Writ petition against cancellation of a Gift Deed by Senior Citizens Act authorities. Court held Section 23 applies only where transfer is conditioned on maintenance; fraud questions require a civil suit. Orders set aside; respondent permitted to stay in the property.
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$~83
Through: Mr. Manav Gupta, Mr. Sahil Garg, Mr. Abhinav Jain, Mr. Ankit Gupta and Ms. Samiksha Jain, Advocates.
versus
DEEPIKA MITTAL ..... Respondent
Through: Ms. Shobhana Takiar, Advocate. Mr. Prasoon Kumar and Ms. Deepali, Advocates.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
O R D E R % 04.04.2024
Page 1 of 8
W.P.(C) 1455/2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
instant writ petition are that the Respondent herein had filed an application under Section 23 of the Senior Citizens Act before the Ld. Addl. District Magistrate stating that she is the owner of the built up property bearing No.41, Gujarat Vihar, Vikas Marg, Delhi-110092 and she was made to execute the Gift Deed under fraud. It is stated that the Petitioners herein are daughter and son-in-law of the Respondent and under the garb of executing a Power of Attorney from the Respondent, a Gift Deed dated 20.12.2017 was executed by the Respondent which was registered before the office of S.R. VIIIA, Preet Vihar, Delhi.
“23. Transfer of property to be void in certain circumstances .—(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
Page 2 of 8
W.P.(C) 1455/2024
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
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-sections (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.”
Page 3 of 8
W.P.(C) 1455/2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
living with the Respondent and the marriage of the daughter of the Respondent took place on 13.12.2017 which was thereafter registered on 15.12.2017. She states that the Gift Deed was executed by the Respondent within seven (7) days from the date of marriage of the daughter i.e., 13.12.2017. She, therefore, states that the facts of the case speak for itself and that there was no occasion for the Respondent to execute any kind of a Gift Deed which would gift her only dwelling unit to the Petitioner herein.
“12. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression “by way of gift or otherwise”. For attracting subsection (1) of Section 23, the following two conditions must be fulfilled:
Page 4 of 8
W.P.(C) 1455/2024
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
13. If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.
14. 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.
15. Careful perusal of the petition under Section 23 filed by respondent no. 1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of respondent no. 1) would provide the basic amenities and basic physical needs to respondent no. 1. Even in the impugned order dated 22nd May 2018 passed by the Maintenance Tribunal, no such finding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was filed by the appellant that the petition was fixed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor - senior citizen is sine qua
Page 5 of 8
W.P.(C) 1455/2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
non for applicability of sub-section (1) of Section 23. In the present case, as stated earlier, it is not even pleaded by respondent no. 1 that the release deed was executed subject to such a condition.
16. We have perused the counter affidavit filed by respondent no. 1. Even in the counter, it is not pleaded that the release was subject to such a condition. It is merely pleaded that the appellant had no intention to take care of her mother. Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied. Unfortunately, the High Court has not adverted to the merits of the case at all.”
Page 6 of 8
W.P.(C) 1455/2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
Court is not inclined to put back the Petitioners in possession of the property in question. The Respondent is, therefore, permitted to stay in the property in question.
“122. “Gift” defined .—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is till capable of giving,
If the donee dies before acceptance, the gift is void.”
“123. Transfer how effected .—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.”
Page 7 of 8
W.P.(C) 1455/2024
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
SUBRAMONIUM PRASAD, J
APRIL 4, 2024 S. Zakir
Page 8 of 8
W.P.(C) 1455/2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 15/04/2024 at 12:10:51
2 issues framed by the court
Whether authorities under the Senior Citizens Act could cancel a Gift Deed under Section 23 absent a maintenance condition.
Whether fraud allegations regarding execution of a Gift Deed can be decided in summary proceedings.
Colour shows how this judgement treated each authority
Sudesh Chhikara vs. Ramti Devi and AnotherRelied on¶9
2022 SCC OnLine SC 1684 · Who else cites this
4 provisions across 2 enactments
Prakritishri Aldaan & Anr.
Deepika Mittal
Subramonium Prasad
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
