Partition Of Joint Family Property Not 'Transfer' Under Senior Citizens Act, Can't Be Cancelled For Failure To Maintain Parents: AP High Court

The Andhra Pradesh High Court has held that partition of a joint family property does not amount to "transfer of property" under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and hence such a registered partition deed cannot be cancelled for failure to maintain senior citizen parents, by invoking Section 23 of the Act. 

In doing so the court held that while a transfer contemplates passing of an interest in property from one person to another, a partition merely separates rights that already existed; thus the two cannot be equated. 

As per Section 23 of the Act, any senior citizen who, after the commencement of the 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.

Justice Venkateswarlu Nimmagadda allowed a writ petition filed by a son and his wife challenging the order of the Appellate Tribunal under the Act, which had directed cancellation of a registered partition deed executed between the son and his mother.

Examining the scope of Section 23(1), the Court held that power under Section 23(1) of the Act can be exercised only where there is a transfer of property by a senior citizen, subject to a condition that the transferee would provide maintenance or basic amenities, and the transferee fails to fulfil that obligation.

The Court observed:

"Applying the aforesaid principles to the facts of the present case, it is evident that the document sought to be cancelled is a registered partition deed executed between Petitioner No.1 and Respondent No.8. The petitioners have contended that both parties possessed pre-existing rights in the properties and that the partition deed defined and separated those rights. The material placed on record does not indicate that respondent No.8 transferred her property to petitioner No.1 under the said document. Thus, the very foundation for exercise of power under Section 23(1), i.e. a transfer by a senior citizen in favour of a transferee, is absent, as such, the impugned order cannot be sustained.

Section 23(1) contemplates a transfer made subject to a condition that the transferee shall provide basic amenities and physical needs to the transferor. In the present case, no material has been placed before this Court to demonstrate that the partition deed dated 30.03.2018 contains any stipulation requiring Petitioner No.1 to maintain Respondent No.8 or provide her with basic amenities and physical needs. In the absence of any such condition forming part of the deed, the statutory requirement contained in Section 23(1) remains unfulfilled. Moreover, it is not the case of Respondent No.8 that the petitioner violated the terms or conditions as recited in the partition deed. Even assuming any such violation, that violation cannot be canvassed under Section 23 of the Act and Rules made thereunder"

The court said that merely because disputes relating to maintenance have arisen between the parties, it cannot be a ground to annul a partition deed. It said that such disputes may entitle respondent No.8-mother to seek maintenance or any other relief available under the Act, but it does not confer jurisdiction upon the Tribunal to invalidate a transaction that does not answer the description of a transfer as contemplated under Section 23(1) of the Act. 

The dispute arose after the petitioners executed a registered partition deed in respect of their joint family properties. The mother later sought cancellation of the deed before the Tribunal under the 2007 Act.

Although the Tribunal dismissed her application, the Appellate Tribunal allowed her appeal and directed cancellation of the partition deed.

Such cancellation was challenged by the petitioners arguing that the properties were joint family properties in which both parties had pre-existing rights and that the partition deed merely divided those rights without effecting any transfer. They also argued that the deed contained no condition requiring the son to maintain his mother or provide basic amenities, making Section 23(1) inapplicable.

The court also observed that the expression "gift or otherwise", it said, cannot be construed to include a partition.

Finding that the essential statutory ingredients for invoking Section 23(1) were absent, the Court ruled that the Appellate Tribunal had acted without jurisdiction in directing cancellation of the registered partition deed.

Accordingly, it set aside the impugned order, restored the registered partition deed, and clarified that the respondent was free to pursue any other remedy available in law for seeking annulment of the deed.

Case Title: Uddagiri Srirama Murthy & Anr. v. State of Andhra Pradesh & Ors.

Case No.: Writ Petition No. 29223 of 2023

Counsel for the Petitioners: Sri Saras Chandra Babu Jakkamsetty

Counsel for the Respondents: GP for Revenue; Smt. Santhisree Vallabhaneni