Maintenance against property must be written in gift deed: Supreme Court | India News

NEW DELHI: The Supreme Court has ruled that parents gifting their property to children in lieu of being cared for in their old age must put this condition in writing in the gift deed. Otherwise, the property gift can’t be revoked even if the children neglect their old parents.
A bench of Justices Sanjay K Kaul and A S Oka gave this practical advice on Tuesday to senior citizens, who generally gift self-earned properties to their children in the understanding, hope and expectation that they would be well looked after in their sunset years when ailments routinely affect them.
Even though all parents, who in old age are neglected by their children, have a right to move dedicated tribunals invoking the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, this SC judgment was on revocation of properties gifted to children in lieu of maintenance.
Writing the judgment, Justice Oka delved into the applicability of Section 23 of the 2007 Act and said, “For attracting the Section, following two conditions must be fulfilled — A. 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; and B. The transferee refuses or fails to provide such amenities and physical needs to the transferor.”
“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),” he said.
In the case in hand, a Gurugram-based mother had gifted certain properties to her children. She later moved the Maintenance Tribunal for revocation of the gift deed alleging that the children are not taking care of her. The tribunal found the allegations true and annulled the gift deed in May 2018. The Punjab and Haryana HC concurred with the tribunal’s decision.
Justices Kaul and Oka reversed the decision saying the gift deed did not contain an express clause for maintenance of the old woman in lieu of her property gift to her three children, two daughters and a son. Hence, the gift deed cannot be revoked, the bench said.
The SC said when a senior citizen parts with his or her property by executing a gift in favour of near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it.
“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 said.