CASE BRIEF
HIGH COURTS
SUPREME COURT OF INDIA
Analysis, Law and Decisions
- Senior Citizens Act not a tool for siblings to settle scores: HC
- Donor cannot revoke gift deed to sell the property to others.
- Donor cannot revoke whimsically a gift voluntarily made to his or her child: HC which was also upheld by the Hon’ble Supreme Court in its verdict.
This blog is specifically concerned with Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act of 2007.
In India, when a welfare law is passed, it is normal practice for it to be misused in the name of welfare act, within a short period of time. Section 498-A of the Indian Penal Code is an example of this, because when it was enacted, majority of the husband's family members were questioned, Now, in the majority of cases, just the husband is questioned. While making decisions under the Senior Citizen Act of 2007, we should keep in mind the established principle of the judiciary that an accused may be acquitted, but an innocent person should not be punished. What happens in case of such child who has provided whatever possible from his/her side to the parents (in spite of their any type of behavior) but still have unsatisfied parents and just make misuse of the Act, to extract more from the child or now parents want property distribution between siblings who already have got their share? There are always two sides of coins which have to be seen before deciding, which is not done so, in general. Generally parents are always favoured because the first thing is that we all respect our parents, secondly, we somehow associate with our parents, and favour parents under such emotions. It's important to remember that each family's factual background and circumstances are different. We all know that parents and senior citizens are not always practical or prudent or judicious in their thinking. In this blog, initially, we want to talk about the ingredients of Section 23 of the Senior Citizen Act, and our analysis must begin with explaining the section 23 of the Act i.e. “23. The 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 organization referred to in Explanation to sub-section (1) of section 5.” After going through the complete section 23, we can say in simple words for sub section (1) of section 23, that it create a deeming fiction of law where the transfer of the property is subject to a condition of providing for maintenance and the basic needs of a senior citizen is not fulfilled by the person upon whom the obligation is imposed, then the transfer can be declared as void by the Tribunal. Furthermore, we shall explore the ingredients of Section 23 (1) of the Senior Citizen Act in two sections, Part A and Part B, individually in this blog, and as a result, we will also discuss the judgments of the Hon'ble High Courts and the Hon'ble Supreme Court separately, as stated below. Part – AIn this part, we will only address what would happen if the transferee fulfilled the basic amenities and physical needs of the transferor/senior citizen, or what would happen if the transferee did not fulfill the basic amenities and physical needs of the transferor/senior citizen. Part – BIn this part, we'll discuss the mandatory conditions that would have been imposed on the transferee at the time of the transfer, such as providing such amenities and physical needs to the transferor as described in section 23 (1)'s ingredients, and what the consequences would be if the mandatory conditions were not imposed on the transferee or if they were imposed on the transferee but not followed. Part A: Analysis based on decisions of the Hon'ble High Courts and the Hon'ble Supreme Court. In Case title Jagmeet Kaur Pannu v/s Ranjit Kaur Pannu CR No. 7598 of 2015 (O&M) Pb. & Hry. HC
Hon’ble Justice Kannan asserted: “The polemics of judicial interpretation have always been that a gift cannot be canceled or revoked at the whims of the transferor. That is precisely what is attempted to be done now.”
Coming down heavily on the tribunal, Justice Kannan added its order was “a shocking revelation of an utter lack of application of mind or application of any principle of law”. The tribunal made a sudden inference in one line that by virtue of Section 23 of the Act, on circumstances under which transfer of property could be void, the document was to be treated as void.
“There is no judicial exercise undertaken by the tribunal to examine whether the documents contained any condition and whether there had been any demand made by the mother on the daughter that provided the proof for the tribunal to render a finding that the transferee refused to provide such amenities and physical needs.
“Shockingly, the order does not even say that the transferee refused to maintain the donor. All that the tribunal has relied on is the assertion made by the mother that `the daughter is not behaving with her properly and abused her several times on the telephone’….
“The order passed by the tribunal is legally unsupportable. It is set aside and the gift deed in favour of the petitioner stands restored.”
Justice Kannan also asserted that “Before I proceeded to dispose of the case, I wanted to assure to myself that the petitioner was not a transferee who betrayed the trust of the mother and was making an attempt to transfer the property to the detriment of the mother and make quick buck of the property that she obtained from her mother. This was on account of a passionate plea made by another daughter present in Court with her mother that she had apprehensions that the petitioner will sell the property and create problems to her peaceful enjoyment at the instance of the purchaser.
The senior counsel appearing on behalf of the petitioner stated that he had the instructions to say that there will be no such transfer and there will be no impediment to her peaceful possession of the whole property during her lifetime. He even assured that she will maintain her mother at all times and will pay any reasonable amount as maintenance or any amount as the Court directs. The mother took some time to deliberate on the same but after a time, she would return to say she would rather have a judgment rendered on merits and that she was not prepared to bargain for maintenance or take any undertaking from the daughter that she will not alienate the property. To me, the intentions of the mother are explicit. Her fanciful and unfortunately a fickle-minded intent at that, can not be allowed to prevail. She will rest contended that come what may, her own rights to reside peacefully in the house is not under any threat and she needlessly trying to raise a phantom and kill it.
Against the High Court's decision, the mother Ranjit Kaur Pannu, filed a Special Leave to Appeal no. 7733/2016 before Hon’ble Supreme Court, her plea was rejected by the Double Bench vide order dated April 1, 2016, which stated, “We find no reason to entertain this special leave petition, which is accordingly dismissed.
That mother namely Ranjit Kaur Pannu not stopped here, and after the dismissal of Special Leave Petition by the Hon’ble Supreme Court, she also filed review application RA–CR –214-CII-2016 before Hon’ble Punjab and Haryana High Court, which has also been dismissed vide order dated 12.01.2018. What is significant here is that the Hon'ble High Court explicitly stated in its dismissal order, "I have carefully read the judgment. In the judgment, this court is nowhere laying down that the Act does not have any overriding effect. On the interpretation of various provisions of the Act, the court has given a detailed judgment.
Part B: Analysis based on decisions of the Hon'ble High Courts and the Hon'ble Supreme Court.
In Case title Subhashini v/s The District Collector, Kozhikode etc.W.A. No. 1460 of 2015 was decided on 22.09.2020 by the full bench of Kerala High Court at Ernakulam.
After considering the various high courts, specifically the Punjab and Haryana High Court judgment titled Smt. Raksha Devi v. Deputy Commissioner-cum-District Magistrate CWP No. 5086 of 2016, and Mohinder Singh v. Deputy Commissioner –cum-Appellate Tribunal [2018 SCC Online P&H 2171], the Hon'ble Full Bench has stated that "it is pertinent that the statement of objects and reasons does not speak about any property rights of a senior citizen and only speaks of the need to have a simple, inexpensive or speedy provision to claim maintenance for parents. Which otherwise is available under the Code of Criminal Procedure, 1973.”
The full bench further asserted that “Before we proceed further we have to reject the contention that section 23(1) is in the nature of a mere persuasion to care for parents, on the threat of losing valuable rights obtained in a property. In this context it also has to be noticed that for a declaration of the transfer to be void, the statute does not provide for re-possession, for which a senior citizen would anyway have to approach the civil court.
“The very intention of the statute to provide an expeditious remedy is defeated. “The legislature never intended that such complex questions of facts and law are to be gone into by the Tribunal constituted under the Act of 2007 which, we reiterate, has been constituted for the purpose of adjudicating issues of maintenance as would arise under Section 5 of the Act and also confers a restricted jurisdiction under Section 23(1).”
As a result, the Hon'ble Full Bench concluded that “the condition as required under Section 23(1) for of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer.
At last, the Hon’ble full bench has also concluded about the maintenance of mother/appellant that “If she wishes to claim further maintenance, she would approach the Tribunal in which event, the quantum would have to be proportionately shared by all the children.”
That, following Subhashini's decision, the one case titled Smt. S Vanitha v. The Deputy Commissioner, Bengaluru Urban District & Ors. has been decided by Full Bench of the Hon'ble Supreme Court, vide order dated 15.12.2020. In which Section 23(1) is illuminated under Column C, i.e. Legislative Scheme: Senior Citizen Act 2007, the Hon'ble Supreme Court has asserted that "Sub-Section 1, in other words, creates a deeming fiction of the law." where the transfer of the property is subject to a condition and the condition of providing for maintenance and the basic needs of a senior citizen is not fulfilled by the person upon whom the obligation is imposed.” “The right however cannot be enforced against a transferee for consideration and without notice of the right.”
Following that, the issue of mandatory conditions, as defined in Section 23(1) of the Act, was addressed in the case titled Surendran v. The State of Kerala etc. WP (C) No. 28734 of 2020 (N), The Hon'ble Kerala High Court at Ernakulam has asserted that “It is seen that though this was not the issue Supreme Court in S.Vanitha v. Deputy Commissioner, Bangaluru Urban District and Ors (J.T. 2020 (12) SC 208) has occasion to consider the scope of Section 23 of the said Act. It was indicated that the above clause, as laid down by the Full Bench, should form part of the document.”
“On the evaluation of the entire facts, in the light of the Full Bench decision of this Court in Subjashini’s case as well as in S.Vanitha’s case, it is evident that in the absence of specific recital in the document that the transferee was obliged or has undertaken or was bound to provide for basic amenities to the transferor, Section 23 of the Act cannot be invoked to set aside a document of transfer.” As result, the writ petition of son/petitioner has been allowed by the Hon’ble Kerala High Court.”
However, Ramakrishnan Nair, the father, filed writ appeal no. 789 of 2021. The Hon'ble Double Bench also dismissed his writ appeal in an order dated 06.07.2021, holding that "we do not find any jurisdictional error or other legal infirmities on the part of the learned Single Judge in interfering with the Tribunal's order and allowing the writ petition."
We also have to consider the below given two circumstances:- First : we have to understand the “will” and its consequences, in which the decisions and wishes of senior citizens are known to the family members after their deaths, the family member who does not get anything or gets less or not satisfied could challenge the will of parents or senior citizen, before civil courts. Second : we have to understand the recent property transfer (property in question of litigation under Senior Citizen Act) and its consequences, in which the decisions and wishes of senior citizen are known to the family members, during the life time of Parents and Senior Citizen, the family member who does not get anything or gets less or not satisfied or who resides far away from their parents, neglected them most of their life time, at a later time comes their home back with hope something would be given to them. It is at this point that the elderly person's problems begin, as furious/errant members of his family pressure him to get-back his property, and they are not deterred from exerting any kind of pressure or provocation. Especially when the elderly person is weak physically as well as emotionally, it's not at all difficult to provoke him by getting emotional. Children who used to look after their parents are facing false petitions at the instigation of errant family members who never care for their parents and later, instead of giving mental peace, indulge in false litigation and create more and more hurdles in Senior Citizen life, and take stand against family members who were duly looking after the Senior Citizen and received property from the Parents. The Hon’ble Supreme Court has also asserted that taking care of elderly parents will not amount of exerting “undue influence” on them if the aged parents decide to sell or will their property in the name of their caretakers. By this ruling, the Supreme Court said that such a view was necessary in today’s situation as otherwise, the elderly will be the object of neglect. Certainly, if family members who received the property did not satisfy the requirements of Senior Citizen, a complaint could be filed under section 23 of the Senior Citizen Act but if facts and circumstances are not so, Senior Citizen Act should not be treated like the nature of ‘Will’ i.e. governs altogether differently. It is important to note that when parents and Senior Citizens file a complaint after a long period of time (the period generally barred when dealing with other illegal acts, under the provision of limitation, except for senior citizen acts) and do not assert and demand in his/her complaint that was not fulfilled or failed by the transferee, how the Tribunal could make a sudden inference against the transferee and void the document under in litigation?
Very informative, legal update 👍
ReplyDeleteThank you for research about social issue.
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