Maintenance and Welfare of Parents and Senior Citizens Act, 2007
Section 23(1)—Applicability of section—Conditions for—For attracting sub-section (1) of Section 23, the 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 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.
Held : When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, 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.
[Paras 12 & 13]
Section 23(1)—Applicability of section—Order of Maintenance Tribunal holding subject release deed null and void confirmed by High Court—Appeal—Finding recorded by Maintenance Tribunal that first respondent’s children were not willing to take her care—Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor senior citizen is sine qua non for applicability of sub-section (1) of Section 23 of the 2007 Act—It is not even pleaded by first respondent that the release deed was executed subject to such a condition—Even in the counter, it is not pleaded that the appellant had no intention to take care of her mother—Order of Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied—High Court has not adverted to the merits of the case at all—Impugned order passed by Maintenance Tribunal as well as order passed by the High Court are set aside and the petition filed by first respondent under Section 23 of the Act stands dismissed—Appeal allowed.
[Paras 14 & 15]
Decision : Appeal allowed