INTERNAL ASSIGNMENT

MADHUSUDAN LAW UNIVERSITY, CUTTACK

BEFORE
THE HON’BLE SUPREME COURT OF ODISHA

IN THE MATTER OF

ARJUN GANGULY APPELLANT

VS

GAUTAM GANGULY RESPONDENT

WRITTEN SUBMISSION ON THE BEHALF OF THE APPELLANT

COUNSEL FOR THE APPELLANT

NAME: SELINA SAHOO

SEMESTER: 4TH [5 YR BA LLB HONS]
ROLL NO. 4510121081

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 MEMORIAL FOR THE APPELLANT

TABLE OF CONTENTS

TABLE OF AUTHORITIES 2
ABBREVIATIONS 3
STATEMENT OF JURISDICTION 4
STATEMENT OF FACTS 5
ISSUES RAISED 7
SUMMARY OF ARGUMENTS 8
ARGUMENTS ADVANCED 12
PRAYER 16

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 MEMORIAL FOR THE APPELLANT

TABLE OF AUTHORITIES

STATUTES
TRANSFER OF PROPERTY ACT, 1882
MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS
ACT, 2007
REGISTRATION ACT, 1908

CASES
MOOL RAJ V. JAMMA DEVI, AIR 1995 HP 117

BOOKS
THE TRANSFER OF PROPERTY ACT, 1882, DR. R. K. SINHA, 22ND
EDITION, CENTRAL LAW AGENGY

WEBSITES
WWW.LEGALSERVICEINDIA.COM
WWW.BLOG.IPLEADERS.IN
WWW.VIKASPEDIA.IN
WWW.INDIANKANOON.ORG

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 MEMORIAL FOR THE APPELLANT

ABBREVIATIONS

TP ACT, 1882 TRANSFER OF PROPERTY ACT

MWPCS ACT, 2007 MAINTAINANCE AND WELFARE OF

PARENTS AND SENIOR CITIZENS ACT, 2007

HC HIGH COURT

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 MEMORIAL FOR THE APPELLANT

STATEMENT OF JURISDICTION

The appellant in the present case has approached the hon’ble Supreme
Court of India to initiate the present appeal under article 136 of the
constitution of India. The appellant most humbly and respectfully
submits to the jurisdiction of the hon’ble Supreme Court in the present
matter.

ARTICLE 136. SPECIAL LEAVE TO APPEAL BY THE SUPREME

COURT
(1) Notwithstanding anything in this Chapter, the Supreme Court may,
in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination,

sentence or order passed or made by any court or tribunal constituted by
or under any law relating to the Armed Forces

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 MEMORIAL FOR THE APPELLANT

STATEMENT OF FACTS

Sri Gautam Ganguly, 62, is a retired government employee who

receives roughly Rs. 10,000 in pension per month. He lost his
first spouse in 2010. He resides with his son, Mr. Arjun
Ganguly, and his daughter-in-law, Mrs. Saara. When Mr.
Gautam revealed his desire to be in a live-in relationship with
Ms. Neelima (age 45), they were both coldly stunned to hear
him out. However, they eventually gave in and asked their father
to give them a transfer of their half share in the Hooghly Estates
House property, which was believed to be worth Rs. 10,000,000.
To keep the harmony among the family, Gautam Ganguly gave
his son a registered gift deed in May 2011 to transfer his half
interest in the property to him. However, after more than a year
of insults and severe mistreatment from the son and daughter-in-
law towards Ms. Neelima, Gautam and Neelima moved to new
quarters.
The Sub-Collector declared an order at the Tribunal stating that
"elderly parents can take back property gifted to a son, if he
treats them badly." This ruling enables the complainant, a father,
to revoke the gift deed from his son since the latter is failing to
provide the couple's essential needs. The District Collector
overturned the Tribunal's decision in the Appellate Tribunal by
"accepting the son's argument that an accepted gift through
registered deed cannot be revoked" in accordance with the
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Transfer of Property Act of 1882 read in conjunction with the
Registration Act of 1908.
After that, the Calcutta High Court provided Mr. Gautam with
relief when it reinstated the Tribunal's order. Mr. Arjun, the son
of Mr. Gautam, preferred a Special Leave Petition before the
Supreme Court as a last resort.

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 MEMORIAL FOR THE APPELLANT

ISSUES RAISED

I. WHETHER THE GIFT DEED IS REVOCABLE OR

NOT?

II. WHETHER SECTION 23 OF MAINTAINANCE

AND WELFARE OF PARENTS AND WELFARE
AND SENIOR CITIZENS ACT, 2007 IS
MAINTAINABLE OR NOT?

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 MEMORIAL FOR THE APPELLANT

SUMMARY OF ARGUMENTS

I. WHETHER THE GIFT DEED IS REVOCABLE

OR NOT?

It is humbly submitted by petitioner that the Hon’ble Supreme Court

has the power to grant special leave under Article 136 of the
Constitution of India and the petition filed for revoking registered gift
deed is maintainable.
The Calcutta High Court the held that the revocation of registered gift
deed is valid, as the basic needs are not maintained by Mr. Arjun.
The Counsel brings notice to the Hon’ble Supreme Court that
revocation cannot be done if the gift has been registered. 1 It is
however subject to exceptions, where a gift can be revoked in cases of
mutual agreement or rescission which are absent in the present case.
___________________________________
1
Section 123 of Transfer of Property Act. Transfer how effected- For the purpose of making a
gift of immovable property, the transfer must be effected by a registered instrument signed by
or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
Section 17 of Registration Act; Documents of which registration is compulsory.—(l) The
following documents shall be registered, if the property to which they relate is situate in a
district in which, and if they have been executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act came or comes into force, namely:—

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(a) instruments of gift of immovable property

MEMORIAL FOR THE APPELLANT

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 SUMMARY OF ARGUMENTS

II. WHETHER SECTION 23 OF MAINTAINANCE

AND WELFARE OF PARENTS AND SENIOR
CITIZENS ACT, 2007 IS MAINTAINABLE OR
NOT?

The counsel for the appellant humbly submits that the revocation of
the gift deed under Section 23 of the Maintenance and Welfare of
Parents and Citizens Act, 2007 cannot be applied in this case. The
counsel further submits that the said ill-treatment was not made to the
father of the appellant but rather to his live-in partner. Under
MWPSC Act 2007, the maintenance can be claimed by a parent or a
senior citizen who is unable to maintain themselves from their
children, grand-children or relative. 1 According to Sec 2(g) of the
same act maintenance of a live-in partner does not under the
definition of a relative.2
Moreover, the live-in partner of the respondent is not a senior citizen
as she has not reached the age of sixty 3 and thus cannot claim any
maintenance under this act.
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4. Maintenance of parents and senior citizens.—(1) A senior citizen including parent who is
unable to maintain himself from his own earning or out of the property owned by him, shall
be entitled to make an application under section 5 in case of—
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section
2.
(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen
extends to the needs of such citizen so that senior citizen may lead a normal life.

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(3) The obligation of the children to maintain his or her parent extends to the needs of such
parent either father or mother or both, as the case may be, so that such parent may lead a
normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall maintain
such senior citizen provided he is in possession of the property of such citizen or he would
inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior
citizen, the maintenance shall be payable by such relative in the proportion in which they
would inherit his property.

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2. Definitions.—In this Act, unless the context otherwise requires,—
(a) “children” includes son, daughter, grandson and grand-daughter but does not include a
minor;
(b) “maintenance” includes provisions for food, clothing, residence and medical attendance
and treatment;
(c) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875)
is deemed not to have attained the age of majority;
(d) “parent” means father or mother whether biological, adoptive or step father or step
mother, as the case may be, whether or not the father or the mother is a senior citizen;
(e) “prescribed” means prescribed by rules made by the State Government under this Act;
(f) “property” means property of any kind, whether movable or immovable, ancestral or self
acquired, tangible or intangible and includes rights or interests in such property;
(g) “relative” means any legal heir of the childless senior citizen who is not a minor and is in
possession of or would inherit his property after his death;
(h) “senior citizen” means any person being a citizen of India, who has attained the age of
sixty years or above;
(i) “State Government”, relation to a Union territory, means the administrator thereof
appointed under article 239 of the Constitution;
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(j) “Tribunal” means the Maintenance Tribunal constituted under section 7;
(k) “welfare” means provision for food, health care, recreation centres and other amenities
necessary for the senior citizens.

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 MEMORIAL FOR THE APPELLANT

ARGUMENTS ADVANCED

I. WHETHER THE GIFT DEED IS REVOCABLE

OR NOT?

The Counsel for the appellant humbly submits that the gift deed made
by the father of the appellant is irrevocable due to the absence of
proper grounds for revocation of the gift deed.

1. Validity of the Transfer of the Gift Deed

 Gift is the transfer of ownership without consideration. This

transfer must be done voluntarily by the donor, who must be a
competent person to transfer the ownership to the donee.1
 Voluntary act on the part of the donor also means to suggest that
the donor has executed the gift-deed in full knowledge of
circumstances and nature of the transaction.2

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1
Section 122 of Transfer of Property Act
2
Page 524, The Transfer of Property Act,1882, Dr. R. K. Sinha, Central Law Agency

MEMORIAL FOR THE APPELLANT

2. No conditions were mentioned in the Gift-Deed

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 Any condition revoking the gift must be express; it should not
be merely in the form of a wish or desire. Moreover, under the
TP Act, 1882, the donor and done must mutually agree to such
condition which does not depend on the will of the donor.1
 In the case Mool Raj v. Jamma Devi2, since the condition of
revocation of gift upon donee’s failure to render services to
donor was not laid down in the deed, it was unconditional gift
and therefore, cannot be revoked by the donor.
 Where a condition has not been expressly laid down in the gift
deed, it might be treated simply as the wish or desire of the
donor and is not a condition upon the breach of which gift could
be made revocable by donor.
 In this case, the respondent puts down a burden on the appellant
to maintain his live-in partner as per his desires, which was not
mutually agreed between the parties as a condition for
revocation.

_____________________________________________
1
Section 126 of Transfer of Property Act, 1882
2
AIR 1995 HP 117

MEMORIAL FOR THE APPELLANT

ARGUMENTS ADVANCED

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II. WHETHER SECTION 23 OF MAINTAINANCE
AND WELFARE OF PARENTS AND SENIOR
CITIZENS ACT, 2007 IS MAINTAINABLE OR
NOT?

The Counsel of the Appellant humbly submits that the Section 23 of

Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is
not maintainable.

1. As per the facts of the case, it is nowhere mentioned that the

appellant and his wife were hostile or ill-treated towards the
respondent (Mr. Gautam) but his live-in partner.

2. According to the MWPSC Act, 2007, any senior citizen, who has
reached the age of 60, or a parent, who is unable to maintain
himself from his own earning or property can claim maintenance in
cases where they are either a parent or a grand-parent, or they are a
childless relative of the person from whom they are claiming
maintenance.1

___________________________________________________
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4. Maintenance of parents and senior citizens.—(1) A senior citizen including parent
who is unable to maintain himself from his own earning or out of the property owned by
him, shall be entitled to make an application under section 5 in case of—
(i) parent or grand-parent, against one or more of his children not being a minor;
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of
section 2.

MEMORIAL FOR THE APPELLANT

3. Live-in partner is not equivalent to wife. In India, no personal laws

recognize a live-in partner to be equivalent to wife. Moreover, the only

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 person the live-in partner can claim maintenance is from the person
with whom they are in live-in relationship.1
4. According to MWPCS Act, a parent’s live-in partner does not come
under the purview of relative as defined under section 2(g) of the said
act.2
5. Furthermore, in a judgement by the Madras HC 3, it was held that the
elderly cannot seek cancellation of property transfer documents by
invoking the Maintenance and Welfare of Parents and Senior Citizens
Act of 2007, if the document does not contain a clause imposing an
obligation on the transferee to maintain the transferor.
6. There were two essential pre-conditions for seeking a declaration of the
property transfer as null and void under Section 23 of the 2007 Act.
The first condition was that the transfer document should have been
executed after the Act came into force and secondly, it should create an
obligation to maintain the transferor.
7. Since, in this case, neither the gift-deed, nor the provisions under the
MWPCS Act create any obligation on the appellant to maintain the
live-in partner of his father, Section 23 of the MWPCS Act has not
been invoked, and thus, is not maintainable in this case.

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1
Section 125 of Code of Criminal Procedure
2
Section 2 (g) of Maintainance and Welfare of Parents and Senior Citizen Act
3
Mohamed Imranullah S., Senior citizens cannot seek cancellation of property transfer if
document does not contain clause on maintenance, says Madras HC; THE HINDU,
December 14, 2022 - CHENNAI

MEMORIAL FOR THE APPELLANT

PRAYER

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The Counsel of the Appellant respectfully prays before this Hon’ble
Court that it may be pleased given the facts stated, the issues discussed,
the arguments put forth, and the references made and —

1. upheld the judgement of the Appellate Tribunal that an accepted

gift through registered deed cannot be revoked.
2. pass any other order or make directions as the Hon’ble Court may
deem fit to meet the interest of justice, equity and good conscience
in the instant case.

And for this act of kindness, the Counsel of Appellant shall duty bound
forever pray.

Respectfully Submitted on Behalf of the Appellant

COUNSEL FOR APPELLANT

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