SENIOR CITIZENS: CONDITIONED TO CARE OR A CONDITION TO CARE?

AISHWARIYA PG

The population of senior citizens[1] in our Country is 10.38 Crores[2] and in the State of Tamil Nadu is 1.04 Crores,[3] and is rapidly increasing. Four years before 2050, there would be an upsurge in the population size of the elderly in India, as it will be higher than the population size of children,[4] having significant implications in our society and economy.

SENIOR CITIZEN’S RIGHT TO REVOKE PROPERTY TRANSFERS WHEN ABANDONED

      Amongst the various laws, policies, programmes, and schemes implemented by the Government of India for the benefit of its senior citizens,[5] the passing of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007,[6] gains significance. One of the crucial provisions of the said Act is Section 23, wherein the Tribunal[7] under sub-section (1) of the said provision, can declare the transfer of property made by the senior citizens to any person (usually their children or relatives) as void, when such transfer has been made with the condition of maintaining the senior citizens and the transferee refuses to do so. Furthermore, in absence of care and maintenance after transfer, the Section deems legal fiction for such transfer to have been made by fraud or coercion or under undue influence.

REQUIREMENTS OF THE SECTION

Thus, to make an application to the Tribunal under the said provision, the essentials to be fulfilled are-

     i.        The person making the application should be a senior citizen as defined under the Act.

   ii.        Such senior citizen should have transferred his property to another person, after the commencement of this Act.

  iii.        Such transfer must have been made subject to the condition that the transferee would provide basic amenities & basic physical needs to the transferor.

  iv.        The transferee must have failed/refused maintain the transferor, i.e., the senior citizen after such transfer.

While there has been no dispute with the essentials (i), (ii), and (iv) as aforesaid, condition (iii) alone has been much debated and rife with controversies.

            The Hon’ble Apex Court on 06.12.2022,[8] (hereinafter mentioned as the Sudhesh Chhikara case) has authoritatively laid down that for invoking Section 23(1), the existence of a condition to provide the basic amenities and basic physical needs in the deed of transfer is a sine qua non, i.e., a prerequisite. The Hon’ble Court has further observed in the above stated case that even the presence of such a condition was not mentioned in the Petition/Application under Section 23(1) of Act preferred by the Senior Citizen therein.

PRE SUDHESH CHHIKARA CASE

            It is noteworthy that most of the Hon’ble High Courts of the various States, before such pronouncement, have opted for a much more liberal interpretation on the issue of a maintenance condition to be present in the transfer deeds. The Hon’ble High Court of Kerala has for instance, treated money as the property under the said Section obviously with no written condition of maintenance attached to it as capable of being adjudicated by the Maintenance Tribunal,[9] held that that a specific recital/ stipulation as a condition in the transfer deed as unnecessary, and what was rather to be looked into was the human conduct prior and after transfer, the surrounding circumstances,[10] etc. The only case with a contrary view is Subhashini v. District Collector and ors.[11]  which held that the condition of maintenance, i.e., basic amenities and basic physical needs, should be expressly stated in the document of transfer, which subsequently has been challenged and pending for adjudication before the Hon’ble Supreme Court.[12]

         The Hon’ble Punjab and Haryana High Court too, has in many of its cases opted for a wide and benevolent interpretation, holding that the condition to maintain may be given orally, and not necessarily reduced to a written format in the deed of transfer, and that the same is deemed to be read into, etc.[13] Likewise, the Hon’ble Delhi High Court has held that it is implicit in any gift of property, that is executed out of natural love and affection, that the transferee would reciprocate the love and affection and, at the very least, provide the basic amenities and meet the physical needs of transferor.[14]

         The Hon’ble Madras High Court also has expansively interpreted the said provision. As early as by a judgment dated 14.08.2014, the inclusive nature of the Section propounding that not only transfer of property, but also of possession was held to be a valid transfer under the said Section, enumerating that what was to be seen was whether such transfer was on condition of providing basic amenities and basic physical needs to the transferor,[15] without delineating whether such condition needs to be specific or inferred. In one case, the Hon’ble Court has construed the condition in a settlement deed for the transferee to repay the loan obtained by the transferor, together with a life interest over the property, as an implied condition to maintain the transferor, i.e., the Senior Citizen.[16] In another significant ruling, the Hon’ble Court held that even if the document of transfer does not contain a recital that it is subject to a condition to maintain, in cases where the parents transfer all their property in favour of their children without retaining anything substantially to maintain themselves, they would be entitled to file a petition before the Maintenace Tribunal to render the document void.[17] Thus, the provision has been construed to provide maximum benefit to the senior citizens, except for a few contrary holdings.[18]

POST SUDHESH CHHIKARA CASE

       It would be needless to mention the plethora of cases which has cited and followed the verdict of the Hon’ble Supreme Court, holding that a condition to maintain the senior citizens should be present in the deed of transfer, as the decision of the Hon’ble Apex Court of India becomes the law of the land. However, it is intriguing that many of the Hon’ble High Courts of various States have offered a different perspective, distinguished the said case, have been indulgent in following the ruling, and sometimes even expressed their helplessness in adhering to the same.

         For instance, the Hon’ble Madras High Court has opined that the natural love and affection is itself the consideration in such transfers of property, immaterial of whether the condition to maintain is expressly present in the document,[19] and that the said provision was to be read with Rule 20(2)(1) of the State Rules under the Act, which mandates that it shall be the duty of the Collector to ensure that the lives and properties of the senior citizens of the District are protected and they are able to live with security and dignity.[20] In another case, the Hon’ble Court though noting that no condition was present in the Settlement Deed to maintain the senior citizens, has directed a consolidated monthly maintenance of Rs.30,000/- for a senior citizen couple,[21] despite the limit of Rs.10,000/- that can be provided under the Act.[22] The Hon’ble Bombay High Court, in a matter, has held that the mother in fact in her pleadings, i.e., her Petition under Section 23 of the Act had mentioned that property was transferred only in furtherance of assurance given by her children that they would take of her for her entire life, which was a distinguishing factor to the Sudhesh Chhhikara case where there was lack of pleadings to that effect.[23]

         In another interesting case, the Hon’ble Calcutta High Court has, taking note of the separate undertaking given by the transferees in the form of a declaration in writing that they would look after the basic amenities and basic physical needs of the transferor, after 7 days of execution of Gift Deed by the transferor (without any stipulation contained to maintain), has decided the essentials of Section 23(1) to be fulfilled.[24] The Hon’ble Karnataka High Court, poignantly, has expressed that though its conscience is in favour of the welfare of the senior citizens considering the scope and object of the Act, its hands were tied in view of the dictum in Sudhesh Chhikara case while deciding a Writ Appeal on this issue.[25]

INTERPRETATION OF THE PROVISION

            It is well-known that a provision of a statute is to be read together with other provisions, and that an Act is to be viewed holistically, with the all Sections coupled with the object of the Act. Here, sub-section (2) of the same Section envisages a situation where the senior citizen has a pre-existing right to receive maintenance out of an estate, and sub-section (3) augments as to who can invoke the said Section. It is pertinent to note the broad words of sub-section (2) wherein the transferor need not be a senior citizen, and how the Section secures the right of making the same enforceable against a transferee who had notice of that right. Similarly, sub-section (3) widens the persons who can invoke the said Section, viz. an organization that the senior citizen authorizes, or the Tribunal, suo motu. It is thus apparent that the Section 23 overall, aims to safeguard senior citizens in every possible situation.

       Similarly, it is evident that every Section of the Act (read together with the Rules framed under the same) aims to protect the life, property, and dignity of senior citizens. One of such glaringly protective provisions is Section 24, in and by where any person having the care or protection of senior citizens leaves or abandons them, is punished with a three-year imprisonment or fine or both. Let us assume a situation where a senior citizen’s food, clothing and shelter is taken care of by a person, and such senior citizen is more so emotionally dependent on the said person on account of the infirmities of old age. The senior citizen in good faith, transfers his property on the assurance of such continuous receipt of care and maintenance without recording the same in a conveyance deed, and is later left in the lurch. Now, to say that the person who abandoned him would face the punishment of incarceration, but not the liability to hand back the property, is plainly absurd, and could never have been the intention of the legislature. What is rather intended is that a person who cares for and protects a senior citizen, should continue such care and protection for that senior citizen.

     It would also be trite to mention that the aim and object of the Act, as reflected from its Statement of Objects and Reasons,[26] as well as its preamble,[27] is primarily to care for and protect them, being a social welfare legislation. Moreso, its provisions are given an overriding effect under Section 3 of the Act.

     The legislature has consciously employed the word “condition” alone, neither with any particulars of its presence being oral or written, nor the existence of the same to be only present in the deed of conveyance. Arguendo the same is ambiguous, it is not uncommon, but rather a rule of law to opt for the interpretation that would benefit or be advantageous to whomsoever the Act seeks to protect. One is also prompted to think why the Hon’ble Supreme Court (in Sudhesh Chhikara) refrained to elaborate on the nature of the condition, i.e., whether there is a necessity of the condition of maintenance to be expressly present, or if it could be implied from the words used in the deed of transfer in order to attract the Section. In any event, it is a well-settled law that a deed is to be construed by ascertaining the intention of the parties when executing the same.[28] While generalizing every deed of property transfer by a senior citizen to carry an implied condition to maintain might them be considered as over and beyond Section 23 (1) by some, deciding it on a case-to-case basis through all possible evidence[29] on the existence of such an assurance to maintain would be an equitable solution.

          Having said all the above, one is left to wonder whether the Hon’ble Apex Court has untangled the said provision, or used the same to tie the hands of those who are eager to dispense justice.

The author, Aishwariya PG is an independent legal practitioner, Madras High Court. She is availabe for comments at adv.aishwariyapg@gmail.com.

REFERENCE:

[1] Persons aged 60 years and above, as defined in Section 2(h) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007

[2] According to the 2011 census, www.censusindia.gov.in

[3] As of the year 2021, pg. 2 of Draft Tamil Nadu State Policy on Senior Citizens submitted on 24.01.2022, Department of Social Welfare and Women Empowerment.

[4] Pg. 20 and 21 of “Caring for our Elders: Institutional Responses- India Ageing Report 2023” by International Institute for Population Sciences and United Nations Population Fund.

[5] Article 41, the DPSP, the Constitution of India, 1950, directing the State to make effective provisions for assisting the old age r.w. Article 21, which guarantees the fundamental right of all persons to live with dignity

[6] Act 56 of 2007, w.e.f. 29. 09.2008 in the State of Tamil Nadu together with the Tamil Nadu Maintenance and Welfare of Parents and Senior Citizens Rules, 2009, w.e.f. 31.12.2009

[7] Section 2(j) r.w. Section 7 of the same Act, who is an officer not below the rank if sub-divisional officer of the State.

[8] Sudhesh Chhikara v. Ramiti Devi and anr., 2022 SCC OnLine SC 1684, paras 12 to 16. Previously, in S. Vanitha v. the DC & ors., decided on 15.12.2020, (2021) 15 SCC 730, the issue the tussle between the Senior Citizens Act, 2007 and the Domestic Violence Act, 2005, when discussing Sec. 23(1), the Hon’ble Court as an obiter dictum observed that the transfer of property to be accompanied with a “specific condition,” at para 22

[9] Maroli Santha v. RDO, Thalassery, decided on 16.02.2018, (2018) 2 KLJ 408, paras 3 to 5

[10] Radhamani and ors. v. The St. of Kerala and ors., decided on 06.11.2015, (2016) 1 KLJ 126, paras 11 and 12, (one of the reasons for transfer was that the transferee was taking care and maintaining the senior citizen) and also affirmed in (i) Shabeen martin and ors. v. Muriel, decided on 03.10.2016, (2016) 4 KLJ 699 (ii) Sundhari v. RDO, Ottapalam, decided on 21.12.2017, (2017) SCC OnLine Ker 41505, and (iii) G.S. Manju v. K.N. Gopi, WP (C) No. 14802 of 2019, decided on 10.10.2019

[11] (2020) 4 KLJ 204, decided on 22.09.2020 (para 57) (creation of life interest in the property transferred was held not as an implied maintenance condition), affirming W.A. No. 2012 of 2012 dated 28.11.2012 [Malukutty Ponnarassery v. P. Rajan Ponnarassery]

[12] SLP (C) No. 15706 of 2020 amongst the batch, last listed on 03.08.2022

[13] Smt. Raksha Devi v. Deputy Commissioner-cum-District Magistrate, Hoshiarpur, decided on 03.05.2018, (2018) 4 RCR (Civil) 218, para 35; Mohinder Singh v. Deputy Commissioner-cum-Appellate Tribunal [2018 SCC OnLine P&H 2171, paras 3 and 4; and Gurmeet Kaur v. the St. of Punjab & ors., decided on 26.02.2019, (2020) 2 RCR (Civil) 868, para 8, to name a few.

[14] Smt. Sunita Bhasin v. State of NCT of Delhi, decided on 05.12.2018, W.P.(C) 13139/2018

[15] M. Venugopal v. The Dist. Magistrate-cum-District Collector, Kanyakumari (a case where a father transferred certain movables of his business to his son, with the condition of maintaining him), (2014) 5 CTC 162, para 13

[16] Mohd. Ibrahim v. The Dist. Registrar, decided on 30.11.2018, (2018) SCC OnLine Mad 9505, paras 5 & 9

[17] M. Shanmugam Pillai v. The Dist. Collector & 3 Ors., decided on 27.07.2020, WP (MD) No. 3259 of 2016, para 4

[18] Sasikala v. The RDO & anr., decided on 02.09.2022, AIR 2022 Mad 323 (a Full Bench of the Hon’ble Court while answering a reference regarding the power of a Registrar to accept the deed of cancellation to nullify the deed of conveyance made earlier, held in one of the individual cases, W.P. 6899 of 2020, that an express condition to maintain must have present in the gift deed to invoke subject provision); N. Nagarajan & anr. V. Schekar Raj, decided on 27.09.2022, S.A. No. 602 of 2020 (the Court cited various Judgments which held that the condition need not be express, but in the said case, a condition to maintain was present in the settlement deed); Selvaraj Simpson v. The Dist. Collector and anr., decided on 06.12.2022, W.P. No. 1397 of 2022 (held that the document of transfer should contain clause imposing an obligation on the transferee to maintain the transferor).

[19] Mohamed Dayan v. The Dist. Collector, decided on 08.09.2023, (2023) SCC OnLine Mad 6079, para 46

[20] Suguna v. The Dist. Collector, decided on 14.07.2023, W.P. No. 1397 of 2022, para 16

[21] D. Devi v. The IG of Registration and ors., decided on 06.11.2023, W.A. Nos. 374 & 376 of 2020, paras 14 & 25

[22] The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 seeks to remove the upper-limit on the amount of maintenance (the Bill is yet to made into an Act)

[23] Ashwin Bharat Khater & anr. v. Urvashi Bharat Khater & anr., decided on 07.09.2023, W.P. No. 6022 of 2022, para 25. It has subsequently been challenged before the Hon’ble Supreme Court in SLP No. 23891of 2023 and is pending for adjudication

[24] Amar Nath Dutta v. the St. of WB & ors., decided on 24.03.2023, W.P.A. No. 1013 of 2023, paras 6, 8 & 11

[25] Sri. Nanjappa v. The St. of Karnataka & ors., decided on 17.03.2023, W.A. No. 573 of 2022 (GM-RES), para 25

[26] “(1)…there is a need to give more attention to the care and protection for the older persons…” and (2) “to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives…”

[27] “…to provide for more effective provisions for the maintenance and welfare of parents and senior citizens…”

[28] Ex praecedentibus et consequentibus optima fit interpretation, meaning that the best interpretation is made from the context. Reference can further be drawn to proviso (2) of Section 92, the Indian Evidence Act, 1872

[29] The Maintenance Tribunal under Section 8(2) of the Senior Citizens Act, 2007, is empowered with all the powers of a Civil Court, though it may opt for a summary procedure.