This Court in Radhamani and others v. State of
Kerala (2016 (1) KHC 9) held that there is no requirement
under law that there should be a written stipulation in the
deed to the effect that the transferee would maintain the
transferor. It is appropriate to refer the relevant
paragraphs in the above judgment which read thus :
“11. It is to be noted that the special scheme in
terms of Senior Citizens Act, 2007 could declare
certain transfer as void, taking note of the fact
that by taking advantage of the emotionally
dependent senior citizens, relatives grab the
property on the pretext of providing emotional
support. Therefore, legislature thought such
transaction could be declared as void as the
conduct leading to transaction was based on malice
or fraud. Therefore,condition referred in Section
23 has to be understood based on the conduct of
the transferee and not with reference to the
specific stipulation in the deed of transfer.”
Thus this Court is of the view that it is not necessary
that there should be a specific recital or stipulation as a
condition in the deed of transfer itself. This condition
mentioned in Section 23 is only referable as a conduct of
the transferee, prior to and after execution of the deed of
transfer.
14. In the light of the judgment in Radhamani's case,
the scope of enquiry in a matter related under Section 23,
must be related and confined to the circumstances under
which the document was executed. In the light of
Radhamani’s judgment, the Tribunal has to examine the
circumstances under which the deed was executed. It is also
necessary to find out whether senior citizen expected that
the transferee would provide amenities and physical needs to
the transferer at the time of transfer. There may not be
any written document in this regard. Normally this has to
be concluded from human conduct and nature of relationship
and circumstances in which such deed was executed. Strict
pleadings or evidence cannot be insisted in such
proceedings. It is to be noted that law only contemplates
breach on the part of the transferee in providing amenities
and physical needs to the transferor. It does not stipulate
that the condition of providing maintenance should be part
of such transfer. If love and affection was the
circumstances for executing such deed, any failure on the
part of the transferee to provide amenities and physical
needs to the transferor would attract the grounds for
revocation under Section 23. Therefore, any emotional
detachment or creation of an atmosphere as opposed to the
one demanded by a senior citizen would be sufficient to
attract Section 23.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR. JUSTICE A.MUHAMED MUSTAQUE
WP(C).No.14802 OF 2019(A)
G.S.MANJU Vs K.N.GOPI @ GOPINATHAN PILLAI
MR. JUSTICE A.MUHAMED MUSTAQUE
Dated:10TH DAY OF OCTOBER 2019
The petitioner is the daughter of the first respondent,
who is a senior citizen. The first respondent executed a
gift deed in favour of the petitioner in the year 2014. He
approached the Maintenance Tribunal to revoke the deed
invoking Section 23 of the Maintenance and Welfare of
Parents and Senior Citizens Act & Rules (hereinafter
referred to as the Senior Citizens Act). The Tribunal
declined the prayer under Section 23. However, the Tribunal
ordered the petitioner to provide necessary facilities to
the first respondent to protect his well being. He
approached the appellate authority in appeal. The appeal was
allowed revoking the deed. Challenging this order, the
petitioner has approached this Court.
2. The appeal was heard substantially by the District
Magistrate, who is not an appellate authority under Section
16 of the Senior Citizen Act. It is true that in the
impugned order, it was mentioned that the District
Collector, who is the appellate authority, heard the
matter. Nevertheless as revealed from the proceedings, the
matter was also heard on several occasions by the District
Magistrate. On this ground alone, the matter ought to be
remitted to the appellate authority.
3. However, the learned counsel for the petitioner
pointed out to the pleadings in the application filed by the
senior citizen under Section 23. According to him, the
pleadings clearly shows that this is not a case where
Section 23 of the Act can be invoked. The learned counsel
argues that, Section 23 would be attracted only in the case
of admission of a valid transfer. In the application in
column No.4, the senior citizen had stated that the deed was
fraudulently obtained by undue influence and coercion.
Therefore, it was argued that it is a matter of civil
dispute. Thus the learned counsel submits that this dispute
can be resolved only by a civil court and not by a
Maintenance Tribunal under the Act. This argument appears to
be attractive.
4. In the light of the argument raised by the learned
counsel for the petitioner, it is necessary to address the
question of nature of power and procedure to be followed by
the Maintenance Tribunal. This is for giving guidelines to
the Tribunal and Authorities under the Senior Citizen Act
while exercising the power under the Act.
5. To understand the nature of power of the Tribunal
and Authorities under th Act, it is necessary to look at
the legislative object of the enactment. Indian society is a
religious society. The traditional norms and values of the
Indian society emphasize on the duty of taking care of
elders. Joint families were prevalent in different forms
across the country. In traditional Indian society, duties
of children towards one’s parent were considered as a debt
owed to them.
5(i) The Kurma Purana, one of the Eighteen Mahapuranas
and named after the tortoise avatar of Vishnu prescribes :
“No Deva can equal the mother and no superior can equal
one's father. Hence, no son can get relieved of the debt he
owes to them.” [Kurma Purana 2.12.36]
5(ii) In Manusmriti, 2/227, it is given that, “Parents
who give birth and rear children face agony that cannot be
overcome in a hundred years. Therefore, the father, mother
and teacher must always be kept happy and content through
care and service. This is important to attain truth and
success in life.”
5(iii) In Holy Quran, in chapter 2-83 (Al-Baqarah),
duty is enjoined upon believers to do good deeds to parents.
In chapter 46-15 (Al- Ahqaf), it is mentioned, “And We have
enjoined upon man, to his parents, good treatment. His
mother carried him with hardship and gave birth to him with
hardship, and his gestation and weaning [period] is thirty
months. [He grows] until, when he reaches maturity and
reaches [the age of] forty years, he says, “My Lord, enable
me to be grateful for Your favour which You have bestowed
upon me and upon my parents and to work righteousness of
which You will approve and make righteous for me my
offspring. Indeed, I have repented to You, and indeed, I am
of the Muslims.”
5(iv) In the Holy Bible, the tenth book of New
Testament, Ephesians, chapter 6, verses 1-3, prescribes :
“Children, obey your parents in the Lord, for this is right.
Honor your father and mother, which is the first commandment
with a promise, that it may go well with you and that you
may enjoy long life on the earth”. [Ephesians 6:1-3]
These religious values are universal values acknowledged and
encompassed in all civilized society or class.
6. In modern era, due to urbanisation and vast
expansion in search for livelihood, parents have been
treated as a liability because of their old age and physical
infirmities. Old age homes have sprung up in every nook and
corner of the country. The act of serving and caring for the
parents which was once considered as part of the tradition
and culture has slowly disappeared giving rise to new social
challenges. The State is concerned about cohesive order in
the family which is the basic unit of the society. Happiness
in the State would depend upon the happiness cherished in
the Society. This happiness is derived from the values
cherished. These values have been cited as moral values.
7. The parliament enacted the Senior Citizens Act to
uphold the dignity and respect of a senior citizen at the
time of old age. State had serious concern about the
challenge faced by the people in their old age. Apart from
physical vulnerabilities, they face emotional and
psychological challenges. On account of these frailties,
they are totally dependent. The moral laws formulated
through the legislation is necessary to rationalise the
well being of all in the society. The moral values that
prevailed in the society in the past have been accepted as
universal values. The State in its wisdom, considering the
acceptance of these values, seeks to promote the common good
through the Senior Citizens Act. These values carried duties
and obligations.
8. The deontological moral theory of legislation
refers to certain type of actions having universal
acceptance. Immanuel Kant propounded the philosophical
concept of categorical imperative as an ultimate command of
reason, as it was produced independent of particular end or
desire. Kant, in formulation of the categorical imperatives
treats 'humanity' as an end in itself and not as a means to
an end; 'so act that humanity, both in their own person and
that of others, be used as an end in itself, and never as a
mere mean' (Chapter II, Metaphysic of Ethics translated by
John William Semple). Those values are treated as rational
values required to govern the society. The past experience
that existed in the Indian society is proof of the
legislative intent. The Senior Citizens Act is based on apriori
experience and reasoning. Thomas Hobbes in “Man and
Citizen” refers to legislation based on a-priori principles
like this; “Finally, politics and ethics (that is the
sciences of the justs and unjust, of equity and inequity)
can be demonstrated a-priori ; because we ourselves make the
principles – that is, the causes of justice (namely laws and
comments) [Page 42, edited by Bernard Gert 1978]. It is
therefore clear that the legislative intent is to formalise
duties and obligations based on relationship to sustain a
society.
9. In this legislative background, the scope of an
enquiry by a Tribunal or authority will have to be
considered. Section 7 of the Senior Citizens Act refers to
Constitution of Maintenance Tribunal. The Tribunal shall be
presided over by an officer not below the rank of a subdivisional
officer of a State. Section 5 refers to the
application for maintenance. This can be filed by a senior
citizen or a parent or any organisation authorised by him if
he is incapable. The Tribunal has also power to initiate suo
motu action. Section 23 gives power to the Tribunal to
declare transfer of deed as void in certain circumstances
referred therein. It states that after the commencement of
the enactment, transfer of property of a senior citizen by
way of gift or otherwise, is subject to the condition that
transferor would be provided basic amenity and physical
needs and that if the transferee refused to provide basic
amenities and physical needs. Thereafter, the Tribunal can
declare such deed as void invoking power under Section 23.
10. The nature of enquiry to be followed by the
Tribunal or authority in such proceedings is a matter of
concern for this Court. The enactment itself flows from
Article 41 of the Constitution of India which calls for the
protection of a citizen during his old age. The Tribunal
has been conferred with such powers and authority in the
light of the fact that, it may not be practically possible
to conduct an enquiry to protect the well being of a senior
citizen in a system of formal adjudication.
11. There is a fundamental difference between an
adversarial legal system and inquisitorial legal system.
In adversarial system, the court or independent authority
act as a neutral body to elicit truth through an open
competition between the adversaries involved in the dispute.
In sporting theory of justice, Roscoe Pound referred to it
as two teams competing with each other while the court acts
like a referee to ensure that the competing teams follow the
rules of the game. In inquisitorial system, the court or the
Tribunal does not depend mainly on the stand of parties.
The court or Tribunal resolves the dispute by investigating
the truth. The Judge or authority in such matter will have
to play an active role to find out the truth. The Judge or
authority will collect all the information to elicit the
truth. In that process, the Judge or authority is free to
decide the case independently with or without the assistance
of the parties.
12. The legislative background and object of
conferring power on the Tribunal clearly demands that
enquiry as contemplated under the enactment is similar to
the process adopted in an inquisitorial system. The duty on
the Tribunal under the Senior Citizen Act therefore is to
elicit truth. For that he can refer to pleadings and
evidence. But that is not decisive. The Tribunal has to
independently enquire into the truth and take measures to
protect the well being of senior citizen/parents. The
Tribunal is actually not deciding any dispute in like manner
as involved in an adversarial system, but is only taking
measures to protect the senior citizen/parents. The focus
of the enquiry, therefore, is the protection of the senior
citizen or parents as the case may be, through stages of
decision taken by him at different level. Thus I make it
clear in the light of the legislative intent assimilated on
philosophical reasoning and narratives as afore referred,
that the scheme of the Senior Citizens Act is not intended
at dispute resolution but to promote measures to secure the
welfare and interest of the senior citizens and parents.
Through measures such as demanding an enquiry under the Act
as in an investigation to protect well being of senior
citizens or parents in a manner prescribed therein. In
Adversarial Litigation, rights and interests of both parties
will be adjudicated or decided. The Senior Citizens Act does
not contain such process of adjudication. The Tribunal must
be guided by those factors that are required to protect such
interest by eliciting the truth. The Tribunal cannot act
like a neutral umpire in an adversarial systems. Considering
the object of the legislation as above, the Tribunal has to
follow the procedure for enquiry as in an inquisitorial
system and not as in an adversarial litigation. Irrespective
of the pleadings raised by the senior citizen, he has to
address the grievance of the senior citizen as expressed
before him to elicit truth.
13. This Court in Radhamani and others v. State of
Kerala (2016 (1) KHC 9) held that there is no requirement
under law that there should be a written stipulation in the
deed to the effect that the transferee would maintain the
transferor. It is appropriate to refer the relevant
paragraphs in the above judgment which read thus :
“11. It is to be noted that the special scheme in
terms of Senior Citizens Act, 2007 could declare
certain transfer as void, taking note of the fact
that by taking advantage of the emotionally
dependent senior citizens, relatives grab the
property on the pretext of providing emotional
support. Therefore, legislature thought such
transaction could be declared as void as the
conduct leading to transaction was based on malice
or fraud. Therefore,condition referred in Section
23 has to be understood based on the conduct of
the transferee and not with reference to the
specific stipulation in the deed of transfer.”
Thus this Court is of the view that it is not necessary
that there should be a specific recital or stipulation as a
condition in the deed of transfer itself. This condition
mentioned in Section 23 is only referable as a conduct of
the transferee, prior to and after execution of the deed of
transfer.
14. In the light of the judgment in Radhamani's case,
the scope of enquiry in a matter related under Section 23,
must be related and confined to the circumstances under
which the document was executed. In the light of
Radhamani’s judgment, the Tribunal has to examine the
circumstances under which the deed was executed. It is also
necessary to find out whether senior citizen expected that
the transferee would provide amenities and physical needs to
the transferer at the time of transfer. There may not be
any written document in this regard. Normally this has to
be concluded from human conduct and nature of relationship
and circumstances in which such deed was executed. Strict
pleadings or evidence cannot be insisted in such
proceedings. It is to be noted that law only contemplates
breach on the part of the transferee in providing amenities
and physical needs to the transferor. It does not stipulate
that the condition of providing maintenance should be part
of such transfer. If love and affection was the
circumstances for executing such deed, any failure on the
part of the transferee to provide amenities and physical
needs to the transferor would attract the grounds for
revocation under Section 23. Therefore, any emotional
detachment or creation of an atmosphere as opposed to the
one demanded by a senior citizen would be sufficient to
attract Section 23.
15. In the light of the discussion as above, I am of
the view that the matter requires reconsideration by the
Maintenance Tribunal. Accordingly, the impugned orders are
set aside. The matter is remitted back for reconsideration
by the Tribunal as above. The parties shall appear before
the Tribunal on 25.11.2019 either personally or through
counsel. It is now submitted that the senior citizen is
currently residing abroad. The Tribunal therefore can hold
the session with the senior citizen through video
conference or through any other electronic media.
The Writ Petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
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