Mother cannot seek cancellation of gift deed executed by father or vice-versa, rules Madras High Court
The Madras High Court on Thursday held that revenue authorities cannot take steps to cancel gift deeds, by invoking their power under the Maintenance and Welfare of Parents and Senior Citizens Act of 2007, if the father had executed the deed but the mother had filed an application for cancellation or vice-versa.
Justice N. Anand Venkatesh ruled that as per the scheme of the 2007 Act, only the transferror of a property by way of gift, settlement or such other mode of transfer could maintain an application for cancellation too if the children fail to maintain him/her as per a specific condition that had been mentioned in the deed itself.
'No other person can maintain an application under Section 23(1) of the Act. As a consequence, the application submitted by the mother of the present petitioner is not maintainable and the second respondent (Kallakurichi Revenue Divisional Officer) ought not to have entertained the application and passed orders,' he wrote.
The verdict was delivered while allowing a writ petition filed by Karuppan of Kallkurichi against the RDO's February 15, 2019 order for cancelling the gift deed executed in his favour by his father in 1997. After the father's death, the petitioner's mother had sought cancellation of the deed since he failed to take care of her.
Justice Venkatesh set aside the RDO's order and directed the Sub Registrar to remove the encumbrance from the property not only on the ground that the cancellation application had not been filed by the executor but also on the ground that the gift deed did not impose any condition regarding maintenance of parents.
The judge pointed out that at least five judges of the Madras High Court sitting single had taken a consistent view that parents could seek cancellation of gift deeds only if a specific condition had been imposed in them that the children must take care of them during old age failing which the deeds were liable to cancellation.
Similar view had been taken by the Andhra Pradesh, Telangana, Karnataka and Calcutta High Courts too. However, one Division Bench of the Madras High Court alone had taken a contrary view that the condition need not be mentioned explicitly in the gift deed and that the maintenance of parents was an implicit requirement.
'It is well settled that courts cannot rewrite a statutory provision when the words used by the legislature are plain and unambiguous,' Justice Venkatesh said and pointed out that the Supreme Court judgements relied upon by the Division Bench nowhere state that the condition for maintenance need not be explicit.
'This court has carefully gone through the Supreme Court's decision in Urmila Dixit's case and is unable to find a single sentence/word in that decision which supports the theory of 'implied condition' propounded by the Division Bench of this Court in the case of S. Mala,' Justice Venkatesh said.
Therefore, stating that the Division Bench had not laid down the law correctly, the judge held that gift deeds could not be cancelled if the properties had been settled, in favour of the children, absolutely without imposition of any condition to take care of the parents.
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