W.P.(MD)No.23699 of 2022 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.07.2022 CORAM: THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.(MD)No.23699 of 2022 and W.M.P.(MD)Nos.17784 & 17785 of 2022 Umamageswari ... Petitioner -vs- 1.The Appellate Authority / The District Collector, Office of the District Collector, Sivagangai, Sivagangai District. 2.The President of Maintenance Tribunal / The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Devakottai, Sivagangai District. 3.Vasuki 4.Kumar ... Respondents ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records connected with the impugned order in K:.K.gp1/9626/2022 dated 28.09.2022 on the file of the first respondent and quash the same as illegal. For Petitioner : Mr.K.Navaneetharaja For Respondents 1&2 : Mr.R.Ramasamy Counsel for the State of Tamil Nadu For Respondent No.3 : Mr.Mohamed Zamil for M/s.Ajmal Associates O R D E R Challenging the proceedings of the first respondent in K:.K.gp1/9626/2022 dated 28.09.2022, the present Writ Petition has been filed. 2.The case of the petitioner is that the third respondent is the petitioner's mother. Out of love and affection, the third respondent executed a settlement deed bearing Document No.2939 of 2011 dated 04.07.2011, in favour of the petitioner. Thereafter, the petitioner had executed a settlement deed in favour of the fourth respondent, who is her ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 son-in-law vide document No.963 of 2021 dated 03.03.2021. While so, the third respondent has now initiated proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, before the second respondent. Pursuant thereto, the second respondent in and by impugned proceedings dated 20.04.2022, directed the petitioner to pay a sum of Rs.1,000/- as monthly maintenance to the third respondent. Aggrieved by the same, the third respondent preferred an appeal before the first respondent. However, the first respondent vide the impugned order dated 28.09.2022, passed an order cancelling the settlement deed executed by the third respondent in favour of the petitioner. Aggrieved over the same, the present Writ Petition has been filed. 3.Learned counsel for the petitioner submitted that the issue involved in the present Writ Petition is no longer res integra. The settlement deed dated 04.07.2011, executed by the third respondent in favour of the petitioner is an absolute and irrevocable settlement and the same cannot be cancelled. He further submitted that Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 can be invoked only when the transfer is subject to a condition that the transferee shall provide basic amenities and physical needs to the transferor and such condition is breached. In the absence of any such condition in the ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 settlement deed, the authorities under the Act have no jurisdiction to cancel the settlement deed. 4.Learned Counsel placed reliance upon the decision of the Hon'ble Full Bench in the case of Sasikala Vs. Revenue Divisional Officer and another reported in 2022 SCC online Mad 4343, wherein, it has been categorically held that in the absence of a condition incorporated in the deed, the power under Section 23(1) cannot be exercised and further held that when a settlement deed is executed, the same cannot be cancelled unilaterally. 5.Learned Government Counsel appearing for the official respondents submitted that the impugned order came to be passed on the complaint of the senior citizen alleging failure of maintenance by the petitioner. However, he fairly submitted that the issue is governed by the judgment of the Hon'ble Full Bench of this Court. Hence, this Court may issue appropriate directions in the above regard. 6.Heard the learned counsel for the petitioner and the learned Government Counsel appearing for the official respondents and perused the materials available on record. ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 7.Admittedly, the petitioner is the daughter of the third respondent. The issue involved in the present Writ Petition is no longer res integra, in view of the judgment of the Hon'ble Full Bench of this Court in Sasikala's case, as referred to supra, wherein it has been held that the power under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 can be exercised only if the transfer of property has been made subject to the condition that the transferee shall provide basic amenities and physical needs to the transferor and such condition has been violated. In the absence of such a condition in the deed of transfer, the authorities functioning under the Act have no jurisdiction to annul or cancel the transfer. The relevant portion with regard to unilateral cancellation is extracted hereunder; “46.The writ petition in W.P. (MD) No. 6889 of 2020 is filed by the daughter of the second respondent to quash the order passed by the first respondent under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007. The gift deed executed by the second respondent in favour of the writ petitioner was unilaterally cancelled by the second respondent father. The settlement deed stated to have been executed by the second respondent, dated 06.03.2015 is irrevocable and it is a deed of settlement out of love and affection. The second ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 respondent has specifically stated that he has no right to revoke the settlement deed. From the recitals, the settlement does not attract Section 126 of Tamil Nadu Property Act. It is seen that the settlor viz., the second respondent, has not put any condition. In other words, the gift deed is not subject to any condition or terms that the transferor shall provide the basic amenities and basic physical needs to the second respondent. In such circumstances, this Court is of the view that there is no scope for invoking the power provided to the second respondent under Section 23 of the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Therefore, the order impugned is liable to be quashed. Even though we agree that the writ petition can be allowed, this Court is unable to decide the writ petition in this batch where question referred to us is different. Hence, the writ petition in W.P. (MD) No. 6889 of 2020 is de-linked and the Registry is directed to list the matter before the appropriate Bench.” [Emphasis supplied] 8.In the case on hand, a perusal of the settlement deed dated 04.07.2011 does not disclose any condition requiring the petitioner to maintain the executant as a pre-condition for transfer of the property. Therefore, the essential requirement for involving Section 23(1) of the Act ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 is absent. Consequently, the first and second respondents could not have exercised the power of cancellation under the Act. 9.In view of the above settled legal position, the impugned proceedings of the first respondent in K:.K.gp1/9626/2022 dated 28.09.2022, is liable to be set aside. 10.Accordingly, the Writ Petition stands allowed and the impugned proceedings of the first respondent in K:.K.gp1/9626/2022 dated 28.09.2022, is hereby quashed. However, the maintenance amount ordered by the second respondent is enhanced and the petitioner is directed to pay a sum of Rs.3,000/- as maintenance amount to the third respondent, on or before 7th day of every English Calender month. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 13.07.2022 NCC : Yes / No Index : Yes / No Internet: Yes / No MR ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 To 1.The Appellate Authority / The District Collector, Office of the District Collector, Sivagangai, Sivagangai District. 2.The President of Maintenance Tribunal / The Revenue Divisional Officer, Office of the Revenue Divisional Officer, Devakottai, Sivagangai District. ____________ https://www.mhc.tn.gov.in/judis W.P.(MD)No.23699 of 2022 M.DHANDAPANI, J. MR W.P.(MD)No.23699 of 2022 13.07.2022 ____________ https://www.mhc.tn.gov.in/judis