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Necessary Conditions to be included by the parents in the Gift / Transfer under Senior Citizens Act

In a recent judgment, the Supreme Court of India categorically held that any gift or transfer of property by parents to their children is generally made out of natural love and affection and there is no binding on the part of the children to maintain their parents in return.

The court further stated that in order to seek such commitments from their children, there must be an express covenant in gift / release deed that the gift is subjected to some conditions and the children have to take due care and caution of their old parents.

The above said judgment namely "Sudesh Chhikara Vs Ramti Devi" on 06.12.22 strike down the order of Maintenance and welfare of Parents and senior citizens Act, 2007.

In the above case, the senior citizen mentioned that her relationship with her children was devastated and they stepped back in maintaining her in all means. The Maintenance Tribunal found sense in the case and ordered the release deed to be Null and void. The same was also upheld by Punjab and Haryana High court.

When the matter went to the Supreme Court, the court overturned the Judgment of the High Court and noticed that for taking advantage of Sub Section 1 of Section 23, following conditions are to be fulfilled :-

  • 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,

  • The transferee refuses to or fails to provide such amenities and physical needs.

Observing the Sub Sections of Section -23, the Supreme Court noted that:-

"Whenever a senior citizen parts with his or her property by executing a “Gift” or a “Release” or otherwise in favor of his or her near 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."

As per the Supreme Court, any condition attached to transfer must be established before the Tribunal. However, it was noticed that in the said case, such condition was not even pleaded completely. The Supreme Court ruled out that in all gifts/releases made by the parents in favour of their Legal heirs, the commitment for upkeep and maintenance of the donor parents is not inbuilt and in order to declare a deed void by taking resort to Section

23 of Maintenance Act, it must be proven beyond doubt that the condition of Maintenance and due care existed in the transfer deed and it must be so established by the donor parent before the Tribunal/Court.

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