First let us see the provision of the Law. In 2007 Legislature enacted The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for giving legal security to senior citizens. With passage of time society has changed. Joint families are now past and we see in house either husband and wife or their children. Days are gone in family we see three or four generations staying together. Children neglect parents and don’t want to take responsibility. There were incidents where parents were thrown on roads or in old age homes. In some cases children took property as gift and deserted parents by driving out them from home.
System of education, transition has changed the thought perceptions. Considering increase in number of such cases government thought it fit to give legal protection to Senior Citizens, therefore Legislature enacted the said 2007 Act.
The definition of Senior Citizen under the Act is , senior citizen means any person being a citizen of India, who has attained the age of sixty years or above; the term Children is defined as children includes son, daughter, grandson and grand-daughter but does not include a minor; Welfare means provision for food, health care, recreation centers and other amenities necessary for the senior citizens.
Section 5 of Act lays down 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. Section 5 to 7 is about Senior Citizen Tribunal and Application.
We are concerned with Section 23 here . It provides that, 23 Transfer of property to be void in certain circumstances.
(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.
In series of cases it has so happened that, children take property by way of gift but thereafter they neglect or desert their parents totally. In times when parents need emotional support they give mental agony and put them in old age home. In such cases Section 23 comes to their rescue. Several courts have passed judgment giving effect to this provision.
In Sumesh Anand v. Vinod Anand, (P&H)(DB) LPA No. 1689 of 2015 (O&M). D/d. 1.12.2015. it was held that , “ Section 23 of the Act comes into play if any property is transferred by a senior citizen subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence.
8. The transfer was affected in lieu of services of the appellant and love and affection. The mother has executed transfer deed in lieu of the love and affection and the services rendered. Such reason is not one time factor but continued hope that the appellant would continue same love and affection even after the property is transferred. The services rendered or the love and affection is not a completed action. The transfer was with a pious hope that son will continue to serve the parents as was being done prior to the execution of the document. Having failed to take care of physical needs and basic amenities of the parents in their old age, the appellant has made himself liable for avoidance of the transfer documents in terms of Section 22 of the Act. Such is the finding recorded by learned Single Bench.”
In Vinod Anand v. Deputy Commissioner-cum-Appellate Tribunal (P&H) C.W.P. No. 24252 of 2014 (O&M). D/d. 23.9.2015. in this case son threatened that if property not transferred in his name , he would commit suicide. Court while deciding the case referred to case of Promil Tomar and others v. State of Haryana and others, 2014(1) RCR (Civil) 403, in which it is held that, senior citizen who had transferred his right, title or interest to any other person by gift or otherwise (which would include transfer of possession by lease, mortgage or licence) would become void in the event of transferee refusing to provide amenities and physical needs. The said transfer in such circumstances would be termed as result of fraud, coercion or undue influence and would be void.
The Hon’ble Supreme Court in S.P. Chengalvaraya Naidu v. Jagannath, 1994(1) R.R.R. 253 has considered the meaning of word “fraud” i.e. an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. It was held in the said judgment that “fraud” vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.
It was therefore held that, in the present case, transfer appears to have been the result of threat to commit suicide by son. Such an act is an act of deliberate design of securing the property from the petitioner under undue influence, coercion and false threat of committing suicide appears to be a fraud. In this manner, it appears that son taking undue advantage of the weaknesses of petitioner (mother) got the property transferred in his name. In view of the law that fraud vitiates all proceedings and vests no right in anybody, petitioner would be entitled to enforce her legal right to declare the transfer i.e. transfer of possession which falls under the definition of `otherwise’ under Section 23(1) of the Act, void, through the Maintenance Tribunal.
In Dattatrey Shivaji Mane v. Mrs. Lilabai Shivaji Mane (Bombay) :2018(3) R.C.R.(Civil) 480 : 2018(3) Crimes 260 : 2018(5) AIR Bom.R 159 : 2018 AIR (Bombay) 229 : 2018(6) Mh.LJ 681 the court took a view that since under Section 23 of the said Act, a senior citizen is entitled to apply for a declaration of gift or transfer of his/her property by any other means given subject to the condition that the transferee shall provide the basic amenities and basic physical needs to such senior citizen and such child or grand child refuses to provide such amenities and physical needs, such senior citizen can apply for declaration of such transaction to be void, such senior citizen can even apply for recovery of possession from her child or grand child in the event of the child refusing to maintain such senior citizen and parents or does not comply with the obligations extending to the needs of senior citizen or such parents to enable such senior citizen or parents to lead a normal life. Such parents and senior citizen can certainly apply for recovery of vacant possession of the property and for a relief restraining such child or grand child or his other family members who are claiming through such child from entering upon the property of such senior citizen or parents. In my view, there is thus no merit in the submission of the learned counsel for the petitioner that the Tribunal could not have passed an order of eviction against the petitioner and his family members from the tenament owned by the respondent no.1 under the provisions of the said Act.
Conclusion: Parents do everything to give best to own child. We want child to speak English. We don’t like to teach mother tong, want everything English, but cultural value Indian. Its not coinciding. Somewhere our generation has failed to understand own responsibility. We have not absorbed traditions from our parents, want privacy. This has lead to chaos. Even laws are such in-laws cannot do anything to correct error, 498A is most misused provision. We must teach tolerance and need to be responsible towards family. The cultural difference between yesterday and today is due to education system. We need to rethink on this to have more healthier society. Nowadays mothers would not permit Grand mother to scold her child. She forgets her child is more close to heart for grand parents and scolding or stopping grand child to do something wrong is good for child future. To add personal recent experience in train, educated parents littered under the seat tea- cups and plates, grand mother was silent spectator. Talking English is good but to learn discipline and civic sense behavior in public is equally important. It depicts your culture.
Shruti Desai
26th February,2019