1

Reserved on : 24.04.2024
Pronounced on : 04.06.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 04TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.14704 OF 2021 (GM - RES)

BETWEEN:

SRI VIVEK JAIN

S/O JNANCHAN JAIN,
AGED ABOUT 33 YEARS,
RESIDING AT NO.3140,
6TH CROSS, KUVEMPU NAGAR,
CHANNAPATNA TOWN – 562 160.
RAMANAGARA DISTRICT.
... PETITIONER

(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W

SRI NARENDRA P.R., ADVOCATE)

AND:

1. THE DEPUTY COMMISSIONER

RAMANAGARA DISTRICT
HAVING OFFICE AT VIJAYA NAGAR,
RAMANAGARA DISTRICT,
KARNATAKA – 562 159.
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2. THE PRESIDENT AND

ASSISTANT COMMISSIONER,
SENIOR CITIZEN TRIBUNAL,
RAMANAGARA SUB-DIVISION,
RAMANAGARA – 562 159.
RAMANAGARA DISTRICT.

3. SRI SRINIVAS
S/O LATE S.R.SAMPATHU,
AGED ABOUT 74 YEARS,
RESIDING AT 3RD CROSS,
KUVEMPU NAGAR,
CHANNAPATNA TOWN – 562 160.
RAMANAGARA DISTRICT.

4. SRI C.S.HARSHA
S/O SRI SRINIVAS,
AGED ABOUT 41 YEARS,
RESIDING AT 4TH BLOCK,
5TH MAIN, VIVEKANANDANAGARA
CHANNAPATNA TOWN – 562 160.
RAMANAGARA DISTRICT.

5. SRI C.S.THILAK
S/O SRI SRINIVAS,
AGED ABOUT 37 YEARS,
RESIDING NEAR MAHADESHWARA TEMPLE
AND DIVYA NIKETHAN SCHOOL,
CHANNAPATNA TOWN – 562 160.
RAMANAGARA DISTRICT.
... RESPONDENTS

(BY SMT.NAVYA SHEKHAR, AGA FOR R1 AND R2;

SMT.LAKSHMY IYENGAR, SR.ADVOCATE A/W
SRI SRIKANTH M., ADVOCATE FOR R-3 AND R-5;
SRI SATYANARAYANA REDDY, ADVOCATE FOR R4)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 07.07.2021 PASSED BY THE R2 AS PER
THE ANNEXURE-A AND I.E, PRESIDENT AND ASSISTANT
COMMISSIONER SENIOR CITIZEN TRIBUNAL, RAMANAGARA SUB-
DIVISION, RAMANGARA UNDER WHICH THE R2 CANCELLED THE
GIFT DEED DATED 20.06.2019 EXECUTED BY R3 IN FAVOUR OF R4
AND SALE DEED DATED 19.12.2019 WHICH WAS EXECUTED BY
THE R4 IN FAVOUR OF THE PETITIONER.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED

FOR ORDERS ON 24.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioner is before this Court calling in question the order

dated 07-07-2021 passed by the 2nd respondent/Assistant

Commissioner under the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 (‘the Act’ for short) cancelling the Gift

Deed dated 20-06-2019 and subsequent sale deed dated

19-12-2019.

2. The facts, in brief, germane are as follows:

The 3rd respondent is the father of respondents 4 and 5. The

3rd respondent owned certain property; initially executes a gift deed

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in favour of his wife in the year 2000. The wife of the 3rd

respondent who was the donee dies in the year 2015. After the

death of his wife, the 3rd respondent who was the donor, gifts the

property again to the 4th respondent, his son by execution of a gift

deed dated 20-06-2019. After the said gift deed, the name of the

4th respondent is entered in all revenue records depicting him to be

the owner of the said property. On the strength of him becoming

the absolute owner of the property, the 4th respondent sells the

property in favour of the present petitioner on 19-12-2019 on

certain consideration. Two years after the said sale, the 3rd

respondent, earlier donor knocks at the doors of the Assistant

Commissioner invoking Section 23 of the Act. The Assistant

Commissioner, in terms of the impugned order, sets aside the Gift

Deed, so executed on 20-06-2019 and the sale deed executed in

favour of the present petitioner by the son on 19-12-2019 by

which, the property that was purchased by the present petitioner is

taken off. It is therefore, the petitioner is before this Court in the

subject petition.
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3. Heard Sri Sandesh J. Chouta, learned senior counsel

appearing for the petitioner, Smt. Navya Shekhar, learned

Government Advocate appearing for respondents 1 and 2, Smt.

Lakshmy Iyengar, learned senior counsel appearing for respondents

3 and 5 and Sri Satyanarayana Reddy, learned counsel appearing

for respondent No.4.

4. The learned senior counsel Sri Sandesh J.Chouta would

vehemently contend that the gift deed did not contain any such

condition for the Assistant Commissioner to have entertained the

petition. The learned senior counsel would further contend that the

Assistant Commissioner could not have set aside the sale deed

executed in favour of the petitioner. He would submit that the issue

stands answered by plethora of judgments of the Apex Court and

this Court and even the High Court of Kerala interpreting the

provisions of the Act. He would submit that the order of the

Assistant Commissioner should be quashed and status quo ante

should be restored in favour of the present purchaser/petitioner.

He would further submit that all other issues between the parties

can be agitated before the civil Court.

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5. Per-contra, the learned senior counsel Smt. Lakshmy

Iyengar appearing for respondent No.3/father/donor would seek to

demonstrate that after the death of his wife the property would not

devolve back to the to the hands of the donor and all the members

of the family would become entitled to seek share in the property,

as the donee of the gift is no more. The learned senior counsel

would submit that the father has assumed that the property had

devolved back to him and accordingly gifted the property in favour

of the 4th respondent. The 2nd gift in line is in the year 2019 and the

son/4th respondent has executed a sale deed on 19-12-2019. It is

her submission that all the actions after the death of the wife of the

3rd respondent are all a nullity in law. The learned senior counsel

would contend that all the parties have to approach the civil Court

for determination of their right. The learned senior counsel would

submit that the petitioner who is a subsequent purchaser cannot

have a right more than what the 4th respondent would have. The 4th

respondent is the donee of the gift deed. The learned senior counsel

would submit that the property standing in the name of the father

was a commercial property. He was deriving right over it till the

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sale deed is executed. Therefore, on these grounds she would seek

dismissal of the petition.

6. The learned senior counsel for the petitioner would join

issue to contend that at the time of sale, the father was present.

The petitioner and the 4th respondent together have transferred an

amount of `15/- lakhs to the account of the father and an amount

of `10,000/- as monthly interest is paid to the father out of the said

funds. This is not disputed by the learned senior counsel for the 3rd

respondent. This submission is also acknowledged by the learned

counsel representing the son/4th respondent who has sold the

property in favour of the petitioner. These submissions are made to

contend that the father is not left high and dry. He has, in fact,

amount in his account and `10,000/- every month is being paid to

him. On these grounds, the learned senior counsel for the

petitioner would contend that the Assistant Commissioner could not

have exercised his jurisdiction to annul the gift deed.

7. I have given my anxious consideration to the submissions

made by the learned senior counsel and have perused the material
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on record. In furtherance whereof, the issue that falls for

consideration is:

‘Whether the Assistant Commissioner could have

entertained the petition under Section 23 of the Act and set

aside the gift deed dated 20-06-2019 and the subsequent

sale deed dated 19-12-2019?’

8. The afore-narrated facts are not in dispute, but would

require a little elaboration. The lis has three protagonists – one,

the 3rd respondent/father (hereinafter referred to as the donor or

father as the case may be), second, the 4th respondent (hereinafter

referred to as ‘the donee’) and the third, the petitioner, purchaser

from the hands of the donee. It is not in dispute that the donor

owned certain property, which is the subject matter of the present

petition. The said property becomes the subject matter of a gift

executed by the donor initially on 15-03-2000 in favour of his wife,

one Smt. Kalavathi. It is said that Smt. Kalavathi during her life

time had executed a mortgage deed in favour of State Bank of

India as security for the loan secured by her. The said deed was

executed on 07-11-2012. The wife dies on 29-10-2015. After the

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death of the wife, the records of the property again reverted back

to the donor, the 3rd respondent as his wife was no more and the

donor was alive. The donor enjoyed the property for over four

years. He then executes a gift deed on 20-06-2019 in favour of the

4th respondent/donee. After execution of the gift deed, a release

deed is executed by the 5th respondent, the other son of the donor.

Therefore, the 4th respondent becomes the absolute owner of the

property. The 4th respondent clears all the dues to the State Bank

of India, a loan that was availed by the mother of the 4th

respondent. Thereafter the State Bank of India executes a

discharge deed in favour of the 4th respondent on 12-11-2019.

Thus, the property becomes free from all encumbrances. It is then,

the 4th respondent sells the property in favour of the present

petitioner by execution of sale deed dated 19-12-2019. Now all the

records are in favour of the petitioner pursuant to the said sale

deed. The proceeds of sale were also distributed to the donor viz.,

`15/- lakhs was paid to him by way of deposit being made in the

Life Insurance Corporation of India in favour of the donor and

`10,000/- per month being remitted to the bank account of the

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father/donor. The afore-quoted facts are admitted, as they are

borne out of records. Then begins the problem.

9. The father/donor approaches the Assistant Commissioner

invoking Section 23 of the Act contending that he is not being taken

care of and the gift deed is taken by playing fraud upon him. The

Assistant Commissioner issues notice to all the concerned. The

present petitioner was also made a party before the Assistant

Commissioner. He was 3rd respondent. The issue now would be

whether the Assistant Commissioner could have entertained the

petition before him in the teeth of recitals in the gift deed.

Therefore, it becomes necessary to notice the gift deed. The gift

deed reads as follows;

“ಸ ಎರಡು ಾ ರದ ಹ ೊಂಭತ ೆ ಇಸ ಜೂ ಾ ೇ ಾ ೕಖು ಇಪ ತರಲು (20-

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ೇ ಪc ಾJ ಸ^qOೆ ಚಕುeಬಂ]:

¥ÀƪÀðPÉ: 22-1-5-102
¥À²ÑªÀÄPÉÌ 22-1-5-98
ಉತರYೆe 22-1-5-ರ ೆ
zÀQëtPÉÌ 22-1-512-127

ಈ ಮQೆ[ ಇರುವ ಪc ಾJ ಸ^ತನು1 dೕಲeಂಡಂ ೆ ನನ1 ಮಗ DEೕ ಹಷJ N.ಎF. ಆದ

HಮOೆ Xಾನ8ಾB Yೊi3ರು ೇ ೆಂದು ಒ| ಬ)ೆNYೊಟ3 Xಾನ ಪತE ಸŠ, ಸದ Xಾನದ ಸ^ತನು1
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The gift deed supra admittedly does not contain any condition that

the son should take care of the necessities basic or otherwise of the

father during his life time and in the absence of such condition,

whether the Assistant Commissioner could have annulled the gift

 13

deed is the issue that needs consideration. The said issue need not

detain this Court for long or delve deep into the matter. It has

borne consideration by the Apex Court and by judgments rendered

by this Court and other High Courts.

10. The Apex Court in the case of SUDESH CHHIKARA v.

RAMTI DEVI1 has held as follows:

“CONSIDERATION OF SUBMISSIONS

11. We have given careful consideration to the submissions.

Before dealing with the factual aspects, it is necessary to advert to
the legal aspects. The Sub-Divisional Magistrate acting as the
Maintenance Tribunal under the 2007 Act has invoked the power
under Section 23 to declare that the subject release deed was void.
The 2007 Act has been enacted for the purposes of making
effective provisions for the maintenance and welfare of parents and
senior citizens guaranteed and recognized under the Constitution of
India. The Maintenance Tribunal has been established under
Section 7 to exercise various powers under the 2007 Act. Section 8
provides that the Maintenance Tribunal, subject to any rules which
may be framed by the Government, has to adopt such summary
procedure while holding inquiry, as it deems fit. Apart from the
power to grant maintenance, the Tribunal exercises important
jurisdiction under Section 23 of the 2007 Act which reads thus:

“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

1
2022 SCC OnLine SC 1684
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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.”
(emphasis added)

12. 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.

13. 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,
 15

existence of such conditions must be established before the

Tribunal.

14. Careful perusal of the petition under Section 23

filed by respondent no. 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 no. 1)
would provide the basic amenities and basic physical needs
to respondent no. 1. Even in the impugned order dated
22nd May 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
no. 1 that the release deed was executed subject to such a
condition.”
(Emphasis supplied)

Following the said judgment, a Division Bench of this Court in the

case of NANJAPPA v. STATE OF KARNATAKA2 has held as

follows:

“…. …. ….
18. On careful reading of the aforesaid provisions makes
it clear that all kinds of transfers as is clear from the use of
the expression 'by way of gift or otherwise' so as to attract the
provisions of Sub-section (1) of Section 23 of the Senior
Citizens Act, 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 ransferor;
and

2
W.A.No.573 of 2022 Decided on 17-03-2023
 16

b) The transferee refuses or fails to provide such menities

and physical needs to the transferor.

19. If both the aforesaid conditions are satisfied, by a

legal action, 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.
20. Though a specific contention is urged by the
learned Senior Counsel for the appellant that in view of
the scope and object of the Senior Citizens Act, it is
deemed 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 made by him would be null and void, it is an
undisputed fact that 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 of the Senior Citizens Act are attached to a
transfer, existence of such conditions must be
established before the Tribunal.
21. In the present case, on careful perusal of the
document executed by the appellant in favour of the 3rd
respondent, who happens to be the brother of the
appellant, it does not contain any stipulation that the
3rd respondent is under the obligation to maintain the
present appellant. In the absence of the same and in
view of the provisions of Sub-sections (1) and (2) of
Section 23 of the Senior Citizens Act, the transaction
could be declared as null and void provided the same
contains the stipulation that the transferee shall
maintain the senior citizen and the aforesaid Gift Deed
does not contain any such stipulation. In the absence of
any condition stipulated in the documents, the
 17

provisions of Sub-sections (1) and (2) of Section 23 of

the Senior Citizens Act are not attracted.
22. Our view is fortified by the dictum of the Hon'ble
Supreme Court in the case of Sudesh Chhikara -vs- Ramti
Devi reported in LAWS (SC) 2022-12-17 wherein at
paragraphs-12, 13 and 14 it is held as under:

"12. 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.

13. 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.

14. Careful perusal of the petition under Section 23

filed by respondent no. 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 no. 1) would provide the basic amenities
and basic physical needs to respondent no. 1. Even in
the impugned order dated 22nd May 2018 passed by
 18

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 no. 1 that the release
deed was executed subject to such a condition."

23. Though in the present case, a specific contention is

being taken by the learned Senior Counsel for the appellant
that, the appellant being the absolute owner of the property in
question, out of love and affection executed a Gift in favour of
his brother/respondent No.3 under a Gift Deed, dated
23.2.2012, with a ray of hope that the 3rd respondent/brother
would take care of basic needs of medical necessities as his
son was not keeping well and his daughter was settled with
her husband, but respondent No.3 has changed attitude
towards him and has failed to show even love and affection
towards him. The fact remains that, on the application filed by
the appellant against respondent No.3, the Assistant
Commissioner, who is the authority under the provisions of
Sub-sections (1) and (2) of Section 23 of the Senior Citizens
Act has allowed the application filed by the present appellant
ignoring the conditions stipulated under the provisions of Sub-
sections (1) and (2) of the Senior Citizens Act as held by the
Hon'ble Supreme Court. Thereby, the learned Single Judge has
rightly allowed the writ petition. In identical circumstances,
the Full Bench of the Kerala High Court in the case of
Subhashini -vs- District Collector, Kozhikode reported in
LAWS (KER)-2020-9-81 at paragraph-52 has held as under:

"52. We conclude by answering the reference, that

the condition as required under Section 23(1) for provision
of basic amenities and basic physical needs to a senior
citizen has to be expressly stated in the document of
transfer, which transfer can only be one by way of gift or
which partakes the character of gift or a similar gratuitous
transfer. It is the jurisdictional fact, which the Tribunal will
 19

have to look into before invoking Section 23(1) and

proceeding on a summary enquiry. We answer the
reference agreeing with the decision in W.A. No. 2012 of
2012 dated 28.11.2012 [Malukutty Ponnarassery v. P.
Rajan Ponnarassery]. We find Shabeen Martin v. Muriel
[2016 (5) KHC 603] and Sundhari v. Revenue Divisional
Officer [2018 KHC 4655 = (2013) 3 KLT 1082] to be
wrongly decided. We approve Radhamani v. State of
Kerala [2016 (1) KHC 9] which had a recital in the
document akin to that required under Section 23(1)."

24. On careful reading of the contents of the Gift

Deed, dated 23.2.2012, the impugned order passed by
the learned Single Judge of this Court is in consonance
with the provisions of Sub-sections (1) and (2) of
Section 23 of the Maintenance and Welfare of Parents
and Senior Citizens Act, 2007, as the Gift Deed, dated
23.2.2011, does not contain any stipulation that
respondent No.3 is under obligation to maintain the
present appellant. In the absence of the same, it cannot
be held that the impugned order passed by the learned
Single Judge is not in consonance with the provisions of
Section 23 of the Senior Citizens Act.

25. Though our conscious is in favour of the

welfare of the Senior Citizens considering the scope and
object of Maintenance and Welfare of Parents and
Senior Citizens Act, 2007, but our hands are tied in view
of the dictum of the Hon'ble Supreme Court in the case
of Sudesh Chhikara, wherein while interpreting the very
provisions of Sub-section (1) of Section 23 of the said
Act, it has been held that the two conditions must be
stipulated in the document, which is binding on all
including this Court as contemplated under Article 141
of the Constitution of India.

26. The judgments relied upon by the learned

Senior Counsel for the appellant are not applicable to
the peculiar facts and circumstances of the present
case, in view of the latest dictum of the Hon'ble
Supreme Court rendered on 6th December 2022 in the
 20

case of Sudesh Chhikara -vs- Ramthi Devi reported in

LAWS(SC) 2022-12-17.

27. For the reasons stated above, the point raised in the
present Intra Court Appeal is answered in the negative holding
that the appellant has not made out any ground to interfere
with the impugned order, dated 26.2.2019, passed by the
learned Single Judge in Writ Petition No.52010/2016.”

(Emphasis supplied)

In the light of the aforesaid judgment of the Apex Court and that of

the Division Bench of this Court what would unmistakably emerge

is, the Assistant Commissioner could not have annulled the gift

deed, unless the condition that is observed by the Apex Court in

RAMTI DEVI is fulfilled in a gift deed.

11. Two divergent opinions emerge before the High Court of

Kerala in SUBHASHINI v. DISTRICT COLLECTOR3. The matter

was then referred to a Full Bench. The reference was made by a

Division Bench in the light of conflict of two Benches where the

conflict is answered in the following manner:

“…. …. ….
25. Sundhari again was a case in which the parents
gifted their property to their daughter. The father expired and
3
W.A.No.1460 of 2015 decided on 22-09-2020
 21

problems arose between the mother and the daughter. The

mother approached the Tribunal and though the Tribunal set
aside the gift deed as such, the learned Single Judge found
that the gift made by the father, who is no more, cannot
be set aside under Section 23. The Division Bench
agreed with that and found that on setting aside of gift
made by the mother, she along with her daughter
becomes co-owners of the property. Their right to
residence as found in the deed was held to be sufficient
satisfaction of the condition under Section 23(1), reckoning it
to be a provision for basic amenity or physical need.

26. Section 23 (1) & (3) reads as under:

"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.
xxx xxx xxx
(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".

27. None of the words employed in Section 23(1) has

been defined in the Act except ‘senior citizen’. The other words
which have definite legal connotation, have to be understood
in the context in which the same has been used, which is
discernible from the general scope of the statute as is laid
down by the Hon’ble Supreme Court in Kotak Mahindra Bank
Limited; with reliance placed on an authoritative text on
interpretation. Section 3 only saves any provision in the Act of
2007, inconsistent with any other enactment. The various
legal terms are not differently defined and no substantive right
is intended to flow from the enactment of 2007. It has to be
 22

understood as not intending any conferment of rights or

imposition of liabilities hitherto not conferred or imposed by
the various other enactments. The Act and Section 23(1) only
provides a speedy remedy. If at all there is any right
conferred, it can only be that of declaration of a gift or a
similar transaction, as void, on the grounds of fraud, coercion
and undue influence, which otherwise would make it voidable
under Section 19 of the Contract Act. The context in which the
enactment was brought in, as we have already seen, is to curb
the evil of alienation of senior citizens from society and the
purpose is to provide expeditious adjudication and recovery of
maintenance. The remedy available, prior to the Act, insofar
as maintenance is concerned, which is sought to be by-
passed, as has been referred to in the Act itself, is Section 125
of the Code of Criminal Procedure [‘Cr.P.C.’ for brevity). The
relevant statutes insofar as transfer of property is concerned,
would be the T.P. Act, the Indian Contract Act, 1872 and so on
and so forth. The remedy to enforce a right or to annul one
created by a document executed, is before the Civil Court.
Does Section 23(1) relate to every such remedy, against all
known forms of transfer of property, which otherwise is
enforceable before the Civil Court is the vexing question we
have to first deal with in considering whether the condition has
to be expressly specified in the document for the jurisdiction
of the Tribunal to arise.

28. Section 23 does not create or negate any

substantive rights; except the one mentioned above and
merely provides a procedure for speedy recovery, to
ensure which a deeming fiction is created with respect
to certain categories of transfer of property, made
subject to a condition. The fiction created; on a breach
of the specified condition, deems the transfer itself to
be vitiated by reason of fraud, coercion or exercise of
undue influence. The transfer of property as spoken of
in the provision has to concede to the various transfers
spoken of in the T.P Act. The vitiating factors are those
available under common law and defined under the
Indian Contract Act. Normally the transferor will have to
approach the civil courts to enforce his claim to get the
transfer set aside. When a remedy is sought before the
 23

Civil Court, the normal rules of evidence applies and the

adjudication is carried on by a judicial officer.
…. …. ….
49. One other aspect is that the option if
exercised, cannot be withdrawn and if the senior citizen
expires immediately after the declaration by the
Tribunal, the property would revert as the estate of the
deceased and every legal heir acquires a right to inherit.
We specifically notice the Division Bench judgment of
this court in Antony Scaria & Anr. v. District Collector &
Ors. [2020 (3) KLT 183], wherein before the death of
the transferor there was no declaration made by the
Tribunal. The writ petition was filed by the transferor
against the refusal of the Tribunal and the appellate
authority to invoke its jurisdiction under Section 23(1).
Pending writ petition, the transferor died when the
other legal heirs sought to continue the proceedings. It
was held that the right to approach the Maintenance
Tribunal is in the personal capacity of the senior citizen
and not a heritable right under common law. The
situation would be quite different if in the life time of
the senior citizen the declaration is made by the
Tribunal. On his death the property devolves on the
legal heirs.
…. ….. ….

52. We conclude by answering the reference, that

the condition as required under Section 23(1) for
provision of basic amenities and basic physical needs to
a senior citizen has to be expressly stated in the
document of transfer, which transfer can only be one by
way of gift or which partakes the character of gift or a
similar gratuitous transfer. It is the jurisdictional fact,
which the Tribunal will have to look into before invoking
Section 23(1) and proceeding on a summary enquiry.
We answer the reference agreeing with the decision in
W.A.No.2012 of 2012 dated 28.11.2012 [Malukutty
Ponnarassery v. P.Rajan Ponnarassery]. We find
Shabeen Martin v. Muriel [2016 (5) KHC 603] and
Sundhari v. Revenue Divisional Officer [2018 KHC 4655
= 2013 (3) KLT 1082] to be wrongly decided. We
 24

approve Radhamani v. State of Kerala [2016 (1) KHC 9]

which had a recital in the document akin to that
required under Section 23(1).”

53. In the facts and circumstances of the case, we are of

the opinion that nothing further arises, for us to remand the
matter to the Division Bench for consideration of the appeal
itself. The document, which is the subject matter of dispute, is a
settlement deed wherein there is a reservation of right of
residence in the residential building as also to take usufructs
from the standing coconut trees in the property. There is no
condition as required under Section 23(1) expressly stated in
the document. The life interest reserved in the document cannot
also lead to such a condition being implied or inferred. There can
be no consideration of the circumstances under which the
document was executed, as has been attempted by the
appellate authority. We hence, dismiss the appeal and restore
the order of the Tribunal granting maintenance of Rs. 2,500/-.
We are quite conscious of the fact that there is an interim order
passed granting Rs. 5,000/- per month during the pendency of
the appeal. The respondent is said to have complied with that
order till date. We are of the opinion that what is required is the
restoration of the order of the Tribunal in the facts and
circumstances, leaving open the remedy of the appellant to
approach the Civil Court for enforcement of any rights reserved
on her under the document. We specifically restore the order of
the Tribunal also in the context of the admission of the appellant
that she has other children with whom she is residing. There is a
contention raised that she had also resided in an Ashram for a
period. If she wishes to claim further maintenance, she could
approach the Tribunal in which event, the quantum would have
to be proportionately shared by all the children.”

(Emphasis supplied)

The Full Bench of the High Court of Kerala interpreting Section 23 of

the Act and analyzing the law on the point holds that unless a

condition is stipulated in favour of the senior citizen in the recitals

 25

of the gift deed, the Assistant Commissioner would not get

jurisdiction to annul the gift deed. The Full Bench of the High Court

of Kerala after answering the reference as afore-quoted left it open

to the senior citizen to approach the Assistant Commissioner if the

senior citizen would need enhancement of maintenance, as

maintenance was already directed to be paid in the afore-quoted

paragraphs.

12. Then comes certain line of judgments of the High Court of

Bombay and the High Court of Madras which follow a three Judge

Bench judgment of the Apex Court in the case of S.VANITHA v.

DEPUTY COMMISSIONER4. The High Court of Bombay and High

Court of Madras declined to follow the judgment of the Apex Court

in the case of RAMTI DEVI and hold that under the Act it is

presumed that the donor should be taken care of, as love and

affection cannot be restricted to just love and affection, but care

and necessities. The judgments of the learned Judges of respective

High Courts would only have a persuasive value. The Division

Bench of this Court in the case of NANJAPPA supra has clearly

4
(2021) 15 SCC 730
 26

held following the judgment in RAMTI DEVI, in its judgment

rendered on 17th March 2023, that unless there is a condition, the

gift deed cannot be annulled. I deem it appropriate to follow the

judgment of the Apex Court in the case of RAMTI DEVI on the

issue and that of the Division Bench of this Court in the case of

NANJAPPA, as this Court has held following the said judgment in

RAMTI DEVI in the case of S. SURESH v. ASSISTANT

COMMISSIONER5 as follows:

“….. ….. …..

9. It is further germane to refer to the judgment of

the Division Bench of this Court passed in W.A.No.96/2019
and connected matters disposed on 29.06.2022,
wherein, the Division Bench considering the purport of Section
23 of the Act, has held as follows:

“5. We have considered the submissions

made on both sides and have perused the
records. Section 23(1) of the Act reads as under:
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.
5
W.P.No.24162 of 2022 decided on 29th March, 2023
 27

6. Thus, from the perusal of the aforesaid

provision, it is evident that if the Senior Citizen after
commencement of the Act has gifted the property
subject to the condition that the transferee shall
provide the basic amenities and basic physical needs
to the transferor and in case transferee refuses or
fails to do so, the 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.

7. In the instant case, deceased-

respondent No.4, who was the mother of the
appellant had executed the gift deed dated
08.07.2015. The aforesaid gift deed does not
contain any stipulation with regard to
maintenance of deceased-respondent No.4. The
relevant extract of the Gift deed is reproduced below
for the facility of reference.

"That, because of love and affection and

you, my daughter viz., N.D. Vanmala is
being looked after me in all manner, today, I
am gifting the below mentioned schedule
property, through this gift deed and along
with possession of the schedule property.
Hereinafter, you are required to get transfer
the Khata of the schedule property in your
name and to pay the revenue and also to
enjoy the same with complete ownership at
your wish. That except you, neither myself
nor any other of my successors have no any
kind of rights or interest over the schedule
property hereinafter."

8. Thus from the perusal of the relevant

extract of the Gift deed, it is evident that the
Gift deed does not contain any condition that
the transferee, namely, the appellant shall
provide the basic amenities and basic physical
needs to the transferor. On the other hand,
Gift deed has recorded that the appellant has
taken care of respondent No.4. Respondent
No.4 has expired during the pendency of the
appeal. In the absence of any stipulation in
the gift deed with regard to the maintenance
of respondent No.4, the Assistant
 28

Commissioner had no authority under

Section 23 of the Act to declare the Gift deed
to be void. However, the aforesaid aspect of
the matter has not been appreciated by the
learned Single Judge.

9. For the aforementioned reasons, the

order dated 15.03.2017 passed by the Assistant
Commissioner, the order dated 08.11.2017
passed by the Deputy Commissioner and the
order dated 14.11.2018 passed by the learned
Single Judge are hereby quashed and set aside.”

(emphasis supplied)

10. The afore-quoted judgments, both of the Apex

Court in the case of SUDESH CHHIKARA (supra) and the
order of the Division Bench would clearly indicate that the
Assistant Commissioner cannot annul a gift deed, if the deed
does not contain any conditions of amenities or the donor to
be taken care of with all physical means. The issue in the case
at hand is identical and in the considered view of this Court,
stands covered on all its fours to the afore-quoted judgments.
Therefore, the order of the Assistant Commissioner is rendered
unsustainable, only insofar as annulment of the gift deed. The
order of maintenance stands sustained.”

This Court disposed of the petition following the Division Bench

judgment of this Court in W.A.No.96 of 2019 disposed of on

29-06-2022.

13. On a coalesce of the judgments quoted hereinabove, what

would unmistakably emerge is, that the Assistant Commissioner

would get jurisdiction to annul the gift deed only if the recitals in
 29

the gift deed have the condition, as observed by the Apex Court in

RAMTI DEVI. The gift deed is quoted supra. There is no condition

in the gift deed that would satisfy the test laid down in RAMTI

DEVI. Therefore, this Court cannot but interfere with the order

passed by the Assistant Commissioner.

14. There are certain developments whereby the 4th

respondent/son sells the property to the petitioner, all of which are

narrated hereinabove. Learned senior counsel for the 3rd

respondent contends that the petitioner has no right to question the

order passed by the Assistant Commissioner. I decline to accept

the said submission. Before the Assistant Commissioner, the

petitioner was a party; he was respondent No.3. He had to protect

his property which he had purchased in accordance with law. There

was nothing contrary to law when the petitioner purchased the

property from the hands of the 4th respondent. Against the order

passed by the Assistant Commissioner, the petitioner had

approached the Deputy Commissioner by filing an appeal. The

appeal is dismissed for want of maintainability and, therefore, the

petitioner is before this Court. If he is to be driven to the civil

 30

Court, the present order of the Assistant Commissioner will always

stare at him, as he has lost the property by a stroke of pen, of the

Assistant Commissioner, which I have found fault with, following

the afore-quoted judgments. Therefore, the petitioner does have all

the right to call the said order of the Assistant Commissioner in

question before this Court, as he cannot be left remediless; more

so, in the light of the fact that the order of the Assistant

Commissioner cannot be interfered with by the civil Court in

exercise of any jurisdiction. Therefore, the remedy lies only before

this Court.

15. With regard to other submission whether the property

would devolve back to the hands of the father after the death of his

wife who was the recipient of the first gift deed is concerned, I

leave the issue open to be agitated by the parties before a

competent civil Court, as the submission of the learned senior

counsel for the father is, notwithstanding he himself having

executed gift deed, he had no power to execute a second gift deed,

as the property even according to him did not come to him and he

could not have executed the gift deed and the family members
 31

were entitled to a share in the property. All these factors will have

to be thrashed out before a competent civil Court, and therefore, I

leave open to the parties to approach the competent civil Court for

redressal of their residuary grievances.

16. It is an admitted fact that the father is getting `10,000/-

from out of the deposit made on `15/- lakhs in Life Insurance

Corporation of India. But, in the growing cost of living the said

amount would not be enough. Therefore, I deem it appropriate to

direct the beneficiary of the gift deed viz., the 4th respondent/son to

pay maintenance to the 3rd respondent/father of `10,000/- per

month apart from `10,000/- that he is getting out of the interest of

the deposit from the LIC and also reserve liberty to the father to

seek enhancement of maintenance, if need arises before the

Assistant Commissioner.

17. In the light of the preceding analysis, I deem it

appropriate to pass the following:

ORDER

(i) Writ Petition is allowed.

 32

(ii) The order of the Assistant Commissioner dated

07-07-2021 stands quashed. Consequently, the gift
deed and the sale deed that stood annulled by the
impugned order, stands restored.

(iii) The donor of the gift deed is held entitled to

maintenance at `10,000/- to be paid by the 4th
respondent/son apart from `10,000/- that the
deposit with the LIC is earning, with liberty to seek
enhancement of maintenance on any warranting
circumstance, before the Assistant Commissioner.

(iv) The 3rd respondent/father or any other family

members are at liberty to approach the civil Court
for redressal of their residuary grievance, if they so
desire and if it is permissible in law.

(v) All contentions of parties, apart from the one that is

considered in the case at hand, would remain open.

Consequently, pending applications also stand disposed.

Sd/-
JUDGE
Bkp/CT:MJ