Baldev Krishan Since Deceased Through His Lrs v. State Of Punjab And Others
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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."
12.
From the joint reading of Section 23 as well as interpretation by the Hon'ble Supreme Court of India in Sudesh Chhikara's case (supra), it becomes clear that for application of Section 23 of the 2007 Act, the transfer deed should contain a condition/terms that same is subject to the provision of 2007 Act or with the condition that transferee will take care of the transferor after the transfer of the property and the failure to comply with the same should be part of the application filed under 2007 Act and the said averments should be proved on the basis of the evidence. 13.
On being asked to point out from the transfer deed as to whether transfer in favour of the respondent-son was made subject to the provisions of 2007 Act or with any condition that transferee will take care of the transferor after the transfer of property, learned counsel for the petitioner very fairly submits that though, the transfer deed is not on record but he has copy of the same which was read by the learned counsel for the petitioner, according to which, there exists no such condition that transferee will maintain the transferor after the transfer deed was executed. Hence, the first condition required to get the sale deed declared void in the facts and
; circumstances of the present case is not proved. 14.
The second condition is that transferor should be maintained by the transferee after transfer of property which averment should be there and should be proved on the basis of the evidence. Though, an averment has been made by the senior citizen i.e. transferor of the property in his application but, nothing has been brought on record as to what evidence has been produced to support the said averments. 15.
Further, not even a single reason has been given by the Tribunal to prove the said averments qua non-maintenance of the senior citizen and no finding has been recorded by the Tribunal while passing order dated 17.03.2022(Annexure P/2) qua non-maintenance of the senior citizen.
16.
In the absence of any such evidence which was brought on record to prove that the transferor-senior citizen was not being maintained, the Tribunal acceded its jurisdiction by setting aside the transfer deed in question keeping in view the facts and circumstances of the present case while exercising jurisdiction under 2007 Act. 17.
Keeping in view the said facts, the order passed by the Appellate Court needs no interference at the hands of this Court. Apart from the findings recorded by the Appellate authority in the impugned order dated 05.12.2024, the petitioner was given a fresh chance to prove the entitlement under Section 23 of the 2007 Act but the petitioner has failed to prove the fulfillment of ingredients provided under Section 23 of the 2007 Act so as to claim the relief. Hence, once the ultimate decision of the Appellate Court is in consonance with the Section 23 of the 2007 Act as
# well as the settled principle of law settled by the Hon'ble Supreme Court of India in Sudesh Chhikara (supra), no ground for interference by this Court is made out and the present writ petition is accordingly dismissed. 18.
As of now, mother of respondent No.4 is still alive. Learned counsel for respondent No.4 concedes that it is the duty of respondent No.4 to maintain his mother and submits that respondent No.4 is ready to give maintenance to his mother as directed by this Court. 19.
In the facts and circumstances of the present case, respondent No.4 is directed to pay a sum of Rs.15,000/- every month to his mother starting from January, 2025 onwards and in case of any default on the part of the respondent-son to pay the said amount, the same will be treated as violation of order of this Court, apart from any other order to be passed against the son in case, such default is brought to the notice of this Court. 20.
It may be noticed that any transfer of the land as per the order of the Tribunal, which has been set aside by the Appellate Court, will also be deemed to be set aside and property will remain with respondent No.4Son for all intent and purposes. 21.
At this stage, a fact has been brought to the notice of this Court that the respondent No.4 has filed defamation suit(s) against the mother. 22.
Learned counsel for respondent No.4 submits that as respondent No.4 has already undertaken to maintain his mother, the said defamation suit(s) will not be pursued and will be withdrawn. !-)8 #< + 1 5
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