In 2007, the Central Government passed a significant social welfare
legislation aimed at protecting and promoting the rights of Senior Citizens.
This legislation, known as "The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007," includes a range of provisions, such as Maintenance
(Section 9), establishment of old-age homes (Section 19), and the cancellation
of transfer deeds (Section 23).
While most of the Act's provisions and their interpretation have been settled
over the past 16 years, there remained one unresolved issue: Section 23(1),
which deals with the cancellation of transfer deeds. Before delving further into
the topic, it is crucial to examine the key components of Section 23(1) of the
Maintenance and Welfare of Parents and Senior Citizens Act, 2007. According to
this section, the transfer of property will be considered null and void under
Specifically, if a senior citizen transfers their property, either through gift
or other means, on the condition that the recipient will provide basic amenities
and physical needs to the transferor, and the recipient fails to do so, then the
transfer of property will be deemed to have been carried out through fraud,
coercion, or undue influence. The transferor can choose to have the transfer of
property declared void by the Tribunal.
The interpretation of this provision has varied among different High Courts.
While the High Courts of Delhi, Kerala, Punjab, and Chandigarh have taken a
broad view and ruled that there is no requirement for an explicit condition
related to providing basic amenities and physical needs, as such conditions are
assumed to be implicit in transfers made by senior citizens to their relatives
or children, other High Courts have not been as supportive of this liberal
interpretation. They have instead held that an explicit condition must be
included in the transfer deed for this section to be invoked.
The Sudesh Chhikara v. Ramti Devi & Anr
(CA 174 OF 2021), which was
recently heard by the Hon'ble Supreme Court, has provided clarity to certain
extent on this issue and tried to resolved the matter. However, some believe
that the judgment has raised more questions than it has answered and may
contradict the underlying principles of this social welfare legislation.
The Hon'ble Court observed that in cases where a senior citizen gifts or
transfers their property to their relatives or loved ones, they may not
necessarily attach any condition of taking care of the senior citizen. Such
transfers are often made purely out of love and affection without any
expectation of receiving anything in return. Hence, in situations where it is
claimed that the conditions outlined in sub-section (1) of Section 23 are
attached to the transfer, it is essential to prove the existence of such
conditions before the Tribunal.
The observation mentioned above raises two significant questions that are
relevant in the context of Section 23 (1) of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007:
- Is it necessary to include an express condition regarding providing
basic amenities and physical needs in transfers governed by Section 23 (1)?
- If such a condition is not expressly provided, how can the existence of
the condition be established before the Tribunal?
These questions highlight the challenges faced by individuals seeking to
invoke this provision in a transfer of property. The absence of an explicit
condition makes it difficult to prove the existence of the condition at the time
of the transfer.
The recent judgment (Supra) has led to a divergence of opinion among legal
experts on the interpretation of Section 23(1) of the Maintenance and Welfare of
Parents and Senior Citizens Act, 2007. While some experts believe that an
express condition regarding providing basic amenities and physical needs must be
included in the transfer deed, others argue that the existence of such a
condition can be inferred from the circumstances surrounding the transfer, even
if it is not expressly stated in the deed.
Further to the judgement (Supra), the Hon'ble Apex Court has observed that the
petition filed under Section 23 by respondent did not even plead that the
release deed was executed subject to a condition that the transferees would
provide basic amenities and physical needs to respondent. Even in the counter
Affidavit, such a condition was not pleaded. This suggests that it is not enough
to merely infer the existence of such a condition; rather, it must be expressly
stated or pleaded in the relevant petitions.
Therefore, it appears that the existence of the condition mentioned in Section
23(1) must be established in a clear and unambiguous manner, either through an
express mention in the transfer deed or through a clear pleading in the relevant
petitions filed before the Tribunal.
The adoption of the first part of the interpretation by the Hon'ble Supreme
Court, which requires an express condition in the transfer deed, poses a
problem. If this interpretation is consistently followed in future cases, it
would defeat the very purpose of the welfare legislation.
This is because many senior citizens in small towns and villages may not have
access to competent legal advisors while executing such transfer deeds and may
become victims of neglect by their relatives and children. This would leave them
helpless and homeless. Therefore, the Hon'ble Apex Court needs to provide more
clarity and approach the subject matter with empathy while adjudicating such
matters and set a clear precedent in favour of senior citizens.