IN THE HIGH COURT OF PUNJAB HARYANA AT
CWP No.4666 of 2018 (OM)
Date of decision: May 16, 2018
Kulwant Singh …Petitioners
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
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.
May 16, 2018
Whether speaking / reasoned Yes / No
Whether Reportable: Yes / No
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