S.23 Senior Citizens Act | Subsequent Undertaking By Transferee To Provide Basic Amenities Can Be Considered Part Of Transfer Deed: Calcutta High Court

The Calcutta High Court recently upheld an order of the Maintenance Tribunal which allowed an octogenarian transferor to revoke the gift deed made in favour of the transferee on the ground that the transferee harassed and failed to provide maintenance to the transferor, contrary to the specific undertaking given by the transferee.

The single judge bench of Justice Moushumi Bhattacharya observed:

“The declaration is in the form of an undertaking given by the petitioner containing the specific condition that the petitioner would look after the basic amenities and basic physical needs of the respondent no. 6 / transferor. Hence, the declaration / undertaking should be taken as a continuation and part and parcel of the Deed of Gift.”

The transferor-respondent no. 6 executed a gift deed dated July 3, 2019 consisting of his residential building in favour of the transferee-petitioner. A subsequent declaration was issued within a week thereafter on July 10, 2019 between the transferor-respondent no. 6 and the petitioner incorporating a condition that the petitioner would look after the daily needs including medical needs of the transferor.

However, the transferor alleged that the petitioner-transferee refused to look after the transferor and treated him with cruelty.

The transferor approached the Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the Act of 2007) for revoking the gift deed.

The Tribunal vide impugned order dated November 30, 2022 declared the gift deed to be void and allowed and directed the petitioner to return the original copy of the gift deed to the Tribunal within 7 days. Accordingly, the gift deed was revoked under section 23 (Transfer of property to be void in certain circumstances) of the Act of 2007.

The issue before the court was: whether the order of the Tribunal revoking the Deed of Gift is amenable to challenge under section 23(1) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

The court relied upon the judgement of the Supreme Court in Sudesh Chhikara v. Ramti Devi 2022 SCC OnLine SC 1684 in which it was held that if the conditions under section 23 of the Act of 2007 are satisfied, the transfer shall become voidable at the instance of the transferor.

The court observed:

“It is clear from the decisions that the Deed of Gift can be declared as void and be revoked on that basis if the transferee refuses to care for and look after the basic needs of the transferor where the Deed contains a specific condition for such. In the present case, the Deed of Gift dated 3.7.2019 did not contain any specific condition that the petitioner (transferee) would look after the needs of the respondent no. 6 (transferor). However, the Deed of Gift was followed by a declaration within 7 days, i.e., on 10.7.2019 which was signed by both the petitioner and the respondent no. 6 as the transferor that the petitioner would look after the food, daily needs and medical requirements of the respondent no. 6.”

The court held that the aforesaid declaration should be taken as a continuation and part and parcel of the gift deed as the declaration made a specific reference to the gift deed dated July 3, 2019 and both parties have put their signatures on it.

The court further noted that the petitioner was seeking to take advantage of the first conveyance of July 3, 2019 not containing the clause that the petitioner would look after the basic needs of the transferor-respondent no. 6.

The court opined:

“Sections 122 and 123 of the Transfer of Property Act, 1882 provides for the procedure for giving effect to a transfer in case of gifts. These provisions do not assist the petitioner since in the present case, the declaration / undertaking given by the petitioner can be treated as a supplement to the Deed of Gift.”

Thus the court upheld the impugned order of the Tribunal and dismissed the writ petition filed by the transferee-petitioner.

Case Title: Amar Nath Dutta v. The State of West Bengal & Ors.

Citation: 2023 LiveLaw (Cal) 79

Coram: Justice Moushumi Bhattacharya

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