Inderjeet Singh vs Appellate Tribunal Jaipur and Others

Alok Sharma, J.—Heard counsel for the parties and perused the impugned order dated 21-7-2015 passed by the Maintenance Tribunal (hereinafter ''the Tribunal'') under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (hereinafter ''the Act of 2007'') as affirmed in appeal vide order dated 8-10-2015 passed by the District Collector and District Magistrate, Jaipur.

The case of the petitioner is that he is a 75 years old man who was defrauded by his son respondent No. 3 Ranjeet Singh, then staying with him, in executing a registered gift-deed dated 5-2-2014 in respect of residential property House No. 11/7, Madhyam Marg, Mansarovar, Jaipur. One other son Sarabjeet Singh had expired and the third son Harjeet Singh was living in a separate house for reason of lack of space in House No. 11/7 above. It was stated that the respondent No. 3 taking advantage of his access to the petitioner and exploiting his old age emotionalism assured him that he would be looked after and all his physical needs taken care of till his death. Hence the residential house was gifted vide gift deed registered on 5-2-2014. It was submitted that however, soon thereafter, on or about 16-9-2014, the petitioner was thrown out of the house by the respondent No. 3 and his basic amenities and physical needs not provided for. Since then the petitioner stated to have been residing with his elder son Harjeet Singh. Aggrieved of the fraud allegedly played upon him by the respondent No. 3 in having the gift deed dated 5-2-2014 executed, a FIR No. 614/2014, Police Station Mansarovar, Jaipur City South was lodged for offences under Sections 420 and 120B IPC against the respondent No. 3. However a negative final report following investigation, protest petition thereagainst was filed and pending. The petitioner in the circumstances then resorted to the Act of 2007 and laid petition No. 19/2014 before the Tribunal inter alia seeking relief that he should not be dispossessed from house No. 11/7, Madhyam Marg, Mansarovar, Jaipur and more over for the protection of his life, which was allegedly under threat from the respondent No. 3, the petitioner''s elder son Harjeet Singh should be allowed to live with him in the said house. Further it was prayed that the gift deed dated 5-2-2014 having been procured by misappropriation and fraud should be set aside.

Vide order dated 30-9-2014, the petition filed by the petitioner was dismissed. An appeal thereagainst under Section 16 of the Act of 2007 was allowed and the matter was remanded to the Tribunal. Thereafter vide order dated 21-7-2015 the application filed by the petitioner was again dismissed by the Tribunal, which order was then affirmed vide impugned order dated 8-10-2015 by the Appellate Authority. Hence this petition.

Mr. Hora, counsel for the petitioner has submitted that the order dated 8-10-2015 passed by the Tribunal as also the order dated 21-7-2015 passed by the Appellate Authority are based on a wrong interpretation of Section 23 of the Act of 2007. It was submitted that section 23 of the Act of 2007 does not mandate for its applicability that a written condition is required to be incorporated in the conveyance/transfer/gift of immovable property whereunder the transferee is obliged to take care of the basic amenities and physical needs of the transferor. It was submitted that the Tribunal and the Appellate Authority ought to have taken a purposive interpretation of Section 23 of the Act of 2007, which is a piece of socially beneficial legislation to protect vulnerable parents emotionally exploited, defrauded and then left on their own, and where it was alleged and proved by evidence on record that a senior citizen who transferred his property to his son was actually shortchanged and defrauded, the Tribunal ought to have declared the conveyance/transfer/gift of immovable property by such senior citizen to his son as void.

Heard. Considered.

Section 23 of the Act of 2007 provides thus:--

"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 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."

A bare perusal of the aforesaid section indicates that for its applicability the transfer of property by way of a gift or other conveyance by a parent to a son/daughter has to be specifically made subject to a condition in the instrument of transfer itself that the transferee shall provide for the basic amenities and physical needs of the transferor. It would only be thereafter, if despite such a condition specifically incorporated, the transferee refuses or fails to provide such basic amenities and physical needs of the transferor, the deeming fiction of law created by Section 23 in rendering the transfer in question void and being so declared by the Tribunal can arise. Section 23 creates a legal fiction and for it to be operative, the pre-condition set out therein has to be satisfied intrinsically and established from the conveyance in question. The conditionality of voidance under section 23 of the Act of 2007, cannot be supplied extraneously by way of parole evidence for the purposes of the Act of 2007. It is an admitted fact that in the instant case the registered gift deed dated 5-2-2014 does not incorporate the specific condition, whereby the transferee was under an obligation to provide for the basic amenities and physical needs of the transferor and thus the pre-condition for invoking the operation of Section 23 of the Act of 2007 is not satisfied. Further it would be well to remember that the jurisdiction of the Tribunal created by a statute is limited in nature and required to be strictly construed. The jurisdiction under section 23 of the Act of 2007 to declare transfer of property to be void is limited only to certain circumstances. The jurisdictional fact where not satisfied, the Tribunal would stand denuded of any power to hear and address a challenge to gift deed/conveyance of immovable property by a parent to his children. For the Tribunal to have jurisdiction under Section 23 of the Act of 2007 the condition of a transferee being obliged to take care of basic amenities and physical needs of transferor has to be clearly made out from the transfer deed itself. Absent such a condition, as in the instant case, the Tribunal would have no power to adjudicate the voidness of the transaction.

Be as it may, counsel for the respondent No. 3 has submitted that as one of the two surviving sons of the petitioner, he is always ready and willing to discharge his moral, social and legal obligations towards the petitioner. It was also submitted that the petitioner was always welcome to house No. 11/7, Madhyam Marg, Mansarovar, Jaipur and like earlier will be well looked after qua his basic amenities, physical needs and requirements within the means of respondent No. 3. It was submitted that it is the other son of the petitioner who is goading the petitioner and emotionally blackmailing him.

I am of the considered view that in the facts and law as obtain the petitioner has not been able to make out a case for interference with the impugned order dated 21-7-2015 passed by the Tribunal as affirmed by the Appellate Authority vide order dated 8-10-2015. It has rightly been held that unless the transfer/conveyance of immovable property by a parent to his/her children specifically incorporates the pre-condition making the transfer subject to the obligation of providing for the basic amenities and physical needs of the transferor, the Tribunal would have no jurisdiction to entertain a challenge to transfer deed--in this case the gift deed dated 5-2-2014.

I find no force in the petition. Dismissed.

The petitioner shall however be free, if so advised, to take his remedy before regular courts of law seeking cancellation of registered gift deed dated 5-2-2014 on whatever grounds he may find fit to agitate therefor.