My father remarried at the age of 66. He gifted me his share of our family home 2 days before his 2nd marriage in May 2014. After marriage his 2nd wife created rifts, fights and disputes between my father and myself(for obvious reasons), and they left home(within a year of marriage and have been living separate from me), after which he filed for revocation of gift deed at a tribunal court in BKC, Mumbai, under sec 23 of Maintenance n welfare of parents and senior citizen act 2007. As per my knowledge, sec 23 of the said act, expressly mentions about the condition that the transferee(donee) shall provide the basic amenities and basic physical needs to the transferor(donor). Without a proper hearing, or looking at the gift deed, the sub-divisional officer passed an order for cancellation of the deed(6th March 2017), which is registered, unconditional and irrevocable. I approached the high court by filing a writ petition(August 2017) to challenge the impugned order, but there also the judges upheld the SDO order. Unfortunately, I was out of town on the day of case hearing(4th June 2018), and also the gift-deed was not part of the exhibits, so high court judges couldn't peruse the deed. My father has other properties in his name. My question is whether this act applies logically in my case where the gift deed was registered as being unconditional and irrevocable, and also considering he has other owned flat where he can live peacefully without disturbing and harassing me unnecessarily, under the undue influence of his 2nd wife and taking undue advantage of his age. Also, what are my options at this stage, where I feel my case was not heard properly at both forums, and decision was taken by the judges, more out of sympathy for senior citizens, rather than proper application of law. Thank you, an aggrieved petitioner and son
Dear Client,
Above act is enacted for this purpose only to secure interest of senior citizens and all GIFT are irrevocable with little exception and sec 23 rightly evoked.
It1s kind of surprise, without exhibiting the GIFT DEED, writ filed.
Well, your options are very limited, Gift cannot be revoked on mere will of donor.
You should prove in court that, under the influence of 2nd wife, all this happen otherwise you are always willing to care and look after your father.
1. You can file an appeal before the divisional bench of the concerened high court. Annex the gift deed along with the appeal and documents related to other properties owned by your father.
2. Take grounds that your father shifted on his own will after remarriage.
3. Further you can go before the Honble Supreme Court by challenging high courts order.
4. Engage a good senior advocate to get the relief as you have a strong case in your favour and if fought properly the decision will be in your favour.
Any other assistance plz feel free to consult.
1. How can the gift deed be not exhibited to your petition?
2. you will have to file a review application
3. was the gift deed brought on record by the respondent in his affidavit in reply?
4. can you kindly give details of the High Court order so that i can check from the court's website
hello,
the gift deed was unconditional and irrevocable. if there had been conditions imposed upon you in the deed then you would have been liable. but your case was totally different. the gift deed should have been annexure no.1 in the petition before the HC. I don't understand why didn't you annex the deed. anyways the application must have been filed under Art 227 constitution of India. therefore, there is no appeal provided against this order in the HC. you have to go to the SC.
regards
1. Since writ court has already passed the final order the only legal remedy is to file Letters patent Appeal in the same court before division bench of the court.
2. if the division bench also dismisses the appeal then next court of action lies before supreme court.
3. Your situation is really pitiable but I regret that I unless manage to see the order I can not comment on the merit of the appeal.
Good luck.
You can file appeal against order before SC
2) take plea that gift deed was un conditional and irrevocable
3) in review petition chances of success are bleak
This is my response to you:
1. Since you already filed an appeal in the High Court, so you will have to again approach the High Court;
2. You can apply for review petition in the High Court itself, stating that you wish to be present in the court and wish to make more arguments in the present case;
3. You will need to carry proofs that your father has other properties;
4. You will need to submit proofs that your father and his second wife left you voluntarily;
5. You will also need to prove that at the time of making the irrevocable Gift Deed your father had made it in healthy mindset and out of full knowledge of the transfer;
6. It is only after his second wife came into the picture that your father filed a case due to undue influence;
7. You can claim to the court that the property be gifted to you and you will part some amount for maintenance of your father on a monthly basis;
8. If the High Court rejects the same then you will have to approach the Supreme Court.
Sir the act provide power to tribunal to set aside such gift made. See in your case though you contested same as the act is more for welfare of aged people then it is slightly biased further yes a registered, irrevocable gift deed can be cancelled under the Act see for further challenging order of the high court the order need to be perused as it has to be contested on merits.
See law itself is clear but since you have to establish before the appropriate forum that the amenities were provided and citizen was taken care of like you could have produced medical bills, other expenses. But since this was not proved the adverse order was passed.
Further the act applies on registered gift and a registered deed can be cancelled, if in your view you think your case is not heard on merits appeal before the Supreme Court,
1. In the instant case, the said gift deed registered by your father in your favour is irrevocable.
2. You have got adverse order in the High Court for not pursuing your matter properly by annexing the copy of the gift deed.
3. You shall have to approach the Supreme Court challenging the order passed by the High Court.
4. Engage a lawyer practicing at the Apex court having expertise in this field.
1. Did you get an opportunity to lead evidence before the tribunal to show that you had been providing the basic amenities to your father? It is unbelievable that gift deed was not made an exhibit and yet the same has been cancelled.
2. The HC has upheld the order of SDO. Now the only remedy for you is to approach the Supreme Court.
3. SC Act applies even though your father may have other properties in his name.
Thank you all for your valuable suggestions/feedback. The question on most people's mind is why the gift-deed was not part of exhibits. Reason is my father never gave me the original registered deed(he is still in possession of the originals and also hasn't facilitated the society transfer till date), and a duplicate was taken from the registrar's office, after submission of the writ, and was to be shown to the judges at the time of case hearing, which didn't happen as I was not present. Neither the gift deed was brought on record by the respondent(my father) in his affidavit in reply. My advocate argued and asked for a date so the judges can peruse the deed, but they didn't oblige, and it seems they had come prepared and made up their minds to favour my father's case, both him and his 2nd wife being seniors. Thus, the impugned order by the SDO was upheld by the High Court judges. Kindly check the high court order here www.bombayhighcourt.nic.in/ by entering case # WP/11735/2017 My follow up question: One more important fact has come to light. Hiranandani Developers gave us an allotment letter for a flat in their Thane project in 2011. Just couple of days back, I came to know that my father had forged my signatures, and given them an undertaking, in June 2016, to remove my name from their records, so that he becomes the sole owner after registration. This is a criminal offence, I believe. After that or around the same time in 2016, he approached the tribunal court in BKC, Bandra for maintenance and gift deed revocation. Can we link the 2 issues considering the timeline, citing Malafide Intention and undue influence of his 2nd wife, to remove me from any/all properties either owned/co-owned whether it be in a legal or illegal manner? I believe it will only make my case stronger if I can put this fact in the review petition, and also what are the chances of my review petition of being admitted/entertained? Your expert opinion will be appreciated. Thank you again!
1)if your father had forged your signatures file case against your father for forgery before local police station
2) you should take the plea that revocation of gift deed was sought by your father as he apprehended that you would file criminal case against him for forgery .
3) you can link the 2 issues mention it was done with malafide intention under influence of second wife
4) it is better you file an appeal before Sc rather than review before HC
1. Sec 23 of Maintenance n welfare of parents and senior citizen act 2007 will be applicable if there is a condition mentioned in the gift deed that you shall have to provide basic amenities and basic physical needs to the transferor for which copy of the gift deed was required ton be submitted before the Court for contesting the application filed by your father. However, you shall have to challenge the High Court's order before the Supreme Court now.
2. Your second problem is a new one. You shall have to lodge a police complaint against your father for forging your signature in the letter submitted before the builder.
3. You need not link the said two issues as your ground that the gift deed registered by him was unconditional or even if it was conditional gift deed, it is established that basic amenities and basic physical needs have already been enjoyed by the transferor, can be proved before the Apex Court or while filing the review petition.You can try linking the two issues to influence the Judge about the malafied intention of your father but the Court may refuse to link the two cases.
1. the high court order records that you have no issue if your dad lives in that flat but dont want your step mom to be living there
2. this irked the high court
3. also your father and step mom reside presently in some tenanted premises, which the court has recorded in the order
4. have you disclosed in your writ which other properties are owned by your father where he and your step mom can live?
5. is the tenanted premises standing in the name of your father or is your father a mere licensee of that flat?
6. if you want to save this flat, are you willing to make a statement to the court that you have no issues if both your father and step mom can live with you and your wife in this house?
7. its not that the children offer money to the parents so that they can live in some other premises separate from the children. The purpose of the act is to ensure that senior and ailing parents are maintained and looked after by their children just like the children were looked after by the parents when the children were infants and toddlers
8. if you say that your dad can live with you but not your step mom, then court will obviously think as to where will the old lady go then? even if the father has other properties and the step mom is sent to one of those, then how will a senior citizen look after herself by herself? all this will be weighed in by the court
9. so think carefully and decide. There is nothing legally which you can challenge in the high court order as it has only followed the mandate given under the senior citizens act
10. also for the hiranandani flat, who is contributing the purchase price? you or your dad?
Sir, kindly understand that court is aware that the gift deed is registered in your favour but see the section 23 applies for cancellation of gift deed that is registered also so persuing gift deed make no difference though if there is grocery in that case be bought before the court. Further you contention should be that you maintained you father well just in influence of second wife he is doing so.
This is my further response to you:
1. The 4th point of the Order makes no sense, since your father had other properties on his name why would he live on tenanted premises;
2. You can prove the inconsistency in this fact to the court;
3. You should also collect evidence of the behaviour of the second wife, including her tantrums etc;
4. You must have oral, written or audio/video evidences of the second wife behaving in a manner which disturbed family peace;
5. Also you can make your wife depose in court in the manner how the second wife behaved;
6. This case will help you: A father executed a registered deed of gift in favour of his son. He had done it because of love and affection for the son and also to enable him to live a peaceful life. There was no proof of undue influence. The Supreme Court held that these circumstances were not sufficient in themselves to show that the execution of the gift deed was not voluntary. The deed could not be rescinded on the premise that it was an onerous gift and that the done had failed to fulfill the condition for the gift of contributing towards the marriage of the donee’s sister the specified sum. Once a gift is complete, it cannot be rescinded for any reason whatsoever. The subsequent conduct of the donee is not a ground for rescission of a valid gift
7. The citation is as follows: Asokan v. Lakshmikuty, (2007) 13 SCC 210
8. You can file the review petition in court and get the matter to be heard on merits;
9. Or go for revision before another bench of the Hon'ble High Court.
Hello
The whole set of facts and circumstances which not only explains your case but this act of your father which bolsters your case should be elaborately stated. What steps did you take when this fraud came to light should also be stated. The error of law apparent should be stated during the arguments. Your gift deed was unconditional whixh was overlooked by the high court and this is the premise upon which the application of the law rests. Therefore you do have a strong case.
Regards
There seems to be 2 opinions here - most say that a registered unconditional and irrevocable gift-deed can't be cancelled, especially in a case like mine(where my father has other owned/co-owned properties). Yet some of you opine that gift-deed, even if registered as unconditional or irrevocable, can be revoked under sec 23 of the Senior citizen act, 2007, irrespective of the properties owned by the senior citizen. So i'm really confused, which is the correct interpretation of this act/law? The maintenance aspect of the said act, in monetary terms, is well taken care of, as my father is already getting full rent out of a co-owned property, where I have signed an LL agreement stating that he should get the full rent. And he has another flat which is on his own single name, where he could live and yet he's staying on rent in tenanted premises. All this can be proved by proper documentation, as long as the review petition is admitted, and I'm given a chance by the judges/HC to prove the same. Can the documents be produced at the time of case hearing(argument in the court), as I'm still collecting all documents from different sources? Or do I need to submit before? Also some of you suggest directly approaching the SC rather than filing review in HC - why so? My lawyer has prepared a draft of the review petition, and he is against putting in it about the forgery committed by my father. How then can it be brought on record, and undue influence of his 2nd wife be proved? While Rahulji, you say that this act of my father which bolsters my case should be elaborately stated, my lawyer is insisting not to mention the same in the review petition, and suggesting to only focus on the gift-deed and property mentioned in the same. I have decided to file a police complaint for the forgery committed by my father, and file a criminal suit against him, as would be the normal course of law. Any other suggestions are welcome from legal experts like you all... Thank you again!!!
1) chances of obtaining relief in review petition are bleak
2) hence advised you to file appeal before SC
3) you should emphasis the forgery done by your father . It would bolster your case
4) file police complaint against your father of forgery done by him
5) as on date the court impression is you are the villain , not taking care of your parents after gift deed was executed in your favour
6) you hav e to show that father acted under influence of your step mother
1. if you directly approach the supreme court challenging the HC order, then what if the SC dismisses your petition?
2. you are left with no option but to file a review petition before the SC itself
3. so its better either you file a review petition before the same HC bench which passed the order dismissing your petition OR you can file a writ appeal before division bench (just request your lawyer to find out if writ appeal can be filed in Bombay HC)
4. so if your review petition or writ appeal is not allowed then you have a chance before the SC
5. There is one Kerala HC division bench judgment which i came across while searching online which says that it is not compulsory that there has to be a clause stating that the gift is made subject to condition that donee will take care of basic amenities of donor who is a senior citizen (shabeen martin and anr. v/s muriel beemello). Request your lawyer to peruse this judgment and check whether it still holds the field or has been over-ruled by SC
6. I respect the suggestion of your lawyer, but I do not see any harm in making a passing reference that your dad forged your signature and removed your name from the Hiranandani flat on the instigation of his wife
7. had you stated in your petition that your father has other properties and also earns rental income?
8. in my view one needs to look at the object of the Senior Citizens Act. It is not enough that the children only pay money to their aged parents so that they can look after themselves on their own. That does not seem to be the intention of the legislature. Providing monetary benefits to parents is not intended. The words used in s.23 are of greater import in the sense that they state that the children shall provide basic amenities and physical needs. This cannot be taken care of by just providing money.
9. as a corollary - when you were a kid, did your parents give you to some organisation to look after you by providing the organisation with money? the kid would obviously need the love and affection of the parents
10. the fact that you intend to file a police complaint and criminal suit against your dad, evinces that your relationship with your father has soured. Then how can your father expect you to provide him basic amenities and physical needs of his during his old age? - this may perhaps have weighed in the mind of your lawyer because if you make such a plea, then court will go against you again - however a passing reference can be made as beforestated in the petition - depending on how the petition unfolds, your lawyer can either leave this ground and not agitate over it OR pursue it
11. you can suggest to the court that the gift deed in your favour be upheld - that your parents (including your step mom) can live with you - in case there is any friction in the family - then you can shift to a rented apartment or if your father wishes to any of his other properties as a gratituous licensee - and you can visit your parents regularly to take care of their physical needs
1. Law is interpreted by lawyers depending on circumstances and also depending on whose brief the lawyer is carrying. such interpretation is never fixed.
2. You shall have to get your said review petition allowed by the High Court and thereafter with the permission of the you shall have to submit your papers/documents/evidence under affidavit.
3. It appears that you have got adverse order from High Court for not filing the most vital document being the unconditional gift deed registered by your father in your favour.
4. Collect all the evidence in support of your argument now and then produce before the High Court.
5. If the High Court does not allow review petition or passes adverse order even after reviewing, you shall have to approach the Apex Court where no further evidence can be adduced and argument will be on the points of law based on the evidence already submitted before the High Court.
If you are aggrieved over the high court judgment of the high court then you can prefer an appeal against it before supreme court.
You should make sure that you have exhausted all the options in the high court pertaining to this case and your points were not considered.
You can prefer an appeal with strong grounds in the memorandum of appeal.
You may not be allowed to add new issues in the review petition.
You cannot rely upon the matter which was not discussed in the original writ petition.
You may have to express your grievances on the judgment alone.
If you travel beyond the contents of the writ petition, your review petition may not be even entertained, so don't run a risk.
The suggestion to prefer an appeal before supreme court will be the better option because you can file a review petition later on when the supreme court dismisses the appeal.
The criminal complaint can be lodged for forgery and also a suit to declare that transaction as null and void may also be filed simultaneously in the civil court.