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Kulwant Singh vs Appellate Tribunal Cum Deputy … on 16 May, 2018

CWP-4666-2018 1

IN THE HIGH COURT OF PUNJAB HARYANA AT
CHANDIGARH.

CWP No.4666 of 2018 (OM)
Date of decision: May 16, 2018

Kulwant Singh …Petitioners

Versus

Appellate Tribunal-cum-Deputy
Commissioner Patiala others …Respondents

CORAM: HON’BLE MR. JUSTICE RAJAN GUPTA

Present: Mr. Sukhdeep Parmar, Advocate for the petitioner.
Rajan Gupta, J.

Petitioner poses a challenge to order dated 22.02.2017, passed

by Tribunal, Senior Citizen Maintenance Act-cum-Sub Divisional

Magistrate, Nabha, whereby petition under Maintenance and Welfare of

Parents and Senior Citizen Act, 2007 filed by respondent No.3 (father) was

accepted declaring sale-deeds No.190 and 191 dated 29.05.2009, executed

by respondent No.3 in favour of the petitioner, as null and void, as well as

order dated 14.11.2017, passed by Appellate Tribunal-cum-Deputy

Commissioner, Patiala, dismissing the appeal filed by the petitioner.

Learned counsel for the petitioner has urged before this court that

order suffers from patent illegality. The Tribunal without affording opportunity

of hearing to the petitioner, allowed the application filed by respondent No.3.

According to him, the father has not been harassed by the petitioner in any

manner.

I have heard learned counsel for the petitioner and given careful

thought to the facts of the case.

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Brief factual matrix of the case is that respondent No.3, who is

about 90 years of age, has been living alongwith his wife aged about 80. He

has two sons namely, Harpal Singh and Kulwant Singh (petitioner herein).

Both of them have been living separately alongwith their families.

Respondent No.3 alongwith his wife had been living with the petitioner. It

is stated that in lieu of services rendered by the petitioner, his son Kulwant

Singh and his wife got transferred 2½ Acres of his land in their names.

Thereafter, they completely stopped maintaining their parents. Aggrieved,

respondent No.3 approached the Tribunal under the Senior Citizen Act. The

tribunal directed the petitioner to pay Rs.3000/- per month on account of

maintenance etc. to respondent No.3. After said order was passed,

petitioner physically harassed his parents and threw them out of the house.

DDR No.35 dated 11.10.2015 was also registered in Police Station Bhadson

in this regard. Even then, petitioner did not pay any maintenance.

Ultimately, respondent No.3 approached the authority, seeking cancellation

of sale deeds No.190 and 191 dated 29.5.2009. After considering entire

material on record, the Sub Divisional Magistrate, Nabha, vide order dated

22.2.2017, allowed the application filed by respondent No.3 by cancelling

the aforesaid sale deeds and approved mutation of the land in question in

favour of respondent No.3. Aggrieved, petitioner preferred appeal, but

remained unsuccessful. Appeal was dismissed by District Magistrate,

Patiala, vide order dated 14.11.2017.

I find no infirmity with the orders passed. It appears, same was

necessitated in the peculiar circumstances of the case. The authorities below

have acted in accordance with the provisions of special enactment and with a

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view to achieve objectives thereof. In judgment reported as Promil Tomar

and others vs State of Haryana and others, CWP No.20072 of 2013, decided

on December 6, 2013, this court held as under:-

“I have carefully considered the said contention of learned counsel
for the petitioners and I am of the opinion that Section 23 (1) of the
Maintenance Act provides that “where any senior citizen has
transferred by way of gift or otherwise, his property, and the
transferee refuses or fails to provide amenities and physical needs,
the said transfer of the 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 transfer by a
senior citizen in first part of Section 23 (1) of the Maintenance Act
could be a gift or otherwise. The property transferred by gift or
otherwise would include the transfer of the possession of a property
or part of it by a senior citizen. The word “otherwise” used under
Section 23 (1) of the Maintenance Act by the legislation would
include transfer of ownership, transfer of possession by way of a
lease deed, mortgage, gift or sale deed. Even a transfer of possession
to a licencee by a senior citizen will also fall under the ambit of
Section 23 (1) of the Maintenance Act. The word “otherwise” cannot
be ignored for the objective of Section 23 (1) of the Maintenance
Act. In context to the objectives of the Act, “transfer” would mean
that transfer of property by senior citizen need not be a gift only but
it could be any transfer within the meaning of Transfer of Property
Act or would even include transferring of any right of the nature of
title or possession. Section 23 (1) of the Maintenance Act further
provides that if the transfer is subject to a condition that transferee
shall provide basic amenities and basic physical needs to the
transferor and transferee refused to do so, the transfer of property
shall be deemed to have been made by fraud, coercion or undue
influence and would be declared so by the Maintenance Tribunal on
the option of transferor. A senior citizen who had transferred his

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right, title or interest to any other person by gift or otherwise (which
would include transfer of possession by lease, mortgage or licence)
would become void in the event of transferee refusing to provide
amenities and physical needs. The said transfer in such
circumstances would be termed as fraud and would be void.”

In view of above, I am of the considered view that Tribunal has

not erred in allowing the petition preferred by respondent No.3-father.

Transfer in favour of the ward is made with the pious hope that the transferee

would continue to serve the parents as he was doing prior to execution of the

document. Having failed to look after his parents and provide basic amenities

to them in their old age, he makes himself liable for avoidance of the transfer-

deed. Needless to say, in such situation a specific condition that the basic

amenities would be provided to the parents, need not be incorporated in the

transfer-deed. It is deemed to be read into it, as parents make such a transfer

out of love and affection and have no reason to believe that after the transfer,

the ward would turn his back on them and refuse to provide basic amenities

and day-to-day facilities. Thus, pleas raised before this court are without any

merit. Same are hereby rejected. Petition is dismissed.

(RAJAN GUPTA)
JUDGE
May 16, 2018
‘Rajpal’

Whether speaking / reasoned Yes / No

Whether Reportable: Yes / No

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