MOOT COURT NO.

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

ARJUN GANGULY ........................................................APPELLANT

VERSUS

GAUTAM GANGULY ......................................................RESPONDENT

Submitted By- Submitted to-

Dharamjeet Singh Miss Swati Sahotra

B.A.LL.B. 10thSemester Assistant Professor

Roll No.16 Indian Institute of Legal Studies,Shimla

University Roll No.-8181360004

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 TABLE OF CONTENTS

1. INDEX OF ABBREVIATIONS................................................................... 3 - 4
2. INDEX OF AUTHORITIES..........................................................................5 - 6
3. STATEMENT OF JURISDICTION..............................................................7
4. STATEMENT OF FACTS..............................................................................8
5. STATEMENT OF ISSUES.............................................................................9
6. SUMMARY OF ARGUMENTS....................................................................10 - 13
7. ARGUMENTS ADVANCED........................................................................14 - 22
8. PRAYER.........................................................................................................23

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 INDEX OF ABBREVIATIONS

Hon’ble Honourable
Sec. Section
V. Versus
A.I.R. All India Reporter
S.C. Supreme Court
All. Allahabad
M.P. Madhya Pradesh
S.C.C. Supreme Court Cases
S.L.P. Special Leave Petition
No. Number
W.P. Writ Petition
Pat. Patna
i.e. That is
u Others
u/s Under Section
Sr. Senior
r/w Read With
H.P. Himachal Pradesh
A.P. Andhra Pradesh
NOC Notes on Cases
SCR Supreme Court Reporter
HLR Humanitarian Law Commission
Co. Company
Edn. Edition
UOI Union of India
Bom. Bombay

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Raj. Rajasthan
Ori. Orissa
HLR Himachal Law Reporter
MPLJ Madhya Pradesh Law Journal

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 INDEX OF AUTHORITIES

A. BOOKS REFERRED
The Transfer of Property Act, 1882-
R.K. Sinha, the textbook of transfer of property act,1882.
S.N. Shukla, the textbook of transfer of property act,1882
The Constitution of India-
M.P. Jain, Indian Constitutional Law
Narender Kumar, Constitution of India

B. LINKS REFERRED
1. www.merriam-webster.com
2. www.law.cornell.eduwww.westlawindia.com
3. www.manupatra.com
4. www.livelaw.com
5. www.barandbench.com
6. www.legalserviceindia.com
7. www.scconline.com
8. www.heinonline.org

C. CASES

Subhash Chandra Das v. Ganga Pd. Das A.I.R.(1967) S.C.878

Smith v. Kay 1859 7 H.L.C. 750 at p.779

Ram Chandra Singh v. Savitri Devi 2003 Supp(4) SCR 543

Phulchand v. Lakkhu (1903) 25 All. 358

Sri Marcel Martins v. M. Printer & Ors 27thApril,2012

Firm Makhanlal Girwarlal v. Harnarain & Ors AIR 1960 MP 56

Smt. P. Padmavathi & Anr. v. Raja Sekhar & Ors. AIR 2004 AP 170

Raghumath Prasad v. Sarju Prasad (1924) P.C. 60

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Central Board of Secondary Education and Anr. V. Adiya Bandhopadhyay and
Ors. (2011) 8 SCC 497

Shakuntla Devi v. Amar Devi AIR 1985 HP 109

Smt. Gaurji v. Tara Chand AIR 1962 HP 4

Bahu Baijnath Singh v. Mussammat Biraj AIR 1922 PAT 514

Girraj Prasad v. Tribeni Devi AIR 2004 ALL 348

Indira Sarma Versus V.K.V. Sarma SLP(CRL.) NO.4895 OF 2012

Indra Sarma v. VKV Sarma SLP (CRL.) NO.4895 OF 2012

Radhamani vs State Of Kerala WP©.No. 12628 of 2013

Ramesh vs Smt. Ishwar Devi And Others R.A. No. 147-CII of 2011

Jayantram Vallabhdas Meswania V. Vallabhdas Govindram Meswania SCA No.

13954 of 2012

Radhamani and ors. V. The State of Kerala WP(C) No. 13110 of 2015 (K)

D. STATUES

Transfer of Property, Act 1882

Constitution of India, 1950

Limitation Act, 1963

Maintenance and welfare of parent and senior citizen act, 2007

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 STATEMENT OF JURISDICTION

The Respondent has approached the Hon’ble Supreme Court of India under Article 136 1 of
the Constitution of India as the Hon’ble 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.

1
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 (1) 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. That the Respondent is a retired government employee drawing about Rs10,000/- per
month as a pension. The Respondent’s first wife died in 2010.
2. That the Respondent on January 2011 expressed his wish to the Appellant (Son) and
his wife Mrs. Sara( Daughter-in-law) that he is going to have live in relationship with
Ms. Neelima (aged 45 years) both son and daughter-in-law were rudely shocked to
listen to the father’s wish.
3. That the Appellant and his wife relented and the Respondent being requested by the
Appellant to transfer half share in the property in Respondent’s estates (the value of
house is estimated to be Rs10,00,000/).
4. That the Respondent for the sake of maintaining peace in the family transferred half
share in the property to the Appellant through a registered gift deed on May,2011.
5. That the Appellant and his wife started insulting the life in partner of the Respondent
unbearable to that ill-treatment towards Ms. Neelima by both the Appellant and his
wife.
6. That this ill-treatment continued for more than one year. The Respondent and his life
in partner decided to shift their residence to the other premises.
7. That the Respondent subsequently in 2013, lodged a complaint to the sub-collector,
city of Kolkata seeking an order to revoke the gift deed executed in favour of
Appellant u/s 23 of Maintenance and Welfare of Parents and Senior Citizens
Act,2007.
8. That in the tribunal the sub-collector passed an order the elderly parents can take back
property gifted to a son if he ill-treats them. This order permitted the Respondent to
withdraw the gift deed from the Appellant as the same failed to provide the basic
needs to both the parents.
9. That in the appellate tribunal, the district collector reversed the order of the tribunal
on accepting the argument of Appellant that an accepted gift, through registered deed
cannot be revoked under the provisions of the Transfer of Property Act,1882 read
with the Registration Act,1908.
10. That the Respondent got relief from the Calcutta High Court when the high court
restored the order of the tribunal.

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 STATEMENT OF ISSUES

ISSUE 1

Whether Special Leave Petition is maintainable or not ?

ISSUE 2

Whether a Gift Deed is valid or not?

ISSUE 3

Whether the Gift Deed is Revocable or not?

ISSUE 4

Whether Section 23 of Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 is maintainable or not ?

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 SUMMARY OF ARGUMENTS

1. Whether the Special Leave Petition is maintainable or not ?

It is humbly submitted before this Hon’ble Court that in the given factual matrix, there is
no necessity or compulsion for the intervention of this Hon’ble Court and invoking its
powers under Article 136 2 of Constitution of India. The Jurisdiction conferred under
Article 136 on the Hon’ble Supreme Court is a corrective one and not a restrictive one. It
is the residuary power of Hon’ble Supreme Court to do justice where the court is satisfied
that there is injustice to be perpetuated.

2. Whether the Gift Deed is Valid or not ?

The counsel submits that the Sec.122 of Transfer of Property Act, 1882 defines - Gift as
transfer of certain existing immovable or movable property made voluntarily and without
consideration by one person called the Donor to another person called the Donee and
accepted by donee or behalf of donee. It is gratuitous transfer of ownership. As in facts of
the case says that the Appellant and his wife firstly back pedalled and after that they
requested the Respondent to transfer the half property to them. The Respondent with
intention of having peace and harmony among the family members decided to transfer
half of the share of the property to the Appellant which states that the Appellant was in
position to dominate the will of the Respondent which is classified as an undue influence.
The gift deed is not valid one.

Essentials of the valid gift-

a. Transfer of Ownership
b. Existing Property
c. No Consideration
d. Voluntarily i.e. with free will and consent of donor.
e. Acceptance of gift

2
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 (1) 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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Sec. 14 of Indian Contract Act, 1872 - “Free consent” defined.—Consent is said to be free
when it is not caused by—

(1) coercion, as defined in section 15, or

(2) undue influence, as defined in section 16, or

(3) fraud, as defined in section 17, or

(4) misrepresentation, as defined in section 18, or

(5) mistake, subject to the provisions of sections 20, 21 and 22.

Consent is said to be so caused when it would not have been given but for the existence
of such coercion, undue influence, fraud, misrepresentation or mistake.

Sec. 16 of Indian Contract Act,1872- “Undue influence” defined.—(1) A contract is said

to be induced by “undue influence” where the relations subsisting between the parties are
such that one of the parties is in a position to dominate the will of the other and uses that
position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a
person is deemed to be in a position to dominate the will of another—

(a) where he holds a real or apparent authority over the other, or where he stands in a
fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a
contract with him, and the transaction appears, on the face of it or on the evidence
adduced, to be unconscionable, the burden of proving that such contract was not induced
by undue influence shall lie upon the person in a position to dominate the will of the
other. Nothing in this sub-section shall affect the provisions of section 111 of the Indian
Evidence Act, 1872 (1 of 1872).

It is clear that the Respondent was not in a position to choose freely and freedom of
choice predicates, feeling of constraint is present here in this case. Donor’s will in
executing the deed of the gift must be free and independent . Thus where the undue

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influence and pressure has been exercised on the donor, it is clear that the gift has not
been made voluntarily.

3. Whether the Gift Deed is revocable or not ?

It is humbly contended that the Hon’ble Supreme Court has the power to grant special
leave under Article 136 of Constitution of India. The Calcutta High Court held that the
revocation of registered gift deed is valid, as the basic needs are not maintained by Mr.
Arjun and ill-treating his parents. Here the Respondent relied on the Appellant that the
peace and harmony among the family members will be maintained after transferring the
property to the Appellant. But all gone in vain as the fight between members continued.

The counsel brings notice to the Hon’ble Supreme Court that revocation can be done on
various grounds i.e. Gift is transfer of ownership without consideration. Like other
transfers gift is also subject to certain conditions. A deed of gift can be suspended or
revoked in conditions of undue influence, commits fraud.

4. Whether Sec.23 of Maintainance of Welfare of Parents and Senior

Citizens Act, 2007 is Maintainable or not?

The counsel submits that the judgment of tribunal and the Calcutta High Court is
justiciable. However, not providing basic needs and ill-treating parents can be grounds for
revocation of gift deed.

Section 23 of Maintainance of Welfare of Parents and Senior Citizens Act, 2007 says that-
(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.

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(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.

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 ARGUMENTS ADVANCED

2. Whether the Gift Deed is Valid or not ?

It is submitted that the gift deed is not valid as there exist undue influence on the part
of appellant so there was no free consent and there exist fiduciary relationship
between the parties. Here Respondent believed that after transferring half of the
property Appellant will maintain peace and harmony in the family and they will be
treated with conduct by the appellant and his wife.

As per the Merriam Webster - Fiduciary Relation means a relationship in which one
party places special trust, confidence, and reliance in and is influenced by another
who has a fiduciary duty to act for the benefit of the party.3

As per Cornell Law School - Fiduciary Relation means a relationship in which one
individual owes another a fiduciary duty to act in the other’s interest. Certain
interactions may give rise to a fiduciary relationship, regardless of the parties’ intent. 4

Fiduciary Relationship is defined as “a relationship in which one person is under a

duty to act for the benefit of the other on the matters within the scope of the
relationship.” “Fiduciary relationship usually arises in one of the four situations: (1)
when one person places trust in the faithful integrity of another, who as a result gains
superiority or influence over the first, (2) when one person assumes control and
responsibility over another, (3) when one person has a duty to act or give advice to
another on matters falling within the scope of the relationship, or (4) when there is
specific relationship that has traditionally been recognized as involving fiduciary
duties, as with a lawyer and a client, or a stockbroker and a customer.” 5

3
https://www.merriam-webster.com/legal/fiduciary%20relationship

4
https://www.law.cornell.edu/wex/fiduciary_relationship

5
https://righttoinformation.wiki/explanations/fiduciary-relationship

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 Subhash Chandra Das v. Ganga Pd. Das6- It was held that undue influence is the
most common ground on which the gift is said to have been made without free
consent. It is well settled that the law as to undue influence is the same in the case of
gift inter vivos as in the case of contract and sec.16 of Indian Contract Act,1872 deals
with undue influence.

Smith v. Kay7– Fiduciary relationship means a relationship of confidence and trust.

When a person reposes confidence in the other person it is expected that he will not be
betrayed and if so betrayed the suffering party has an option to avoid the contarct. The
principle of undue influence applies to every case where influence is acquired and
abused, where confidence is reposed and betrayed.

Ram Chandra Singh v. Savitri Devi8 – In this case, the supreme court held that
when a done is in a position to dominate the will of the donor and the gift is made as
result of such domination, the gift is voidable at the option of the donor.

Phulchand v. Lakkhu 9 – It was held that the gift must be made voluntarily and with
the free consent. It means the unfettered free will. A man cannot be said to be truly
willing. Unless he is in position to choose freely and freedom of choice of predicates.
Absence from his mind any feeling of constraint so that nothing shall interfere with
the freedom of his will. Thus where undue influence and pressure has been exercised
on the donor, it is clear that he has not made the gift voluntarily.

Sri Marcel Martins v. M. Printer & Ors 10 -“Fiduciary Relationship” thus:

“Fiduciary relationship- A relationship in which one person is under a duty to act for
the benefit of the other on matters within the scope of the relationship.
Fiduciary relationships- such as trustee-beneficiary, guardian-ward, agent-principal,
and attorney- client – require the highest duty of care. Fiduciary relationship usually
arise in one of four situations:

6
A.I.R.(1967) S.C.878
7
(1859) 7 H.L.C. 750 at p.779
8
2003 Supp(4) SCR 543
9
(1903) 25 All. 358
10
27thApril,2012

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 (1) when one person places trust in the faithful integrity of another, who as a result
gains superiority or influence over the first,

(2) when one person assumes control and responsibility over another,

(3) when one person has a duty to act for or give advice to another on matters falling
within the scope of the relationship, or

(4) when there is a specific relationship that has traditionally been recognised as
involving fiduciary duties, as with a lawyer and a client or a stockbroker and a
customer.”

In Firm Makhanlal Girwarlal v. Harnarain & Ors11 - the Court was of the view
that there exists fiduciary relationship between father and son, it is manifested
in Section 8 of Hindu Minority and Guardianship Act, 1956.

In the case of Smt. P. Padmavathi & Anr. v. Raja Sekhar & Ors. 12 – The Andhra
Pradesh High Court held that the if a son takes undue advantage of his father’s love
and affection to obtain a gift of property, it may be set aside on the grounds of undue
influence.

In case of Raghumath Prasad v. Sarju Prasad13 - Three stages for consideration in

case of undue influence were expounded –

1. The relations between the parties to each other must be such that one is in a
position to dominate the will of the other. Once this position is substantiated, the
second stage has been reached.
2. The issue whether the contract has been induced by undue influence.
3. Upon the determination of this issue, a third point namely burden of proof
emerges.

Central Board of Secondary Education and Anr. V. Adiya Bandhopadhyay and

Ors.14-

11
AIR 1960 MP 56
12
AIR 2004 AP 170
13
(1924) P.C. 60
14
(2011) 8 SCC 497

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 Here the question is whether the examining body holds the evaluated answer books in
its fiduciary relationship. Where Ravindeeran, J. Speaking for the court in that case
explained the term ‘Fiduciary’ and ‘Fiduciary Relationship’ in the following words:
The term “Fiduciary” refers to a person having a duty to act for the benefit of another,
Showing good faith and candour, where such other person reposes trust and special
confidence in the person owing or discharging the duty. The term ‘Fiduciary
Relationship’ is used to describe a situation or transaction where one
person(beneficiary) places complete confidence in another person ( Fiduciary) in
regard to his affairs, business or transactions.

3. Whether the Gift Deed is revocable or not ?

It is humbly submitted before the Hon’ble Supreme Court that the gift deed can be
revoked. The more usual grounds for revocation of gift deed is undue influence. Here
the respondent Mr. Gautam relied on his son Mr. Arjun that the peace and harmony
among the family members will be maintained and there will be no further fights after
the transfer of property. However the fight between the members continued.

REVOCATION OF GIFT DEED BY RESCISSION

1. Gift is a gratuitous transfer of ownership made voluntarily if it could be proved
that the gift was not made voluntarily i.e. the consent of the donor was not free, the
gift must be revoked. Gift always preceded by an express or implied contract.
2. Section 19 of the Indian Contract Act provides that “where the consent to an
agreement is a contract voidable at the option of the party whose consent was not
obtained”. So, where the donor’s consent has been obtained by coercion, undue
influence , fraud or misrepresentation the donor has option, the gift is not revoked.
Gift may be revoked on the above mentioned grounds only by donor, he cannot assign
this right to any other person. However after the death of donor, his legal heirs may
sue for the revocation of gift on any of these grounds.
3. In the case of Shakuntla Devi v. Amar Devi 15 the court held that the gift deed
based on fraud, undue influence or misrepresentation is subject to cancellation/
revocation of gift under Sec.126 of Transfer of Property Act,1882.

15
AIR 1985 HP 109

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 4. Similar discussion was made before the judicial commissioner of Himachal
Pradesh in the case of Smt. Gaurji v. Tara Chand16 , the same conclusion was lead
down in this case also that the gift deed based on fraud, undue influence etc can be
cancelled. This provides a clear image that all the cases which consists undue
influence within them can be cancelled.

5. In the case of Bahu Baijnath Singh v. Mussammat Biraj 17, the done may not
profit by his wrong, a gift may be revoked for coercion, fraud, mis representation or
undue influence in the same way as a contract may be rescinded. But if the donor does
not revoke, he cannot transfer his right to sue for revocation. In the Instant case the
son and daughter-in –law gambled. Mr. Gautam and create the situation for his father
to transfer half share of property. It is crystal clear that there was undue influence.
Furthermore, consent was not free under Sec.13 of Indian Contract Act.

6. In Girraj Prasad v. Tribeni Devi 18 , it was quoted that when the parties are in
fiduciary relationship and a person is in position to dominate the will of another
person, the burden to prove that the transaction in question is a genuine transaction
lies upon a person in whose favour the document has been executed.

a. Whether live in relationship is considered as marriage?

The live in relationship is considered as a “relationship in the nature of marriage, de
facto marriage etc.”
Indira Sarma Versus V.K.V. Sarma 19 - In 2013, the Supreme Court ruled that
women are protected under the PWDV Act, 2005 as live-in relationships fall under
Section 2(f) of the law which defines a domestic relationship. It defines domestic
relationship as “relationship between two persons who live or have, at any point of
time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family
members living together as a joint family”.
The SC ruled that live-in relationships fall under “a relationship in the nature of
marriage” mentioned in the sub-section.
16
AIR 1962 HP 4
17
AIR 1922 PAT 514
18
AIR 2004 ALL 348
19
SLP(CRL.) NO.4895 OF 2012

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 Time period of live in relationship:
Indra Sarma v. VKV Sarma 20The Supreme Court established the following rules to
decide whether or not a relationship is ‘in the nature of marriage’: Section 2(f) of the
Domestic Violence Act uses the phrase “at any point in time,” which indicates a
significant period of time to establish and maintain such a relationship, which might
differ from situation to situation depending on the circumstances.

4. Whether Sec. 23 of Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 is maintainable or not?
As the gift deed is made by Respondent with the motive to maintain peace in the
family which was not there then Respondent is having the right to declare it void as
per Section 23 of the said Act.

Radhamani vs State Of Kerala 21 -It appears that late Gopalakrishnan Nair came
down to Kerala to settle down here, after leaving his business and all immovable
properties to be taken care of by his wife and children. While he was in Kerala, he had
a hope, he would be taken care of by the petitioners. Therefore, with the hope that
they would take care of him, he had executed a settlement deed referred as above. The
Tribunal revoked the Settlement Deed by finding that Settlement Deed is liable to be
revoked under Section 23(1) of Senior Citizens Act, 2007.In the absence of any
stipulation in the settlement deed, that petitioners shall provide basic physical needs to
the late Gopalakrishnan Nair, document cannot be revoked under Section 23 of Senior
Citizens Act, 2007. Ct in a natural course of human conduct that donee continues to
behave in same manner as behaved before execution of the deed. The love and
affection influenced for execution of the deed certainly must be enduring and without
any barrier. The human conduct in relation to a particular relation is presumed to exist
in all set of circumstances for governing relationship of those individuals.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.

20
SLP (CRL.) NO.4895 OF 2012
21
WP©.No. 12628 of 2013

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 Ramesh vs Smt. Ishwar Devi And Others 22- The case pertains to Ishwar Devi, a
widow aged over 76 years. Her deceased husband gave four killas of land each to both
their sons. Another land measuring four killas, one house and one shop were left for
the maintenance of Ishwar Devi. After two years of the death of her husband, her
younger son Ramesh played fraud and transferred her house and two shops in his
name. She came to know this fact only two years later. Later Ishwar Devi’s son
Ramesh ousted her from the house and he along with his sons also used to beat her.
Efforts for compromise were made before the Panchayat two-three times, but to no
avail.

She approached the SDM, exercising the powers of Presiding Officer, Maintenance
Tribunal, Tohana, by filing application under Section 5(1) of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 and SDM passed order in favour of
her. Aggrieved against the aforesaid order of the SDM, Ramesh filed appeal before
the Appellate Tribunal, chaired by District Collector, Fatehabad which reversed order
of SDM .Later, Ishwar Devi filed the writ petition in the High Court that was allowed
by the Single Judge vide impugned order dated 20.04.2021, thereby maintaining the
order in toto passed by the SDM. Upholding the orders of Single bench, a division
bench of Justice Augustine George Masih and Ashok Kumar Verma stated that
Section 23 (1) of the Act of 2007 explicitly stipulates that in case the children fail to
take care of their parents after transfer of their parent’s property in their favour, 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 provision under Section 23 (1) of the Act of 2007 attempts to provide a
dignified existence to the elderly people. It is often seen that after receiving the
property from their parents, the children abandon them. In such situation, the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is an enabling
lifeline for such old aged parents and senior citizens who are not looked after by their
children and become neglected lots,” the Division Bench said.
“Section 23 of the Act of 2007 is a deterrent to this and hence is beneficial for the
elderly old aged people who are incapable of taking care of themselves in their last

22
R.A. No. 147-CII of 2011

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 phase of life. The children are expected to look after their elderly parents properly
which is not only a value based principle but a bounden duty as enshrined within the
mandate of the Act of 2007,” it said.

Jayantram Vallabhdas Meswania V. Vallabhdas Govindram Meswania 23 ,The

Petitoner conveniently overlooks the provision under Sec. 4 of the Act. Sub-
Section(1) of Section 23 provides, inter alia, that where a senior citizen has
transferred by way of gift or otherwise, his property, subject to the condition that the
transferee shall provide basic amenities and physical needs to the transferor then the
transfer may be declared void if the transferee refuses or fails to provide such
amenities. Sub Section (2) of Section 23 provides, inter alia, that where a senior
citizen has right to receive maintenance out of an estate which is transferred, the right
to receive maintenance may be enforced against the transferee provided that the
transfer is not made for a consideration. Sub Section (2) of Section 23 contemplates a
situation where the transferor has right to receive maintenance from such property
then such transferor can enforce the right to receive maintenance from the transferee.

Radhamani and ors. V. The State of Kerala 24, represented by the Secretary revenue
department Sec. 23 of the act, 2007 gives right to senior citizens to approach the
tribunal to declare any transfer of property, by way of gift or otherwise, after the
commencement of the above act, as void, in certain circumstances. It stipulates that
such transfer must be with the condition that (a) Transferee shall provide the basic
amenities and basic physical needs to the transferor. (b) such transferee refuses or
fails to provide such amenities and physical needs.

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 transfer of deed itself. This
Condition mentioned in Sec. 23 is only referable as conduct of the transferee, prior to
and after execution of the deed of transfer. Thus, challenge based on the ground that

23
SCA No. 13954 of 2012
24
WP(C) No. 13110 of 2015 (K)

MEMORIAL ON BEHALF OF THE RESPONDENT Page 21

there is no reference in the recital of deed that transferee will provide basic amenities
and physical needs to the transferor is of no consequence.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 22

 PRAYER

Wherefore, In light of the facts presented, issues raised, arguments advanced and
authorities cited the Counsel on the behalf of respondent humbly prays before this
Hon’ble Court that it may be pleased-

1. To upheld the judgment of Calcutta High Court:

a. That, the parents can ask for maintenance and in case the maintenance is not provide
they can revoke the gift deed.
b. That, the respondent ( Mr. Gautam) can revoke is registered gift deed of property.

2. Pass any other order or make directions as the Hon’ble Court may deem fit to meet the
interest of justice, equity, and good conscience in the instant case.

Respondent

Through Counsel

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