Smti.Aaliya Rahman Khan v. The Andaman And Nicobar Administration And ANR
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/557/2025 (IA NO: CAN/1/2025) Smti. Aaliya Rahman Khan ... Petitioner
Versus
The Andaman and Nicobar Administration and others ... Respondents For the Petitioner : Mr. K. M. B. Jayapal For the Respondents no. 1 & 2 : Ms. Babita Das For the Respondent no. 3 : Mr. Terence D'Cruz Mr. U. Partha Sarathi Heard on : 17.12.2025 Judgment on : 19.12.2025 SHAMPA DUTT (PAUL), J.
1.
The writ application has been preferred praying for quashing of Impugned proceeding vide F.
No.
247/AC(R&DM)/SCWMT/R-Cell/2025/1491 in purported exercise of power under the provision of Maintenance and Welfare of Parents and Senior Citizens Act, 2007. 2.
CAN/1/2025 filed by the private respondent, being the respondent no. 3, praying for vacating the interim order passed
in this case, is also taken up for consideration along with the writ application.
3.
It is the case of the petitioner (donee) herein that the subject land was gifted to the writ petitioner by her mother (respondent no. 3) in February, 2019 (Registered on 21.02.2019) by dint of a gift deed which was duly registered under the provision of Registration Act, 1908.
4.
Admittedly, Other Suit No. 48 of 2025 has been filed by the respondent no. 3 (donor) against the writ petitioner (donee) before the Court of learned Civil Judge (Senior Division), Port Blair wherein an order of injunction in the form of status-quo has been passed by the Court in respect of the suit property. 5.
During pendency of the Civil Suit, the impugned proceedings in the present case was filed by the respondent no. 3 (donor) under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
6.
It is the case of the petitioner (donee) herein that the said deed of gift has not been executed as per the mandatory requirements of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and as such the impugned proceeding is liable to be quashed being not maintainable.
7.
Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 lays down :- "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.
(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.
This clause provides that if a senior citizen after the commencement of the provision of this Act, transfers his property by way of gift or otherwise with the condition that the transferee shall provide basic amenities and basic physical needs and such transferee fails or refuses 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 the transfer be declared void by the Tribunal at the option of the senior citizen. It also provides that where any senior citizen has a right to receive maintenance out of an estate or part thereof and such estate or part thereof is transferred, the right may be enforced against the transferee. It further provides that if any senior citizen is incapable of enforcing the rights, action may be taken on his behalf by any of the voluntary association registered under the Societies Registration Act, 1860 or any other law for the time being in force. (Notes on Clauses).".
8.
A copy of the deed of gift has been annexed to the writ application.
9.
Learned Counsel for the respondent no. 3/donor has relied upon the following judgments :- (i) Urmila Dixit - versus - Sunil Sharan Dixit and Ors reported in Civil Appeal No. 10927 of 2024 [Arising out of Special Leave Petition (Civil) No. 720 of 2023].
(ii) Kamalakant Mishra - versus - Additional Collector & Ors reported in Civil Appeal No....2025 [@SLP(CIVIL) No. ...D.No. 42786 of 2025].
10.
In Urmila Dixit - versus - Sunil Sharan Dixit and Ors reported in Civil Appeal No. 10927 of 2024 [Arising out of Special Leave Petition (Civil) No. 720 of 2023], the Supreme Court held that :- "23. The Appellant has submitted before us that such an undertaking stands grossly unfulfilled, and in her petition under Section 23, it has been averred that there is a breakdown of peaceful relations inter se the parties. In such a situation, the two conditions mentioned in Sudesh (supra) must be appropriately interpreted to further the beneficial nature of the legislation and not strictly which would render otiose the intent of the legislature. Therefore, the Single Judge of the High Court and the tribunals below had rightly held the Gift Deed to be cancelled since the conditions for the well-being of the senior citizens were
not complied with. We are unable to agree with the view taken by the Division Bench, because it takes a strict view of a beneficial legislation.".
11.
In Kamalakant Mishra - versus - Additional Collector & Ors reported in Civil Appeal No....2025 [@SLP(CIVIL) No. ...D.No. 42786 of 2025], the Supreme Court held that:- "7. The framework of the Act clearly notes that the law was enacted to address the plight of older persons, for their care and protection. Being a welfare legislation, its provisions must be construed liberally so as to advance its beneficent purpose. This Court on several occasions has observed that the Tribunal is well within its powers to order eviction of a child or a relative from the property of a senior citizen, when there is a breach of the obligation to maintain the senior citizen.2 In the present case, despite being financially stable, the respondent has acted in breach of his statutory obligations in not allowing the appellant to reside in the properties owned by him, thereby frustrating the very object of the Act. High Court fell in error in allowing the writ petition on a completely untenable ground.".
12.
Thus, it appears from the said judgments relied upon by the learned Counsel for the respondent no. 3, that the Supreme Court has categorically held that eviction order could be passed under the said Act, when there is a breach of the obligation to maintain the senior citizen.
13.
Learned Counsel for the petitioner has relied upon the judgment of the Supreme Court in Sudesh Chhikara - versus - Ramti Devi and Another reported in (2024) 14 Supreme Court Cases 225 wherein the Court held as follows :-
"14. 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. 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.
15. 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.
16. Careful perusal of the petition under Section 23 filed by Respondent 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 1) would provide the basic amenities and basic physical needs to Respondent
1. Even in the impugned order dated 22-5-2018 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 1 that the release deed was executed subject to such a condition.".
14.
In the present case on careful perusal of the deed of gift it appears that the same has not been executed as per Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
15.
There is no such terms and conditions in the deed stating that the transfer was effected subject to the condition of providing the basic amenities and basic physical needs to the transfer.
16.
Accordingly, the Impugned proceeding vide F. No. 247/AC(R&DM)/SCWMT/R-Cell/2025/1491, being not in accordance with law, is quashed and set aside. 17.
The writ petition being WPA 557 of 2025 is accordingly disposed of along with CAN/1/2025.
18.
Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.
[ SHAMPA DUTT (PAUL), J. ]