Neeta Sawant WP-590-2023-JR-FC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 590 OF 2023

Nitin Rajendra Gupta } …Petitioner

V/s.

Deputy Collector, Mumbai and others. } …Respondents

WITH

INTERIM APPLICATION (L) NO. 6495 OF 2023

IN

WRIT PETITION NO. 590 OF 2023

Hemant Rajendra Gupta } …Applicant

In the matter between

Nitin Rajendra Gupta } …Petitioner

V/s.

Deputy Collector, Mumbai and others. } …Respondents

WITH

INTERIM APPLICATION (L) NO. 30919 OF 2023

IN

WRIT PETITION NO. 590 OF 2023

Mr. Rajendra Keshardeo Gupta } …Applicant

In the matter between

Nitin Rajendra Gupta } …Petitioner

V/s.

Deputy Collector, Mumbai and others. } …Respondents

Page No. 1 of 36

10 April 2024 2024:BHC-OS:5956

::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

_______________________________________________________________

Mr. G. S. Godbole, Senior Advocate with Mr. Manuj Borkar i/b Mr.

Prasad D. Borkar, for the Petitioner.

Mr. Ameet Mehta a/w. Ms. Sheetal Pandya and Ms. Pratiksha Udeshi i/

b Solicis Lex, for the Respondent No.2 and Applicant in Interim

Application (L) No. 30919 Of 2023.

Mr. Avirat Sonawane, for Applicant in Interim Application (L) No. 6495

Of 2023.

Ms. Uma Palsuledesai, AGP for State, Respondent No. 1 and 3.

_______________________________________________________________

CORAM : SANDEEP V. MARNE, J.

Reserved On : 28 MARCH 2024.

Pronounced On : 10 APRIL 2024.

JUDGMENT:

1)Rule. Rule is made returnable forthwith. With the consent of the

parties, petition is taken up for final hearing and disposal.

2)Petition takes an exception to the Order dated 31 October 2022

passed by the Maintenance Tribunal constituted under the provisions of

Maintenance and Welfare of Parents and Senior Citizens Act, 2007

(Senior Citizens Act) by which the Tribunal has partly allowed the

application filed by Respondent No.2-Father and has declared Gift Deeds

executed on 21 June 2019 and 25 September 2020 as null and void with

further directions to Petitioner to vacate and handover the possession of

Flat Nos.2005 and 2006 at Riviera Towers CHS and Flat No.708 in

Autumn Grove CHS to Respondent No.2-Father. The petition thus arises

out of challenge to the Order passed by the Maintenance Tribunal under

the provisions of Sections 23(1) of the Senior Citizens Act, by which Gift

Page No. 2 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

Deeds executed by Respondent No. 2-Father in favour of his son

(Petitioner) are set aside.

3)Briefly stated, facts of the case are that Respondent No.2- Rajendra

K. Gupta filed application before the Maintenance Tribunal in February

2022 for return of various properties gifted by him to his son (Petitioner)

and for payment of maintenance of Rs.50,000/- per month. In the

application, Respondent No.2 disclosed that he has three sons - Hemant,

Sharad and Nitin and that his wife Binadevi Rajendra Gupta has expired

on 18 February 2019. He claimed in the application that after the demise

of his wife on 18 February 2019, Petitioner (Nitin Gupta) got executed

four Gift Deeds in respect of various immovable properties from him as

well as took into possession various other immovable properties.

Respondent No.2 gave details of four Gift Deeds executed in favour of

Petitioner as under:

i)Flat Nos.2005 and 2006, Riviera Tower CHS Limited,

Lokhandwala Township, Kandivali (East), Mumbai;

These flats were purchased by Respondent No.2 and his wife

in the year 2007. After the death of Binadevi, her 50% share

in the flats devolved equally amongst all heirs. On 9 April

2019, Sharad Rajendra Gupta and Nitin Rajendra Gupta

relinquished their shares in these two flats by registered

Release Deed dated 9 April 2019. However, Hemant

Rajendra Gupta did not relinquish his share and his share

remained unaffected. That by Gift Deed dated 21 June 2019

and 25 September 2020, Petitioner got the entire Flat Nos.

2005 and 2006 transferred to his name.

ii)Flat No.708, Autumn Grove CHS Limited, Lokhandwala

Township, Andheri (East), Mumbai;

This flat was jointly purchased by Respondent No.2,

Binadevi and Nitin in the year 2015. After Binadevi's death,

Page No. 3 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

her share in the flat devolved equally amongst all the heirs.

By Release Deed dated 9 April 2019, Sharad and Nitin

relinquished their rights in respect of Flat No.708, while

Hemant did not relinquish his share. That Petitioner, by Gift

Deed executed by Respondent No. 2 on 21 June 2019 and 25

September 2020, got entire Flat No.708 transferred in his

name.

iii)Flat No.502, ‘Highland’ Building No.3 CHS Lokhandwala

Township, Kandivali (East), Mumbai;

This flat was owned by Binadevi Gupta and Petitioner got

gift in respect of this flat executed in his name from Binadevi

on 17 November 2016.

iv)Office No.8, The Hind Estate Building No.3B CHS, First

Floor, Bhuleshwar, Mumbai;

This property was in the joint names of Gupta family

members and the name of Respondent No.2 was mutated as

Karta of the family. However, by Gift Deed dated 24 March

2017, Petitioner got this property also transferred in his

name.

4)Respondent No.2 further contended in his application that after

execution of various Gift Deeds in his favour, Petitioner started ill-treating

him by removing all the servants and by confining him to one room. That

on 14 April 2021 Respondent No.2 left Mumbai and went to Surat to

reside with his other son Sharad. That he was forced to reside at Surat on

account of ill-treatment given by Petitioner. He claimed that he neither has

any other source of income nor has any other property with him. He

further contended that various shares, Mutual Funds, PPF and jewellery

were also transferred by Petitioner in his name/custody. Respondent No. 2

Page No. 4 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

therefore prayed for return of all his properties as well as monthly

maintenance of Rs. 50,000/- from Petitioner.

5)Petitioner appeared before the Maintenance Tribunal and resisted

the Complaint filed by Respondent No.2. After hearing parties, the

Maintenance Tribunal passed Order dated 31 October 2022 partly

allowing application filed by Respondent No.2. The Maintenance

Tribunal has declared two Gift Deeds executed on 21 June 2019 and two

Gift Deeds executed on 25 September 2020 as null and void. The Tribunal

has directed Petitioner to handover vacant possession of the two flats in

Riviera Building and Flat No. 708 in Autumn Grove Building to

Respondent No.2. Aggrieved by the Order passed by the Maintenance

Tribunal, Petitioner has filed the present petition.

6)Mr. Godbole, the learned senior advocate appearing for Petitioner

would contend that the Maintenance Tribunal has exceeded its jurisdiction

while passing the impugned Order. He would submit that Respondent

No.2 was never the sole owner in respect of Riviera flats as well as at

Autumn Grove flat. That therefore the Tribunal could not have directed to

vacate the said flats. Petitioner is a co-owner in respect of Flat No.708 in

Autumn Grove building, as the same was purchased by him alongwith his

mother and father. That therefore even if Gift Deed is to nullified,

Petitioner still continues to be 1/3

rd

owner in respect of the Flat No.708.

That therefore Order passed by the Maintenance Tribunal, to vacate all

the three flats, is erroneously passed on a presumption as if Respondent

No.2 is the sole owner in respect of all the three flats.

7)Mr. Godbole would further contend that jurisdiction for annulment

of Gift Deed can be exercised by the Maintenance Tribunal only when a

demonstrable case is made out where Gift is made by a senior citizen

subject to express condition of providing basic amenities and basic

Page No. 5 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

physical needs to the transferor. That therefore the condition of provision

of basic amenities and basic physical needs must be incorporated in the

Gift Deed itself. That in the present case, there is no such recital or

covenant in any of the Gift Deeds. That the same were not executed

subject to condition of providing of basic amenities and physical needs.

Mr. Godbole therefore submits that there is absence of specific condition

in the Gift, existence of such condition can neither be pleaded nor proved

by any documentary evidence. In support of his contention, he would

place reliance on the judgment of this Court, Bench at Aurangabad in

Rahul s/o Chandrakant Bharati V/s. Gotu Nana s/o Narayanrao Patil

and others

1

. He would also rely upon the judgment of Full Bench of

Kerala High Court in Subhashini V/s. District Collector and others

2

in

support of his contention that the condition for provision of basic

amenities and basic physical needs must be incorporated in the document

of transfer. Additionally, he would also rely upon judgment of Single

Judge of this Court in Vikas Prabhakar Patil (Shewale) V/s. Prabhakar

Dawal Shewale and another

3

and Ranjana Rajkumar Makharia V/S.

Mayadevi Subhkaran Makharia and another

4

. Mr. Godbole would rely

upon judgment of the Apex Court in Arun Kumar V/s. Union of India

5

,

in support of his contention that existence of condition stipulated under

Section 23(1) of the Act is a sine qua non for conferment of jurisdiction

on the Tribunal. That existence of that condition is a jurisdictional fact, in

absence of which the Tribunal cannot exercise jurisdiction under Section

23(1) of the Senior Citizens Act.

8)He would submit that Judgment of the Apex Court in Sudesh

Chhikara V/s. Ramti Devi & Anr

6

cannot be read to mean that absence of

1

Criminal Writ Petition No.693 of 2018 decided on 21 June 2018.

2

2020 SCC Online Ker 4080.

3

2021 SCC OnLine Bom 11846.

4

2020(3) Mh.L.J. 587.

5

(2007) 1 SCC 732.

6

Civil Appeal No. 174 of 2021 decided on 6 December 2022.

Page No. 6 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

condition in the document of transfer can be substituted by pleading in the

complaint. He would further submit that the Apex Court in S. Vanitha

V/s. Deputy Commissioner, Bengaluru Urban District and others

7

has

nowhere held that absence of condition in the agreement of transfer can

be substituted by pleading or evidence. He would also seek to distinguish

Judgment of Single Judge of Madras High Court in Mohamed Dayan

V/s. District Collector, Tiruppur District and Others

8

.

9)Mr. Godbole would further submit that the application for

revocation of gifts is made by father at the behest of other brother Sharad,

who is interested in getting share in the properties gifted to the Petitioner.

Mr. Godbole would therefore pray for setting aside the Order passed by

the Maintenance Tribunal.

10)Alternatively, Mr. Godbole would further submit that even if this

Court arrives at a conclusion that presence of condition for provision of

basic physical needs and basic amenities can be presumed in every Deed

of Gift, in the present case, there is no material to show that Petitioner has

ever denied basic amenities or basic physical needs to Respondent No.2.

He would further submit that Petitioner has never prevented Respondent

No.2 from residing along with him in flats. Without prejudice, he would

submit that even if Respondent No.2 does not wishes to reside with

Petitioner, he can make a choice amongst various others flats where

Petitioner can provide him residence. He would submit that Respondent

No.2 can reside even in flat No.708 in Autumn Grove. Additionally, Mr.

Godbole would contend that Petitioner is willing to provide some monthly

maintenance amount to Respondent No.2.

7

(2021) 15 SCC 730.

8

2023 SCC OnLine 6079.

Page No. 7 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

11)Ms. Mehta, the learned Counsel appearing for Respondent No.2,

on the other hand, would oppose the petition and support the Order

passed by the Maintenance Tribunal. She would submit that despite

having several flats in Mumbai, Respondent No.2 is rendered homeless

and is required to reside at Surat along with his other son. That Petitioner

and his family members levelled scandalous allegations against

Respondent No.2 with a view to ensure his ouster from home. That on

account of severe mental torture caused by Petitioner and his family

members, Respondent No.2 no longer desires gifting any of his properties

to Petitioner and is therefore has right to revoke all the Gift Deeds. That

Respondent No.2 is now left with no other source of income and he is at

the mercy of his other son in absence of any house on his own in

Mumbai. So far as the requirement of making of gift subject to the

condition of providing basic amenities and basic physical needs, Ms.

Mehta would contend that specific pleadings are made in the Application

to that effect that the Gifts were executed on specific condition of

provision of basic amenities and basic physical needs. That Gifts in

respect of only three flats are sought to be revoked which would not

render Petitioner homeless. That Petitioner has two other properties gifted

by the parents, which Petitioner can enjoy even after revocation of gifts

made in his name. That the ill-intentions of Petitioner become apparent

when he made attempts to dispose of Riviera Flats by entering into

Agreement for Sale. That though the transaction could not fructify, it

became clear that the Petitioner is in the process of disposing of the gifted

flats. She would submit that out of the three sons, Hemant also had share

in various properties and that therefore Petitioner does not become owner

in respect of the gifted flats. She would submit that Respondent No.2 is at

an advanced age of 77 years and he cannot be expected to live a miserable

life on account of grabbing of all his properties by Petitioner. That the

Order passed by the Maintenance Tribunal merely fulfils the objective

behind the Senior Citizens Act and in absence of any grave error, this

Page No. 8 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

Court would not be justified in interfering with the findings of the

Maintenance Tribunal. She would pray for dismissal of the petition.

12)Mr. Sonwane, the learned Counsel appearing for Applicant in

Interim Application (L) No.6495 of 2023 (filed by Hemant Rajendra

Gupta) would also oppose the petition. He would submit that even after

transfer of gifts in his favour, Petitioner does not become owner in respect

of the concerned flats as intervener-Hemant has not relinquished right

devolved upon him after his mother's death. Inviting my attention to the

Release Deeds, he would submit that Petitioner erroneously claimed in

that Deed that Binadevi’s heirs included only father-Rajendra, Sharad and

Nitin, when in fact there are actually 4 legal heirs. That name of Hemant

Rajendra Gupta was deliberately suppressed in the said Release Deeds and

the other documents. That this Court may therefore deny grant of any

equitable relief in favour of the Petitioner on account of suppression of

factual information and making false statements before the Authorities.

He would pray for dismissal of the petition.

13)Rival contentions of the parties now fall for my consideration.

14)By the impugned order dated 31 October 2022 the Maintenance

Tribunal has nullified the following four Gift Deeds:

(i)Gift Deed dated 21 June 2019 registered at serial No.

BRL/6/7375/2019 gifting 80% of share of father in Flat

Nos. 2005 and 2006 in Riveria building.

(ii)Gift deed dated 21 June 2019 registered at serial no.BRL-

6/7371/2019 gifting 56.67% share in Flat No.708 in Autumn

Grove building.

(iii)Gift deed dated 25 September 2020 registered at serial

no.BRL-9/6012/2020 gifting balance 20% share by father in

Flat Nos.2005 and 2006 in Riveria building.

Page No. 9 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

(iv)Gift deed dated 25 September 2020 registered at serial no.

BRL-9/6011/2020 gifting balance 10% share in Flat No.7-8

of Autumn Grove building.

15)The Maintenance Tribunal has declared the above four Gift-Deeds

as null and void in exercise of power under Section 23(1) of the Senior

Citizens Act. The Tribunal has further directed the Petitioner to vacate

Flat Nos.2005 and 2006 in Riviera building and Flat No.708 in Autumn

Grove building and handover possession thereof to Respondent No.2.

16)First it would be necessary to decide whether Respondent No.2 was

the absolute owner in respect of the three flats and whether upon

revocation of the four Gift Deeds, he would become absolute owner in

respect thereof. It is an undisputed position that Flat Nos.2005 and 2006

in Riviera building were purchased in the joint names of Respondent No.2

and his wife Binadevi. Thus, initially Respondent No.2 was only 50%

owner of Flat Nos.2005 and 2006 in Riviera building. It is an admitted

position that Binadevi has died intestate on 8 April 2019. Therefore, 50%

of Binadevi’s share in these two flats would devolve equally amongst

Respondent No.2 and the three sons. Thus, percentage of share of

Respondent No.2 in these two flats would rise to 62.5% after Binadevi’s

death (his own 50% share plus 12.5% share after wife’s death). It appears

that by Release Deed dated 9 April 2019, the two sons, Nitin and Sharad

released their shares in Flat Nos. 2005 and 2006 in favour of Respondent

No.2. Thus, after execution of Release Deed, the share of Respondent

No.2 increased to 87.5% in those two flats. The third son, Hemant Gupta

still continues to hold 12.5% shares in the two Riviera flats.

17)So far as Flat No.708 in Autumn Grove building is concerned, the

said flat was purchased jointly by Petitioner, Binadevi and Respondent

No.2 and accordingly each had one-third share in that flat. After

Binadevi’s death, her one-third share devolved equally amongst the four

Page No. 10 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

heirs. Again, by Release Deed dated 9 April 2019, Nitin and Sharad

relinquished their shares (according to Mr. Godbole, the only one received

through mother was released) in favour of Respondent No2. The Release

Deed does not throw light as to whether Petitioner released share received

only through mother or whether he also released his own one-third share

in Flat No.708 in favour of Respondent No.2. If Petitioner has not

released his own 1/3

rd

share in Flat No. 708 by the release deed, even after

revocation of the gift deeds in respect of Flat No. 708, Petitioner would

continue to remain 1/3

rd

owner thereof. However, considering the limited

scope of enquiry in the present petition, in my view, it is not necessary to

delve deeper into this aspect. Suffice it to hold that Respondent No.2 was

neither full owner in respect of Flat No.708 nor became full owner after

death of Binadevi as well as after execution of Release Deed dated 9 April

2019. This is because admittedly the third son, Hemant Gupta has not

released his share in Flat Nos. 2005 and 2006 in Riviera and in Flat

No.708 in Autumn Grove in favour of Respondent No.2. Thus,

Respondent No.2 is not the absolute owner in any of the three flats.

However, the Maintenance Tribunal has still proceeded to issue direction

for vacation of all the three flats by the Petitioner. The Maintenance

Tribunal has not applied its mind to this vital aspect about ownership in

respect of all the three flats after revocation of the Gift Deeds. Therefore,

the direction for vacation of all the three flats, premised on the assumption

that Respondent No. 2 would become 100% owner in resepct of all of

them, appears to be clearly erroneous.

18)The next objection strenuously raised by Mr. Godbole is about

exercise of power under Section 23(1) of the Senior Citizens Act for

revocation of the four Gift Deeds. According to Mr. Godbole, the

jurisdiction under Section 23(1) of the Senior Citizens Act can be

exercised only where the transfer of property by senior citizens is made

subject to the condition that the transferee shall provide the basic

Page No. 11 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

amenities and basic physical needs to the Transferor. According to Mr.

Godbole, since presence of this condition is sine qua non for exercise of

jurisdiction under Section 23(1), that condition must be reflected in the

document of transfer and that in absence of such condition in the

document of transfer, the jurisdiction under Section 23(1) cannot be

exercised by the Maintenance Tribunal.

19)Section 23 of the Senior Citizens At which confers jurisdiction on

the Maintenance Tribunal to issue a declaration in respect of the transfer

of property by Senior Citizens 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.

(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.

20)Thus sub-section (1) of Section 23 creates a legal fiction, under

which transfer of a property is deemed to have been made by fraud or

coercion or under undue influence and the Tribunal can declare the same

as void at the option of the Transferor. No doubt, power under Section

23(1) can be exercised by the Tribunal only if the transfer is made subject

Page No. 12 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

to the condition that the Transferee shall provide the basic amenities and

basic physical needs to the Transferor. Thus existence of condition for

provision of basic amenities and basic physical needs in the jurisdictional

fact, in absence of which, the jurisdiction cannot be exercised by the

Maintenance Tribunal. The only issue is whether this condition needs to

be specified in the document of transfer or whether in absence of its

incorporation in the document, can it to established by pleadings and

evidence? In the present case, in none of the four Gift-Deeds, which are

annulled by the Tribunal, there is any specific recital or covenant that the

Gift Deeds are executed subject to the condition of Petitioner providing

basic amenities and basic physical needs to Respondent No.2. Therefore

could the Maintenance Tribunal have exercised the jurisdiction under

Section 23 (1) of the Senior Citizens Act is the issue which Mr. Godbole

seeks to raise.

21)This issue had arisen for my consideration in Ashwin Bharat

Khater (supra) in which, this Court, after taking into consideration the

judgment of the Apex Court in Sudesh Chhikara (supra), held in para-25

to 29 as under:

25. Though it was initially sought to be suggested during the course

of submissions that the condition of provision of basic amenities and

basic physical needs must be stipulated in the form of a covenant in

the Gift Deed, Mr. Khandeparkar, in his usual fairness, has later

conceded that he does not want to press an extreme argument that in

every case such a condition must be included in the Gift Deed. He

however submits that even if such condition need not be included in

the Gift Deed, there must be pleading and proof on the part of senior

citizen that the Gift or transfer was executed subject to a condition

that the transferee would provide basic amenities and basic physical

needs to the transferor. In this connection he has placed reliance on

the judgment of the Supreme Court in the Case of Sudesh Chhikara

(supra) in Paragraph Nos.12 and 15 the Supreme Court held as

follows:

“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”.

Page No. 13 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

For attracting sub-section (1) of Section 23, the following two

conditions must be fulfilled:

a. The transfer must have been made subject to the

condition that the transferee shall provide the basic

amenities and basic physical needs to the transferor; and

b. the transferee refuses or fails to provide such amenities

and physical needs to the transferor.

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 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.”

26. In the case before the Apex Court, there was no pleading to the

effect that the Gift Deed was executed subject to condition that a

transferee would provide basic amenities and basic physical needs to

Respondent No.1 therein. In the present case Respondent No.1 -

Mother has pleaded in Paragraphs 4-O & 4-P of her application as

under:

" 4O. Applicant was alone and with no choice but to take help

from her Younger Son/the Respondent No.1. As the Applicant

was dependent on Respondent No.1 and the exerted undue

influence, relying upon the aforesaid assurances, she was coerced

to execute Gift Deed in the favour of Respondent No.1 and the

same was executed in May, 2017, with false promises that the

Respondent Nos.1 & 2 will take her care of her for the entire life.

4P. In furtherance of the assurances given by the Respondents to

safeguard her future, the Applicant was persuaded into gifting her

2 (two) Properties/Shares or Joint-Ownership in the 2 (Two)

Properties, in favour of the Respondent No.1 herein, when she

was alone and was not in the right frame of mind and was ailing."

27. Thus, there are specific pleadings made by the first Respondent-

Mother in her application that two Gift Deeds were executed in

furtherance of assurance given by Petitioners that they would take

care of her during her entire life. Mr. Khandeparkar has fairly not

contested the issue of absence of pleading. He however submits that

it was incumbent upon the Mother to prove by leading oral evidence

that the Gift Deed was executed subject to a condition of Petitioners

Page No. 14 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

providing basic amenities and basic physical needs to Mother. The

requirement of the aspect of leading oral evidence by senior citizen

in support of application is being discussed in latter portion of the

Judgment. However, so far as applicability of the Judgment in

Sudesh Chhikara (supra) in the present case is concerned, I am of the

view that the Apex Court was persuaded to set aside the order of

Maintenance Tribunal essentially on account of lack of pleadings by

Respondent No.1 therein that the Release Deed was executed subject

to a Condition for providing maintenance. Since the condition is

pleaded by Mother in her application, the judgment in Sudesh

Chhikara would not support Mr. Khandeparkar’s submission that

there was no material before the Maintenance Tribunal to arrive at a

finding that the Gift Deeds were executed subject to such a

condition.

28. In fact Mr. Purohit has rightly drawn my attention to the

following finding recorded by the Apex Court in Sudesh Chhikara

(supra) in Paragraph 14 of the Judgment which reads thus:

“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 subsection (1) of Section 23 are attached

to a transfer, existence of such conditions must be established

before the Tribunal.”

29. The Apex Court has thus held that the existence of condition can

even be established before the Tribunal. This would in fact indicate

that the existence of such condition need not be reflected in the Deed

itself in the form of a covenant or a recital and the same can be

established before the Tribunal.

(emphasis supplied)

22)Thus, in Ashwin Bharat Khater, this Court has taken a view that

the condition of provision of basic amenities and basic physical needs

need not be stipulated in the document of title, but the same can be

established through pleadings and evidence before the Maintenance

Tribunal. Mr. Godbole would contend that the finding recorded by this

Court in Ashwin Bharat Khater is on a concession made by the learned

counsel appearing for one of the parties therein and therefore the view

expressed by this Court would not form a binding precedent. True it is

Page No. 15 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

that in para-25 of the judgment, this Court has recorded a statement on

behalf of the learned counsel therein that he did not desire to press the

extreme argument that in every case such a condition must be included in

the Gift Deed. This Court thereafter considered the judgment of the Apex

Court in Sudesh Chhikara (supra). In case before the Apex Court, the

mother had executed Release Deed in favour of her daughter and son. The

Release Deed was sought to be cancelled by the mother by preferring

application under Section 23 of the Senior Citizens Act, which proceeded

to hold that the Release Deed was void. In this factual background, the

Apex Court has held in para-13 of the judgment as under:

13. 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.

23)Thus, as held by the Apex Court in Sudesh Chhikara, the condition

of looking after Senior Citizens may not be attached to the document of

gift or release as such transfers could be made out of love and affection

without any expectation in return. The Apex Court thereafter held that

when a document of transfer is sought to be annulled under Section 23(1),

existence of the condition must be established before the Tribunal. Thus,

what is the sine qua non is not the ‘presence’ of condition in the

document, but ‘establishment’ thereof before the Maintenance Tribunal.

24)Mr. Godbole has relied upon judgment of the Apex Court in Arun

Kumar (supra) in support of his contention that existence of condition

stipulated under Section 23(1) of the Act is a sine qua non for conferment

of jurisdiction on the Tribunal. That it is a jurisdictional fact, without

Page No. 16 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

establishment of which the Tribunal cannot exercise jurisdiction. In Arun

Kumar, the Apex Court has held as under:

74. A “jurisdictional fact” is a fact which must exist before a court,

tribunal or an authority assumes jurisdiction over a particular matter. A

jurisdictional fact is one on existence or non-existence of which depends

jurisdiction of a court, a tribunal or an authority. It is the fact upon which

an administrative agency's power to act depends. If the jurisdictional fact

does not exist, the court, authority or officer cannot act. If a court or

authority wrongly assumes the existence of such fact, the order can be

questioned by a writ of certiorari. The underlying principle is that by

erroneously assuming existence of such jurisdictional fact, no authority

can confer upon itself jurisdiction which it otherwise does not possess.

25)The position of law on jurisdictional fact is well settled. Jurisdiction

of a court, tribunal or authority depends on existence or otherwise of

jurisdictional fact. Therefore, in case where existence of a condition of

provision of basic amenities or basic physical need is not present as a

condition for making gift, the jurisdiction under Section 23(1) cannot be

exercised by the Tribunal. The issue here, however, is slightly different.

The issue is whether such condition must be stipulated in the document of

transfer or whether it can be established by pleadings and evidence.

Therefore, the judgment of the Apex Court in Arun Kumar does not

throw any light on the issue at hand.

26)Reliance is placed by Mr. Godbole on judgment of Single Judge of

this Court in Rahul Chandrakant Bharati (supra) in which it is held in

paras-19, 20 and 21 as under:

19. In order to bring the case under subsection (1) of Section 23 of the

Act, the following conditions are necessary, which read as under:

(a) The senior citizen has transferred by way of a gift deed or otherwise,

after commencement of this Act;

(b) The transfer was subject to the condition that the transferee shall

provide the basic amenities and basic physical needs to the transferor;

Page No. 17 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

(c) Such transferee refused to provide such amenities and physical needs;

(d) In that event, the said transfer shall be deemed to have been made by

fraud or coercion or under undue influence.

(e) Consequently, at the option of the transferor such transfer shall be

declared void by the Tribunal.

20. In the present case, respondent No.1 has transferred the disputed

premises to the petitioner, either by way of lease or under leave and

licence. There is no written agreement evidencing that this transfer was

on the condition that the petitioner shall provide the basic amenities and

basic physical needs to the transferor. The application filed by respondent

No.1 before the Tribunal is totally silent about the ingredients of sub-

section (1) of Section 23 of the Act. Even the impugned order is also

silent about these ingredients. As stated above, it is for the first time that

respondent No.1 whispered about conditional transfer of the disputed

premises before this Court. When no such condition was attached to the

transfer of the disputed premises, there was no question of refusal or

failure on the part of the petitioner to provide such amenities and

physical needs to respondent No.1.

21. Considering the objects of the Act, the disputes between the senior

citizen and others in respect of civil rights pertaining to movable or

immovable property would not be covered under Section 4 or Section 23

of the Act. Here, a Reference may be made to the judgment in the case of

Sukumaran Vs. Sumesh and Ors. MANU/KE/0204/2018, delivered on

19th January, 2018, by the Division Bench of the High Court of Kerla at

Ernakulam, wherein the father had executed a sale deed in favour of his

son. Subsequently, father filed an application before the Tribunal under

Section 23 of the Act. The Tribunal declared the sale deed as null and

void and cancelled it. It was found that the sale deed did not contain any

reservation making the transferee (son) liable to provide the basic

amenities and basic physical needs to the transferor (father).

Consequently, it was held that the case pleaded by the father, was not one

to which section 23 would apply and the father was left to seek to

invalidate the sale deed on any valid ground only through the Civil

Court. In the present case also, the transfer of the disputed premises to

the petitioner was not subject to any condition as mentioned in sub-

section (1) of Section 23 of the Act. Consequently, the provisions of

Section 23 would not be applicable. Respondent No.1 would have to

approach the Civil Court or Competent Authority, as the case may be,

depending upon his interpretation about the nature of the transaction in

respect of the disputed premises i.e. either lease or leave and licence, for

necessary reliefs.

(emphasis supplied)

Page No. 18 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

27)In Rahul Chandrakant Bharati the senior citizen had transferred the

premises to the Petitioner therein either by way of a lease or license.

Infact, Petitioner was not even a relative of the senior citizen. It was the

case of the Petitioner therein that he was occupying the premises as a

tenant on monthly rent of Rs.3,000/-, which was being received by senior

citizen’s daughter. Apparently, therefore there was no document executed

by the senior citizen under which premises were put in possession of the

Petitioner. Since there was no such document of either lease or license was

executed, there was no question of condition of provision of basic

amenities and basic physical needs being incorporated in any document.

Therefore, there was no occasion for this Court to discuss the issue of

‘presence in the document’ or ‘establishment before the Tribunal’ of

condition required under Section 23(1) of the Act. In my view, therefore

the judgment of this Court in Rahul Chandrakant Bharati does not

provide any assistance for determination of the issue at hand.

28)Mr. Godbole has relied upon the judgment of Full Bench of Kerala

High Court in Subhashini (supra) in which the Full Bench of the Kerala

High Court has held in paras- 56 and 57 as under:-

56. Very pertinent is the fact that Section 23(1) is prospective and

applies only to agreements executed after the enactment came into

force. Section 23 applies only to transfers after the commencement of

the Act. This further fortifies our interpretation that the provision

insists on there being an express condition, written as part of the

recitals, in the deed. If it were otherwise and the circumstances

which led to the execution or a reservation clause could be relied on

to infer or imply such a condition having regulated the execution, it

would have been made applicable to deeds of all times, executed by

senior citizens of a like nature. The measures of publicity as spoken

of in Section 21, under Chapter 5 is also intended at informing every

senior citizen about the speedy remedy provided for maintenance as

also revocation of a gratuitous transfer and to alert them of the

condition to be specified; which has to be a part of the recitals of the

document.

Page No. 19 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

57. We conclude by answering the reference, that the condition as

required under Section 23(1) for provision of basic amenities and

basic physical needs to a senior citizen has to be expressly stated in

the document of transfer, which transfer can only be one by way of

gift or which partakes the character of gift or a similar gratuitous

transfer. It is the jurisdictional fact, which the Tribunal will have to

look into before invoking Section 23(1) and proceeding on a

summary enquiry. We answer the reference agreeing with the

decision in W.A.No.2012 of 2012 dated 28.11.2012 [Malukutty

Ponnarassery v. P.Rajan Ponnarassery]. We find Shabeen Martin v.

Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional

Officer [2018 KHC 4655 = 2013 (3) KLT 1082] to be wrongly

decided. We approve Radhamani v. State of Kerala [2016 (1) KHC 9]

which had a recital in the document akin to that required under

Section 23(1).

(emphasis supplied)

29)In Subhashini Full Bench of the Kerala High Court has apparently

taken a view that (i) the condition required under Section 23(1) for

provision of basic amenities and basic physical needs to a senior citizen

has to be expressly stated in the document of transfer and (ii) such transfer

can only be one by way of gift or which partakes the character of gift or a

similar gratuitous transfer. So far as the view on the latter aspect of

transfer contemplated under Section 23(1) being only by way of gift is

concerned, the view taken by the Full Bench of the Kerala High Court

appears to be in conflict with the observations of the Apex Court in para-

12 of the judgment in Sudesh Chhikara wherein the Apex Court has held

that ‘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”. However, since the

documents of transfer involved in the present case are gifts, I need not go

into the issue of correctness of that finding by the Full Bench of Kerala

High Court in Subhashini. It is its view on the former aspect which

appears to be in conflict with the one taken by me in Ashwin Bharat

Khater. It appears that the judgment of Full Bench of Kerala High Court

in Subhashini was not cited when Ashwin Bharat Khater was decided.

Page No. 20 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

Though the judgment in Subhashini is of Full Bench of Kerala High

Court, it would not bind me, but would definitely have a persuasive value.

30)After considering the judgments rendered by some other High

Courts, there appears to be divergence of views expressed on the issue of

need for incorporation of the condition in the document of transfer. In N.

D. Vanamala Vs. State of Karnataka

9

, a single Judge of the Karnataka

High Court upheld annulment of gift deed notwithstanding the fact that

the condition of providing basic amenities and basic physical needs was

not a part of the gift deed. The learned Judge held:

22. Admittedly in the present case, the gift deed was executed by the

fourth respondent under the bona fide belief that the petitioner being her

daughter will take care ofher during her old age. But, after obtaining the

gift deed, the petitioner has shown her real colour and deprived the basic

amenities and physical needs to the fourth respondent. Therefore, the

fourth respondent filed an application before the Assistant Commissioner

seeking cancellation of the gift deed executed by her in favour of the

petitioner. The contention of the Counsel for petitioner that there must be

a condition in the gift deed to take care of the transferor cannot be

accepted. If such contention is accepted, then the very purpose of

enacting the ‘Act’ by the legislators and introducing Sections 23 and 24 in

the Act would become futile. That is not the intention of the legislators

while enacting the ‘Act’. The main object of the ‘Act’ is to provide

for more effective provisions for the maintenance and welfare of parents

and senior citizens guaranteed and recognized under the Constitution of

India and to protect the Senior Citizens at the fag end of their life. Even

otherwise, it is the Duty and Dharma of the children to take care of their

aged parents.

(emphasis supplied)

31) However, the Division Bench of the Karnataka High Court

overruled the judgment of the Single Judge in N. D. Vanmala Vs. State of

Karnataka

10

. The Division Bench held:

9

2018 SCCOnline Kar 2707

10

Writ Appeal No. 96 of 2019 decided on 29 June 2022

Page No. 21 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

8. Thus from the perusal of the relevant extract of the Gift

deed, it is evident that the Gift deed does not contain any

condition that the transferee, namely, the appellant shall

provide the basic amenities and basic physical needs to the

transferor. On the other hand, Gift deed has recorded that the

appellant has taken care of respondent No.4. Respondent

No.4 has expired during the pendency of the appeal. In the

absence of any stipulation in the gift deed with regard to the

maintenance of respondent No.4, the Assistant

Commissioner had no authority under Section 23 of the Act

to declare the Gift deed to be void. However, the aforesaid

aspect of the matter has not been appreciated by the learned

Single Judge.

(emphasis supplied)

32)However later, in the year 2023, another Single Judge of Karnataka

High Court in Apparanda Shanthi Bopanna vs A B Ganapathy

11

held that

the senior citizens would be entitled to enjoy the fruits of gift executed by

them in the form of Rs. 7,00,000 each during their lifetime. Attention of

the Court was invited to the judgment of this Court in Ashwin Bharat

Khater. However the learned Judge does not appear to have decided the

issue of need for incorporation of condition of provision of basic

amenities and basic physical needs in the gift deed. However despite

absence of such condition in the document, it is held that, though the gifts

needs not be annulled, the fruits thereof must be enjoyed by the senior

citizens in the form of maintenance in the form of Rs. 14,00,000 to them

every year. One of the reasons for not restoring the gifted properties to the

senior citizens was their advanced age of 85 years. It is held:

12. The petitioner is now 85 years old. The petitioner was satisfied for

three years after execution of gift deeds as the donees/respondents 1 and

2 were depositing `14,00,000/- every year into her account for

maintenance or living of the petitioner as she was living earlier. Stopping

of maintenance of `14,00,000/- that was paid every year, drew the

petitioner to the doors of the Assistant Commissioner. The Assistant

Commissioner annuls gift deeds. If that is accepted, it would mean that

the petitioner would get back the property to her name. As observed

hereinabove, she is 85 years old and will not be in a position to take care

11

Writ Petition No. 9943 of 2022 decided on 20 December, 2023

Page No. 22 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

of the property even if the order of the Deputy Commissioner is set

aside. What the petitioner requires and why the petitioner knocked at the

doors of the Assistant Commissioner was for maintenance i.e., the

maintenance at the rate at which it was agreed between respondents 1

and 2 and the petitioner. Therefore, relying on the judgments quoted

hereinabove, in the peculiar facts before this Court, annulling the order of

the Deputy Commissioner or restoring the order of the Assistant

Commissioner is not required, as those issues need not be decided in the

present case. It would suffice, by sustaining the order of the Deputy

Commissioner, a direction is issued to the respondents 1 and 2/donees to

put the petitioner in a position status quo ante i.e., receipt of money as

maintenance that she was receiving between 2016-2019, the petitioner

should be satisfied.

33)Division Bench of Madras High Court, Bench at Madurai in R.

Sekkappan Vs. S. Kanappan

12

held as under

14. 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 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.

(emphasis supplied)

The fact situation in R. Sekkappan before the Division Bench of Madras

High Court appears to be similar to the facts in the case in Sudesh

Chikkara before the Apex Court where failure to plead and lead evidence

about existence of condition was essentially held to be the reason for not

annulling the deed of transfer.

12

WA No. 809/2023 decided on 12 June 2023

Page No. 23 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

34)Without noticing the judgment of Division Bench in R. Sekkappan,

it appears that a Single Judge of Madras High Court In Mahamed Dayan

Vs. Dist Collector

13

, has held that the settlement deed sought to be

annulled under Section 23(1) need to contain express condition of

provision of basic amenities and basic physical needs. The Court held:

38. The Kerala High Court observed in the case of Radhamani and

Others (cited supra), Section 23(1) of the Senior Citizen Act, cannot be

interpreted to the disadvantage of the senior citizen. Section 23(1) of the

Act contemplates that “Where any senior citizen who, after the

commencement of this Act, has 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”. The phrase “ subject to the

condition that the transferee shall provide the basic amenities” does not

mean that the Gift or Settlement Deed should contain any such condition

expressly. “Subject to the condition” as employed in Section 23(1), is to

be holistically understood with reference to the subsequent phrase i.e.,

“deemed to have been made by fraud or coercion or undue influence”.

Both the phrases would amplify that the deeming clause should be

considered so as to form an opinion that the phrase “subject to

condition” amounts to an implied condition to maintain the senior

citizen and any violation would be sufficient for the purpose of invoking

Section 23(1) of the Act, to cancel the Gift or Settlement Deed executed

by the senior citizen.

39. To elaborate, the phrase “subject to condition” employed under

Section 23(1) of the Act, is to be understood with reference to the love

and affection by the senior citizen towards the person in favour of whom

such Gift or Settlement Deed has been executed.

40. “Love and Affection” is an implied condition in the context of

Section 23(1) of the Act, and therefore, there need not be any express

condition in the Settlement Deed for the purpose of maintaining the

senior citizen. Refusal of maintenance after executing the Settlement

Deed or Gift Deed, is the ground for invoking the deemed ground of

fraud or coercion or undue influence. When the deeming clause has been

incorporated under the provisions of Section 23(1) of the Act, 'Love and

Affection' to be construed as the consideration for executing the Gift or

Settlement Deed. Thus the condition need not be expressly made in the

document and the love and affection, which resulted in execution of the

Deed by the senior citizen is to be construed as a condition for the

13

Writ Petition No. 28190 of o2022 decided on 8 September 2023

Page No. 24 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

purpose of invoking the deeming clause for declaring the document as

fraud or coercion or undue influence. The entire purpose and object of

the Senior Citizens Act, is to consider the human conduct towards them.

When the human conduct is indifferent towards senior citizen and their

security and dignity are not protected, then the provisions of the Act, is

to be pressed into service to safeguard the security and dignity of senior

citizen. Therefore, the purposive interpretation of the provisions are of

paramount importance and Section 23 of the Act, cannot be mis-utilised

for the purpose of rejecting the complaint filed by the senior citizen on

the ground that there is no express condition for maintaining the senior

citizen. Even in the absence of any express condition in the document,

“Love and Affection” being the consideration for execution of Gift or

Settlement Deed, such love and affection becomes a deeming

consideration and any violation is a ground to invoke Section 23(1) of the

Act. Thus there is no infirmity in respect of the order passed by the

second respondent in the present case.

42. The human conduct in the context of the senior citizen Act, is to be

understood considering the relationship between the senior citizen and

the beneficiaries of the Gift or Settlement Deed. Mostly the parents are

executing the document in favour of their children. Since they may not be

in a position to maintain the property at their old-age and more-so, they

are intending to visibly express their love and affection towards their

children by settling their properties. In some cases, the parents during

their old-age are settling their property in order to avoid conflict between

their children and to ensure that all children get equal share. If at all the

parents decide to settle the property in favour of a son or daughter, then

they are doing so, only with love and affection and with a fond hope that

they will be taken care of by the son or daughter during their old-age.

Thus love and affection, being the consideration and implied condition,

within the meaning of Section 23(1) of the Act. The subsequent non-

maintenance of senior citizen would attract Section 23(1) of the Act and

the Authorities in such circumstances are empowered to declare the

document as null and void.

43. Therefore, Section 23 is referable as a conduct of the transferee prior

to and after execution of the Deed of Gift or Settlement, as the case may

be. For all purposes, Section 23 is to be understood taking note of the

conduct of the transferee and not with reference to the specific stipulation

of condition in the Deed of Gift or Settlement.

35) Another Single Judge of the Madras High Court in

Sankarapan Vs. The Appellate Authority

14

did not agree with the view in

Mohammed Dayan on the ground that the Division Bench Judgment in

R. Sekkappan was not considered in Mohammed Dayan. The Court held:

14

WP No. 27135 of 2023 decided on 10 November 2023

Page No. 25 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

11. I, therefore, hold that to invoke Section 23 of the Senior Citizens Act,

there must be an express recital in the deed of transfer that the transferee

is under an obligation to provide the basic amenities and basic physical

needs to the transferor. If this condition is not expressly incorporated or

found in the deed of transfer, the jurisdiction of the Maintenance

Tribunal will not be available under Section 23 of the Act. The only

remedy open to the transferor is to move the jurisdictional Civil Court for

relief.

However, the judgment of Division Bench in R. Sekkappan was rendered in the

facts of that case where there was absence of pleadings and failure to lead

evidence. Also, there is no discussion in R. Seekappan about the need for

incorporation of condition of provision of basic amenities and basic physical

needs in the document of transfer. However, the Single Judge in Sankarapan

did not approve the view taken in Mohammed Dayan though it contains detailed

discussion on the issue and held that the judgment of Division Bench in R.

Sekkappan would prevail.

36)A Single Judge of Calcutta High Court in Himangshu Mondal v.

Sachirani Mondal

15

has also taken a view that the condition of provision of

amenities and needs must be stated in the document of transfer.

37)As noticed above, there is divergence of views expressed by various

High Courts on the issue of requirement of incorporation of condition of

provision of basic amenities and basic physical needs in the document of

transfer.

38)Though in few judgments of some of the High Courts, the

judgment of the Apex Court in Sudesh Chhikara is interpreted to mean as

if the Apex Court has held that the condition required under Section 23(1)

must be expressly stated in the document of transfer, in my view, the Apex

Court has not held so. In Sudesh Chhikara, the Apex Court has held that

“Effecting transfer subject to a condition of providing the basic amenities

15

2023 SCC OnLine Cal

Page No. 26 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

and basic physical needs to the transferor - senior citizen is sine qua

non for applicability of sub-section (1) of Section 23”. Thus finding of the

Apex Court cannot be read to mean as if the condition of providing the

basic amenities and basic physical needs must be incorporated in the

document itself. The Apex Court has held in Para 14 of the Judgment as

under:

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.

39)Thus, what is emphasized by the Apex Court in Sudesh Chhikara is

the need to ‘establish’ existence of condition attached to transfer. In

Sudesh Chhikara Apex Court has dealt with a case where the condition of

provision of basic amenities or basic physical needs was not incorporated

in the release deed. The Apex Court then considered whether existence of

such condition was pleaded and whether evidence was adduced about

existence of such condition. If the condition already existed in the

document of transfer, the need for establishment of its existence through

pleading and evidence becomes unnecessary. Pleading and evidence

would be needed when the condition is not found in the document, but a

senior citizen asserts and wishes to prove that the gift was actually done in

expectation of the donee providing the basic amenities and basic physical

needs to the donor. This is why after considering the judgment in Sudesh

Chhikara, I have held in Ashwin Bharat Khater that in absence of

incorporation of such condition, the same can be established before the

Maintenance Tribunal.

Page No. 27 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

40)If Section 23(1) of the Senior Citizens Act is interpreted to mean as

if the condition of providing basic amenities and basic physical needs

must be incorporated in the document of transfer, the same may throw

most of the transactions effected by senior citizens out of purview of

Section 23(1). Because it is difficult that a senior citizen making a gift in

favour of his/her child would insist that the condition of providing basic

amenities and basic physical must be incorporated in the gift deed. In most

of the cases, such documents are drafted at the instance of the child, who

is the benefitiary of such transfer. Applicability of special protection under

Section 23(1) to a senior citizen would then depend on the manner in

which the gift deed is couched by its drafter. A senior citizen who is

unaware of provisions of section 23(1) would not know that absence of

recital or stipulation in the gift deed, which he/she executes, would deny

him/her the special protection that the legislature has extended him under

Section 23(1). Grant or denial of protection under Section 23(1) would

then depend on the wisdom of the drafter or scribe who drafts the

document of transfer.

41)On the other hand, if provisions of Section 23(1) of the Senior

Citizens Act are interpreted to mean that existence of condition of

providing basic amenities and basic physical needs, not incorporated in

the document of transfer, can be established before the Tribunal through

pleadings and evidence, such interpretation would subserve the objective

behind enacting the provision, the ultimate objective being the welfare of

senior citizens. Such interpretation would provide the freedom to the

Tribunal to determine whether the document of transfer was indeed

executed subject to such condition. In a given case, where senior citizen

owns just a house and executes a gift deed if favour of his/her child,

which does not contain a recital or stipulation that the same is executed

subject to condition of providing basic amenities and basic physical needs,

in the event of the child throwing the senior citizen out of that house, the

Page No. 28 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

protection granted under Section 23(1) would be rendered nugatory and

the entire objective behind enacting the Act would be frustrated. In that

case, the senior citizen, in my view, needs to be given an opportunity to

prove before the Tribunal that the gift was made on a condition that the

senior citizen would be provided the basic amenity of residence in the

house that he/she gifted to the child. On the other hand, if a senior citizen

owns multiple properties, and gifts only one of it to the child, while

retaining other properties, the Tribunal can draw an inference that

execution of the gift was not subject to any such condition. Therefore,

some flexibility needs to be provided to the Tribunal to take decision in the

light of facts of each case. The Tribunal must consider facts of each case

and decide whether after execution of document of transfer, there is denial

of basic amenity or basic physical need to the senior citizen or whether the

provisions of Section 23(1) are being misused to decide property disputes

amongst the siblings. In appropriate cases, where the senior citizen has

other residence, but is not looked after, the Tribunal can make an order for

payment of maintenance rather than annulling the gift.

42)In my view, therefore the existence of condition of provision of

basic amenities and basic physical needs need not be specifically

incorporated in the document of transfer and the same can always be

established before the Tribunal through pleadings and evidence.

43)Reliance is placed by Mr. Godbole on judgment of Single Judge of

this Court in Ranjana Rajkumar Makharia V/S. Mayadevi Subhkaran

Makharia and another

16

this Court has merely reiterated the conditions

which are required to be fulfilled for passing an order by the Tribunal

under Section 23. This Court has nowhere held that the condition of

provision of basic amenities or basic physical needs must be stipulated in

the document of transfer/gift.

16

2020(3) Mh.L.J. 587.

Page No. 29 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

44)Mr. Godbole has relied upon judgment of Single Judge of this

Court in Vikas Prabhakar Patil (Shewale) V/s. Prabhakar Dawal Shewale

and another

17

, which is actually considered by this Court in his judgment

in Ashwin Bharat Khater. In Vikas Prabhakar Patil (supra), there is no

discussion of the issue of presence of condition stipulated under Section

23(1) in the document of transfer or whether it can be established by

pleadings and evidence before the Tribunal. In that case, a sale-deed was

sought to be revoked under the provisions of Section 23(1) of the Act. It

is not clear from the Order in Vikas Prabhakar Patil as to whether there

was payment of monitory consideration for effect of transaction of sale

and whether the senior citizen therein made any attempt to establish the

condition of provision of basic amenities and basic physical needs before

the Tribunal. The order in this Court in Vikas Prabhakar Patil therefore

does not provide any assistance to the issue at hand.

45)I therefore do not find any reason to take a different view than the

one taken in Ashwin Bharat Khater. I accordingly hold that the condition

of provision of basic amenities and basic physical needs need not be

stipulated in the form of a covenant or recital in the document of transfer

referred to under Section 23(1) and it is open for the parties to establish

presence of such condition on the basis of pleadings and evidence.

46)The next issue is whether existence of such condition was

established by Respondent No.2 before the Maintenance Tribunal. It must

be observed here that while executing various Gift-Deeds, Respondent No.

2 has ensured that his right of occupation in gifted flats was protected. In

each of the Gift-Deeds, there is a specific stipulation as under:

“The Donee hereby state, declare and undertake that the

Donor is entitled to reside and enjoy the occupancy of the

17

2021 SCC OnLine Bom 11846.

Page No. 30 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

said premises during his lifetime and the Donee will not

create any hindrance of whatsoever nature for the same.”

47)Thus, all the four Gift Deeds are executed subject to a specific

covenant that Petitioner shall not cause any hindrance to the second

Respondent’s occupation, residence and enjoyment of the gifted flats.

Provision of residence is one of the basic amenities as well as basic

physical need of a senior citizen. Therefore, though the gift deeds do not

contain specific recital/covenant that the same are executed subject to the

condition of provision of basic amenities and basic physical needs,

existence of such condition can be inferred in the present case both on

account of covenant for providing residence to Respondent No. 2 as well

as admission of liability to provide residence to him by Petitioner. Thus, in

the present case, execution of Gift-Deeds subject to condition of provision

of basic amenities and basic physical need of residence to Respondent

No.2 is established.

48)Having held that execution of Gift-Deeds by the father was subject

to the condition of provision of basic amenities and basic physical need of

residence in the gifted flats, the next issue for consideration is whether the

order declaring annulment of all Gift-Deeds in the present case can be

sustained. As observed above, Respondent No.2 is not the 100% owner in

respect of any of the three flats. The third son, Hemant Gupta has

undoubtedly retained his one-third share (through his mother’s share) in

each of the three flats. Flat No.708 was originally purchased jointly by the

Petitioner and the parents and accordingly he held one-third share in that

flat. Even though he executed Release Deed dated 9 April 2019 in his

father’s favour, it is debatable whether he intended to release his own one-

third share in Flat No.708. Even if it is assumed that he did release his

own one-third share in Flat No.708 in favour of the father, the acquisition

of that one-third share by father from the Petitioner was not on payment

Page No. 31 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

of any consideration. Therefore, even in the case of assumption of

relinquishment of Petitioner’s one-third share in Flat No.708, it again

becomes questionable whether father had the right to get back that share

from son under Section 23(1) of the Senior Citizens Act when that one-

third share was never acquired by the father by paying any consideration.

Without going any further into the aspect of ownership of various parties,

which does not fall in the domain of enquiry under the Senior Citizens

Act, suffice it to hold that Respondent No.2-father was never 100% owner

in respect of the three flats. The Tribunal has completely glossed over this

important aspect.

49)Father’s main grouse before the Maintenance Tribunal was that he

was denied residence in his own flats at Mumbai on account of which he

is forced to reside with his other son-Sharad at Ahmedabad. The

Maintenance Tribunal has not awarded any monthly maintenance to

Respondent No.2. As such denial is premised on a finding that

Respondent No.2 did not implead all the three sons in the proceedings

filed before the Tribunal. Another finding recorded by the Maintenance

Tribunal is that Respondent No.2 would be in a position to earn income

through the three flats in respect of which the gifts are annulled. Mr.

Godbole has submitted that Petitioner is willing to provide Flat Nos. 2005

and 2006 in Riviera Building for residence of the Respondent No.2

alongwith Petitioner and his family members. Alternatively, he has also

expressed willingness to provide Flat No. 708 in Autumn Grove building

for residence of the father, where he can reside independent of Petitioner

and his family. Additionally, he has expressed willingness on the part of

the Petitioner to provide fixed monthly amount for maintenance of the

father.

50)The objective behind enacting sub-section (1) of Section 23 of the

Senior Citizens Act is to ensure that if senior citizens are deprived of their

Page No. 32 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

properties by children and are denied basic amenities and basic physical

needs after effecting such transfers, the effect of such transfer is revoked

and ownership of senior citizens is restored. The basic idea behind this

provision is not to nullify validly executed documents of transfer but to

ensure that senior citizens are restored the basic need of residence in the

house which he/she gifts in favour of his/her children. The legislative

scheme and effect of Section 23 of the Senior Citizens Act is discussed by

the Apex Court in paras-19 and 20 of the judgment in S. Vanitha (supra):

19. A senior citizen, including a parent, who is unable to maintain

themselves from their own earning or out of property owned by

them, is entitled to make an application under Section 4(i). A parent

or grand-parent may make an application against one or more of

their children. A childless senior citizen can make an application

against a relative specified in Section 2(g). Section 4 recognises a

corresponding obligation on the part of the children or relative to

maintain a senior citizen, extending to such needs as would enable

them to lead a normal life. In the case of a relative, the obligation is if

they are in possession of the property of the senior citizen or would

inherit property from them. Hence, in the case of the children of a

senior citizen, the obligation to maintain a parent is not conditional

on being in possession of property of the senior citizen or upon a

right of future inheritance.

20. The procedure to be followed by a Maintenance Tribunal

(constituted under Section 7) is of a summary nature as provided in

Section 8(1) and with all the powers of a Civil Court, as provided in

Section 8(2). Under Sub-section (1) of Section 9, where a senior

citizen is not able to maintain himself or herself and the children or

relatives, as the case may be, neglect or refuse to maintain them, the

Tribunal is empowered to order them to make a monthly allowance

at such monthly rate for the maintenance of the senior citizen, as the

Tribunal may deem fit. The amount of the monthly allowance can be

altered inter alia upon a change in circumstances, under Section 10.

51)Considering the broad objective behind enacting the provisions of

Section 23(1) of the Senior Citizens Act, which is to ensure provision of

basic amenities and basic physical needs to senior citizens, in my view, the

Maintenance Tribunal ought to have passed an order in such a manner

that Respondent No.2 is provided basic amenities and basic physical needs

Page No. 33 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

rather than revocation of the three gift deeds. As observed above,

Respondent No.2 is not the full owner in respect of Flat Nos.2005 and

2006 in Riviera Building or Flat No.708 in Autumn Grove building. While

gifting his own share in these three flats, Respondent No.2 reserved his

right to reside in the same without any hindrance on the part of the

Petitioner. Considering this position, in my view, Respondent No.2 can be

provided residence in one out of the three flats together with some fixed

monthly amount towards maintenance, which shall ensure that

Respondent No.2 is in a position to spend his sunset days peacefully.

Though Petitioner has shown willingness to provide residence to

Respondent No.2 in Flat Nos. 2005 and 2006 in Riviera Building, where

Petitioner is residing with his family members, it appears that the

relationship between Petitioner’s family members and Respondent No.2

are unsavory especially in view of the serious allegations levelled against

him in pleadings before the Maintenance Tribunal. According to the

Petitioner, Respondent No.2 on his own accord left the house of the

Petitioner out of embarrassment caused to him when he was caught in

illicit relationship with a housemaid by Petitioner’s wife and children. On

the contrary, Respondent No.2 has denied the said allegation as absolutely

false and scandalous and has relied upon police compliant filed by the

lady who is named in the allegations. I do not wish to delve any deeper

into these allegations and counter allegations. At the same time,

considering the unsavory relationship between the parties and also

considering the fact of availability of separate flat in Autumn Grove

building for residence of Respondent No.2, in my view, residence of

Respondent No.2 alongwith the Petitioner and his family in Riviera

building may not be in the interest of Respondent No.2 himself. In my

view therefore, Respondent No.2 can be provided residence in Flat No.708

in Autumn Grove building. Additionally, Petitioner can be directed to pay

monthly allowance of Rs. 25,000/- to Respondent No.2 so that he can

Page No. 34 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

make necessary provision for required assistance, as well as maintenance

in that flat.

52) Petitioner has alleged that the other brother, Sharad Gupta

with whom Respondent No.2 is currently residing, has instigated the

father to seek annulment of Gift-Deeds as he wants a share in the gifted

flats. The provision of Section 23(1) of Senior Citizens Act cannot be used

as a machinery for settling property disputes between the heirs of senior

citizens. However, unfortunately in many cases, it is observed that such a

course of action is taken by the parties. The objective behind enacting

Section 23(1) of Senior Citizens Act is entirely different. The provision

operates as an exception to a validly effected transactions of transfer of

immovable properties which can be revoked in rare and exceptional

circumstances by the Maintenance Tribunal. The Tribunal therefore has to

ensure that the provision is not misused by children who are denied share

in the immovable properties by seeking to get gift-deed annulled by filing

application through senior citizens. Since the broad objective behind the

Act is to ensure that senior citizens are taken care of by the children, that

objective would sufficiently be achieved in the present case by provision of

residence to Respondent No.2 in Flat No.708 in Autumn Grove building

in addition to payment of monthly maintenance of Rs.25,000/- by

Petitioner. I am conscious of the fact that the maximum limit for payment

of maintenance to a senior citizen under Section 9 of the Senior Citizens

Act is capped at Rs.10,000/-. I am also conscious of the fact that

Respondent No.2 has two other sons, who are also under obligation to

maintain him. However, the order for payment of monthly maintenance

of Rs.25,000/- by the Petitioner is being made in view of exceptional

circumstances where total four properties are gifted by Respondent No.2

and his wife in favour of the Petitioner as well as the willingness shown by

him to pay monthly maintenance amount to Respondent No.2.

Page No. 35 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::

Neeta Sawant WP-590-2023-JR-FC

53)I accordingly proceed to pass the following order :

(i) The order dated 31 October 2022 passed by the

Maintenance Tribunal is set aside.

(ii) The Petitioner shall provide to Respondent No.2

residence in Flat No.708 in Autumn Grove Co-operative

Housing Society in addition to payment of amount of Rs.

25,000/- per month towards maintenance, which shall be

paid by Petitioner to Respondent No.2 on/or before 7

th

day

of each month during the lifetime to Respondent No.2.

54)With the above directions, the Writ Petition is partly allowed. Rule

is made partly absolute. There shall be no Order as to costs. With the

disposal of the Writ Petition, nothing survives in the Interim Application,

the same also accordingly stands disposed of.

SANDEEP V. MARNE, J.

Page No. 36 of 36

10 April 2024 ::: Uploaded on - 10/04/2024 ::: Downloaded on - 30/08/2025 20:51:23 :::