Introduction
Fifteen years ago, senior citizens (citizens aged 60 years and above), were provided the benefit of statutory protection for certain vital rights under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizens Act). These rights included the right to reclaim property gifted or transferred to children or heirs.
To briefly summarise, per section 23(1) of the Senior Citizens Act, a gift or transfer of property by a senior citizen may be declared void by a Maintenance Tribunal (established under the Senior Citizens Act), at the option of the senior citizen if the gift or transfer of property is deemed to have been made by fraud, coercion or undue influence. This would be in a case where: (i) such gift or transfer is subject to the condition that the transferee provides basic amenities or physical needs to the transferor (senior citizen); and (ii) the transferee has failed or refused to provide them.
Over the past decade though, this provision had become highly interpreted. While interpreting the provision, the Courts have been differing on whether, to attract section 23(1), a gift or transfer deed needs to include an express condition stating that the transferee should provide basic amenities to them or cater to their physical needs of the transferor or if such a condition is implicit in the deed. While the Mumbai, Delhi, and Punjab and Haryana High Courts had taken the liberal view and provided relief even when deeds did not contain an express condition, the Kolkata and Kerala High Courts had refused to do so.
This position has now been settled by the Supreme Court of India (SC), in a judgment passed in the matter of Sudesh Chhikara v. Ramti Devi & Anr.[1](the Judgment) in December, 2022. This judgment has provided much needed clarity on the issue.
Background facts of the Judgment
The Judgment was borne out of a petition filed by a senior citizen, Mrs. Ramti Devi (the Respondent), under section 23(1) of the Senior Citizens Act. The Respondent had, in 2008, executed a release deed (2008 Release Deed) in favour of her two daughters, with respect to certain land owned by her. However, a few years later, she filed a petition before the Maintenance Tribunal for cancellation of the 2008 Release Deed, claiming that her children were not maintaining her and her relationship with them was strained.
The Maintenance Tribunal held that the 2008 Release Deed was void as the children were unwilling to take care of the Respondent. This order was confirmed by the High Court of Punjab and Haryana. Aggrieved by the order of the High Court, the daughter of the Respondent, Sudesh Chhikara, sought relief from the SC.
SC ruling in the Judgment
On a review of section 23(1) of the Senior Citizens Act, the SC observed that for a transfer to be declared void at the instance of the transferor (senior citizen) on account of it deemed to have been made by fraud, coercion, or undue influence, both the following conditions must be fulfilled:
- The transfer was made subject to the condition that the transferee would provide basic amenities and basic physical needs to the transferor; and
- The transferee refused to or failed to provide such amenities and physical needs to the transferor.
Accordingly, the SC observed that the first condition of providing basic amenities and basic physical needs to the transferor (senior citizen) is sine qua non (an essential condition) for the applicability of section 23(1) of the Senior Citizens Act and the transfer deed should be subject to such a condition.
The SC further noted that a condition of looking after a senior citizen is not necessarily attached to a deed of transfer by a senior citizen in favour a family member. On the contrary, such transfers are typically made out of love and affection, without any expectations in return. Therefore, if it is alleged that the conditions mentioned above are attached to a transfer, the existence of such conditions in the transfer deed must be established before the Maintenance Tribunal.
On this basis, in the matter at hand, the SC held that the order of the Maintenance Tribunal could not be sustained as the 2008 Release Deed was not subject to a condition that the transferees (Respondent’s daughters) were to provide basic amenities and physical needs to the transferor (Respondent).
Comment
Through the Judgment, the SC has clarified the position on what was, until now, a highly interpreted clause. Going forward, senior citizens who are gifting or transferring property to their child or heir on the condition that the transferee provides basic amenities to them or caters to their physical needs, should include an express provision to this effect in the gift or transfer deed. Without this, they will be unable to reclaim gifted or transferred property should the child or heir fail to provide amenities or tend to their needs. Such deeds should preferably be vetted by legal advisors representing the senior citizens.
For further information, please contact:
Shaishavi Kadakia , Partner, Cyril Amarchand Mangaldas
shaishavi.kadakia@cyrilshroff.com
[1] Civil Appeal No. 174 of 2021.
