Antony Dominic, Ag.CJ Appellant is the father and respondents 1 and 2 are his son and daughter. It appears that the appellant had executed Ext.P2 sale deed in favour of his son on 24.6.2010. Subsequently he filed an application before the third respondent Tribunal under section 23 of the Maintenance and Welfare of Parents and senior Citizens Act, 2007. The proceedings culminated in Ext.P1 order whereby the Tribunal declared the sale deed null and void and cancelled it.
2. The first respondent filed writ petition seeking to quash Ext.P1 order. By the judgment under appeal, the learned Single Judge accepted the plea that the case did not attract Section 23 of the Act and on that basis set aside the order and allowed the writ petition. It was clarified that it would be open to the appellant to agitate his contentions before the Civil Court. It is this judgment, which is under challenge. W.A.2134/15 2
3. We heard the counsel for the appellant and the learned counsel for the first respondent.
4. The sole issue is whether Section 23(1) is attracted in the case of the appellant. Section 23(1) of the Act reads thus: "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 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."
5. A reading of the aforesaid provision would make it clear that where, after the commencement of the Act, a senior citizen has transferred his property by way of a gift deed or otherwise, 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 transfer be declared by the Tribunal only where the trasfer of the property is subject to the condition that the transferee shall provide the basic amenities and basic physical need of the transferor and such transferee refuses or fails to provide such amenities or physical needs. In so far as this case is concerned, Ext.P2 is the sale deed which evidences the transfer leaving aside the question whether Section 23 will attract where the transfer is by way of W.A.2134/15 3 sale. Suffice it to state that the sale deed does not contain any reservation, making the transferee liable to provide the basic amenities and basic physical needs of the transferor. True that this Court has held in the judgment in Shabeen Martin and another v Muriel and another (2016(5) KHC 603) that even in the absence of any such reservation in the sale deed, a claim can be sustained if there is evidence to show that the requirements of S.23 are satisfied. However, a reading on Ext.P1 order passed by the Tribunal shows that there was no such evidence. In such a situation, we fully endorse the view taken by the learned Single Judge, that the case pleaded by the appellant was not one to which Section 23 would apply. If that be so, the appellant could seek to invalidate the sale deed on any valid ground only through a civil court. We, therefore, do not find any reason to interfere with the judgment under appeal. The appeal fails and is dismissed. SD/- Antony Dominic Acting Chief Justice SD/-Dama Seshadri Naidu Judge sou/css TRUE COPY p.s.to judge