Revoking transfer of property
Eviction or removal from property
Elderly persons constitute one of the most vulnerable groups in Indian society. It is an unfortunate reality that, with the gradual transition from the traditional joint family system to the nuclear family system, elderly persons, especially elderly widowed women, are increasingly susceptible to financial and emotional dependency, isolation and homelessness.
In recognition that the law had to step in to protect such senior citizens, in 2007, the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (Senior Citizens Act) was enacted to ensure that the elderly received speedier justice and security. In 2022, this law acts as a beacon of hope for the 10% of the Indian population that is aged 60 and above.
While the primary focus of the Senior Citizens Act is to provide maintenance rights to the elderly, it also provides for certain property-related rights – in particular, the rights to reclaim transferred property and to seek removal or eviction of their children or relatives from their property. This article discusses such rights and recent jurisprudence surrounding them.
Under the law, a gift of property once made cannot be revoked unilaterally or at the will of the transferor,(1) unless it has not been made voluntarily (ie, it has been made on account of fraud, coercion or undue influence exercised on the donor).
The Senior Citizens Act deems that a gift or transfer of property by a senior citizen has been made by fraud, coercion or undue influence if such gift or transfer is subject to the condition that the transferee provides basic amenities or physical needs to the transferor and the transferee has failed or refused to provide them. Such a gift or transfer may be declared void by a Maintenance Tribunal (established under the Senior Citizens Act) at the option of the senior citizen, under section 23 of the Senior Citizens Act.
One of the primary ingredients of section 23 is that the gift or transfer is "subject to the condition" that the transferee provides basic amenities or physical needs to the transferor. This has become a highly interpreted clause over the years, with courts differing on whether a gift or transfer deed needs to include an express condition in this regard.
High courts, such as those in Mumbai, Delhi and Punjab, have interpreted section 23(1) liberally. For instance, courts have observed that it is implicit in a transfer deed that has been executed out of love and affection that the transferee would reciprocate such love and affection and provide the transferor with basic amenities and basic physical needs, and, as such, no explicit condition is required in the transfer deed that the transferee must maintain the transferor.(2)
Similarly, when a gift deed has been executed in lieu of services, and for love and affection, it is implied that such services and love from the child would not be a one-time occurrence and that such love and services would continue to be given by the child to the parent even after the gift deed has been executed.(3) In another case, the court observed that where a gift deed is made at the request of the transferee, it is implied that upon transfer of share in the property, the elderly parents would be looked after by the transferee.(4) This means that, if upon transfer, the transferee refuses to care for the transferor, the transfer deed can be revoked at the option of the transferor. Courts have also observed that if a transferee refuses to provide amenities and physical needs to the transferor when the property was transferred on the implied condition and assurances that the transferee would provide the transferor with basic amenities, then transfer of property would be termed as fraudulent and would be void.(5)
On the other hand, the Kerala(6) and Calcutta High Courts have taken a stricter view and observed that, to invoke revocation under section 23(1), a transfer deed must include an express condition stating that a transferee is required to care for the transferor. The Calcutta High Court observed that, even though the property was gifted out of love and affection, the gift deed did not have an explicit condition seeking basic amenities and physical needs from the transferee, and, as such, it could not be revoked.(7)
From the evolution of this jurisprudence, a common theme that emerges is that courts lean towards balancing the language of the law (which requires a condition) with the need to do justice and protect the rights of the vulnerable elderly. In some cases, certain courts may read the gift deed liberally to include a condition where none exists. However, it is preferable that gift or transfer deeds contain a condition as required under section 23 to avoid the risk of a court declining to provide relief if no such condition is present.
Notably, only a gift or transfer made after the enactment of the Senior Citizens Act is subject to the above provision. Therefore, if a gift or transfer of property was made prior to such time, the Maintenance Tribunal will not have jurisdiction, although the senior citizen may still have a remedy before a civil court for having the gift deed rescinded if it contained a condition that the donee will maintain the donor and such condition is violated.
Eviction or removal from property
While the Senior Citizens Act, per se, does not refer to any eviction rights accorded to elderly parents or senior citizens, multiple Indian courts, including the Supreme Court, have read the such a right into the statute on the basis that a beneficial legislation must be interpreted liberally. Accordingly, when dealing with situations of harassment caused by children residing with parents in the parents' house or forcible acquisition of parents' property, courts have adopted a pro-elderly stance by reading the right to evict or remove children or relatives from the property into the ambit of sections 4 and 23(2) together with other provisions of the Senior Citizens Act.
In 2020, the Supreme Court opined that a Maintenance Tribunal has the authority to order an eviction if it is necessary to protect and maintain a senior citizen or parent.(8) In Delhi, in fact, the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules 2009 provides for modalities to evict a child or legal heir from the self-acquired property of a senior citizen on the grounds of ill-treatment or non-maintenance.(9)
Interestingly, courts have, in certain instances, drawn a distinction between removal and eviction. In Shweta Shetty v State of Maharashtra,(10) the appellant made demands to receive "her share" in her father's property, despite her father being alive and well and occupying the property. The Bombay High Court noted that to constitute "eviction", some legally enforceable right of a person should have been denied; in the absence of which, the removal would not amount to "eviction". Since the appellant had no rights in the property while her father was alive and since she had been harassing him, she could rightfully be removed from his house, and this did not amount to an eviction.
In another case, the Bombay High Court ordered that since a rent agreement for transfer of a tenement was entered into on fraudulent grounds and to harass an aged mother, the tribunal had correctly ordered the eviction of the appellant from his mother's house.(11)
There are many grounds on the basis of which families may choose to make a gift of property from a senior citizen or parent to a child or other relative during the lifetime of the senior citizen. These include:
- avoidance of inheritance-related disputes after the demise of the senior citizen;
- a desire to avoid the procedure of obtaining probate of a will after the demise of the senior citizen;
- beneficial stamp duty in certain states on gift deeds in favour of a child; and
- availability of income from the property in the hands of the child in order to maintain a parent who may be unwell and may potentially lose mental capacity.
The law does not seek to dissuade such gifts, but instead provides a remedy if such gift of property is misused. Senior citizens or parents could consider an express clause (in a deed that gifts or transfers property to a child or heir) that includes a condition that the transferee must provide basic amenities or physical needs to the transferor. Such deeds should preferably be vetted by legal advisors representing the senior citizens or parents.
For further information on this topic please contact Shaishavi Kadakia or Radhika Parthasarathy at Cyril Amarchand Mangaldas by telephone (+91 22 2496 4455) or email ([email protected] or [email protected]). The Cyril Amarchand Mangaldas website can be accessed at www.cyrilshroff.com.
(1) Section 126 of the Transfer of Property Act 1882.
(2) Smt Sunita Bhasin v NCT of Delhi, WP(C) 13139/2018 and Sumesh Anand v Vinod Anand, 2015 SCC Online P&H 16117.
(3) Sumesh Anand v Vinod Anand, 2015 SCC Online P&H 16117.
(4) Pritish Natvar Sanghvi v Natvar Keshavlal Sanghvi, 2018 SCC Online Bom 1267.
(5) Pramil Tomar v State of Haryana, (2014) 1 RCR (Civil) 403.
(6) Subhashini v District Collector, (2020) 4 KLJ 204.
(7) Anirban Chakraborty v State of West Bengal, AIR 2019 Cal 238.
(8) S Vanitha v Deputy Collector, 2020 SCC OnLine SC 1023.
(9) Shadab Khairi v The State and Ors, 2018 SCC Online Del 626.
(10) Shweta Shetty v State of Maharashtra & Ors, (2022) 1 Mah LJ 279.
(11) Suryakant Kisan Pawar v Deputy Collector, Mumbai and Presiding Officer Parents and Senior Citizens Subsistence Tribunal, Mumbai City and Kusum Kisan Pawar, WP 2141/2019.