Delhi High Court Dismisses Plea For Retrospective Effect Of S.23 Senior Citizens Act Which Renders Property Transfer By Elderly Void In Certain Situations

The Delhi High Court has dismissed a plea seeking retrospective effect of section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which provides certain circumstances in which transfer of property by an elderly person will be void.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad dismissed the plea moved by one Chiranjit Singh Ahluwalia challenging the validity of the provision by contending that its application is restricted only to the gifts of property made by a senior citizen after the commencement of the legislation and not before.

Section 23(1) of the Act states that “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.”

Agreeing with a judgment delivered by division bench of the Kerala High Court in Human Rights and Social Welfare Forum Represented through its Chairman Dr. Vijeesh C Thilak v. Union of India, the court said:

“This Court is in agreement with the view expressed by the High Court of Kerala. The Act did not intend to disturb the rights of the donee which has already been created and vested in him. The Legislature is conscious of the fact that vested rights of the donor are not to be given a retrospective operation despite the fact that the object of the Act is to provide for measures for welfare of senior citizens. This is not a case of casus omissus and this Court while exercising its jurisdiction under Article 226 of the Constitution of India cannot make the provision what the Legislature did not intend it to be.”

It was Ahluwalia’s case that the words "after the commencement of the Act" must be taken away or struck down from section 23 and it should be given retrospective effect.

It was submitted that the senior citizens who have gifted their properties to their children or knowns are not being maintained and thus, the Act must read in a manner to permit the senior citizens to revoke gifts made by them prior to commencement of the Act.

Dismissing the plea, the court said that the legislature did not intend that Section 23 be read retrospectively and that it does not find the case fit for exercising the writ jurisdiction under Article 226 of the Constitution of India. "It is well settled that unless the terms of statute expressly provide or necessarily require it, retrospective operation should not be given to a statute which will have the effect of rights being created in favour of others."

Case Title: CHARANJIT SINGH AHLUWALIA v. UNION OF INDIA

Citation: 2023 LiveLaw (Del) 399

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