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2023 DIGILAW 152 (TS)

Pandit Ashok Kumar Tiwari v. Sharda Ji Tiwari

2023-02-15

A.VENKATESHWARA REDDY

body2023
ORDER : The petitioner/respondent has filed this Civil Revision Petition under Article 227 of the Constitution of India, assailing the order dated 12.01.2015 in Case No. B/1795 of 2014 before the Revenue Divisional Officer-cum-Sub-Divisional Magistrate and Designated Adjudicating Authority, as per the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as ‘the Act’) at Secunderabad. 2. The brief facts of the case are that the petitioner in the Case No. B/1795 of 2014 is the mother of the respondent, who is the revision petitioner herein. She has filed an application before the Designated Authority under the Act praying for protection by cancellation of the gift deed executed by her in favour of her son-respondent followed by a restraint order from unlawful interference by the respondent alleging that she is aged about 76 years, the respondent is her elder son, a legal practitioner, after the death of her husband she was to depend on her children, various issues have cropped up, she was enjoying a family pension of Rs.12,333/- per month, besides monthly rentals of Rs.4,000/- from the tenants. While things stood thus, in the end of December, 2007 and early 2008, the respondent started pressurising her to transfer the application schedule property perpetually on to his name, fraudulently obtained a registered gift deed document No.282 of 2008 on 24.01.2008 before the Sub-Registrar, Vallabnagar, Hyderabad. This document was executed after executing a deed of cancelation of general power of attorney on the same day. However, after obtaining the gift fraudulently, he neglected to look after the petitioner. Thereafter, she has undergone major cardiac surgery at Apollo Hospital, the respondent has not bothered to enquire about her welfare. Again, in the year 2011, the petitioner/applicant has undergone major surgery involving substantial expenditure without any contribution from the respondent and he was deliberately harassed and driven out her from the house. Finally on 26.09.2013 the matters have come to such a shameful stage that the applicant was literally thrown out of the house, which was the ancestral property and she had to take shelter with her younger son. Finally on 26.09.2013 the matters have come to such a shameful stage that the applicant was literally thrown out of the house, which was the ancestral property and she had to take shelter with her younger son. In fact, the application schedule property was transferred on to the name of respondent through a gift deed on a specific understanding that he would take care of the applicant during her rest f life, but instead of maintaining her, the respondent has chosen to throw her out of the house and as such having no other alternative remedy, she approached the Designated Authority under the Act. 3. The Designated Authority has initiated the proceedings, constituted a three-member Committee as required under the Act for investigation and proper precautions to be initiated. The Committee has submitted their report with independent observations after ascertaining the truth from their independent sources. The Committee expressed unequivocal opinion that the petitioner, who is aged about 76 years old, justifies an order of protecting her right to live comfortably in her own home inherited from her late husband as per the provisions of the Act 2007. 4. In the above factual matrix, on consideration of the entire material and upon hearing both the parties, the Designated Authority has suggested the applicant to initiate steps for cancellation of gift deed executed by her under coercion and fraud and breach of trust committed by the beneficiary to avoid future implications and complications and she was authorized to reclaim her property, if necessary by seeking police protection under the Authority of the orders impugned and to enjoy the property gifted to the respondent for rest of her life peacefully. This order was passed on 12.01.2015. 5. Feeling aggrieved by the said order impugned, the respondent has filed this civil revision petition alleging that his mother, who is a senior citizen, did not seek any maintenance order and only filed a petition seeking to set aside the duly executed gift deed in his favour. In fact, the said gift deed was executed prior to the advent of the Act and the petition is not at all maintainable and the Tribunal has failed to see that the gift deed dated 24.01.2008 was executed before the Act came into force on 22.04.2008. In fact, the said gift deed was executed prior to the advent of the Act and the petition is not at all maintainable and the Tribunal has failed to see that the gift deed dated 24.01.2008 was executed before the Act came into force on 22.04.2008. By virtue of G.O.Ms.No.10, Women Development, Child Welfare and Disabled Welfare (DW) Department, date 22.04.2008 and by virtue of Section 23 of the Act, the jurisdiction conferred on the Tribunal below to declare any conveyance as void, is operative only to such transactions which were effected after the commencement of the Act i.e., from 28.04.2008. The Tribunal has no jurisdiction to entertain the petition filed by her since the impugned transaction is effected prior to commencement of the Act and thus, the proceedings are illegal and without jurisdiction. Further, the Tribunal has failed to take into consideration that the impugned gift deed is not burdened with a condition that the son has to provide the basic necessities and physical needs to the mother. The Tribunal also failed to consider that the mother did not ask for any maintenance and she came before the Tribunal only to get duly executed gift deed to set aside, which is not otherwise possible under Common Law Remedy or under Specific Relief Act. 6. Heard learned counsel for the revision petitioner and the respondent. The submissions made on either side have received due consideration of this Court. 7. The learned counsel for the revision petitioner-son strenuously contends that the gift deed executed in favour of the revision petitioner is dated 24.01.2008, whereas the Act came into force from the appointed day i.e., on 28.04.2008 and as per the provisions of Section 23 of the Act, it is prospective in nature and deals only with those transactions which are made by senior citizens after commencement of the Act, but the Tribunal has failed to consider this aspect and suggested the senior citizen to initiate steps for cancellation of the gift deed and immediately thereafter, she has cancelled the gift deed in spite of the interim orders passed by this Court and that the order impugned is not sustainable. 8. Per contra, the learned counsel for the respondent-mother/senior citizen would submit that the revision is not maintainable, there is a specific provision under the Act for filing the appeal within 60 days. 8. Per contra, the learned counsel for the respondent-mother/senior citizen would submit that the revision is not maintainable, there is a specific provision under the Act for filing the appeal within 60 days. The revision petitioner without availing the remedy of appeal provided under Section 16 of the Act has filed this revision petition, which is not maintainable. The Tribunal has constituted a Committee and as per the advice of the Committee, the orders were passed in the best interest of senior citizen. Pursuant to the orders, the respondent/ senior citizen took possession of the property after cancelling the gift deed dated 24.01.2008 and that subsequently the suit in OS No.333 of 2018 is also filed pending adjudication of the matter before the civil Court, the present revision petition is filed, as such prayed for dismissal of the revision petition. 9. In the light of the rival contentions, the following points would arise for consideration: i) Whether the revision petition is maintainable in view of the fact that there is a provision of appeal under the scheme of the Act; and ii) Whether the order impugned is sustainable? Point Nos.(i) & (ii): 10. For the sake of convenience, the parties are hereinafter are referred to as “revision petitioner-son and respondent-mother. 11. The admitted or undisputed facts of the case are that the revision petitioner is the elder son of the respondent-mother, she has executed a registered gift deed dated 24.01.2008 in favour of the revision petitioner in respect of the house property having about 155 square feet constructed area built on the piece of land admeasuring 230 square yards forming part of house bearing municipal No.1-30-741 (new) constructed on plot Nos.221 and 222 in Survey Nos.402 and 421 situated at Shiva Nagar Colony, Kanajiguda Village, Alwal under GHMC and that all that house property having 100 square feet forming part of house bearing No.30-85/3A (old) and 30-741 (new) constructed on plot No.207 in Survey Nos.392 and 418 situated at Shiva Naar Colony, Kanajiguda Village, Alwal hereinafter referred as item Nos.1 & 2 of petition schedule property respectively. 12. It is also an undisputed fact that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was brought into force in the erstwhile State of Andhra Pradesh as per the G.O.Ms.No.10, Women Development, Child Welfare and Disabled Welfare (DW) Department, date 22.04.2008, with effect from 28.04.2008. 13. 12. It is also an undisputed fact that the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was brought into force in the erstwhile State of Andhra Pradesh as per the G.O.Ms.No.10, Women Development, Child Welfare and Disabled Welfare (DW) Department, date 22.04.2008, with effect from 28.04.2008. 13. Chapter-V of the Act is pivotal in the present case. It contains only three sections. Under Section 21, the State Government is charged with the duty of taking all measures to ensure that the provisions of the Act are given vide publicity through public media, giving periodic sensitisation and awareness training to the Central and State Government officers on the issues relating to the Act, ensuring effective coordination between the services provided by the concerned Ministries and Departments dealing with Law, Home affairs, Health and Welfare and to address the issues relating to the welfare of the senior citizens and the periodical review of the same is conducted. 14. Under sub-section (1) of Section 22, the State Government is empowered to confer such powers and impose such duties on the District Magistrate, as may be necessary to ensure that the provisions of the Act are properly carried out and the District Magistrate may specify the officer subordinate to him who shall exercise all or any of the powers and perform all or any of the duties so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as the case may be prescribed. Under sub-section (2) of Section 22 of the Act, the State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens. 15. Section 23 of the Act reads as under: “(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. (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-section (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.” 16. Thus, on a proper analysis of the above provisions, the only provision under the Act which confers the jurisdiction upon the Tribunal to intervene in the matter of property of senior citizens is under Section 23 of the Act. As could be seen from the provisions of the said section reproduced above, in cases where transfer of any property by way of gift or otherwise was made by a senior citizen subject to the condition that the transferee shall provide the basic amenities and basic physical needs to such senior citizen and the transferee refuses or fails to provide the same, the Tribunal can exercise its jurisdiction to declare such transfer void at the option of the senior citizen concerned as the same shall be deemed to have been made by fraud, coercion or under undue influence. The wording incorporated under Section 23 of the Act clearly indicates that the application under Section 23 is prospective in nature. Section 23 (1) of the Act deals with only those transactions which are made by the senior citizens after the commencement of the Act. 17. In the present case on hand, undisputedly, the applicant has executed a registered gift deed document No.282 of 2008 dated 24.01.2008 in respect of item Nos.1 and 2 of petition schedule properties. Whereas, according to G.O.Ms.No.10, dated 22.04.2008 of Women Development, Child Welfare and Disabled Welfare (DW) Department, in exercise of the powers conferred by subsection (3) of Section-1, the Act was notified by the Government of Andhra Pradesh, with effect from 28.04.2008 in the State of Andhra Pradesh. Thus, the respondent-mother has gifted the property in question under registered gift deed dated 24.01.2008 much prior to the commencement of the Act in the State of Andhra Pradesh. Thus, the respondent-mother has gifted the property in question under registered gift deed dated 24.01.2008 much prior to the commencement of the Act in the State of Andhra Pradesh. Therefore, all such transactions, relating to the pre-enactment period are saved and the provisions of the Act are not applicable, the Tribunal/Designated Authority/ Revenue Divisional Officer at Secunderabad, had no authority to entertain the petition filed by the respondent /senior citizen for cancellation of the gift deed, which was executed much prior to the appointed day. 18. The learned counsel for the revision petitioner has also relied on the principles laid in M.P. Tej Babu Vs. the State of Telangana, represented by its Principal Secretary in Writ Petition No.2008 of 2016 dated 04.03.2016 and also the orders passed by a Division Bench of Karnataka High Court at Bengaluru in Writ Appeal No.1170 of 2021, dated 16.11.2021 between Smt. C. Kamalamma Vs. Sri P. Gopal. For the above preposition that Section 23 (1) of the Act is prospective in nature and it does not confer any right on the concerned authority to deal with those transactions made by the senior citizens before commencement of the Act. 19. Reverting back to the facts of the case on hand, on a plain reading of registered gift deed, dated 24.01.2008 it was executed by the respondent-mother in favour of the revision petitioner, nowhere in the entire recitals it is mentioned that the transferee shall provide the basic amenities and basic physical needs to such senior citizen and if the transferee refuses or fails to provide the same, the Tribunal can exercise its jurisdiction. The property was settled through the said gift deed out of natural love and affection which the donor had towards the donee who rendered services to her and other members of the family as her duty bound eldest son during the life time and after the demise of his father, late Pandit Bala Prasad Ji Tiwari. Thus the said registered gift document dated 24.01.2008 is not endowed with any burden or responsibility to maintain or look after his mother, as such the provision of the Act are not applicable to the case on hand. 20. Thus the said registered gift document dated 24.01.2008 is not endowed with any burden or responsibility to maintain or look after his mother, as such the provision of the Act are not applicable to the case on hand. 20. Therefore, for the reasons stated above, viewed from any angle, the order impugned passed by the Tribunal is beyond the scope and against the spirit of Section 23 (1) of the Act, since the said gift deed dated 24.01.2008 was executed much prior to the appointed day of the Act in the State of Andhra Pradesh with effect from 28.04.2008 as per G.O.Ms.No.10 dated 22.04.2008. 21. Accordingly, in the light of the discussion made above, I am of the considered opinion that the Tribunal has far exceeded its jurisdiction while giving liberty to the respondent-mother to initiate steps for cancellation of the gift deed executed by her declaring it as invalid. The order impugned cannot sustain, liable to be set aside in exercise of the powers conferred under Article 227 of the Constitution of India. 22. In the result, the Civil Revision Petition is allowed by setting aside the impugned order dated 12.01.2015 passed by the Sub-Divisional Magistrate and Designated Adjudicating Authority under the Act in File No.B/1795 of 2014. However, the respondent-mother is at liberty to pursue all other available remedies against the revision petitioner under the Common Law/the Specific Relief Act in respect of gift deed dated 24.01.2008 executed by her in favour of the revision petitioner subject to law of limitation. In the circumstances of the case, there shall be no order as to costs. As a sequel, miscellaneous applications, if any pending in this civil revision petition, shall stand closed.