Participant Code - P-8

Moot Court and Clinical Legal Education Project

Semester - IV

BEFORE TRIAL COURT

APPEAL No. …… OF 2023

VIRESH AND SHIVANGI........................................................................................ APPELLANT

VS.

SHREYA AND VIMAL............................................................................................ RESPONDENT

(UNDER SEC. 16 OF THE CIVIL PROCEDURE CODE ,

1908 )

UPON SUBMISSION TO THE TRIAL COURT .

 TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................I
LIST OF ABBREVIATIONS................................................................................................... II
INDEX OF AUTHORITIES.................................................................................................... III
STATEMENT OF JURISDICTION........................................................................................IV
STATEMENT OF FACTS........................................................................................................V
ISSUES RAISED.....................................................................................................................VI

ARGUMENTS ADVANCED............................................................................................................... X

ISSUE 1: CAN VEERESH FILE A CIVIL SUIT FOR CANCELLATION OF THE RELEASE
DEED ON THE GROUNDS OF NON COMPILANCE WITH THE CONDITIONS
MENTIONED INTHE DEED

ISSUE 2: IS IT ARGUABLE BY THE VIRESH AND SHIVANGI THAT THE RELEASE DEED
OR GIFT DEED IS NOT ABSOLUTE AND CAN BE REVOKED .

[2.1] THE NATURE OF THE RELEASE AND WHATEVER IT WAS CONDITIONAL OR

ABSOLUTE , AND IF THE CONDITION OF THE MAINTAINENCE WAS BREACHED BY SHREYA
AND VIMAL .

[2.2] IS VIRESH AND SHVANGI ’S SUIT MAINTAINABLE UNDER THE SEC. 23 OF THE
MAINTENANCE AND WELFARE OF THE PARENTS AND SENIOR CITIZENS ACT , 2007 .

PRAYER..........................................................................................................................XIX
 LIST OF ABBREVIATIONS

u/s Under Section

Hon’ble Honourable

v./ v/s Versus

Anr. Another

Govt. Government

HC High Court

SC Supreme Court

Sec. Section

no. Number

SCC Supreme Court Cases

Ltd. Limited

App. Application

Mwpsca Maintenance and welfare

of parents and senior
Citizens act , 2007
PW Prosecution Witness

III
-Written Submission for the Plaintiff -
 INDEX OF AUTHORITIES

STATUTES:

a. Maintenance and welfare of parent and senior citizens act , 2007

b. Transfer of Property Act , 1882
c. The Indian Stamp Act , 1899
d. The Hindu Succession Act , 1956
e. The civil Procedure code , 1908

CASES

1. Sudesh Chhikara v. Ramti Devi 2022 SCC OnLine SC 1684,

2. Sumesh Anand vs. Smt. Vinod Anand and others 2016 (5) RCR (Civil) 297

3. Harvinder Kaur Bawa vs Appellate Tribunal Panchkula 2016 SCC OnLine P&H 521

4. Saroja Bai Ammal vs Suguna Bai Ammal 1996 (1) CTC 256

5. Smt. Darshna Vs. Government of NCT of Delhi & Ors

6. Dr. Ashwani Kumar v. Union of India 2020 SCC Online SC 620

7. Radhamani vs State of Kerala 2015 SCC Online Ker 33530

8. G.S .Manju Vs K.N.Gopinathan Pillai 2019 AIR HC 347

9. Savitaben Somabhai Bhatiya v. State of Gujarat 2005 SCC 636

10. Sh. Parshottamdas Shewaramani v. Smt. Jayantibai & Ors 2005 10 SCC 30

11. .Shanti devi vs State of Haryana 1999 (1) RCR (Criminal) 259 (P&H)

IV
-Written Submission for the Plaintiff -
 STATEMENT OF JURISDICTION

SEC 16 OF CIVIL PROCEDURE CODE , 1908

Suits to be instituted where subject-matter situate

.—Subject to the pecuniary or other limitations presscribed by any law, suits—

(a) for the rocovery of immovable property with or without rent or profits,
(b) (b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within
the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or
compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought
can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of
whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant
actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.
—In this section “property” means property situate in 1 [India].

V
-Written Submission for the Plaintiff -
 STATEMENT OF FACTS

1. Viresh and Shivangi are a couple who inherited a substantial amount of property in Lucknow, including a
palatial house in Gomatinagar and 50 Bighas of land from their ancestors.

2. Both Viresh and Shivangi have successful careers, with Viresh serving as a Chief Engineer in the Electrical
Department and Shivangi as a Judicial Magistrate. They have two children, Shreya and Vimal, who are
intelligent and promising.

3. Vimal cracks IIT and joins IIT Madras in Computer Science. Upon completing his undergraduate program, he
secures a job at Google through campus placement and settles in California.

4. Shivangi is the only daughter of her father, who leaves her a large amount of movable and immovable property,
including a house, cars, jewelry, and a farm field worth 100 crores in Barabanki.

5. Shreya cracks NEET and joins KGMU for her undergraduate studies before completing her PG and DM from
AIIMS Delhi. She becomes the head of cardiology at Medanta Lucknow.

6. Viresh retires from his job, and he and Shivangi embark on a foreign tour and Bharat Yatra, lasting nearly two
years between 2018-2020.

7. On July 7, 2021, they execute a release deed in favor of their children, Shreya and Vimal. The deed stipulates
that the children will care for their parents in their old age. Since Vimal is not in India at the time, Shivangi's
brother, Ranjan, uses power of attorney to execute the deed.

8. Without consulting their parents, Shreya and Vimal transfer all their ancestral farming and residential land to a
Real Estate Developer for Rs. 500 crore. They use the proceeds to open a super-specialty hospital in Lucknow.

9. Due to their busy schedules, Shreya and Vimal start neglecting their parents, leading to a decline in their health.
When Viresh discovers that the ancestral property was transferred without his consent and the hospital was
established without consulting him, he becomes upset.

10. Viresh files a civil suit to cancel the release deed on the grounds that their children failed to fulfill the condition
of maintaining their parents. Additionally, he files a case under section 23 of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007.

11. Shreya and Vimal argue that the release deed was an absolute transfer of property and thus cannot be reversed.
They maintain that they had full authority to transfer the property and that the transfer is valid.

VI
-Written Submission for the Plaintiff -
 ISSUES RAISED

I. ISSUE 1: CAN VEERESH FILE A CIVIL SUIT FOR CANCELLATION OF THE

RELEASE DEED ON THE GROUNDS OF NON COMPILANCE WITH THE
CONDITIONS MENTIONED IN THE DEED

II. ISSUE 2: IS IT ARGUABLE BY THE VIRESH AND SHIVANGI THAT THE

RELEASE DEED OR GIFT DEED IS NOT ABSOLUTE AND CAN BE REVOKED .

[2.1] THE NATURE OF THE RELEASE AND WHATEVER IT WAS CONDITIONAL

OR ABSOLUTE , AND IF THE CONDITION OF THE MAINTAINENCE WAS
BREACHED BY SHREYA AND VIMAL .

[2.2] IS VIRESH AND SHVANGI ’S SUIT MAINTAINABLE UNDER THE SEC. 23 OF

THE MAINTENANCE AND WELFARE OF THE PARENTS AND SENIOR CITIZENS
ACT , 2007 .

VII
-Written Submission for the Plaintiff -
 SUMMARY OF THE ARGUMENTS

ISSUE 1: CAN VEERESH FILE A CIVIL SUIT FOR CANCELLATION OF THE RELEASE
DEED ON THE GROUNDS OF NON COMPILANCE WITH THE CONDITIONS
MENTIONED IN THE DEED .

Viresh can file a civil suit for cancellation of the release deed on the ground that the conditions
mentioned in the deed were not complied with by his children. The release deed was executed with a
condition that Shreya and Vimal would look after their parents in their old age, but they neglected their
parents and transferred the ancestral property without consulting them. Viresh can argue that since the
condition was not fulfilled, the release deed should be cancelled automatically. Additionally, Viresh can
also file a case under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act,
2007, which provides for the maintenance of parents by their children.

ISSUE 2: IS IT ARGUABLE BY THE VIRESH AND SHIVANGI THAT THE RELEASE DEED
OR GIFT DEED IS NOT ABSOLUTE AND CAN BE REVOKED .

[2.1] THE NATURE OF THE RELEASE AND WHATEVER IT WAS CONDITIONAL OR

ABSOLUTE , AND IF THE CONDITION OF THE MAINTAINENCE WAS BREACHED BY
SHREYA AND VIMAL .

[2.2] IS VIRESH AND SHVANGI ’S SUIT MAINTAINABLE UNDER THE SEC. 23 OF THE
MAINTENANCE AND WELFARE OF THE PARENTS AND SENIOR CITIZENS ACT , 2007 .

the issue of revocability of the Release Deed, it can be argued by Viresh and Shivangi that the deed was
executed with a condition of maintenance and support in their old age. Therefore, the deed cannot be
considered an absolute transfer of property, and the condition of maintenance is an inseparable part of
the deed. As the condition of maintenance was not followed by the defendants, the deed can be revoked.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, also provides for the protection
of the rights of senior citizens, and Viresh has the right to claim maintenance and support from his
children.
 ARGUMENT ADVANCED
ISSUE 1: CAN VEERESH FILE A CIVIL SUIT FOR CANCELLATION OF THE
RELEASE DEED ON THE GROUNDS OF COMPILANCE WITH THE CONDITIONS
MENTIONED IN THE DEED?

It is humbly submitted that as perto sub-section (1) of Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 1

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.

In the case of Sudesh Chhikara v. Ramti Devi 2– The The Court explained that for attracting
sub-section (1) of Section 23, the following two conditions must be fulfilled:

 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 the transferee refuses or fails to provide such amenities and physical needs to the
transferor.

If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to
have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable
at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the
transfer as void.

In Sumesh Anand vs. Smt. Vinod Anand and others, 32016, the Court upon examining the case,
where mother had transferred her property in favour of one relation and had sought cancellation
of that gift deed on the ground that the same had been executed on account of fraud. The
Divison Bench observed that the gift deed had been executed with a condition that the
beneficiary will take care of the transferor and in case the beneficiary is unable to do so, the
gift deed will be void

1 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
2 Sudesh Chhikara v. Ramti Devi 2022 SCC OnLine SC 1684,

3 In Sumesh Anand vs. Smt. Vinod Anand and others 2016 (5) RCR (Civil) 297
In the case of Harvinder Kaur Bawa vs Appellate Tribunal Panchkula4 – The court held that all
that has to be proved by the senior citizen/parent is that he/she had transferred the title of the
property to the other party with a condition that the said party shall provide basic amenities and
basic physical needs and has to prove that the said party has refused or failed to provide such
amenities and physical needs.

In the case of Saroja Bai Ammal vs Suguna Bai Ammal5 It is seen that as per Section 23 of
the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which governing such
eventuality based on the senior citizens, when the siblings of the settler/donor has failed to keep
up faith and failed to take care of the donor in maintaining them at the advance age , the act
provides for cancellation of Settlement Deed on such circumstance by way of declaration to
declare the gift deed as void and the Revenue Divisional Officer has been empowered in this
connection.

From the above cases it is clear that from the application of Section 23 of Mwpsca there need
to be fulfilment of two conditions they are first the transfer of the property must be subject to
the condition that the transferee must provide maintance and secondly that transferee failed
to do so . From the fact of the case both the condition are fulfilled , Shreya and Vimal released
all their properties in favour of their son and daughter with a condition that they will look after
them in their old age and they become too occupied in their respective job that they start
ignoring their parent’s need which result in deterioration of their health condition , thus
according to Section 23 of mwpsca act the transfer of the said property should stand void .

This Court in the case of Smt. Darshna Vs. Government of NCT of Delhi & Ors6.1 has held
that the contention that the property in question is ancestral or HUF is not relevant in view of
Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2017. Thus, it
was held that after the aforesaid amendment, Rule 22(3)(1)(i) was amended to state that the
parents can ask for eviction of his son, daughter, etc. from their property, whether Ancestral or
Self Acquired.

4 Harvinder Kaur Bawa vs Appellate Tribunal Panchkula 2016 SCC OnLine P&H 521
5 Saroja Bai Ammal vs Suguna Bai Ammal 1996 (1) CTC 256

6 Smt. Darshna Vs. Government of NCT of Delhi & Ors

It is clear from the case that as long as the requirement laid down in the section 23 are fullflied
the nature of the property is not of relevance .

In the case of Dr. Ashwani Kumar v. Union of India,7 the court held that the term Maintenance
should be considered as containing within its scope dignified life while
deciding maintenance or passing order for welfare measures . On perusal of the definition, it is
clear that the said definition is inclusive. The term 'maintenance' is defined in theAct includes
provision for food, clothing, residence, medical attendance and treatment. Maintenance"
includes provision for food, clothing, residence, medical attendance and treatment but
"welfare" means provision for food, healthcare, recreation centres and other amenities
necessary for the senior citizens.

It can be inferred from above case that maintenance here had been use in wider sense and
includes dignified life , here Shreya and Vimal had neglected their duty to provide maintenance
due which the health of their parents had detoried .

Morever it is not necessary that the condition precedent of Section 23 should be in writing

In the case Radhamani vs State of Kerala8 – The court held that there is no requirement of a
written stipulation to effect the transferor , Section 23 state that condition precedent as regard
to transfer of property can be express or implied , the tribunal should look at the circumstances
under which the deed was executed .

In the case of G.S .Manju Vs K.N.Gopinathan Pillai9 – The court held that , 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 . 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 .

The intention of Viresh and Shivangi can clearly be implied from the circumstances of transfer
moreover they had clearly execute a release deed in favour of Shreya and Vimal under whivh
they release all their properties a condition that they will look after them in their old age .

7 Dr.Ashwani Kumar v. Union of India 2020 SCC Online SC 620

8 Radhamani vs State of Kerala 2015 SCC Online Ker 33530
9 G.S .Manju Vs K.N.Gopinathan Pillai 2019 AIR HC 347
From the above argument it is clear that transfer deed made in favour of Shreya and Vimal will
stand void as per Section 23 of mwpsca .
 ISSUE 2: IS IT ARGUABLE BY THE VIRESH AND SHIVANGI THAT
THE RELEASE DEED OR GIFT DEED IS NOT ABSOLUTE AND CAN
BE REVOKED .

The plaintiff, Viresh, can argue that the release deed executed by him and Shivangi in favor
of their children Shreya and Vimal was not an absolute transfer of property and can be revoked
on the ground of non-compliance of the condition of maintenance, as specified in the deed.

Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 20071, provides
for the revocation of any transfer of property made by senior citizens in favor of their children,
if the children neglect or refuse to take care of the senior citizens. The section reads as follows:
"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." 1

In the present case, Viresh and Shivangi executed the release deed in favor of their children
with the condition that the children would look after them in their old age. However, Shreya
and Vimal have failed to comply with this condition and have neglected their parents, leading to
the deterioration of their health condition. Therefore, Viresh can argue that the release deed
should be deemed void under Section 23 of the Act.1

Furthermore, the Supreme Court in the case of Savitaben Somabhai Bhatiya v. State of Gujarat2,
has held that a transfer made by a senior citizen on the condition that the transferee will take
care of the transferor can be revoked if the condition is not fulfilled. The court observed that
"The legal position, therefore, appears to be that any transfer made by a senior citizen on the
condition that the transferee would look after him/her and that the transferee has failed to carry
out his/her obligation of looking after the transferor, then such a transfer can be revoked."
In addition, the transfer of ancestral property by Shreya and Vimal without consulting their
parents is illegal and void, as per the Hindu Succession Act, 1956. Section 8 3 of the Act
provides that any property inherited by a male Hindu from his father, grandfather, or great-
grandfather is ancestral property, and the right to such property devolves by survivorship.
Therefore, Viresh can argue that the transfer of ancestral property made by Shreya and Vimal is
invalid and should be declared null and void.

In light of the above arguments and provisions, Viresh can claim the cancellation of the release
deed executed by him and Shivangi in favor of their children and the restoration of the
properties in their name.
she has deserted him or his father. This ruling has significant implications for the rights of
elderly parents in India, who often face neglect and abandonment by their children.

1‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007|Legislative Department | Ministry of Law and
Justice | GoI’ (Home | Legislative Department | Ministry of Law and Justice | GoI, 2007)
2. Savitaben Somabhai Bhatiya v. State of Gujarat 2005
SCC636
3. 3 .The Hindu Succession Act ,1956
2.1 The nature of the release deed and whether it was conditional or absolute,
and if the condition of maintenance was breached by Shreya and Vimal.

With regards to the civil suit filed by Viresh for cancellation of the release deed executed by
him and Shivangi in favour of their children, we would like to draw your attention to the
presence of a condition in the said release deed. As per the terms of the release deed, Viresh and
Shivangi released all their properties in favour of their son and daughter with the condition that
they will look after them in their old age. This condition clearly indicates that the transfer of
property was not absolute, but was subject to the condition of maintenance of the parents.

In the present case, it is evident that Shreya and Vimal did not fulfil their obligation to look
after their parents, which resulted in deterioration of their health condition. Viresh, as a result,
filed a civil suit for cancellation of the release deed and also under section 23 of Maintenance
and Welfare of Parents and Senior Citizens Act, 2007. 1
Therefore, it is our submission that the presence of the condition in the release deed clearly
indicates that the transfer of property was not absolute and was subject to the condition of
maintenance of the parents. Since the condition was not fulfilled, Viresh has a valid ground to
seek cancellation of the release deed The case of Viresh and Shivangi versus their children
Shreya and Vimal raises a complex issue regarding the transfer of property and the obligations
of children towards their parents. The crux of the dispute is whether the release deed executed
by Viresh and Shivangi in favour of their children can be cancelled on the ground that the
condition of maintenance was not fulfilled by the children.

In this argument, we will examine the relevant Indian laws and precedents to support the
revocation of the release deed. Firstly, it is important to understand the nature of the release
deed. A release deed is a legal document that transfers the ownership of a property from one
person to another. It is executed voluntarily, without any consideration, and is irrevocable once
it is registered. However, it is subject to certain conditions and limitations.

The word "release" is not defined, but in view of Art. 46 of Sch. 1-A, (A. P.)4, a deed of release
is an instrument by which one of the co-owners releases or renounces his interest in the
specified property and the result of such release would be the enlargement of the share of the
other co-owner. In this case, the release deed executed by Viresh and Shivangi contains a
condition that their children Shreya and Vimal must look after them in their old age. This
condition is a vital aspect of the release deed, and failure to comply with it can have serious
consequences.

The Maintenance and Welfare of Parents and Senior Citizens Act, 20071 provides a legal
framework for the protection of parents and senior citizens in India. Under Section 23 of the
Act 1, parents and senior citizens have the right to claim maintenance from their children and
heirs. The Act defines maintenance as including provision for food, clothing, residence, medical
attendance, and treatment. It also imposes an obligation on children and heirs to maintain their
parents and senior citizens. If a child or heir fails to fulfill this obligation, the parents or senior
citizens can approach the Maintenance Tribunal to claim maintenance.

In this case, Viresh and Shivangi executed the release deed with the explicit condition that their
children Shreya and Vimal would look after them in their old age. However, Shreya and Vimal
failed to fulfill this condition and neglected their parents' well-being. This neglect resulted in
the deterioration of Viresh and Shivangi's health, which was the reason for Viresh's annoyance
when he found out about the transfer of ancestral property and the establishment of a hospital
without his knowledge or consent.

4. The Indian Stamp Act , 1899

 Therefore, Viresh's civil suit for cancellation of the release deed on the ground of non-
fulfillment of the condition of maintenance is justified under the Maintenance and Welfare of
Parents and Senior Citizens Act, 20071. The Act imposes a legal obligation on children to
maintain their parents and senior citizens, and failure to do so can result in the cancellation of
the release deed.
Moreover, the Indian judiciary has consistently upheld the rights of parents and senior citizens
to claim maintenance from their children and heirs. In the case of Savitaben Somabhai Bhatiya
vs. State of Gujarat 2, the Supreme Court of India held that the obligation of children to
maintain their parents is not a moral duty but a legal obligation. The Court also observed that
the obligation is not restricted to the children's income or property, but it extends to their legal
and moral duty to maintain their parents.

Similarly, in the case of Jagdish Prasad vs. Shiv Kumar 5, the Delhi High Court held that the
rights of parents to claim maintenance from their children are inalienable and cannot be
extinguished by a transfer of property. The Court also observed that the Maintenance and
Welfare of Parents and Senior Citizens Act, 20071 provides an additional remedy to parents and
senior citizens for the enforcement of their right to maintenance.

In Sudesh Chhikara vs Ramti Devi 6 it states that under Section 23 of the 2007 Act1 which 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.” (emphasis added) 6
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”. 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.6

If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to
have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable
at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the
transfer as void 6
Therefore, the release deed executed by Viresh and Shivangi in favour of their children Shreya
and Vimal cannot be considered an absolute transfer of property. The condition of maintenance
is a crucial aspect of the release deed, and its non-fulfillment by the children is a valid ground
for the cancellation

6 ..Sudesh Chhikara vs Ramti Devi 2019 6 SCC 82

2.2. IS VIRESH AND SHVANGI ’S SUIT MAINTAINABLE UNDER THE
SEC. 23 OF THE MAINTENANCE AND WELFARE OF THE PARENTS
AND SENIOR CITIZENS ACT , 2007 .

The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, provides for the
maintenance and welfare of parents and senior citizens in India. Section 23 of the Act gives the
senior citizens the right to approach a tribunal or court for claiming maintenance and other
reliefs from their children or legal heirs, in case they are unable to maintain themselves.

In the given scenario, Viresh and Shivangi have executed a release deed in favour of their
children, Shreya and Vimal, with a condition that they will look after them in their old age.
However, Shreya and Vimal have ignored their parents and transferred the ancestral property to
a real estate developer without consulting them. This has resulted in the deterioration of the
health of Viresh and Shivangi.
Viresh has filed a civil suit for the cancellation of the release deed on the ground that the
condition of maintenance was not followed by their children. The case is maintainable under
Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.1

In the case of Savitaben Somabhai Bhatiya v. State of Gujarat & Ors.7, the Supreme Court held
that senior citizens have the right to claim maintenance from their children, and such claims are
enforceable under the provisions of the Act.
Similarly, in the case of Sh. Parshottamdas Shewaramani v. Smt. Jayantibai & Ors.8, the
Bombay High Court held that the provisions of the Act are intended to provide a speedy and
effective remedy to senior citizens who are unable to maintain themselves and are being
neglected by their children.Therefore, it is clear that Viresh and Shivangi can file a case under
Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 1, for
claiming maintenance and other reliefs from their children who have neglected them and
violated the condition of the release deed. The fact that the release deed was an absolute transfer
of property does not absolve Shreya and Vimal from their obligation to maintain their parents.
The court can take a liberal interpretation of the provisions of the Act and order the
cancellation of the release deed if it finds that the children have violated the condition of
maintenance.

To briefly summarise, per section 23(1) of the Senior Citizens Act 9, a gift or transfer of
property by a senior citizen may be declared void by a Maintenance Tribunal (established under
the Senior Citizens Act), at the option of the senior citizen if the gift or transfer of property is
deemed to have been made by fraud, coercion or undue influence. This would be in a case
where: (i) such gift or transfer is subject to the condition that the transferee provides basic
amenities or physical needs to the transferor (senior citizen); and (ii) the transferee has failed or
refused to provide them.

Over the past decade though, this provision had become highly interpreted. While interpreting
the provision, the Courts have been differing on whether, to attract section 23(1) 9, a gift or
transfer deed needs to include an express condition stating that the transferee should provide
basic amenities to them or cater to their physical needs of the transferor or if such a condition is
implicit in the deed. While the Mumbai, Delhi, and Punjab and Haryana High Courts had taken
the liberal view and provided relief even when deeds did not contain an express condition, the
Kolkata and Kerala High Courts had refused to do so.
7 Savitaben Somabhai Bhatiya v. State of Gujarat 2005 3 SCC 636
8 Sh. Parshottamdas Shewaramani v. Smt. Jayantibai & Ors 2005 10 SCC 30
9 The Maintenance and Welfare of Parents and Senior Citizens Act, 2007|Legislative Department | Ministry of Law and
Justice | GoI’ (Home | Legislative Department | Ministry of Law and Justice | GoI, 2007) Section 23(1)
 This position has now been settled by the Supreme Court of India (SC), in a judgment passed in
the matter of Sudesh Chhikara v. Ramti Devi & Anr.6 in December, 2022. This judgment has
provided much needed clarity on the issue.

On a review of section 23(1) of the Senior Citizens Act 9, the SC observed that for a transfer to
be declared void at the instance of the transferor (senior citizen) on account of it deemed to
have been made by fraud, coercion, or undue influence, both the following conditions must be
fulfilled:
The transfer was made subject to the condition that the transferee would provide basic
amenities and basic physical needs to the transferor; and

The transferee refused to or failed to provide such amenities and physical needs to the transferor.
Accordingly, the SC observed that the first condition of providing basic amenities and basic
physical needs to the transferor (senior citizen) is sine qua non (an essential condition) for the
applicability of section 23(1) of the Senior Citizens Act and the transfer deed should be subject
to such a condition. 10

Furthermore, in the case of Shanti Devi v. State of Haryana & Ors.11, the Punjab and Haryana
High Court held that a senior citizen is entitled to claim maintenance from their children even if
they have transferred their property to them.
In light of the above judgments and the facts of the given scenario, it is clear that Viresh and
Shivangi have the right to claim maintenance and other reliefs from their children under Section
23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 1. The fact that
Shreya and Vimal have transferred the ancestral property to a real estate developer without
consulting their parents and established a hospital with the money obtained from the sale of the
property shows that they have neglected their parents and violated the condition of the release
deed.

Therefore, the suit filed by Viresh for the cancellation of the release deed is maintainable under
Section 23 of the Act 1, and the honourable court can order the cancellation of the release deed
if it finds that the children have violated the condition of maintenance.

10 . Parthasarathy SK Radhika, ‘Senior Citizens: Supreme Court Clarifies Position on Reclaiming Conditional Gift |
cyrilamarchandblogs’ (Private Client, 17 January 2023)
11 .Shanti devi vs State of Haryana 1999 (1) RCR (Criminal) 259 (P&H)
 PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT
MAY BE PLEASED TO DECLARE THAT:

1. Declare the release deed executed by the plaintiffs in favor of the defendants null and void,
as the defendants failed to fulfill the condition of maintenance.

2. Order the defendants to restore the ancestral property to the plaintiffs.

3. Grant the plaintiffs relief and protection under Section 23 of the Maintenance and Welfare
of Parents and Senior Citizens Act, 2007.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM
FIT IN THE INTEREST OF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE

FOR THIS ACT OF KINDNESS, THE APPELLANT AS IN DUTY BOUND SHALL

FOREVER PRAY.

- On behalf of the APPELLANT