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Kausik Bhattacharya (Prime Minister Research Fellow and Experienced Tech Leader)     20 January 2022

Son took away property but not paying for maintenance

After my mother-in-law passed away in Kolkata in April 2020, my father-in-law, who initially stayed alone in Kolkata, came to Bangalore in September 2020 and started living with us (daughter's house). He has a son, but my brother-in-law didn't take responsibility for his father. My father-in-law gifted his house to his son. After my father-in-law came to Bangalore, my brother-in-law sold the house and took away the money. He doesn't discharge any duty to his father. My father-in-law is right now admitted to hospital due to Covid at Bangalore. He needs money for his treatment, but my brother-in-law does not agree to share the cost. Given the long-term interest of my father-in-law, I am interested in a legal settlement of the matter. Please advise what all options are open in front of me.



 11 Replies

H.JanakiManohar Rao (lawyer)     20 January 2022

Recently S.C said to have issued orders that it is the duty of the sons to lookater their parents till their demise othewise legal action will be intiated against them.(sons)

Parasar   20 January 2022

let him file an application to the district collector under senior citizens act, it may help him.

Advocate Bhartesh goyal (advocate)     20 January 2022

Your father in law has to file petition for maintenance and other expenses under provisions of Maintenance and Welfare of Senior Citizen Act 2007 against your brother in law before SDM also he can prey for cancellation of gift deed or alternatively  cost of gifted property.

P. Venu (Advocate)     20 January 2022

When was the gift deed executed? Was the gift conditional to the son take care of the father?

Kausik Bhattacharya (Prime Minister Research Fellow and Experienced Tech Leader)     20 January 2022

This deed was executed way back in 2004. As far I know it was unconditional, a father gifted his ancestral property to his only son in full faith. Of course, he is in a state of shock on top of his covid infection. The question is, will the law of the land allow a son to take possession of property without discharging his moral and legal duty to his parent? 

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     21 January 2022

You may approach a Local Lawyer and give full details and copy of the Gift Deed. Your Father in Law can file a case to cancel the Gift Deed subject to condition that he us not looked after by the beneficiary of such Gift Deed. 

 

Kausik Bhattacharya (Prime Minister Research Fellow and Experienced Tech Leader)     21 January 2022

Those who responded to my query and showed solidarity in this time of distress, I truly appreciate each of your gestures and advice. I am finding this forum has people with progressive minds who are willing to listen to social issues and extend help.

I have another question: most of you advised to approach the concerned legal authority for relief. Now, this property is in the Kolkata suburb where my father-in-law used to stay until Sep 2020. He is now in Bangalore with me and my wife. So does he file an appeal for relief in the local court of Kolkata or the local court of Bangalore?

P. Venu (Advocate)     21 January 2022

To my knowledge, the provisions of Senior Citizen's Act are prospective, not retrospective. The enactmentState  was notified on 31st December, 2007 and has come into force on the date as appointed by the respective  State Government.

As such, in the instant case, there is no option for seeking revocation of the gift. The only option is to seek maintanance in terms of Section 4 -

Section 4.   Maintenance of parents and senior citizens.

(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of--

 

(i) parent or grand-parent, against one or more of his children not being a minor;

(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would inherit the property of such senior citizen:

 

In terms of Section 6, the application could be filed where the senior citizen is presently residing -

Section 6.   Jurisdiction and procedure.Previous    Next

(1) The proceedings under section 5 may be taken against any children or relative in any district--

 

(a) where he resides or last resided; or

(b) where children or relative resides.

(2) On receipt of the application under section 5, the Tribunal shall issues a process for procuring the presence of children or relative against whom the application is filed.

(3) For securing the attendance of children or relative the Tribunal shall have the power of a Judicial Magistrate of first class as provided under the Code of Criminal Procedure, 1973 (2 of 1974).

(4) All evidence to such proceedings shall be taken in the presence of the children or relative against whom an order for payment of maintenance is proposed to be made, and shall be recorded in the manner prescribed for summons cases:

Provided that if the Tribunal is satisfied that the children or relative against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Tribunal, the Tribunal may proceed to hear and determine the case ex parte.

(5) Where the children or relative is residing out of India, the summons shall be served by the Tribunal through such authority, as the Central Government may by notification in the official Gazette, specify in this behalf.

(6) The Tribunal before hearing an application under section 5 may, refer the same to a Conciliation Officer and such Conciliation Officer shall submit his findings within one month and if amicable settlement has been arrived at, the Tribunal shall pass an order to that effect.

Explanation.--For the purposes of this sub-section "Conciliation Officer" means any person or representative of an organisation referred to in Explanation to sub-section (1) of section 5 or the Maintenance Officers designated by the State Government under sub-section (1) of section 18 or any other person nominated by the Tribunal for this purpose.

 

Kausik Bhattacharya (Prime Minister Research Fellow and Experienced Tech Leader)     21 January 2022

Thank you Mr, Venu for sharing the details, it was very helpful to know the law.

Archana Pandey   21 January 2022

He can file a maintenance application under 125 CrPC &  and he can also go ahead for under Maintenance and Welfare of Parents & Senior Citizens act 2007 as this acts casts an obligation upon the district administration to make sure that their life and property of the district are in safe hands and they can able to live their life in dignified way.
Also, he can choose a mode of revocation of gifts, revocation by rescission as in the case of contracts Under Section 126 of Transfer of Property Act, 1882.

Kausik Bhattacharya (Prime Minister Research Fellow and Experienced Tech Leader)     22 January 2022

Thank you, Ms. Archana. Bringing charges under multiple counts makes stronger sense. There are a few additional like taking money from the father to the tune of several lakhs under different pretexts and not refunding back. He sold the property in his father's absence 2 months ago without even informing. Now my father-in-law is technically homeless solely dependent on the mercy of his daughter and son-in-law. The most audacious is when my father-in-law is fighting a covid infection in the hospital, we asked for money to meet immediate medical needs, he refused to pay. 

 

One another question: Is there a way, we can ask the government to freeze the money he got by selling the property so that he can't divert it off the money? If yes, how can we do it?


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