High Court of Delhi

Mohd. Zakaria Vs. Inamul Haque and Ors.

MANU/DE/3097/2017

10.10.2017

Family

Directions for dividing the property by metes and bounds is beyond the scope of powers of the Tribunal

The Petitioner impugns the order passed by the Maintenance Tribunal (under Maintenance & Welfare of the Parents and Senior Citizens Act, 2007). By the impugned judgment, the Tribunal, after recording the deposition of the three sisters and the Petitioner opined that, the relinquishment deed was in lieu of consideration in cash or kind. This finding has been returned on the basis of statement of the three sisters of the Petitioner, who deposed that, the Petitioner had promised to pay them a sum of Rs. 7 lakhs each, in lieu of relinquishing their respective shares. The Tribunal held that, the relinquishment deed was obtained by the Petitioner in lieu of monetary consideration paid/promised to be paid to his brothers and sisters. Respondent No. 1 was also to be provided boarding/lodging facilities apart from making provisions of basic necessities and amenities for life.

The Tribunal held that, non-compliance and adherence to the promises and assurances made to the Respondent No. 1 by the Petitioner at the time of execution of the relinquishment deed came within the ambit of Section 23 (1) of the Act and as such it declared the relinquishment deed executed by Respondent No. 1 to be void to the extent of Respondent No. 1's ownership right of 1/4th share. The Tribunal directed the Petitioner to hand over 1/4th portion of the said property from ground floor to terrace and also to get the property demarcated by a brick wall. The Petitioner has assailed the judgment contending that, relinquishment was not for any understanding that the Petitioner would provide boarding/lodging facilities apart from making provisions of basic necessities and amenities for life.

The relinquishment deed records that the Releasors have out of their own free will and consent due to love and affection and without receiving anything have relinquished their share in the said property in favour of the Petitioner. The Relinquishment Deed does not record any stipulation that Respondent No. 1 has relinquished his share for any consideration paid or promised to be paid.

Section 23 of Act, stipulates that, where any senior citizen 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 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.

The relinquishment deed when read in conjunction with the alleged receipts filed by the Petitioner show that even the case of the Petitioner is that the relinquishment deed is not completely out of love and affection. Though the Petitioner has himself filed those receipts and relied upon the same, the Petitioner has not come out clean about the same. The receipts show that the releasers are alleged to have received money in lieu of relinquishing their share. The Petitioner, while relying upon the receipts, continues to deny that the relinquishment was for consideration. The Petitioner has taken contradictory stand.

Record reveals that, the statement forms part of the order sheet of the Tribunal and the margin of the order sheet bears the signatures not only of the sisters but also of the Petitioner. The Petitioner cannot be permitted to deny the statement of the sisters as recorded by the Tribunal. The said statement is recorded as part of the order sheet, which bears the counter signatures of the Petitioner. The Petitioner has thus not approached this court with clean hands.

In view of the above, the finding returned by the Tribunal that the relinquishment deed was in lieu of consideration in cash or kind cannot be faulted. The direction of the Tribunal that, the relinquishment deed in so far as the Respondent No. 1 is concerned is declared void also does not warrant any interference.

The Tribunal has clearly exceeded its jurisdiction. The Tribunal was called upon only to ascertain as to whether the relinquishment deed was void in view of Section 23 of the Act or not. Having returned the finding that the same is void in terms of Section 23 of Act, the Tribunal has exceeded its jurisdiction in holding the share of the Respondent No. 1 as 1/4th. Furthermore, the Tribunal by the impugned judgment has also exceeded its jurisdiction in directing a partition of the property and delivery of possession to Respondent No. 1. Directing a partition of the property is clearly beyond the mandate of Section 23 of the Act. Since, Respondent No. 1 has not been able to substantiate that he was ever residing in the house and was turned out, the tribunal has erred in directing that he be put in possession of a separated portion.

With regard to direction issued by the Tribunal, as against the Petitioner as well as other two brothers, of providing a sum of Rs. 2000/- per month to Respondent No. 1, perusal of record shows that, Petitioner has not denied that Respondent No. 1 is aged over 87 years and is not doing any business and does not have any other livelihood. Since the Respondent No. 1 is aged over 87 years and does not have any independent source of income, the Petitioner being one of the sons of Respondent No. 1 would certainly have the liability to maintain his father. In view of the above, the finding of the Tribunal, inter-alia, directing the Petitioner to pay a sum of Rs. 2000/- per month as maintenance allowance does not warrant any interference.

The finding of the Tribunal that, the relinquishment deed, qua the Respondent No. 1 is declared void in terms of Section 23 of the Act, does not warrant any interference; the declaration that the share of Respondent No. 1 is 1/4th in the subject property is set aside; the direction that, the Petitioner shall handover back to the Respondent No. 1 1/4th portion of the property, and get, the same properly demarcated by brick wall within 30 days, of the receipt of order is also set aside. It is clarified that declaration that, the Relinquishment deed is void in so far as Respondent No. 1 is concerned, is in terms of Section 23 of the Act and shall have no bearing on the relinquishment deed, in so far as it relates to the brothers and sisters of the Petitioner. The petition is disposed of.

Tags : Relinquishment deed Legality Transfer Direction

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