New Delhi (IL News Service): Notwithstanding the existence of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, if a senior citizen transfers his or her property to the son or daughter just expecting that they will take care of her as a result, then that expectation may not be based on solid legal ground. If there is no specific mention in the transfer deed about maintenance, then there seems to be little the senior citizen can do about it when sons and daughters refuse to pay heed to their ageing parents.
A recent case has pointed out this legal loophole.
On Tuesday the Kerala High Court held that such a transfer can be declared as void only if the deed of transfer contains such a specific condition and then the son or daughter fails to provide the basic amenities and physical needs as required by the transfer deed.
The bench of Justices K Vinod Chandran, VG Arun and TR Ravi, while hearing an appeal, observed that the tribunal cannot assume jurisdiction to declare a transfer of property void under Section 23(1), merely for the reason that the deed contains a reservation of life interest on the property for the senior citizen.
Subhashini, a 68-year-old widow, approached the Tribunal for relief, admitting that in the transfer deed it was not specifically mentioned that her younger son will have to maintain and take care of her.
The tribunal, under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, allowed the plea, but this was later stayed through a single bench order of the High Court. The woman then approached the full bench of the court.
In its order, the full bench observed:
“Though there is an element of morality in the legislation as such, that cannot be the sole reigning consideration in interpreting a provision in the statute which brings in drastic consequences as available in Section 23, totally extinguishing the rights of the transferee… We are of the opinion that in deciding the scope of Section 23(1), it would be unsafe to look at religious texts or philosophical treatises. That the children should look after their parents, as a principle or a value, require no validation from scriptures or philosophical sources.”
The court found the power of the Tribunal to be narrow and restricted, particularly since proceedings under the Act are a summary and the Tribunal’s officers are not judicial officers.
The transfer of property can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer, held the High Court.
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The bench has also ruled that Section 23 only covers gratuitous transfers.
“We are of the opinion that looking at the text of the Act and looking at the context in which it was enacted and has application, the intention of qualifying the transfer of property by a senior citizen with the words ‘gift or otherwise’, projects a clear indication to restrict the words ‘or otherwise’ to such category of transfers which are in the nature of gifts or partakes the character of gift.”
In light of above facts the Court has dismissed the appeal.
Read the Judgment here;
Subhasini-v-District-Collector-and-Ors-Judgment-dated-September-22-India Legal Bureau