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Swaran Singh vs Sub Divisional Magistrate Cum … on 29 November, 2017

CWP-1985-2017 1


CWP No.1985 of 2017 (OM)
Date of decision: November 29, 2017

Swaran Singh …Petitioner


Sub Divisional Magistrate-cum-Maintenance
Tribunal, SAS Nagar, Mohali another …Respondents


Present: Mr. Mandeep Kumar Dhot, Advocate for the petitioner.
Mr. Guurcharan Dass, Advocate for respondent No.2.

Rajan Gupta, J.

Petitioner poses a challenge to order dated 20.12.2016, passed

by Sub Divisional Magistrate-cum-Maintenance Tribunal, Mohali, whereby

application under section 23 of the Maintenance and Welfare of Parents and

Senior Citizen Act, 2007 filed by respondent No.2 (mother) was accepted

declaring Deed No.3769 dated 7.9.2016 along with subsequent Deed

No.5978 dated 17.01.2017, as null and void.

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.2, who is his mother. According to him, the mother has not

been harassed by the petitioner, rather petitioner is being harassed by

respondent No.2. He has relied upon judgment reported as Gurdev Singh vs.

State of Punjab and others, 2016 (4) R.C.R. (Civil) 945 and Jagmeet Kaur

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Pannu vs. Ranjit Kaur Pannu, 2016 (2) R.C.R. (Civil) 82, to contend that in

the absence of any condition in the transfer-deed that he would maintain the

parents, Tribunal cannot interfere and set-aside the transfer-deed.

Plea has been opposed by counsel appearing for respondent No.2.

According to him, petitioner has been harassing and maltreating his mother,

who is 80 years old, by using abusive language. Thus, the authority below has

rightly set-aside the transfer deed.

I have heard learned counsel for the parties and given careful

thought to the facts of the case.

Brief factual matrix of the case is that respondent No.2 had

purchased 9 Marlas land/plot in village Balongi in the year 1994, vide sale

deed No.122 dated 8.4.1994. She constructed a house and three shops on it.

After death of husband of respondent No.2, the house situated at Dhanas

(Chandigarh), which was in the name of her husband, was inherited by

respondent No.2 and her four children including the petitioner. In a family

settlement, it was decided that petitioner would leave his share in the house

at Dhanas in favour of respondent No.2 and in lieu thereof, the house

situated in village Balongi would be transferred in his name. He also

assured that he would maintain his mother. In view of settlement, 9 Marla

plot was transferred in the name of petitioner vide Deed No.3769 dated

7.9.2016. However, later on petitioner refused to leave his share in the

house at Dhanas and started harassing his mother. Ultimately, respondent

No.2, who is a senior citizen within the meaning of the Act, preferred an

application under Sections 23 of the Maintenance Welfare of Parents and

Senior Citizens Act, 2007 against her son, seeking cancellation of transfer

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deed No.3769 dated 7.9.2016 and subsequent deed No.5978 dated

17.01.2017. After considering entire material on record, the authority below

allowed the application filed by respondent No.2.

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

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

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

view to achieve objectives thereof. In my considered view, judgments in

Gurdev Singh’s case (supra) and Jagmeet Kaur’s case (supra) are not

applicable to the facts of the case. Petitioner is a licensee in the property and

was permitted to enjoy usufruct thereof. Respondent No.2 alleged that

petitioner started misbehaving and quarrelling with her. She was subjected to

mental harassment by the petitioner due to greed for property. The transfer-

deed was executed without any consideration, but petitioner had refused to

maintain his mother. 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

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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
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.2 mother.

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

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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.

November 29, 2017
Whether speaking / reasoned Yes / No
Whether Reportable: Yes / No

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