Maintenance Tribunal Cannot Decide 'Generally' That Transfer Of Property By Way Of Gift Or Otherwise Was Fraudulent: Karnataka HC

A Writ Appeal was filed against the judgment and order passed by the Single Judge dismissing the writ petition. The petition was filed to set aside the order passed by the Maintenance Tribunal under Section 23(1) of the Act, 2007, which declared the gift deed to be treated as cancelled since the transfer of the properties thereunder was void.

The Division Bench of Chief Justice NV Anjaria and Justice Krishna S Dixit observed, “In the above view, it will not be permissible in law for the Tribunal, while exercising powers under Section 23(1) of the Act, to pronounce upon generally that the transfer of the property by way of gift or otherwise was fraudulent or that the transferor was guilty of fraud or coercion in the general sense of the term. The rights and obligations arising for the parties in the context of commission of fraud as is to be applied in general law, are the civil disputes. It is not open for the Tribunal functioning under the Act to pronounce upon such fraud having committed in effecting the transfer.”

Advocate Vikas M appeared for the Appellant whereas Advocate Niloufer Akbar appeared for the Respondents.

The Complainant is an aged man of about 100 years and the ancestral and joint properties of the family were partitioned and the complainant had retained one house, certain sites and 5 acres of land. It was alleged that the younger son of the Complainant i.e. Appellant herein took the complainant to the Taluka Office by misrepresentation that his presence was needed in respect of the pension case and that at the same time, he got registered a document from the complainant in his favour and received Rs.20,000/- from the pension amount kept in the bank.

The complainant’s case was also that the Appellant got registered one gift deed from the complainant in respect of the entire land which was owned by the complainant. The complainant stated that he did not execute any such gift deed in favour of his Appellant-son and despite that, he had been trying to alienate the land. It was upon such complaint made to the competent authority under the Act that upon adjudication, the order under 23(1) of the Act came to be passed by the Tribunal providing cancellation of the said gift deed.

The Court held, “It is true that the Section treats the transfer of the property acted upon in a particular manner to be deemed to have been made by fraud or coercion or under undue influence, but the concept of fraud or coercion incorporated in the Section to be the ground to declare the instrument void is limited to the breach of condition. Since the Section provides for the condition that the transferee shall provide basic amenities and physical needs to the senior citizen-transferor to be abided by and in the event such condition is not abided by, it would constitute a ground to declare the instrument of gift or transfer instrument to be void. the idea of fraud or coercion encapsulated in Section 23(1) of the Act is referable to the breach of such condition only.”

The Court also said, “In view of the above position obtaining, this Court is of the view that the Tribunal misdirected itself in law in making the observations in paragraph 13 of its order by suggesting that the gift deed was fraudulently obtained from the complainant. The aspects mentioned by the Tribunal in that regard are to be proved by leading of evidence. It was not permissible for the Tribunal to arrive at a different finding in that regard. Even otherwise, recording of such finding was beyond the powers and jurisdiction of the Tribunal.”

Accordingly, the order of the Tribunal was set aside and the judgment of the Single Judge was modified.

Cause Title: Sri Jayashankar v. Assistant Commissioner, North Taluk and Ors.

Appearances:

Appellant: Advocate Vikas M

Respondents: Advocates Niloufer Akbar and Usha Prakash

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