Senior Citizen Who Transfers Property By Gift Expects To Be Maintained By Donor, Such Condition Need Not To Be Specifically Incorporated In Instrument Of Transfer: Bombay High Court

The Bombay High Court observed that the first condition under Section 23 of the Senior Citizens Act, 2007 which provides that the transfer of the property must have been made by the senior citizen subject to the condition that the transferee shall provide the basic amenities and basic physical needs of the senior citizen need not be specifically incorporated in the instrument of transfer.

The Bench of Justice N.J. Jamadar observed, “Consistent with the aforesaid approach, it must be borne in mind that an express recital that the transfer, or for that matter, a gift is subject to the condition that the transferee shall provide the amenities, needs and necessities of life of the transferor / senior citizen need not be in terms incorporated in the instrument effecting the transfer. Especially, in case of a gift, such condition may appear to be incongruous, as the gift has to be without any consideration and out of natural love and affection. Thus, the first condition, extracted above, need not be specifically incorporated in the instrument of transfer. In a sense, a senior citizen who transfers his property, especially by way of gift, in the evening of his life, expects the transferee - donee to provide for his necessities and physical and emotional support. Such an expectation is implicit in the very act of transfer. Therefore, not much mileage can be drawn from the fact that, in the case at hand, the instruments in question, do not find mention of such condition.”

Advocate Chirag Mody represented the Petitioners, while Advocates Kamlesh Mishra and Savina R. Crasto represented the Respondents.

Case Brief

A Petition was filed by the son and daughter-in-law under Articles 226 and 227 of the Constitution of India against the judgment whereby the appeal preferred by the Petitioners against the judgment passed by the Maintenance Tribunal, under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (the Act of 2007) came to be dismissed.

The Senior Citizen, a father, contended that his son forced him to execute a Partnership Deed and Gift Deed in his favour and Post execution there was a perceptible change in the behaviour of the son. Accordingly, by invoking the power under Section 23 of the Act, 2007, the Tribunal declared the gift deed void and the same was upheld by the Appellate Tribunal.

While the son contended that a registered instrument cannot be declared void by the authorities under the Senior Citizens Act, 2007, without evaluating the material and satisfying themselves that the conditions stipulated under Section 23 of the Act, were satisfied. Thus, it was urged that the order by the Tribunal and the Appellate Authority deserve to be quashed.

Court’s Observation

The High Court noted that the controversy between the parties revolves around the circumstances in which the instruments were executed and whether the son neglected to maintain and take care of the senior citizen, after the transfer of properties.

The High Court highlighted that the Senior Citizens Act, 2007 was enacted to provide for more effective provisions for the maintenance and welfare of the parents and senior citizens and envisages a regime which facilitates simple, inexpensive and speedy mechanism, inter alia, to claim maintenance for parents and also to protect life and property of the senior citizens.

Further, the Court said, “Evidently, the deeming fiction of law is created where the transfer of the property of the senior citizen was subject to the condition of providing maintenance, basic amenities and basic physical needs of the senior citizen and there is breach of such obligation by the transferee. In such a case, the Tribunal is empowered to declare the transfer void, albeit at the option of the transferor – senior citizen.”

The High Court also underscored the twin conditions which are required to be satisfied under Section 23 of the Act. First, the transfer of the property must have been made by the senior citizen subject to the condition that the transferee shall provide the basic amenities and basic physical needs of the transferor. Second, the transferor has refused or failed to provide the maintenance and basic amenities and physical needs of the transferor. The High Court observed that if these two conditions are satisfied, the deeming fiction operates i.e. the transfer of the property by the senior citizen shall be deemed to have been made by fraud, coercion or under undue influence.

The High Court held that the first condition need not be specifically incorporated in the instrument of transfer. “In a sense, a senior citizen who transfers his property, especially by way of gift, in the evening of his life, expects the transferee - donee to provide for his necessities and physical and emotional support. Such an expectation is implicit in the very act of transfer. Therefore, not much mileage can be drawn from the fact that, in the case at hand, the instruments in question, do not find mention of such condition”, the Court observed.

The High Court dismissed the Writ Petition stating that the Tribunal did not commit any error in returning a finding that the deeming fiction was attracted and the senior citizen who now claims to be 88 years of age, is entitled to the protection of his right to property.

Cause Title: Raviprakash R. Sodhani and Anr. V. Ram Swaroop Sodhani and Ors. (Neutral Citation: 2025:BHC-AS:42312)

Appearance:

Petitioner: Advocates Chirag Mody, Bhavin Gada, Deepak Shukla, Aanchal Singhania, Praveen Maurya

Respondent: Advocate Kamlesh Mishra for Respondent No. 1 and Advocate Savina R. Crasto for State

Click here to read/download Judgment