C.Paranthaman v. The Revenue Divisional Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.08.2024

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.No.2367 of 2024 and W.M.P.No.2561 of 2024 C.Paranthaman ....

Petitioner Vs

1. The Revenue Divisional Officer, Office of the Revenue Divisional 32, Chitlapakkam, Tambaram West, Tambaram, Chennai - 45.

2. C.P.Eshwaramoorthy ....

Respondents Prayer : Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the order passed by the first respondent in R.C.No.1218/2023/A dated 01.11.2023 and quash the same as arbitrary and to direct the first respondent predecessor. For Petitioner : Dr.A.Thiyagarajan Senior Counsel for Mr.C.B.Murali Krishnan For R1 : Mr.P.Gurunathan Additional Government Pleader For R2 : Mr.G.Mohammed Aseef

ORDER

This Writ Petition has been filed challenging the order passed by the first respondent dated 01.11.2023, thereby rejected the complaint lodged by the petitioner under Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act').

2. Heard the learned counsel appearing on either side and perused the materials available on record.

3. The petitioner is the father of the second respondent. He is a retired Government employee. His wife is also a retired Government employee. In the year 1975, the petitioner purchased the property comprised in Door No.41, New No.5, Thiruvengatapuram Nagar, West Tambaram, Chennai, admeasuring to an extent of 1 ground and 393 sq.ft corresponding Survey No.238/3B and obtained patta in Patta No.2245, by way of registered sale deed dated 18.10.1975 vide document No.3970 of 1975. The petitioner had constructed a house to an extent of 800 sq.ft. and is residing there. While being so, the petitioner had executed a settlement deed in favour of the second respondent, being the only son, on 11.02.2015 registered vide document No.1146 of 2015, out of love

and affection and also assured that he will maintain the petitioner in future. Thereafter, his wife died and even the second respondent refused to perform the funeral rites to his mother, stating that he had converted himself into Muslim Religion. Further, the second respondent also failed to maintain the petitioner.

4. Therefore, the petitioner initially lodged a complaint under Section 23 of the Act before the first respondent. The first respondent passed an order dated 30.08.2019, in which, it was held that the second respondent is entitled to 50% share in the property and remaining 50% of the share in the property is to be reconveyed to him by way of sale deed. Aggrieved by the same, the petitioner preferred an appeal before the Appellate Authority viz., the District Collector and by an order dated 25.11.2019, already the suit is pending in O.S.No.288 of 2018 on the file of the Principal District and Sessions Court, Chengalpet and as such, no order has been passed.

5. Thereafter, the petitioner had withdrawn the said suit and filed an application to implement the earlier order dated 30.08.2019. However, it was not considered and as such, the petitioner was

constrained to file a writ petition before this Court in W.P.No.19640 of 2021. This Court, by an order dated 06.02.2023, directed the first respondent to pass orders in the light of the earlier order passed by the first respondent. In fact the said order was not complied with and as such, the petitioner filed a contempt petition before this Court and pending contempt petition, the first respondent rejected the petitioner's application on the ground that the petitioner is not entitled for any relief under Section 23(1) of the Act.

6. The learned counsel appearing for the second respondent submitted that he got married with one Muslim girl and as such, the petitioner submitted an application to cancel the settlement deed in favour of the second respondent. The second respondent is still maintaining his father. That apart, already the petitioner filed a suit and subsequently, it was withdrawn by the petitioner. He further submitted that the settlement deed doesn't have such clause to cancel the settlement deed if the second respondent failed to maintain the petitioner. Therefore, Section 23 of the Act is not at all applicable to this case. In support of his contention he relied upon the Judgment of the Hon'ble Supreme Court of India reported n 2022 SCC online SC 1684 in the case of Sudesh Chhikara Vs. Ramti

Devi and another.

7. A perusal of the Settlement Deed dated 11.02.2015, reveals that "eP vdJ Fkhud; MdgoahYk; eP vd;id tajhd fhyj;jpy;

ftdpj;J bfhz;L midj;J tpjkhd rtul;rizfisa[k; bra;J bfhz;L tUtjhYk;.

nkYk;

vdf;F njitg;gLk; midj;ija[k; ePna mUfpy;

,Ue;J ftdpj;J bfhz;L tUtjhYk;"

8.

On a perusal of the settlement deed, it reveals that being pleased with the care, love, affection, respect and good behaviour, the father had executed settlement deed as a reward in favour of his son and in discharge of his responsibilities towards the son, he has also given future security to the son. 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. 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 settlor 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 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 Senior Counsel for the petitioner, 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 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 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 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 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 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-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."

11. The above case is squarely applicable to the case on hand. In respect of the judgment relied on by the second 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 second respondent is of no avail as far as the present facts and circumstances of the case on hand is concerned.

12. In view of the above, the order passed by the first respondent dated 01.11.2023 cannot be sustained and it is liable to quashed. Accordingly, the order passed by the first respondent dated 01.11.2023 is hereby quashed. The second respondent is directed to hand over vacant possession of the property in favour of the petitioner within a period of six weeks from the date of receipt of a copy of this order.

13. In the result, this writ petition stands allowed. Consequently, connected miscellaneous petition is closed. No costs. 12.08.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order

Lpp To The Revenue Divisional Officer, Office of the Revenue Divisional 32, Chitlapakkam, Tambaram West, Tambaram, Chennai - 45.

G.K.ILANTHIRAIYAN. J, Lpp

12.08.2024