Rajasthan High Court - Jaipur
Lalit Mehra Son Of Late Shri Shrichand ... vs Amit Mehra Son Of Shri Lalit Mehra ... on 5 July, 2023
Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar
[2023:RJ-JP:13309-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Special Appeal (Writ) No. 511/2023
In
S.B. Civil Writ Petition No. 9449/2022
Lalit Mehra Son of Late Shri Shrichand Mehra, Resident of 35,
Durga Vihar, Sector-3, Police Station Malviya Nagar, Jaipur
(Raj.), at present resident of Tejpura, Tehsil Mundawar, District
Alwar (Raj.).
----Appellant/Non-Petitioner
Versus
1. Amit Mehra Son of Shri Lalit Mehra, Resident of 35, Durga
Vihar, Sector-3, Police Station Malviya Nagar, Jaipur
(Raj.).
Respondent/Petitioner
2. Sub-Registrar, Mundawar, Tehsil Mundawar, District Alwar (Raj.).
3. Land Holder, Tehsildar, Mundawar, Alwar (Raj.).
----Respondents For Appellant : Mr. Prahlad Sharma Advocate. For Respondent No. : Mr. Manoj Bhardwaj Advocate with Mr. 1 Prem Chand Sharma Advocate.
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Judgment 05/07/2023
1. Heard.
2. This appeal has been preferred against order dated 09.05.2023, whereby, the learned Single Judge has admitted the writ petition filed by Respondent No. 1 and continued interim order passed earlier on 05.07.2022.
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3. Learned counsel for the appellant would argue that large number of writ petitions, i.e., Maya Devi Vs. Vishweshwar Dayal & Another (S.B. Civil Writ Petition No. 11941/2021 & other connected petitions decided on 01.05.2023) were filed directly before Single Bench of this Court challenging the orders passed by the Maintenance Tribunal (hereinafter referred to as 'the Tribunal') on the ground that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act of 2007') does not provide for an appeal, except by senior citizens. All the aforesaid writ petitions were decided by common order dated 01.05.2023 holding that the writ petitioners therein had remedy of appeal, giving wider interpretation to remedial provision of appeal as contained in Section 16 of the Act of 2007. Learned counsel would submit that in the present case, however, the learned Single Judge admitted the writ petition and continued interim order passed earlier whereas Respondent No. 1-writ petitioner, in view of the aforesaid judgment of the learned Single Judge, has remedy of appeal against the order passed by the Tribunal before the appellate authority. Learned counsel for the appellant has placed reliance on the judgment of Division Bench of this Court in the case of Rakesh Soni & Another Vs. Smt. Premlata Soni & Others (D.B. Special Appeal (Writ) No. 920/2019 decided on 18.10.2019).
4. On the other hand, learned counsel for Respondent No. 1 would submit that even assuming that Respondent No.1 has a remedy of appeal, the order was challenged directly by filing writ petition because the challenge is based mainly on the ground that the order passed by the Tribunal was without jurisdiction. Further (Downloaded on 11/11/2023 at 06:08:46 PM) [2023:RJ-JP:13309-DB] (3 of 6) [SAW-511/2023] submission of learned counsel for Respondent No.1 is that on the facts of the present case, the challenge has been made to the order passed by the Tribunal on the ground of absence of jurisdiction because the Tribunal has cancelled the sale deed even though it was not a transfer with any condition as stipulated in Section 23 of the Act of 2007 and, therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Sudesh Chhikara Vs. Ramti Devi & Another, 2022 SCC Online SC 1684, the Tribunal would have no jurisdiction to cancel a sale deed where there is no condition incorporated in terms of provisions contained in Section 23 of the Act of 2007.
5. On prima facie consideration, we find that the order passed by the learned Single Judge in the case of Maya Devi Vs. Vishweshwar Dayal & Another (supra) only decided an issue with regard to maintainability of an appeal at the instance of the persons who have suffered the order of the Tribunal, though not being senior citizens. Learned Single Judge, in the aforesaid decision, giving wider interpretation to the remedial provisions contained in Section 16 of the Act of 2007 has inter alia recorded that the intention of the legislation was to include the children and the relatives and the omission of the words 'children and relatives' is accidental. On such consideration, it has been held that the remedy of appeal was available to the writ petitioners therein which led to disposal of the writ petitions with liberty to file appeal against the order of the Tribunal.
6. In the case in hand, challenge to the order of the Tribunal is based mainly on the ground that the Tribunal had no jurisdiction to cancel the sale deed as it is not a case where sale deed was (Downloaded on 11/11/2023 at 06:08:46 PM) [2023:RJ-JP:13309-DB] (4 of 6) [SAW-511/2023] executed transferring the property by the father in favour of the writ petitioner, but it is the case of the writ petitioner that he purchased that property from a third party. The appellant's allegation was that the said property was purchased out of the funds provided by the father. We may also refer to the decision of the Hon'ble Supreme Court in the case of Sudesh Chhikara Vs. Ramti Devi & Another (supra) wherein it has been held that in order to attract the provisions contained in Section 23 of the Act of 2007, certain preconditions as statutorily prescribed are required to be fulfilled. Following observations made by the Hon'ble Supreme Court are pertinent:
"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.(Downloaded on 11/11/2023 at 06:08:46 PM)
[2023:RJ-JP:13309-DB] (5 of 6) [SAW-511/2023] (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.
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 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 (Downloaded on 11/11/2023 at 06:08:46 PM) [2023:RJ-JP:13309-DB] (6 of 6) [SAW-511/2023] 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."
7. Therefore, in the present case, there is serious issue of jurisdiction raised by Respondent No.1-writ petitioner that in the absence of there being any condition as mandatorily required under Section 23 of the Act of 2007, the Tribunal had no jurisdiction to direct cancellation of the sale deed. The case being arguable and raising an issue of jurisdiction, has been admitted and interim order has been continued. Therefore, there is no illegality in the order passed by the learned Single Judge.
8. The appeal is, therefore, dismissed.
(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),J Manoj Narwani/ (Downloaded on 11/11/2023 at 06:08:46 PM) Powered by TCPDF (www.tcpdf.org)