The transfer of an immoveable 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) observed in Sudesh Chhikara vs Ramti Devi.
Conditions Required to Declare Property Transfer Void
The SC, by referring to the Senior Citizens 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.
Transfer Out of Love Cannot be Made Void
On the contrary, when a transfer is made out of love and affection without any expectation in return, then it is not possible for the Maintenance Tribunal to cancel the transfer deed under Section 23 of the Senior Citizens Act. Therefore, in every application for cancellation of transfer the applicant must plead and prove the existence of such a condition before the Tribunal.
Kerala High Court Upholds the Need for Such a Recital
In Subhashini vs The District Collecto [ AIRONLINE 2020 KER 674], the Full Bench of the Kerala High Court observed 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.
