Gift can be declared void when it is conditional
The transfer of property by a senior citizen by way of gift or otherwise can be declared void under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act 2007 (Senior Citizens Act), only when it includes a condition of providing the basic amenities and basic physical needs to him/her, the Supreme Court (SC) has held in Sudesh Chhikara vs Ramti Devi.
Facts of this case
In this case, a lady senior citizen filed a petition under Section 23 of Senior Citizens Act alleging that her son and daughters were not maintaining her and therefore the release deed executed by her in favour of her two daughters has to be declared void. The Maintenance Tribunal allowed the petition and declared the release deed null and void. The Punjab and Haryana High Court upheld this order.
Before the Apex Court, the appellant- daughters contended that there is no material placed on record to even indicate that the execution of the release deed was vitiated by fraud or coercion or undue influence. The respondent-senior citizen stood by the impugned order.
Conditions needed to declare the deed void
The SC, by referring to the act, pointed out that for attracting the Section 23 (1) of the above act, the following two conditions must be fulfilled:
- The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor,
- The transferee refuses or fails to provide such amenities and physical needs to the transferor.
The SC states if both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.
When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it.
Transfer out of love cannot be made void
On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in Section 23 (1) of the act are attached to a transfer, existence of such conditions must be established before the Tribunal.
The SC noted that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters) would provide the basic amenities. Therefore, it set aside the order passed by the Tribunal.
Kerala HC says a recital of condition necessary
In Subhashini v Subhashini the Full Bench of the Kerala High Court holds that the condition as required under Section 23(1) of the Senior Citizens Act, for provision of basic amenities and basic physical needs to a senior citizen, has to be expressly stated in the document of transfer. Such a transfer must be by way of gift or a gratuitous transfer of similar nature having the character of gift.
That means the deed of transfer cannot be declared void by presuming the existence of such a condition, as declared by the court in some earlier Single Bench judgements.
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