In CIVIL APPEAL No.174 of 2021-SC- Effecting transfer of property subject to condition of providing basic amenities & physical needs to transferor-senior citizen, is sine qua non for applicability of Sec.23 (1) of Senior Citizens Act: SC
Justices Sanjay Kishan Kaul & Abhay S. Oka [06-12-2022]

Read Judgment: Sudesh Chhikara Vs. Ramti Devi & Anr

LE Correspondent

New Delhi, November 7, 2022: The Supreme Court has dismissed a petition filed by a mother under section 23 of the Maintenance & Welfare of Parents & Senior Citizens Act,2007 after noting that it was not even pleaded in the petition that the release deed was executed subject to a condition that the daughters would provide the basic amenities and basic physical needs to their mother. 

“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”,the Division Bench of Justice Sanjay Kishan Kaul and Justice Abhay S. Oka held.

In this matter, the first Respondent  acquired certain lands totaling 5 bighas and 3 biswa in Village Basai and District Gurugram, Haryana. She claimed that the acquisition was by way of inheritance from her father. 

The first respondent/daughter executed a release deed in respect of a part of the subject property in favour of her daughters (the appellant and second respondent’s mother) and as per the said release deed, the daughters became the owners of one-third share each in the property subject matter of the release deed. 

In 2009, the first respondent executed another release deed in respect of one-fourth and one half share in the lands in favour of her son Sunder. The first Respondent, the appellant and the second respondent’s mother filed Civil Suit essentially for challenging the release deed of 2009 . The Civil Court declared the release deed as null and void.

It was the case of the first respondent that her son Sunder and grandson Manish preferred appeals against the aforesaid decrees and during the pendency of the appeals, they sold the property subject matter of the release deeds to a third party.

The first Respondent filed a petition under Section 23 of the 2007 Act before the Maintenance Tribunal (Sub-Divisional Magistrate) stating that her relationship with her son and daughters was strained and therefore, her son and daughters were not maintaining her. It was also contended that the release deed executed by her in favour of her two daughters in 2008 was illegal.

The Maintenance Tribunal held that the release deed of  2008 was null and void.When the High Court confirmed this order on the plea of the present appellant along with the second respondent, the appeal in question was filed before the Apex Court challenging the petition filed under Section 23.

As per the Bench, the petition under Section 23 filed by the first respondent showed that it was not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of first) would provide the basic amenities and basic physical needs to  the first respondent. Even in the impugned order passed by the Maintenance Tribunal, no such finding has been recorded, the Bench added.

Asserting that effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor is sine qua non for applicability of of Section 23(1),the Bench noted that it was not even pleaded by the first respondent that the release deed was executed subject to such a condition.

Noticing the fact that even in the counter, it was not pleaded that the release was subject to such a condition and it was merely pleaded that the appellant had no intention to take care of her mother, thus, the Top Court held that the order of the Maintenance Tribunal couldnot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied. 

Thus, allowing the appeal, the Bench dismissed the petition filed by the first respondent under Section 23.