioner herein was required to maintain deceased respondent No.1. In the said parcel of land, there are two shops which came to be rented by deceased respondent No.1 by virtue of Rent Agreement with "Vandana Creation" and "Alankar Hair Style" and the rent was deposited in account of the deceased respondent No.1. It Page 14 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined was submitted by Mr. Shah that subsequently the rent agreement came to be terminated and respondent No.1.2 has thereafter rented the said shops to the third parties and has been receiving the rent qua the said property.
14. Considering the aforesaid aspects, in the opinion of this Court, impugned order dated 24.6.2019 passed by the appellate authority and order dated 25.1.2019 passed by the SDM, Surat are required to be quashed and set- aside mainly on the ground that the direction issued by respondent authorities are beyond the scope of Section 23 of the Act.
14.1 At this stage, it is apposite to refer to Section 23 of the Act:
"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 declared Page 15 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined 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 organization referred to in Explanation to sub-section (1) of section 5."
15. Section 23 of the Act provides that transfer of property to be void when any senior citizen who, after the commencement of this Act, has by way of gift or otherwise, his property, on 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. Further, the senior citizen has a right to receive maintenance out of an estate and Page 16 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined 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
16. In the fact of the present case, gift deed in question is silent with regard to maintenance clause whether the petitioner herein has to maintain the deceased respondent No.1, who was a Senior Citizen. The respondent authority, without exploring the option of maintenance, proceeded to pass the impugned orders dated 24.6.2019 and 25.1.2019, declaring the Gift Deed as void. Under such circumstances, in the opinion of this Court, the orders impugned are passed against the principles embodied under Section 23 of the Act and the circumstances under which the property which was gifted to the petitioner herein by the deceased respondent No.1, can be declared void.
17. In view of above, considering the aforesaid and Page 17 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023 NEUTRAL CITATION C/SCA/13553/2019 ORDER DATED: 05/07/2023 undefined position of law, as referred above, this Court is inclined to interfere and exercise the extra-ordinary jurisdiction under Article 226 of the Constitution of India. Therefore, the order dated 24.6.2019 passed in Appeal No.1/2019 by Hon'ble Presiding Officer- Appellate Tribunal and Resident Additional Collector, Surat under the Maintenance and Welfare of Parents and Senior Citizens Act ,2007 (for short "the Act") and the order dated 25.1.2019 passed by SDM, Surat, are quashed and set- aside.
Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 18 of 18 Downloaded on : Sat Sep 16 20:56:50 IST 2023