The Kerala High Court has held that the gratuitous transfer of life interest on a senior citizen's property cannot automatically be viewed as including an obligation for the transferee to maintain the senior citizen (Subhasini v. District Collector and Ors.).
The provision in focus is Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
This provision allows a senior citizen to revoke a gratuitous transfer of his/her property if the property transfer was made on the condition that transferee should maintain and provide the senior citizen with basic amenities. The provision reads,
"Transfer of property to be void in certain circumstances: 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..."
If this condition is violated, the senior citizen can approach the Senior Citizens Tribunal, which is empowered to declare the property transfer void at the senior citizen's option.
The Full Bench of the Kerala High Court, comprising of Justices K Vinod Chandran, VG Arun, and TR Ravi has now ruled that such a condition should be expressly provided in the transfer document. In other words, a condition requiring that the senior citizen should be maintained by the transferee cannot be implied.
The Judgment states,
"... the condition as required under Section 23(1) 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."
Kerala High Court
While the Court observed that there was a moral duty cast upon children to look after their parents, it was doubtful whether the same could be extended to the provisions of law.
“... we have our own doubts as to whether the traditional values and general moral policies could determine and expand the scope and ambit of a piece of legislation, to bring in consequences which even the lawmakers would not have contemplated or intended.”
If such a condition were allowed to be impliedly present, it would have far-reaching ramifications on any subsequent transfer the transferee may make, the Bench observed.
Because a transfer with an implied condition could prejudice the right of subsequent transferees if such a condition for annulment was allowed under the 2007 Maintenance Act, such a view could not be taken, the Bench opined.
The facts of the case involved a widow bestowing a life interest in her share of property upon her youngest son. The transfer deed made no mention of a condition that he was to sustain and take care of her.
Relying on decisions of the Kerala High Court and other Courts that a condition to maintain the senior citizen could be implied into a transfer of the senior citizen's property on account of the relationship between the parties, the senior citizen approached the Tribunal and later the High Court for relief.
The Tribunal allowed her plea. The District Collector moved the High Court challenging the Tribunal decision. A Single Judge Bench of the High Court allowed the woman maintenance but refused to annul the transfer deed. The woman appealed the order which was referred to the High Court Full Judge Bench.
When the matter came up before the Division Bench of the High Court, the Judges had found that there were conflicting decisions from Division Benches of the Court, which necessitated a reference to the Full Bench.
The conflict in law could not be resolved by relying on scriptures and morals, Justice Vinod Chandran emphasized, writing for the Full Bench. The Bench stated.,
"Though there is an element of morality in the legislation as such, that cannot be the sole reigning consideration in interpreting a provision in the statute which brings in drastic consequences as available in Section 23, totally extinguishing the rights of the transferee...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 Judges highlighted the need to balance the rights of senior citizens and the rights of transferees as governed by other legislation.
Crucial to this was a finding of whether the power of the Tribunal to annul a senior citizen’s transfer was to be made after fact-finding and exercising discretion. The Court found the power of the Tribunal to be narrow and restricted, particularly since proceedings under the Act are summary and the Tribunal’s officers are not judicial officers.
Therefore, the condition for maintenance would have to be expressed in the transfer documents.
Notably, during the course of the judgment, the Bench has also ruled that Section 23 only covers gratuitous transfers. In this regard, the Judgment states,
"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."
Advocates P Sanjay and Parvathi Menon represented the senior citizen while Government Pleader P Narayanan, Advocates B Krishnan, Harish R Menon, and KT Shyamkumar argued for the State and the woman's relatives respectively.
The Bench, appreciating the efforts of the arguing counsel for the Parties, Advocates Menon and Krishnan, stated that their arguments were "enlightening, both incisive and thought-provoking."
Read the Judgment here:
Subhasini v. District Collector and Ors. - Judgment dated September 22.pdf
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Kerala High CourtMaintenance and Welfare of Parents and Senior Citizens ActJustice VG ArunFull Bench decisionJustice K Vinod ChandranJustice TR Ravi
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