MADHUSUDAN LAW

UNIVERSITY CUTTACK

BEFORE THE HON’BLE SUPREME COURT OF INDIA

AJAY GANGULY

V.

SUB-COLLECTOR, KOLKATA

SUBMITTED BY-

SATYAPRAKASH MISHRA

B.A.LL.B(H)

MEMORIAL FOR PETITIONER

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 TABLE OF ABBREVIATIONS

ABBREVIATION EXPANSIONS

Hon’ble HONOURABLE

SC SUPREME COURT

SCC SUPREME COURT CASES

Cu.L.T CUTTACK LAW TIMES

Ors. OTHERS

v. VERSUS

HC HIGH COURT

AIR ALL INDIA REPORTER

Vol. VOLUME

SCR SUPREME COURT REPORTS

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 CONTENTS

SL.NO. TITLE PAGE NO.

1 TABLE OF ABBREVIATIONS 2

2 STATEMENT OF JURISDICTION 4

3 STATEMENT OF FACTS 4

4 ISSUES 6

5 SUMMARY OF ARGUMENTS 7

6 PLEADING 8

7 PRAYER 13

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STATEMENT OF JURISDICTION

The Honourable Supreme Court of India has the jurisdiction to entertain and dispose of the
present case by virtue of Article 136 of the Constitution of India. And the appellant
approached before the Supreme Court through Special Leave Petition.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.
(2) Nothing in clause shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

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STATEMENT OF FACTS

(1) Sri Gautam Ganguly, aged 62, a retired government employee drawing about Rs.
10,000/- per month as pension. His first wife died in 2010. He lives with Mr. Arjun
Ganguly (Son) and Mrs. Saara (daughter-in-law ).In January 2011, When Mr. Gautam
expressed his wish to have live in relationship with Ms. Neelima (aged 45), they both
were rudely shocked to listen to his wish. But later, they relented and requested their
father that half share in the property in Hooghly Estates House, (value was estimated
to be Rs.10,00,000/-) should be transferred to them.
(2) Gautam Ganguly transferred half share in the property to his son in May, 2011
through a Registered Gift Deed to maintain peace in the family. However, the son and
daughter- in law started insulting to Ms. Neelima and also does unbearable ill-
treatment for more than one year, thereafter Gautam and Neelima shifted their
residence to other premises.
(3) Subsequently in 2013, Mr. Gautam Ganguly lodged a complaint to the Sub-Collector,
City of Kolkata seeking an order to revoke the Gift Deed executed in favour of his son
under Sec. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act,
2007.

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(4) In the Tribunal, the Sub-Collector passed an order that ‘elderly parents can take back
property gifted to a son, if he ill-treats them’. This order permits the Complainant that
Father to withdraw the gift deed from his son, since his son is not providing basic
needs of both parents. In the Appellate Tribunal, the District Collector reversed the
order of the Tribunal on ‘accepting the argument of son that an accepted gift through
registered deed cannot be revoked’ under the provisions of Transfer of Property Act,
1882 read with the Registration Act, 1908. 5. Thereafter, Mr. Gautam got relief from
Calcutta High Court when the High Court restored the order of the Tribunal. As a last
resort, Mr. Ajay (son of Mr. Gautam) preferred a Special Leave Petition before the
Supreme Court.

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ISSUES RAISED

(1) Whether the present special leave petition is maintainable or not?

(2) Whether the gift deed can be revoked by the learned sub- collector using his power
under section 23 maintenance of welfare of parents and welfare and senior citizens
act?

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SUMMARY OF ARGUMENTS

1- Whether the present special leave petition is maintainable or not?

It is humbly submitted by the appellant that the Hon’ble Court has the jurisdiction to entertain
the present Petition. The reason being that in the present case there has been a grave error of
law committed by the authorities below and for which the intervention of the Court is
necessary.

2- Whether the gift deed can be revoked by the learned sub- collector using his power
under section 23 maintenance of welfare of parents and welfare and senior citizens act?

It is humbly submitted by the appellant before the honourable Supreme Court that the
implication of section 23 of maintenance of welfare of parents and welfare and Senior
citizens Act, 2007 is not maintainable. The reason being the fact that the aforesaid section
would only come into play in cases where a property has been transferred by a Senior citizen
to a person and there was a stipulation in the deed of transfer that the transferee would
maintain the transferor .Here, the gift deed in question had no stipulation as to the
maintenance of Gautam Ganguly by his son. Further, Mr. Ajay had not neglected his father.
Therefore, the invocation of Section 23 in the present case is not warranted.

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ARGUMENT ADVANCED

1-WHETHER THE PRESENT SPECIAL LEAVE PETITION IS MAINTAINABLE OR

NOT?

The appellant humbly submits that section 23 maintenance of welfare of parents and welfare
and senior citizens act, 2007 is clearly not maintainable because as it should contain a clause
imposing an obligation on the settlee or transferee to maintain the settlor or transferor but
here according facts of the case their was no clause mentioned under the gift deed which was
executed and the transferor had made it by himself out of his own consent. The respondent
had no such condition which had clearly mentioned that the appellant had to care of live -in -
partner either in terms of express or implied terms of deed so that deed will be revoked if the
appellant fails to do such. It was no were mentioned to do such and according the main
purpose of this act is that children would be taking care of their old parents who had transfer
any property and are unable to maintain themselves now however the present facts of the case
suggests that the respondent had transfer property worth of Rs 100000 in order to maintain
peace and out of his natural love and affection. In the landmark case of Sudesh chikkara vs
ramti devi and anr1 the facts were same Respondent 1 purchased a piece of land that is 1
bigha and 18 biswa. Additionally, she purchased a plot of property in Village Basai,
Gurugram, Haryana, totalling 5 bighas and 3 biswas. She stated that her father had left the
possession to her as an inheritance. In favour of her daughters, respondent 1 signed a release
deed pertaining to a portion of the subject property. The aforementioned release deed was
signed on November 14th, 2008, and properly registered.

According to the aforementioned release deed, the daughters acquired a one-third portion in
the property that was the subject of the release deed. Respondent 1 executed a second release
deed in respect of her son Sunder’s one-fourth interest in the lands. On the same day,
respondent no. 1 also signed a release deed in favour of her son for his interest in the other
half of the lands. The release deeds were both recorded. This was contested by the appellant,
respondent 1, and the mother of the second respondent, and the deed was ruled invalid.

A similar judgement was rendered in a civil matter that was brought for the same relief with
regard to another release document. While Sunder and Manish’s appeal was pending, it was

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2022 LiveLaw SC 1011

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sold. According to Respondent 1, who filed a petition under Section 23 of the 2007
Maintenance and Welfare of Parents and Senior Citizens Act, her son and daughters are not
providing for her, and she wants to revoke the aforementioned release deed. The tribunal
revoked the deed, and this was contested before the HC, where the tribunal’s order was
upheld and the current appeal resulted. The Appellant Contended that Section 23 components
were not made clear. The Maintenance Tribunal utterly disregarded the appellant, a widow
who was not staying with Respondent No. 1. It was that respondent no. 1 filed the petition
pursuant to Section 23 at her son’s request. The appellant and her sister were co-plaintiffs in
all civil lawsuits brought by respondent number 1. Hence the Supreme Court allowed the
appeal and the impugned order passed by the Maintenance Tribunal as well as the order
passed by the High Court were hereby set aside, dismissing the petition filed by respondent 1
under section 23 of Maintenance and Welfare of Parents and Senior Citizens Act 2007.

The main reason behind the transfer of such was that made because the appellant { son of
respondent and his wife }. The act clearly mentions the person should be a parent who should
be maintain but according to section 2 {d} "parent" means father or mother whether
biological, adoptive or step father or step mother, as the case may be, whether or not the
father or the mother is a senior citizen. But the act doesn’t recognize a living partner to be a
parent so the maintenance or peaceful living of living partner of respondent doesn’t bring as a
responsibility of the appellant. In addition to this fact the brings into the notice of the
honourable court that the parent must be a senior citizen who had to be maintained but under
section 2 {h} "senior citizen" means any person being a citizen of India, who has attained the
age of sixty years or above. However, the live -in -partner of the respondent was 45 years in
age and doesn’t fall in this category. The Honourable Supreme court had defined the meaning
of maintenance in the case of Rajnesh v. Neha2 observed the following criteria
• 2 parties status

• The respondent income and property

• The claimant liabilities and financial obligations

• The parties age and job status

• The parties living arrangement

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MANU/SC/0833/2020

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And according to the present facts of the case it can be seen thar respondent had no financial
burden and better financial status than the appellant. In addition to this respondent had a
monthly pension of Rs 10000 and had half share of property worth of Rs 500000 with him
also. Though the respondent was about 62 years of age but had enough means of pension and
property. The appellant further submits that of having well financial backup the respondent
choose to live separate with her live -in partner and never was compelled by the appellant to
do such.

2 - WHETHER THE GIFT DEED CAN BE REVOKED BY THE LEARNED SUB-

COLLECTOR USING HIS POWER UNDER SECTION 23 MAINTENANCE OF
WELFARE OF PARENTS AND WELFARE AND SENIOR CITIZENS ACT?

It appellant humbly submits that that the gift deed executed in favour of appellant is not
revocable, the appellant brings to the notice of the honorable Supreme Court that none of the
grounds produced on the behalf of the counsel is sufficient in the ordinary course of nature to
make the revocation of the gift executed by the respondent. According to section 122 of the
transfer of property of act, 1882 Gift” is the transfer of certain existing moveable or
immoveable property made voluntarily and without consideration, by one person, called the
donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance
when to be made. —Such acceptance must be made during the lifetime of the donor and
while he is still capable of giving. If the donee dies before acceptance, the gift is void. In
the case of Mukhraj Devi v. Manoj Kumar Singh3, strange event of things happened when an
illiterate woman had signed a gift- deed not attested by any villagers or relatives as witnesses
and was said to be witnessed by a person outside the village. Here, the curt held the transfer to
be invalid. In the present facts of the case, it was transfer of immovable property worth of Rs
100000 which was executed in favour of the appellant by the respondent and was voluntarily
made the respondent through a registered gift deed. It was made by the donor by the
respondent {Mr Gautam Ganguly} to the donee {Arjun Ganguly} and the acceptance of gift
of conflicted immovable property was made during lifetime of the donor {the respondent}
and the same was

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3
AIR 2002 RAJ 152

12
accepted by the donee {the appellant}. In addition to this fact the appellant also brings notice
of the honourable supreme court that section 123 of the transfer of property act, 1882 which
talks about for the purpose of making a gift of immoveable property, the transfer must be
Effected by a registered instrument signed by or on behalf of the donor, and attested by at
least two witnesses. For the purpose of making a gift of moveable property, the transfer may
be affected either by a registered instrument signed as aforesaid or by delivery. In the present
facts of the case of the case clearly suggests that the gift of immovable property in conflict
worth of Rs 100000 was executed by the respondent in favour of the appellant through a
registered gift deed. So, it is same procedure of that a how an effective transfer of immovable
property is made under the provision of section 123 of transfer of property act is made.
Further the respondent submits that the gift to be revoked should fulfil the essentials of
section 126 of transfer of property act, 1882 The donor and done may agree that on the
happening of any specified event which does not depend on the will of the donor a it shall be
suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part
at the mere well of the donor is void wholly or in part, as the case may be. A gift also be
revoked in any of the cases (save want or failure of consideration) in which, if it were a
contract, it might be rescinded Save as aforesaid, a gift cannot be revoked. Nothing contained
in this section shall be deemed to affect the rights of transferees for consideration without
notice. Here in the above facts of the case suggests that there was no specified condition
which was expressly or impliedly been mentioned by the respondent {donor} before the
execution of the registered gift deed and to which appellant had agreed hence the respondent
{donor} doesn’t had the power to make the revocation of gift of immovable property now .In
the case of Sridhar v.N.Revanna4 the question arose whether a gift deed can be revoked by
virtue of Section 126 if there was no condition whether no express or implied was made by
the donor was agreed the donor . Such property is alienated had been raised in the Supreme
Court once again for which the court had to adjudicate the matter. In this case one Shri
Muniswamappa, great grandfather of the plaintiffs and grandfather of defendant No.1, was
the absolute owner of the suit schedule property who executed gift deeds in favour of the
defendants with the same condition that the property should not be alienated and if such
property was to be alienated, then the gift deed stands invalid. The defendants on the other
hand had sold the property which they had received as a gift to which the plaintiffs’ alleged
that such a transfer was invalid as the gift deed specifically stated that the mentioned property
is not to be alienated and the plaintiffs demanded the property to be

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Civil appeal no.1209 of 2020

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transferred to them back. The honourable Supreme Court remarked as there was no express
or implied condition to which donor and donee had agreed before the execution of the
registered instrument and hence the gift deed cannot be revoked. Also the essential of how
valid gift is been made is

 The transfer of ownership

 Existence of property
 The transfer must be without consideration and done voluntarily.
 Donor must be a competent person
 The transferee/ donee must accept the gift-
 Delivery of possession-
 The respondent humbly submits that all these essentials are duly fulfilled and hence it
was a valid transfer of gift.

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 PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, argument advanced and
authorities cited, it is most humbly prayed and implored before the Hon’ble supreme court,
that it may be graciously pleased to adjudged and declared that;

The decision would be made to relieve the appellant from any kind of liability. Also pass any
order that the honourable court may deem fit in the favour of appellant to meet the ends of
equity, justice and good conscience.

Respectfully submitted

Counsel for Appellant

Dated

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