It is very common in India that after a certain age, senior citizens and elderly persons transfer their property as a gift to their legal heirs, which in most cases are their children or grandchildren. The Government of India enacted the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in furtherance of the constitutional mandate enshrined in Article 41 of the Indian Constitution. Article 41 provides that “the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” The Act provides for the betterment of living conditions of senior citizens as well as providing relevant safeguards to prevent them from being subject to exploitation or ill-treatment. One of the main aims of the Act is to ensure that maintenance was provided to senior citizens by their heirs, whether it be children or grandchildren.
The Act, under Section 23 also provides that where property was gifted out of love and subsequently, the transferee fails to provide basic amenities and basic physical care to the transferor;-such a transfer would be voidable at the option of the transferor. It is to be noted that this provision specifically applies to only senior citizens and excludes any other person or class of persons from its ambit.
In this piece, I aim to review some of the decisions of the High Courts on the aforementioned section.
It should also be noted that any counter argument based on the irrevocability of the gift according to the provisions of the Transfer of Property Act stands diminished according to the legal principle of “generalibus specialia derogant”, i.e., if a special provision of law is made pertaining to a certain subject matter, the general provision of law which may be applied to the same subject matter stands nullified due to the presence of the specific law.
In Ramesh v. Ishwar Devi, the Punjab and Haryana High Court held, “it is often seen that after receiving the property from their parents, the children abandon them. In such a situation, Section 23 is a deterrent to this and hence is beneficial for the elderly old aged people who are incapable of taking care of themselves in their last phase of life.” According to recent trends, courts have been interpreting section 23(1) in a way that keeps the interest of senior citizens in mind in deciding the validity of gift deeds regarding the transfer of property from a senior citizen to their children. In S. Prashanth Kumar & Ors. v. The Deputy Commissioner, Bangalore Urban District and Ors, the Hon’ble Karnataka High Court held that if there is evidence available to the satisfaction of the authorities that the ingredient of section 23 is satisfied in a given case, the transfer deed may be invalidated under section 23 without the explicit mentioning of the basic amenity clause in the contract. The Delhi High Court in the matter Smt. Sunita Bhasin v. State of NCT of Delhi And Ors.,, recently held that it is implied in any gift of property, that is executed out of natural love and affection, that the transferee would reciprocate the love and affection and at the very least provide the basic amenities and meet the physical needs of the donor and express stipulation that the gift deed has been made on an understanding that the transferee would look after basic needs of the donor is not necessary. The latent nature of the maintenance clause under section 23 was reiterated by the Bombay High Court in the matter of Pritish Natvar Sanghvi v. Natvar Keshavlal Sanghvi & Anr, wherein it was held that the it was implicit in the agreement that the children are obligated to maintain the parents if they have transferred any property to them as a gift.
The Courts, when passing these orders have interpreted section 23 in such a manner that, that the explicit presence of the condition of maintenance does not have to be present in the contract transferring property to their children but is held to present in the same. But it should also be noted that the Kerala High Court, in the matter of Subhashini v. The District Collector and Ors:, although went to in a different direction to the above-mentioned judgments and the Hon’ble Justices opined that even though there is an element of morality in the legislation, that cannot be sole reigning consideration in interpreting a provision in a statute which totally extinguishes the rights of the transferee and held that a condition to provide basic amenities to the transferor must be included in the transfer deed in order for the transferor to invalidate the deed under section 23 of the Act. Such a judicial pronouncement defeats the legislative intent behind the Act and puts pressure on the senior citizens to include such a clause in their transfer deed which is again impractical when preparing a deed in favor of their children or grandchildren. Thus, the judiciary has kept the interests of the senior citizens of paramount importance in the promulgation of its orders which is in line with the legislative intent behind the creation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
This was written by Madhav Deepak, a fourth year law student from NLU, Jodhpur who interned with CLPR.