Many a time, the senior citizens out of love or to fulfil the unscrupulous demands of their children, transfer their properties in favour of their children. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a beneficial legislation which comes to their rescue if they are ill-treated by their children or relatives after such transfer. Section 23(1) of the Act makes such a transfer revocable at the option of the senior citizen and has an overriding effect over the Section 126 of the Transfer of Property Act, 1882.[i] It provides-
“Where any senior citizen who, after the commencement of this Act, 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 or 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.”
The need for the existence of the condition of providing basic amenities and fulfilling the physical needs of the transferor, as mentioned in the provision, has been interpreted differently by various Courts. The Hon’ble High Court of Punjab & Haryana in Jagmeet Kaur Pannu v. Ranjit Kaur Pannu[ii] held that a senior citizen will be debarred from seeking relief under this provision if the transfer deed did not specifically provide for this condition. This decision was overturned in Raksha Devi v. Deputy Commissioner-cum-District Magistrate, Hoshiarpur[iii] wherein the Court opined that the plain language of Section 23(1) did not suggest the requirement of a written maintenance condition. It was observed that a strict interpretation would harm the interests of senior citizens, which was contrary to the legislative intent of the Act. However, interestingly, the Court did not hold that there was no requirement of this condition at all, rather, it held that the condition could be either express or implied through surrounding circumstances.
Similarly, the Hon’ble Calcutta High Court in Debashish Mukherjee v. Sanjib Mukherjee[iv] held that since the gift deed executed by the mother in favour of her son was absolute and without any condition that he would have to provide basic amenities to the transferor, the application under Section by the parents was not maintainable. Similar observations have been made in the case of Anirban Chakraborty v. State of West Bengal.[v]
On the other hand, in the case of Promil Tomar v. State of Haryana[vi], it was observed that for the applicability of Section 23, a latent maintenance condition exists whenever a transfer is made by a parent in favour of his child. Similarly, the Hon’ble Delhi High Court in Sunita Bhasin v. State of NCT of Delhi[vii] has observed that in any gift of property, executed out of love, it is implicit that the Donee will provide basic amenities and meet the physical needs of the Donor.
The Hon’ble Kerala High Court in Radhamandi v. State of Kerala[viii] observed the condition under Section 23 had to be ascertained by the conduct of the transferee, before and after the execution of the deed of transfer and that an express recital in that regard was not required.
The Hon’ble Delhi High Court in the recent case of Renu Anand v. The Maintenance Tribunal[ix] allowed the appeal of the transferee and set aside the order of Maintenance Tribunal which had declared the transfer void. It observed-
“Section 23 of the Act does provide recourse to senior citizens to avoid transfer of their property to relatives, if their needs are not met. In the present case, the basic needs of the Smt. Satya Rani Chopra were, concededly, being met, albeit not by the Petitioner.”
Interestingly, the Court made it clear that for seeking aid under this provision, the senior citizen should, in fact, show that he/she is not being maintained by anyone and not necessarily by the transferee. As there has been no judgment of the Hon’ble Supreme Court in this regard, the issue is yet to be settled.
Draft Amendment Bill, 2018
The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Draft Bill, 2018 intends to replace the existing Section 23(1) with the following-
“Where any parent(s) or senior citizen(s) who has transferred by way of gift or otherwise, his/her property, subject to the condition, that the transferee shall provide basic amenities and physical needs such as food, clothing, residence, medical attendance, treatment, recreation etc. to the transferor to lead a life of dignity and that the transferee shall not further transfer or sell the said property without the consent of senior citizen(s)/ parent(s), and if such transferee refuses or fails to provide such amenities, 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”
While the proposed Amendment does provide some more social security to the parents and senior citizens by making the re-transfers by a transferee subject to their prior consent, it does not remove the requirement of a maintenance condition. Practically, this proposed Amendment fails to resolve the issue faced by the Courts in the implementation of this provision.
In Indian society, trust is often the driving factor for such transfers. In reality, many senior citizens may not be aware of this provision. They will be in a vulnerable position if they are not able to prove the existence of this condition. The relatives or the children should not be allowed to take advantage of the emotionally dependent senior citizens, due to such technicalities. Considering that the objective of this provision is the welfare of senior citizens, the requirement of the maintenance condition in the transfer poses a roadblock in reaping its benefits.
The author supports the view taken by the Hon’ble Delhi High Court[x] that any such transfer which is executed out of love, the promise of providing basic amenities and fulfilling the physical needs of the transferor will be presumed. It is hoped that the final version of the Amendment Bill addresses this issue and is in the best interest of the senior citizens.
[i] Raksha Devi v. Deputy Commissioner-cum-District Magistrate, Hoshiarpur, 2018(4) RCR (Civil) 218.
[ii] Jagmeet Kaur Pannu v. Ranjit Kaur Pannu, 2016 (2) RCR (Civil) 82.
[iii] Raksha Devi v. Deputy Commissioner-cum-District Magistrate, Hoshiarpur, 2018(4) RCR (Civil) 218; Shabeen Martin, w/o. Williamsree Jayan v. Muriel, 2017 (2) RCR (Civil) 485.
[iv]Debashish Mukherjee v. Sanjib Mukherjee, 2018(1) CHN (CAL) 481; Mita Panda v. Minati Chakrabarty and Ors., (2019)1WBLR(Cal)668.
[v] Anirban Chakraborty v. State of West Bengal, MANU/WB/1188/2019.
[vi] Promil Tomar v. State of Haryana, (2014) 175(1) PLR 94.
[vii] Sunita Bhasin v. State of NCT of Delhi, W.P.(C) 13139/2018, decided on 05.12.2018.
[viii] Radhamandi v. State of Kerala, 2015 (64) RCR (Civil) 702.
[ix] Renu Anand v. The Maintenance Tribunal, 260 (2019) DLT 23.
[x] Supra note vii.
ABOUT THE AUTHOR
Ms Nehreen Mehra is a fourth-year student of the BA.LLB course at Amity Law School Delhi (GGSIP University). Her areas of interest include the IBC, Arbitration, Property Law, Corporate Law and Competition Law. She believes in spreading legal awareness across society.
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