Now, Property Transfer Deed by Senior Citizen Parent to negligent children can be revoked even if there is NO recital of Welfare Clause in the Transfer deed !

If the parents are not only exposed to emotional neglect, feeling of rejection, social insecurity, but to physical and financial support also, throwing a major challenge to their very peaceful existence, then it is fundamental right of the parents to seek a life of dignity, peace and liberty at this stage and that it is necessary to enforce the provisions of law.

The question arose again; In the absence of specific recital as conditions referred in the Transfer Deed by the Transferor i.e. Parent to Transferee i.e. Child(ren), whether Tribunal has a power to declare transfer as void?.

The Kerala High Court decided; A deed can be declared as void on not fulfilling the two conditions; (a) transferee shall provide the basic amenities and basic physical needs to the transferor and (b) such transferee refuses or fails to provide such amenities and physical needs, and declared transfer as a fraud or coercion or under undue influence, as the case may be at the option of the transferor, even if there is NO recital of welfare clause in the Transfer Deed.

{A}The aged parents expect that their children whom they have raised with love, affection and care shall care for them and tend to their needs in their sunset years.

The moral obligation to support one's own aged parents can be found in different cultures and religions. Despite the preaching's by religion, teachings of teachers, learning's by education, moralities by cultures, traditions by customs, discourses by societies, upbringing by parents: The children when they become adults may abuse, torment, harass their own Parents and snatch their peace of mind, assets, properties.

The situation is at times complicated when aged parents transfer their properties to their children out of love and affection expecting care in return and thereafter children become negligent and don't care!

Then the Legislature, Law, Enactments, State, Courts of law have to rise and the Long Arms of Law are to be stretched to embrace the aged, Senior Citizens and Parents  that are not able to defend themselves.

The real tension arises when this moral obligation of children to care for their aged parents crystallizes into a duty enforceable by law and dirt is spilled on parents by their own children.

{B} Incorporate  stringent provisions in land registration deeds, that makes the transfer of property illegal or void if the elderly are not provided basic amenities by the beneficiaries.

The Amritsar administration incorporated a stringent provision in land registration deeds, which makes the transfer of such property illegal or void if the elderly are not provided basic amenities by the beneficiaries.

In a letter to all sub-registrars and joint sub-registrars on December 26,2012, the district additional deputy commissioner (G) has directed them to make it mandatory to include Section 23 of the Maintenance and Welfare of Parents and Senior Citizenship Act, 2007, in the registration deeds of property, that the elderly transfer to their children or legal heirs.

The incorporation of the clause in the registries would in effect mean that the registries would be liable to be cancelled if the maintenance and physical needs of the senior citizens are not taken care of by the children or legal heir. Thirty five elderly persons of Amritsar had been benefited with the pronouncements of courts of the Tribunals under the Maintenance and Welfare of Parents and Senior Citizens Act in 8 months.

Properly informed and supported Parents can speedy, cost effective remedies from designated authorities per Rules framed under the Act of 2007.

e.g: Maintenance Tribunal, District West Delhi.
Under the Maintenance and Welfare of Parents and Senior Citizen Act, 2007
Smt. Raj Kumari Gambhir Vs Rajat Gambhir, Ankit Gambhir
Dated; 03-06-2014

The Tribunal Ordered: The gift deed of dated;25-11-2011 be treated as null and void on counts of concealment of facts, negligence, disrespectful, intimidating, threatening, intimidating, callous behavior, on part of done grandsons Rajat Gambhir, Ankit Gambhir and  grandson  Ankit and daughter in law Nimmi shall be respectful towards Senior Citizens Smt. Raj Kumari Gambhir and shri S.L. Gambhir.

Sub-divisional Magistrate Dasuya Barjinder Singh cancelled the registered deeds of transfer of ownership;

Raksha Devi Vs Amar kaur
Mehnga Ram vs Satwinder Pal Singh
Dated; 10-04-2015 Decided on 24-07-2015

{C} (a) The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (In short Act of 2007)

2(k): 'welfare' means provision for food, health care, recreation centers and other amenities necessary for the senior citizens.

16. Appeals.-(1.)  Any senior citizen or a parent, as the case may be, aggrieved by an order of a Tribunal may, within sixty days from the date of the order, prefer an appeal to the Appellate Tribunal :

21 Measures for publicity, awareness, etc., for welfare of senior citizen. -

The State Government shall, take all measures to ensure that -

(i) the provisions of this Act are given wide publicity through public media including the television, radio and the print, at regular intervals;

23 Transfer of property to be void in certain circumstances.

(1) Where any senior citizen who, after the commencement of this Act, has transferred 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 and 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 affected aged parents can approach say; SDM under the Rules framed under the Act and seek cost effective and speedy remedy by a simple application.)

(b) The Hindu Adoptions and Maintenance Act, 1956;

20. Maintenance of children and aged parents. - (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her ..aged or infirm parents.

(3) The obligation of a person to maintain his or her aged or infirm parent .. so far as the parent ..as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property.

(c)  The Code Of Criminal Procedure, 1973

125. Order for maintenance of wives, children and parents.

(d) The Indian Contract Act, 1872 ;

17. 'Fraud' defined. - 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: -

(e) THE INDIAN EVIDENCE ACT, 1872 

92. Exclusion of evidence of oral agreement. - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso

(f) TRANSFER OF PROPERTY ACT,1882

122. "Gift" defined

"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee. Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

126. When gift may be suspended or revoked

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked;

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

{D} The conduct of the children shocks the conscience of the Court. The morality of society or the moral conviction of the Court would take back seat, as a duty is cast upon the Court to enforce the statutory provisions and implement the rule of law.

The Court asked the Government of Maharashtra to take effective steps to enforce Section 21 to bring about awareness of this Act and implement Section 21 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

In an unfortunate litigation between old aged Parents and middle aged Sons, Daughter argued in High Court against their Parents.

Son:  argued that upon executing the MOU by parents, He can Never be evicted from the house of his Parents during his life time.

High Court: It shocks the conscience of the Court that the Petitioner could get the MOU executed when the parents were ailing. That was the time when they needed care and medical aid. But the Petitioner had forced them to sign the MOU. The same cannot be executed. It was a conditional MOU. It is submitted that the Petitioner has failed to abide by his obligations.

Son & Daughter: argued that the Parents  have not filed an application under Section 125 of the Code of Criminal Procedure, 1973 and therefore, the Parents would not be entitled under the provisions of the Act of 2007.

High Court: In fact, the provisions of Section 125 of the Cr. P.C. were not sufficient to meet the cause and protect the senior citizens and parents. The present act is not only restricted to maintain the aged parents, but cast an obligation on the person who inherit the property of the aged parents to maintain such aged relatives. Section 27 of the Act of 2007 stipulates that the jurisdiction of the Civil Code is barred with respect to any matters to which any provisions of the Act of 2007 applies. Further by virtue of section 3 of the Act of 2007, the provisions for an overriding effect notwithstanding anything inconsistent contained in any other statute.

The manner, in which the Petition was contested by the petitioner attempting to falsify every allegation, reflects upon their conduct.  There is record to show that parents had to approach the police station on more   than two occasions to take coercive action against their own children, is the convincing evidence to dismiss the Petition

Thus, Court upheld the SDO's order directing both the sons to evict the said premises and directed the elder son to pay a cost of Rs.25,000 to his parents towards litigation expenses. Both the sons have also been directed to pay Rs.2000 (each) every month to their parents.

Santosh Surendra Patil vs Surendra Narasgonda Patil And Ors

CRIMINAL WRIT PETITION NO. 1791 OF 2016 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

Dated: 23 June, 2017

{E} Only a senior citizen or a parent has been given authority to file appeal.

In view of the above interpretation of Section 23 (1) of the Maintenance Act, the transfer of possession in favour of the petitioners has rightly been declared to be void by the Tribunal being vitiated on account of fraud within the definition of Section 23 (1) of the Maintenance Act.

It is held that the appeal is not maintainable under Section 16 (1) of the Maintenance Act on behalf of the petitioners as it is only a senior citizen or a parent who has been given authority to file appeal, in case any adverse order is passed by the Tribunal against him.

Punjab-Haryana High Court
Promil Tomar And Others vs State Of Haryana And Others on 6 December, 2013

The courts of law have provided relief to the aged and elderly that can be downloaded from Articles:

Now-parents-can-evict-abusive-adult-children-from-their-house
Now-Senior-Citizens-can-evict-negligent-son-or-daughter-from-their-home-in-21-days-time-
Son-can-live-in-Parents-house-only-at-the-mercy-of-his-Parents-upto-the-time-the-Parents-allow

{F} The special scheme in terms of Senior Citizens Act,2007 could declare certain transfer as void, taking note of the fact that by taking advantage of the emotionally dependent senior citizens, relatives grab the property on the pretext of providing emotional support. Therefore, legislature thought such transaction could be declared as void as the conduct leading to transaction was based on malice or fraud.

The question in this case is in the absence of specific recital as conditions referred as above in the Settlement Deed, whether Tribunal has a power to declare transfer as void.

Section 23 of the Senior Citizens Act, 2007 gives right to senior citizens to approach the Tribunal to declare any transfer of property, by way of gift or otherwise, after the commencement of the above Act, as void, in certain circumstances.

It stipulates that such transfer must be with the condition that (a) transferee shall provide the basic amenities and basic physical needs to the transferor and (b) such transferee refuses or fails to provide such amenities and physical needs.

Therefore, a deed can be declared as void on fulfilling the two conditions enumerated as above, declaring transfer as a fraud or coercion or under undue influence, as the case may be at the option of the transferor.

10. Section 23 of the Senior Citizens Act,2007 does not contemplate that the condition should form part as recital in the deed of transfer.

It only refers that there should be a condition for such transfer. This condition can be either express or implied. If there is no express recital in the deed, the Tribunal has to look around circumstances to find out whether conduct otherwise dispel the intention of donor to revoke. The consideration for executing a gift deed or settlement deed is based on human conduct, caring and conscientious. Transfer admittedly is out of love and affection. Any donor in a gift deed would expect in a natural course of human conduct that donee continues to behave in same manner as behaved before execution of the deed. The love and affection influenced for execution of the deed certainly must be enduring and without any barrier.

11. Therefore, condition referred in Section 23 has to be understood based on the conduct of the transferee and not with reference to the specific stipulation in the deed of transfer. Thus, this Court is of the view that it is not necessary that there should be a specific recital or stipulation as a condition in the transfer of deed itself. This condition mentioned in Section 23 is only referable as a conduct of the transferee, prior to and after execution of the deed of transfer.

Thus, challenge based on the ground that there is no reference in the recital of deed that transferee will provide basic amenities and physical needs to the transferor is of no consequence.

The object of section is that transferee is bound to provide all provisions of welfare measures as understood as referable to the word 'welfare' under Section 2(k) of Senior Citizens Act.

Thus, this Court finds, there is no reason to interfere with the factual findings of the Tribunal.

Radhamani v. State of Kerala
[2016 (1) KLT 185]. WP(C).No. 13110 of 2015 (K)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
FRIDAY, THE 6TH DAY OF NOVEMBER 2015

{G} It is not the legislative requirement or intent that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs of the transfer.

The petitioners in W.P(C) No.8193 of 2014 are the appellants.

The writ petition was filed challenging Exts.P6 and P8 orders passed under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as, the 'Act'). The writ petition having been dismissed, this appeal is filed.

3. On the materials available, we find that the first respondent had executed Ext.P1 settlement deed in favour of the appellants.

Subsequently, an application was filed under the Act invoking the power of the authority under Section 23 seeking to invalidate Ext.P1 and that was allowed by Ext.P6 order. The appeal filed by the appellants was rejected by the Appellate Tribunal as per Ext.P8. It is in these circumstances, the writ petition was filed, which came to be dismissed.

4. The contention raised by the learned counsel for the appellants was relying on Section 23 of the Act.

According to the learned counsel, in the absence of a specific reservation made in Ext.P1 settlement deed, providing for the conditions subject to which the transfer was made, an application invoking the power under Section 23 was not maintainable.

5. Section 23(1) shows that where, after the commencement of the Act, a senior citizen has transferred his property by way of a gift deed or otherwise, subject to the condition that the transferee shall provide basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the transfer of such property shall be deemed to have been made by fraud or coercion, or under undue influence.

Reading of this provision, itself, would show that it is not the legislative requirement or intent that the document evidencing the transfer, either by gift or otherwise, should itself contain an express condition that the transferee shall provide the basic amenities and physical needs of the transfer.

On the other hand, if there are evidence to the satisfaction of the authorities under the Act that the requirements of Section 23 are satisfied in a case, it is always open to the authorities to invoke their power under Section 23 of the Act and invalidate the document.

Such an understanding of the section, according to us, would only advance the object of the Act. On the other hand, if the contention now advanced is accepted, that will defeat the very object and purpose of the Act.

6. In the above view of of the matter, we agree with the view taken by the learned Single Judge and affirm the principles laid down by this Court in the judgment in Radhamani v. State of Kerala [2016 (1) KLT 185].

We do not find any merit in this appeal. Appeal fails and accordingly, the same stands dismissed.

SHABEEN MARTIN V/S MURIEL & OTHERS
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA. NO.1851/2016 () IN WP(C). NO.8193/2014
MOHAN M.SHANTANAGOUDAR, C.J. & ANTONY DOMINIC, J
Dated this the 3rd day of October, 2016

{H} Senior Citizens, Aged Parents throughout the country can also go thru the Senior Citizens Guide and become properly informed of their rights:

Senior Citizens Guide REVISED EDITION 2016, HelpAge India Head Office
C-14, Qutab Institutional Area, New Delhi - 110 016
Tel.: 011-41688955-56; 011-42030400, Fax: 91-11-26852916
E-mail: info@helpageindia.org; headoffice@helpageindia.org
Website: www.helpageindia.org, National Helpline No.: 1800 180 1253

The senior citizens and aged parents must take benefit from the Forums that exist at their respective locations and also form associations, NGO's, help groups to help themselves and others and use their life time experience and support of each other to spend their life in peace and comfort in their sunset years.

If they can they must avoid disposing their assets and property blindly and may consider deeds that keep their rights to enjoy their assets and property till they are alive. e.g; Settlement Deed with Life Rights, WILL etc

The children should realize that they were raised with care and in comfort by their parents and parents should be cared when they are aged and expect care, respect from children.

One day today's children, adults, shall be aged and even infirm like their own parents and shall not only except but may also need care from their children.

 

Kumar Doab 
on 24 October 2017
Published in Civil Law
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