Senior Citizen Can Reclaim Property If Neglected By Child, 'Love And Affection' Implied Consideration For Transfer: Madras High Court

According to Section 23(1) of the Act, 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.

Justice SM Subramaniam observed that the phrase subject to condition should not be understood to mean that the Gift or Settlement Deed should contain an express condition but an implied condition, and any violation of the condition would be sufficient to invoke the provisions of the Act.

“The phrase “ subject to the condition that the transferee shall provide the basic amenities” does not mean that the Gift or Settlement Deed should contain any such condition expressly. “Subject to the condition” as employed in Section 23(1), is to be holistically understood with reference to the subsequent phrase i.e., “deemed to have been made by fraud or coercion or undue influence”. Both the phrases would amplify that the deeming clause should be considered so as to form an opinion that the phrase “subject to condition” amounts to an implied condition to maintain the senior citizen and any violation would be sufficient for the purpose of invoking Section 23(1) of the Act, to cancel the Gift or Settlement Deed executed by the senior citizen,” the court observed.

The court added that “Love and Affection” was an implied condition and had to be construed as the consideration for executing the Gift or Settlement Deed. The court also observed that the provisions of the Act could not be mis-utilised for rejecting a compliant by a senior citizen merely on the ground that there was no express condition.

“Therefore, the purposive interpretation of the provisions are of paramount importance and Section 23 of the Act, cannot be mis-utilised for the purpose of rejecting the complaint filed by the senior citizen on the ground that there is no express condition for maintaining the senior citizen. Even in the absence of any express condition in the document, “Love and Affection” being the consideration for execution of Gift or Settlement Deed, such love and affection becomes a deeming consideration and any violation is a ground to invoke Section 23(1) of the Act,” the court said.

With this judgment, the Madras High Court has now taken a different view than that taken by the Supreme Court in Sudesh Chhikara vs Ramti Devi wherein the Apex Court had held that Section 23 of the Senior Citizens Act will be attracted only if the transfer of property by a senior citizen was subject to a condition of providing the basic amenities and basic physical needs to him/her. In the above case, the Apex Court had also noted that very often, the transfers by senior citizens were made out of love and affection, and when it is alleged that the conditions mentioned in sub-section (1) of Section 23 are attached to a transfer, the existence of such conditions must be established before the Tribunal.

The above view was also taken by the Madras High Court itself in S Selvaraj Simpson v The District Collector and another wherein it was held that when a specific clause for maintenance was absent in the deed, an application for cancelling the document on that ground was not maintainable.

In this case, the court was hearing a plea by a son against the cancellation of a Settlement Deed by the Revenue Divisional Officer. The son claimed that his aged parents were residing with him and he was looking after them after executing the Settlement Deed in his favour. He also contended that there was no condition imposed in the Settlement Deed and in the absence of such condition, cancellation of the Settlement Deed was in violation of Section 23 of the Act.

The mother, however, submitted that though she had executed the Settlement Deed in favour of her elder son out of love and affection with the hope that he will maintain her and her husband, he had failed to honour his commitment and had left the parents in a lurch.

The mother added that she was now being maintained by her daughter and was not in a position to meet the medical expenditure for her and her husband as both of them were suffering from age-old ailments. Thus, to protect their life and to meet out the medical expenses, the Revenue Divisional Officer conducted an enquiry and cancelled the Settlement Deed.

The court noted that when parents decide to settle properties in favour of their children with a "hope" that they will be taken care of by the children, love and affection was both the consideration and the implied condition of the Settlement, within the meaning of Section 23(1) of the Act. Thus, whenever there was subsequent non-maintenance of parents by their children, the authorities were empowered to declare the settlement null and void.

“If at all the parents decide to settle the property in favour of a son or daughter, then they are doing so, only with love and affection and with a fond hope that they will be taken care of by the son or daughter during their old-age. Thus love and affection, being the consideration and implied condition, within the meaning of Section 23(1) of the Act. The subsequent non-maintenance of senior citizen would attract Section 23(1) of the Act and the Authorities in such circumstances are empowered to declare the document as null and void,” the court said.

Thus, the court observed that the conduct of the transferee prior to and after execution of the Deed of Gift or Settlement was important for the purpose of Section 23 of the Act. In the present case, looking into the recitals in the Settlement Deed, the court was satisfied that the mother had executed it out of love and affection for the son with a natural expectation that he will take care of her which he failed to do.

Thus, the court observed that the mother was entitled to the relief as granted by the District Collector and the Revenue Divisional Officer and there was no infirmity or perversity in the order passed.

Counsel for the Petitioner: Mr.K.Sudhakar

Counsel for the Respondents: Mr.T.Venkatesh Kumar Special Government Pleader, Mr.N.Manokaran

Citation: 2023 LiveLaw (Mad) 262

Case Title: Mohamed Dayan v The District Collector and Others