Gurdeep Singh v. Sub Divisional Magistrate-cum-Presiding Officer
2023-07-21
JAISHREE THAKUR, SUKHVINDER KAUR
body2023
DigiLaw.ai
SUKHVINDER KAUR, J. This Letters Patent Appeal is preferred against the order dated 29.11.2017 passed by learned Single Judge in CWP-13121-2016 whereby learned Single Judge upheld the decision of the Tribunal and rejected the petition filed by the petitioners Gurdeep Singh and others by holding that 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. It has also been held that in such a situation, a specific condition that the basic amenities would be provided to the parents, needs not be incorporated in the transfer deed and held that the pleas raised before the Court were without any merits and the petition was dismissed. 2. Briefly stated the facts of the case are that respondent No.2-Nand Singh father of petitioner No.1 filed petition under Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (hereinafter referred to as, 'the Act, 2007') for cancellation of transfer deed Vasika No.368 dated 07.05.2010 in favour of petitioner No.1 executed by respondent No.2 and transfer deed Vasika No.2053 dated 08.10.2012 executed by petitioner No.1 in favour of petitioners No.2 and 3. It was pleaded by respondent No.2 that he was 85 years old and petitioner No.1, Gurdeep Singh is his son and besides him he has two other sons namely, Hardeep Singh and Jagjit Singh, who were married. He and his three sons had total land measuring 563 Kanal 8 Marlas situated in village Belu Majra @ Munda Kheri, Tehsil Samana, District Patiala and by way of partition all the three sons were given land and he had kept 145 Kanals 16 Marlas land with him for his maintenance. But petitioner No.1 by taking advantage of his illiteracy has got transferred 65 Kanals 1 ½ Marlas land in his favour vide transfer deed Vasika No.368 dated 07.05.2010, by assuring that he would take care of him. Thereafter, petitioner No.1 executed transfer deed Vasika No.2053 dated 08.10.2012 in favour of his wife and son i.e. petitioners No.2 and 3.
But petitioner No.1 by taking advantage of his illiteracy has got transferred 65 Kanals 1 ½ Marlas land in his favour vide transfer deed Vasika No.368 dated 07.05.2010, by assuring that he would take care of him. Thereafter, petitioner No.1 executed transfer deed Vasika No.2053 dated 08.10.2012 in favour of his wife and son i.e. petitioners No.2 and 3. But petitioner No.1 refused to pay maintenance and take care of respondent No.2, so respondent No.2 filed petition under the Act, 2007, for cancellation of transfer deed Vasika No.368 dated 07.05.2010 and transfer deed Vasika No.2053 dated 08.10.2012 and mutation sanctioned on their basis regarding land in Village Belu Majra @ Munda Kheri, Tehsil Samana, District Patiala, in the Court of Sub Divisional Magistrate/Tribunal/Authority, Tehsil Samana, District Patiala. The Tribunal accepted the said petition and declared transfer deed vasika No.368 dated 07.05.2010 void. Accordingly petitioners No.1 to 3, Gurdeep Singh and others approached this Court by way of filing Civil Writ Petition. 3. Upon notice of motion respondents appeared and filed reply refuting the allegations made in the writ petition. 4. The learned Single Judge vide order dated 29.11.2017 dismissed the said writ petition. Hence the present LPA. 5. Learned counsel for the appellants has contended that the learned Single Judge did not at all consider the points raised by the appellants in the said writ petition. Respondent No.2 Nand Singh had executed two identical transfer deeds on the same date, one in favour of appellant No.1 and the other in favour of Hardeep Singh the other son of respondent No.2, who is DSP in police. He has contended that the learned Single Judge had not at all referred to the transfer deed in favour of Hardeep Singh and other son Jagjit Singh. From the family property, respondent No.2 had given more property to his son Hardeep Singh including land of Balliawali District Bathinda and a constructed house situated at Phatak No.1, Patiala. 40 Kanals of land had been purchased in name of Harmanjeet Kaur wife of Jagjit Singh which is mentioned in the transfer deed itself.
From the family property, respondent No.2 had given more property to his son Hardeep Singh including land of Balliawali District Bathinda and a constructed house situated at Phatak No.1, Patiala. 40 Kanals of land had been purchased in name of Harmanjeet Kaur wife of Jagjit Singh which is mentioned in the transfer deed itself. He has contended that petitioner No.1 had been maintaining respondent No.2 for a long time and only since last three months before filing of the petition Nand Singh had gone to his son Hardeep Singh, who is residing at Patiala and the petition had been filed at his instance only rather than by genuine need to claim maintenance. He has further argued that provision of Section 23 of the Act, 2007 are attracted when there is an order of maintenance and the person concerned refuses or fails to provide the maintenance, amenities, etc as envisaged and the straightway petition under Section 23 of the Act, 2007 cannot be filed. It has also been urged that the Punjab Maintenance and Welfare of Parents and Senior Citizens Rules, 2012 (hereinafter referred to as, the Rules, 2012) provides procedure for dealing with the application filed before the Tribunal and as per Rule 15 if there is no settlement made before the Conciliation Officer then the Tribunal shall give opportunity to both the parties to lead the evidence in favour of their respective claims and shall after summary inquiry as provided in Sub Section (1) of Section 8 pass such order as it may deem fit. Sub Rule (3) provides that the said order shall be a speaking order giving reasons. But in the present case Tribunal has given total go bye to the procedure under the Rules and the Act. He has vehemently contended that in the instant case, the application moved under Section 23 of the Act, 2007 was purportedly to be signed by respondent No.2-Nand Singh. But respondent No.2 neither filed any affidavit nor appeared before respondent No.1 to support his application.
He has vehemently contended that in the instant case, the application moved under Section 23 of the Act, 2007 was purportedly to be signed by respondent No.2-Nand Singh. But respondent No.2 neither filed any affidavit nor appeared before respondent No.1 to support his application. Respondent No.1 neither recorded any evidence in the shape of statement or affidavit nor allowed the petitioners to lead evidence by way of affidavit or statement and just on the application and reply thereto, Tribunal decided the application under Section 23 of the Act 2007 without there being any evidence on the record and has contended that as all these facts have not been considered by learned Single Judge while passing the impugned order, so the present appeal may be allowed and the impugned order may be set aside. Learned counsel for the appellants also relied upon the decision of Delhi High Court in Deorao Tanbaji Bobde and others Vs. Pramod Deorao Bobade and others, 2021 (226) AIC, 289 and the decision of Hon'ble Supreme Court in Sudesh Chhikara Vs. Ramti Devi and another, 2023(1) R.C.R. (Civil) 226. 6. On the other hand, it has been contended by learned counsel for the respondents that the writ petitioners have never maintained respondent No.2 at any stage. The writ petitioners have specifically stated in their written statement that they were ready to pay maintenance to respondent No.2, which amounts to admission on their part, that they were not taking care of Nand Singh. So after the said admission, there was no occasion for the Tribunal to call for more proof and evidence. Respondent No.2 Nand Singh, the father being a senior citizen under the Act 2007 had right to receive maintenance out of the estate which was transferred by him in name of petitioner No.1. So Tribunal has rightly declared that Vasika No.368 dated 07.05.2010 is void. Learned counsel for the respondents while relying upon the decision of this Court in CWP No.5086-2016 Smt. Raksha Devi Vs. Deputy Commissioner-cum-District Magistrate, Hoshiarpur and others, decided on 03.05.2018, has contended that Section 23 of the Act, 2007 is applicable, even if the conditions stipulated therein viz. that the transferee shall provide the basic amenities and basic physical needs to the transferor, is stipulated only orally and is not in writing or is not a part of the document of transfer.
that the transferee shall provide the basic amenities and basic physical needs to the transferor, is stipulated only orally and is not in writing or is not a part of the document of transfer. He has also argued that the Tribunal has rightly passed the order after giving opportunity to both the parties and the procedure as per Rule 11 of Rules, 2012 was duly adopted by the Tribunal. He has contended that the impugned order has been rightly passed by the learned Single Judge after taking into consideration all these factors and the present appeal is liable to be dismissed. 7. We have heard learned counsel for the parties and have also perused the relevant record. 8. Perusal of order dated 19.02.2020 passed in this case reveals that legal representatives of respondent No.2 were allowed to be impleaded after the death of respondent No.2-Nand Singh. It has been held by Coordinate Bench of this Court in case CWP-317-2020—Rattan Kumar and another Vs. State of Punjab and others and CWP-6669-2022—Davinder Singh Vs. Appellate Tribunal-cum-District Magistrate, Sangrur and others, that when the senior citizen at whose instance, the Maintenance/Appellate Tribunal had passed the impugned orders expired, then the proceedings are rendered infructuous/otiose, as senior citizen's right to seek benefit under the special statute abates on his/her death. The protection qua life and property accorded to a senior citizen is co-terminus with his/her life and the parties/ legal heirs were left to seek their civil remedy as may otherwise be available under law, by holding that they were not entitled to seek any benefit under the provisions of the Act, 2007. 9. In the instant case also, as senior citizen respondent No.2-Nand Singh, at whose instance the Maintenance/Appellate Tribunal had passed the impugned order, had since expired, so the proceedings in the instant case are rendered infructuous/otiose as senior citizen's right to seek benefits under the special statute abated on his death. So without going into the merits of the case, parties/legal heirs of respondent No.2 are given the liberty to avail the civil remedy available under law. They will be at liberty to challenge the impugned transfer deed Vasika No.368 dated 07.05.2010 in favour of petitioner No.1 executed by respondent No.2 and transfer deed Vasika No.2053 dated 08.10.2012 executed by petitioner No.1 in favour of petitioners No.2 and 3.
They will be at liberty to challenge the impugned transfer deed Vasika No.368 dated 07.05.2010 in favour of petitioner No.1 executed by respondent No.2 and transfer deed Vasika No.2053 dated 08.10.2012 executed by petitioner No.1 in favour of petitioners No.2 and 3. If any such challenge/claim is preferred, it shall be adjudicated by competent Court, in accordance with law. Order dated 03.06.2016 (Annexure P1) and order dated 29.11.2017 passed by learned Single Judge shall not have any bearing upon the same. This appeal is disposed of accordingly. All pending applications, if any, also stand disposed of accordingly. Order accordingly.