The court emphasized the provisions of Section 23 of the 2007 Act, which provide for the transfer of property to be deemed as made by way of fraud or coercion if the transferor is deprived of basic amenities and physical abuse.

RAJIV SHAKDHER, J.

1. In this writ petition, the following substantive prayers have been sought for by the petitioner:

(a) Direct the Respondent no.3 to remove herself and her son from the property no. Must. No. 46, Killa nos. 3(4-02) 4 (4-16), 5/2 (3-18) 6 Min (3-08), 7 (4-16) & 8/1 (1-100), now known as Syal Farm, 6, Green Avenue, Vasant Kunj, New Delhi so that the Petitioner and his wife can stay peacefully at the self acquired above mentioned property in their old age;

(b) a Writ of Mandamus or any other Writ of the similar nature directing the Respondent no.1 to constitute Appellate Tribunal as per the Act;

(c) Pass an order to recover the Cost of proceedings from the Respondent no. 1;

2. The record shows that the grievance of the petitioner emanates from the order dated 12 /30 January 2017 passed by the Tribunal of Maintenance of Parents and Senior Citizens (hereafter referred to as “Tribunal”). By virtue of this order, the writ petitioners petition under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (in short “2007 Act”) has been closed.

3. A perusal of the impugned order would show that even while the Tribunal noted the stand of the petitioners husband that respondent no.3 and her son were mentally and verbally abusing him and the petitioner herein (i.e., Ms. Meera Syal), it proceeded to close the petition after recording the fact that a gift deed dated 30 March 2010 had been executed in favour of respondent no.3. Furthermore, the Tribunal went to observe in the very same order that respondent no.3 was the only daughter of petitioner and had been separated from her husband.

3.1. It appears what persuaded the Tribunal to close the petition was the fact that a gift deed had been executed in favour of respondent no.3 and that she and her son had no other place to reside in but the Sayal Farm.

3.2. From the point of view of the petitioner the only positive direction which was issued was that respondent no.3 was restrained from indulging in any abusive behaviour vis-a-vis petitioner and his wife.

4. The Tribunal, to my mind lost sight of the provision of Section 23 of 2007 Act. Section 23 of 2007 Act provides that where any senior citizen has transferred by way of gift deed or otherwise, his property, the said transfer shall be deemed to have been made by way of fraud or coercion or undue influence, if allegations are made by such transferor, i.e., the senior citizen that he has been deprived of basic amenities and basic physical needs. The provision confers an option on the transferor to have such transfer of property being declared void by the Tribunal.

4.1. In other words, even in case of valid transfer, the legislature has provided for a deeming fiction that the transfer would be treated as one which is impregnated with fraud or coercion or undue influence, if, the transferor is in position to establish deprivation of basic amenities and physical abuse.

4.2. The Tribunal, in this case, has not returned any finding either way on the pleas made by the petitioner’s husband that he and his wife (i.e., Ms. Meera Syal) were deprived of basic amenities and/ or were subjected to physical abuse.

4.3. The Tribunal as it appears was burdened by the fact that a gift deed had been executed by the petitioner in favour of respondent no.3 and because of maintenance was not sought, the subjected gift deed could not be cancelled.

5. According to me, the Tribunal misdirected itself in law and, thus, wrongly closed the petition. To my mind, the Tribunal will have to re-adjudicate upon the petition and return a finding of fact vis-a-vis the allegations made in the petition. If the allegations are found true, then, the Tribunal would have to proceed further in accordance with the provisions of 2007 Act which would include the provision of Section 23 of the very same Act. Since, the order is cryptic and does not deal with this crucial aspect of the matter, in my view, it would have to be set aside.

5.1. Needle