Can a Senior citizen get back his property if his children refuse to maintain him if he had unconditionally transferred his property to them?

The Tribunal exercises important jurisdiction Under Section 23 of the 2007 Act which reads thus:

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.

12. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise". For attracting Sub-section (1) of Section 23, the following two conditions must be fulfilled:

a. 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; and

b. the transferee refuses or fails to provide such amenities and physical needs to the transferor.

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.

13. When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned in Sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal.

14. Careful perusal of the petition Under Section 23 filed by Respondent No. 1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of Respondent No. 1) would provide the basic amenities and basic physical needs to Respondent No. 1. Even in the impugned order dated 22nd May 2018 passed by the Maintenance Tribunal, no such finding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was filed by the Appellant that the petition was fixed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor - senior citizen is sine qua non for applicability of Sub-section (1) of Section 23. In the present case, as stated earlier, it is not even pleaded by Respondent No. 1 that the release deed was executed subject to such a condition.

15. We have perused the counter affidavit filed by Respondent No. 1. Even in the counter, it is not pleaded that the release was subject to such a condition. It is merely pleaded that the Appellant had no intention to take care of her mother. Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in Sub-section (1) of Section 23 were not satisfied. Unfortunately, the High Court has not adverted to the merits of the case at all.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 174 of 2021

Decided On: 06.12.2022

 Sudesh Chhikara  Vs.  Ramti Devi and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and Abhay Shreeniwas Oka, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/1581/2022

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Whether the court can direct Daughter-In-Law To Pay Mother-In-Law Maintenance Under Senior Citizens Act?

We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), 'children' include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs. 25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable. {Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3323 of 2019

 Sheetal Devang Shah Vs. Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens and Ors.

Hon'ble Judges/Coram:

Sambhaji Shiwaji Shinde and Revati Mohite Dere, JJ.

Citation: MANU/MH/1615/2022

Decided On: 06.05.2022

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Whether court can entertain the application of the senior citizen to evict his children from his self acquired property?

 Mr. Thorat then says that under Section 5 it is only an application for maintenance that can be entertained by the Tribunal. Mr. Shetty's application was for eviction. It says so. Therefore, according to Mr. Thorat, the Tribunal acted without jurisdiction, apart from the fact that it proceeded on a significant procedural illegality. {Para 8}

9. As to the jurisdictional question we do not believe the point is well taken. The definition of maintenance in Clause 2(b) reads thus:

“2(b) “maintenance” includes provision for food, clothing, residence and medical attendance and treatment.”

10. Clearly it includes residence; and this means residence of the senior citizen.

54. At this stage, we may mention that in Smt. S. Vanitha (supra), Supreme Court has taken the view that the Tribunal under the 2007 Act may have the authority to order an eviction if it is necessary and expedient to ensure maintenance and protection of the senior citizen or parent. Eviction, in other words, would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be granted only after adverting to the competing claims in the dispute.

(Emphasis added)

12. In Jasani, therefore, the claim of the appellant was that the house was a ‘shared household’, i.e. that she had a legally definable right in the property itself. That is not the case before us at all, where Shweta accepts that she has no right in the flat in question. The mere use of the word ‘eviction’ is not by itself determinative. To constitute eviction, or to invoke any prohibition against eviction, it must be shown that some legally enforceable civil right of the appellant in the property itself has been determined and that the appellant has been denied that right. Removal of a person with no right in the premises is not eviction so as to attract any such prohibition. After all, as Jasani notes, the statutory intent is to protect senior citizens. It is not to foist on senior citizens an imaginary claim over their own property where the claimant has no such right to begin with. The statutory intent is not to limit the rights of senior citizens, but exactly the reverse.

 In the High Court of Bombay

(Before G.S. Patel and Madhav J. Jamdar, JJ.)

Writ Petition (L) No. 9374 of 2020

Shweta Shetty Vs State of Maharashtra 

Decided on November 25, 2021

Citation: 2021 SCC OnLine Bom 4575

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