Parents gifting their property to their children in expectation of maintenance in their old age should make this condition part of the gift deed, the Supreme Court (SC) has ruled. In case a condition like that is not inserted in the gift deed, parents can’t revoke the gift deed, a Bench of Justices Sanjay Kishan Kaul and Abhay S Oka said in an order dated December 6, 2022.
Sub-Section 1 of the Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, establishes this point. It says that property transfer will become void only if the condition “that the transferee shall provide the basic amenities and basic physical needs to the transferor” is part of the gift deed, and “transferee refuses or fails to provide such amenities and physical needs”.
“For attracting the Section (23), the two conditions must be fulfilled. 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 (if the children do not take care of the parent who gifted them the property),” the SC said delivering its order in the Sudesh Chhikara versus Ramti Devi case.
“When it is alleged that the conditions mentioned in Section 23(1) are attached to a transfer, existence of such conditions must be established before the tribunal,” the SC ruled.
In the matter, a Gurgaon-based woman has gifted her property to her daughters through a gift deed but later moved to the maintenance tribunal for revocation of the deed over non-maintenance. The tribunal ordered in favour of the mother and canceled the gift deed in 2018. The Punjab & Haryana High Court also ruled in favour of the mother.
“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,” it further added.
