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7) Mr. Godbole would further contend that jurisdiction for annulment of Gift Deed can be exercised by the Maintenance Tribunal only when a demonstrable case is made out where Gift is made by a senior citizen subject to express condition of providing basic amenities and basic 10 April 2024 Neeta Sawant WP-590-2023-JR-FC physical needs to the transferor. That therefore the condition of provision of basic amenities and basic physical needs must be incorporated in the Gift Deed itself. That in the present case, there is no such recital or covenant in any of the Gift Deeds. That the same were not executed subject to condition of providing of basic amenities and physical needs. Mr. Godbole therefore submits that there is absence of specific condition in the Gift, existence of such condition can neither be pleaded nor proved by any documentary evidence. In support of his contention, he would place reliance on the judgment of this Court, Bench at Aurangabad in Rahul s/o Chandrakant Bharati V/s. Gotu Nana s/o Narayanrao Patil and others1. He would also rely upon the judgment of Full Bench of Kerala High Court in Subhashini V/s. District Collector and others 2 in support of his contention that the condition for provision of basic amenities and basic physical needs must be incorporated in the document of transfer. Additionally, he would also rely upon judgment of Single Judge of this Court in Vikas Prabhakar Patil (Shewale) V/s. Prabhakar Dawal Shewale and another3 and Ranjana Rajkumar Makharia V/S. Mayadevi Subhkaran Makharia and another4. Mr. Godbole would rely upon judgment of the Apex Court in Arun Kumar V/s. Union of India 5, in support of his contention that existence of condition stipulated under Section 23(1) of the Act is a sine qua non for conferment of jurisdiction on the Tribunal. That existence of that condition is a jurisdictional fact, in absence of which the Tribunal cannot exercise jurisdiction under Section 23(1) of the Senior Citizens Act.

(2021) 15 SCC 730.

2023 SCC OnLine 6079.

                                          10 April 2024




 Neeta Sawant                                                       WP-590-2023-JR-FC




11)       Ms. Mehta, the learned Counsel appearing for Respondent No.2,

on the other hand, would oppose the petition and support the Order passed by the Maintenance Tribunal. She would submit that despite having several flats in Mumbai, Respondent No.2 is rendered homeless and is required to reside at Surat along with his other son. That Petitioner and his family members levelled scandalous allegations against Respondent No.2 with a view to ensure his ouster from home. That on account of severe mental torture caused by Petitioner and his family members, Respondent No.2 no longer desires gifting any of his properties to Petitioner and is therefore has right to revoke all the Gift Deeds. That Respondent No.2 is now left with no other source of income and he is at the mercy of his other son in absence of any house on his own in Mumbai. So far as the requirement of making of gift subject to the condition of providing basic amenities and basic physical needs, Ms. Mehta would contend that specific pleadings are made in the Application to that effect that the Gifts were executed on specific condition of provision of basic amenities and basic physical needs. That Gifts in respect of only three flats are sought to be revoked which would not render Petitioner homeless. That Petitioner has two other properties gifted by the parents, which Petitioner can enjoy even after revocation of gifts made in his name. That the ill-intentions of Petitioner become apparent when he made attempts to dispose of Riviera Flats by entering into Agreement for Sale. That though the transaction could not fructify, it became clear that the Petitioner is in the process of disposing of the gifted flats. She would submit that out of the three sons, Hemant also had share in various properties and that therefore Petitioner does not become owner in respect of the gifted flats. She would submit that Respondent No.2 is at an advanced age of 77 years and he cannot be expected to live a miserable life on account of grabbing of all his properties by Petitioner. That the Order passed by the Maintenance Tribunal merely fulfils the objective behind the Senior Citizens Act and in absence of any grave error, this 10 April 2024 Neeta Sawant WP-590-2023-JR-FC Court would not be justified in interfering with the findings of the Maintenance Tribunal. She would pray for dismissal of the petition.

21) This issue had arisen for my consideration in Ashwin Bharat Khater (supra) in which, this Court, after taking into consideration the judgment of the Apex Court in Sudesh Chhikara (supra), held in para-25 to 29 as under:

25. Though it was initially sought to be suggested during the course of submissions that the condition of provision of basic amenities and basic physical needs must be stipulated in the form of a covenant in the Gift Deed, Mr. Khandeparkar, in his usual fairness, has later conceded that he does not want to press an extreme argument that in every case such a condition must be included in the Gift Deed. He however submits that even if such condition need not be included in the Gift Deed, there must be pleading and proof on the part of senior citizen that the Gift or transfer was executed subject to a condition that the transferee would provide basic amenities and basic physical needs to the transferor. In this connection he has placed reliance on the judgment of the Supreme Court in the Case of Sudesh Chhikara (supra) in Paragraph Nos.12 and 15 the Supreme Court held as follows:

41) On the other hand, if provisions of Section 23(1) of the Senior Citizens Act are interpreted to mean that existence of condition of providing basic amenities and basic physical needs, not incorporated in the document of transfer, can be established before the Tribunal through pleadings and evidence, such interpretation would subserve the objective behind enacting the provision, the ultimate objective being the welfare of senior citizens. Such interpretation would provide the freedom to the Tribunal to determine whether the document of transfer was indeed executed subject to such condition. In a given case, where senior citizen owns just a house and executes a gift deed if favour of his/her child, which does not contain a recital or stipulation that the same is executed subject to condition of providing basic amenities and basic physical needs, in the event of the child throwing the senior citizen out of that house, the 10 April 2024 Neeta Sawant WP-590-2023-JR-FC protection granted under Section 23(1) would be rendered nugatory and the entire objective behind enacting the Act would be frustrated. In that case, the senior citizen, in my view, needs to be given an opportunity to prove before the Tribunal that the gift was made on a condition that the senior citizen would be provided the basic amenity of residence in the house that he/she gifted to the child. On the other hand, if a senior citizen owns multiple properties, and gifts only one of it to the child, while retaining other properties, the Tribunal can draw an inference that execution of the gift was not subject to any such condition. Therefore, some flexibility needs to be provided to the Tribunal to take decision in the light of facts of each case. The Tribunal must consider facts of each case and decide whether after execution of document of transfer, there is denial of basic amenity or basic physical need to the senior citizen or whether the provisions of Section 23(1) are being misused to decide property disputes amongst the siblings. In appropriate cases, where the senior citizen has other residence, but is not looked after, the Tribunal can make an order for payment of maintenance rather than annulling the gift.