Section 23 of the Senior Citizens Act does not require an express maintenance clause in a settlement deed; neglect of a senior citizen by the beneficiary, where the transfer was based on love and affection, creates an implied condition of maintenance sufficient to justify the cancellation of the deed.

ORDER

1.This writ petition has been filed challenging the order passed by the first respondent dated 28.04.2023 thereby cancelling the settlement deed executed by the fourth respondent in favour of the petitioner and the fifth respondent.

2.The petitioner and respondents 5 to 7 are sisters. The fourth respondent is their mother. The property comprised in survey no.104 to an extent of 96 ½ cents and property comprised in survey no.109 to an extent of 81 cents together with well and motor pump situated at Annur Village and Taluk,Coimbatore District were purchased by the fourth respondent by the registered sale deed dated 27.07.1981 registered vide document No.1015 of 1981. Out of love and affection, the fourth respondent had executed settlement deed dated 09.09.2019 in favour of the petitioner and the fifth respondent registered the same vide document No.7226 of 2019 in respect of the property comprised in old survey No.104, new survey no.104/5 to an extent of 96 ½ cents. Thereafter, they were also issued patta for the subject property. Thereafter on 04.05.2022, the fourth respondent had executed another settlement deed in favour of the petitioner in respect of the property comprised in old survey No.109, new survey no.109/4C to an extent of 69 cents situated in the same village and registered vide document no.5843 of 2022. Thereafter, the fourth respondent was not maintained properly by the petitioner. As such, the fourth respondent lodged complaint to cancel both the settlement deeds executed in favour of the petitioner and the fifth respondent herein before the first respondent under Section 23 of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter called as ‘the Act’). The first respondent issued notice to the petitioner and the counter parties and after conducting detailed enquiry by giving opportunity of hearing to both the parties, passed the impugned order dated 28.04.2023 thereby cancelling the said two settlement deeds executed in favour of the petitioner and the fifth respondent herein.

3. The learned counsel for the petitioner would submit that both the settlement deeds do not contain any restrictive covenant. It is an absolute and irrevocable settlement with full powers of alienation. Due to ill advice of respondents 6 and 7 herein, the fourth respondent lodged complaint. In order to attract the complaint under Section 23 of the Act, there must be a condition to maintain the settlor. In the absence of such condition, cancellation of settlement deed by the fourth respondent is in violation of Section 23(1) of the Act. In support of his contention, the learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court of India rendered in the case of Sudesh Chhikara Vs. Ramti Devi and Another reported in 2022 SCC OnLine SC 1684, in which the Hon’ble Supreme Court of India held 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 are attached to a transfer, existence of such conditions must be established before the Tribunal.

4. The learned counsel for the petitioner also relied upon the judgment of the Hon’ble F