Transfer Deed Can Be Declared Void U/s 23 Senior Citizens Act Only If It Expressly Contains Condition To Provide Basic Amenities/Physical Needs To Senior Citizen : Kerala HC [FB]

The Kerala High Court has held that the condition as required under Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, for provision of basic amenities and basic physical needs to a senior citizen has to be expressly stated in the document of transfer, which transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer.

The bench comprising Justices K.Vinod Chandran, VG Arun and TR Ravi observed that there can be no implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest.

Reference

As per Section 23 of the Act, where any senior citizen who, after the commencement of the 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.

In 2012, a division bench of the High Court in Malukutty Ponnarassery v. P.Rajan Ponnarassery found that the absence of an express recital of an undertaking by the transferee, to make provision of basic necessities and amenities to the transferor, would divest the Tribunal of the authority to declare void a transfer effected by a senior citizen. Without noticing this judgment, two other division benches in Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Revenue Divisional Officer [2018 KHC 4655 = 2013 (3) KLT 1082], held that such a condition could be implicit as well. The matter was referred to full bench in view of these conflicting division bench dictums.

Transfer can only be one by way of gift or which partakes the character of gift or a similar gratuitous transfer.

The bench observed that words 'gift or otherwise' in Section 23 of the Act have a restricted application. It said: 

We are of the opinion that looking at the text of the Act and looking at the context in which it was enacted and has application, the intention of qualifying the transfer of property by a senior citizen with the words 'gift or otherwise', projects a clear indication to restrict the words 'or otherwise' to such category of transfers which are in the nature of gifts or partakes the character of gift.

No implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest

Another issue considered by the bench was whether reservation of life interest or enjoyment of usufructs from the property gifted or settled in favour of the transferee could result in an implied condition that the transferor expects the transferee to look after the senior citizen till his/her death? In this regard, the bench made following observations:

"A mere reservation of life interest or right to collect usufructs from the property has to be enforced against the beneficiary of the document or a subsequent transferee and Section 23(1) does not come to the aid of a transferor seeking that remedy. Neither can Section 23(1) be considered to have interfered with the valuable rights of the transferee nor be taken as imposing any restriction on his/her right; when there is a settlement made with reservation of life interest for residence or taking usufructs from the property. There can be no implied condition to assume jurisdiction under Section 23(1) merely for the reason that the document contains a reservation of life interest."

"Very pertinent is the fact that Section 23(1) is prospective and applies only to agreements executed after the enactment came into force. Section 23 applies only to transfers after the commencement of the Act. This further fortifies our interpretation that the provision insists on there being an express condition, written as part of the recitals, in the deed. If it were otherwise and the circumstances which led to the execution or a reservation clause could be relied on to infer or imply such a condition having regulated the execution, it would have been made applicable to deeds of all times, executed by senior citizens of a like nature. The measures of publicity as spoken of in Section 21, under Chapter 5 is  also intended at informing every senior citizen about the speedy remedy provided for maintenance as also revocation of a gratuitous transfer and to alert them of the condition to be specified; which has to be a part of the recitals of the document."

 That the children should look after their parents, as a principle or a value, require no validation from scriptures or philosophical sources

While overruling the observations in Manju G.S. v. K.N.Gopi [2020 (1) KHC 10], the bench noted that the said judgment has referred to religious and philosophical texts to highlight the traditional value systems. In this context, the bench said:

"We are of the opinion that in deciding the scope of Section 23(1), it would be unsafe to look at religious texts or philosophical treatises. That the children should look after their parents, as a principle or a value, require no validation from scriptures or philosophical sources. The Act attempts to provide a dignified existence to the elderly and in drawing the contours of the power conferred under Section 23(1) we have to necessarily be conscious of the inter-play of the rights of the senior citizen and that of the beneficiaries to a transaction; of those acquired on property as regulated by various statutes. The Preamble speaks of the Act as one to provide effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution. Though not specified it has a reference to Article 21 and 41 of the Constitution of India."

The judgment authored by Justice Vinod Chandran begins with this quote by Oscar Wilde: "Children begin by loving their parents; as they grow older they judge them; sometimes they forgive them". The judge said:

"Only sometimes; but that is no reason to stop loving them, refuse to care for them and alienate them, is the principle on which the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 [for brevity 'the Act'] has been interpreted in majority of the decisions of this Court and some other High Courts. Certain Benches trode a different path to find that the statute though inspired by traditional values, all the same has to be interpreted strictly and there could be no question of unrequited love raised; to bring in drastic consequences to the rights on property gifted or settled by reason of the love and affection of the donor or settler for the beneficiary."

Case no.: SUBHASHINI vs.  DISTRICT COLLECTOR
Case name: WA.No.1460 OF 2015
Coram: Justices K.Vinod Chandran, VG Arun and TR Ravi 
Counsel: Advocates P.B.Krishnan and Parvathi Menon;  Sr. GP P.Narayanan

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