Debangsu Basak, J.:— The petitioner assails order No. 2 dated July 13, 2016 passed by the Sub-Divisional Officer exercising powers under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
2. Learned advocate for the petitioner submits that, the petitioner had purchased an immovable property by a registered deed of conveyance. The vendor was the donee of a deed of gift of such property. The vendor had received the property by a registered deed of gift executed in his favour by his mother. Apparently, there appears to be a proceeding initiated under Section 5 and Section 23 of the Act of 2007 by the mother of the donee against the donee. In such proceedings, the donee had agreed to the cancellation of the deed of gift. The Sub-Divisional Officer (SDO) acting under the Act of 2007 has proceeded to declare the deed of gift invalid on the basis of such agreement. Learned advocate for the petitioner submits that, the conditions precedent for assumption of jurisdiction by the SDO under the Act of 2007 do not exist in the present case. He refers to the various provisions of the Act of 2007 and submits that, the complainant before the SDO must be a senior citizen. The act of execution of the deed of gift must be during the period when the complainant is a senior citizen. In the fact of the present case, the complainant has admittedly made the complaint on attaining the age of 62 (sixty-two) years. The complaint was made in June 1, 2016. The deed of gift is of November 9, 2010. Therefore, on the date of execution of the deed of gift, the mother of the donee was not a senior citizen. He further submits that, the deed of gift does not contain provisions for making provisions of basic amenities and basic physical needs of the donor for the SDO to assume jurisdiction under Section 23(1) of the Act of 2007. Therefore, the decision of the SDO impugned in the present writ petition should be set aside.
3. In spite of service, none appears for the private respondents. The State is represented.
4. The petitioner had purchased an immovable property by virtue of a deed of gift registered on November 19, 2010. The donor in such deed of gift is the mother of the donee. The mother of the donee had lodged a complaint under Section 5 read with Section 23 of the Act of 2007 with the SDO on June 1, 2016. Notice of the proceedings was not served upon the petitioner. The deed of gift does not contain any provisions as required under Section 23(1) of the Act of 2007. Section 23 of the Act of 2007 provides that transfer of property would be void in certain circumstances. One of the circumstances noted in such sub-section is that, the deed of gift should provide for the basic amenities and basic physical needs of the transferor and that, there is a failure of the transferee to provide such amenities and physical needs. In such circumstances, the transfer of the property would be deemed to be made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
5. In the present case the deed of gift does not contain any provisions by which the donee is required to provide for the basic amenities and basic physical needs of the donor.
6. Moreover, Sub-section (1) of Section 23 requires that the transfer of the immovable property should have been made after the commencement of the Act and that the same should be made by a senior citizen. A “senior citizen” within the meaning of Act, 2007 is a person who has attainted the age of 60 (Sixty) years.
7. In the present case, the complainant was 62(Sixty-two) years of age in 2016 and, therefore, would be less than the cut of age of 60(sixty) years on the date of execution of the deed of gift.
8. In the present case, the Tribunal did not consider the transfer to be vitiated due to fraud or coercion or under undue influence. It has recorded the no objection of the donee to the cancellation of the deed and has proceeded to cancel the deed of gift. The Tribunal is required to return a finding as to whether the deed of gift was vitiated by fraud or coercion or under undue influence and then declare the same to be void. The Tribunal has failed to take in consideration that there is a subsequent transfer after the deed of gift. It ought to have put the petitioner who claims to be the purchaser in notice of the proceedings, as it would affect the rights of the petitioner. That not being done, the impugned order of the Tribunal cannot be sustained. Moreover, the Tribunal has not made any provisions for maintenance of the senior citizen in the order impugned.
9. The order dated July 13, 2016 passed by the SDO acting as the Tribunal under the Act, 2007 is set aside. This will not prevent the Tribunal from considering this complaint in accordance with law and making provisions for the maintenance and welfare of the senior citizen.
10. WP No. 14723 (W) of 2016 is disposed of.
11. There shall be no order as to costs.
12. Urgent certified photostat copy of this order, if applied for, be given to the parties on priority basis.