SC recent interpretation of Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to send a wrong signal to society

The Apex Court in a recent judgment in Sudesh Chhikara v. Ramti Devi & Anr. in Civil Appeal No. 174 of 2021 vide judgment dated December 6, 2022 has categorically held that when a parent gifts his/her immovable property to one or more of their children, they may do so out of natural love and affection for their children and not with a reciprocatry commitment that the children would take care of the parent(s) and maintain them in old age.

The Court further held that in order to take advantage of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, there should be express covenant in the Gift/Release Deed that the gift is conditional and subject to the condition/commitment of the donee children for taking due care and maintenance of the parent(s).

The Court expressly held that in the absence of any stipulation in the transfer deed, the donee would be under no obligation to provide basic physical needs to the donor parent and in these circumstances, the transfer document cannot be revoked under Section 23 of the Maintenance Act, 2007.

The brief facts of the case are that the Respondent no.1 executed a release deed in respect of a part of her property in favour of her daughters (the appellant and second respondent's mother) which was duly registered. As per the said release deed, the daughters became the owners of one-third share each in the property subject matter of the release deed.

Later on, the said Respondent no.1 filed a petition under Section 23 of the 2007 Act before the Maintenance Tribunal stating that her relationship with her son and daughters was strained and therefore, her son and daughters were not maintaining her and prayed under Section 23 of the said Act for cancellation of the said release deed.

The Maintenance Tribunal held the said release deed void and also held that the children of the respondent no.1 were not willing to take her due care. The said judgment was confirmed by the jurisdictional High Court, which led to filing of the present appeal in the Apex Court.

It would be trite to understand the purpose of enactment of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The said Act was enacted for the purposes of making effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under Article 41 of the Constitution of India. Accordingly, the Maintenance Tribunals were established throughout the country to exercise various powers under the said Act.

It is relevant that the Maintenance Act, 2007 has a pivotal role in Indian Societal frame work. The Maintenance Act comprehends a scheme of welfare provisions for senior citizens. The Act contemplates right of senior citizens beyond right of maintenance. The word "welfare" has a significant importance and has been defined under Section 2(k) of the said Act as follows:-

2(k) "welfare" means provision for food, health care, recreation centres and other amenities necessary for the senior citizens."

It would be apropos to reproduce Section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 which reads as under:

23. Transfer of property to be void in certain
Circumstances:

1. 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.

The Apex Court in the present case also considered the preliminary objection that Section 23(1) applies only to transfer by way of 'Gifts' and not to other modes of 'transfer'. The Court negated this technical objection and held that the said section applies to all kinds of transfers as is evident from the use of the phrase 'or otherwise' in the said section.

The Court categorically held thus:
Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise"

The Apex Court further analyzed the scope and ambit of Section 23(1) of the said Act and the two mandatory conditions required to fulfilled for invoking the same and observed thus:

For attracting sub-section (1) of Section 23, the following two conditions must be fulfilled:

1. 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
2. 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.

Thus, the Apex Court in the present case ruled that in all gifts/releases made by the parent(s), the condition/commitment for upkeep & maintenance of the donor parent(s) is not inbuilt and in order to declare a deed void by taking resort to Section 23(1) of the Maintenance Act, it must be proven beyond doubt that the condition of maintenance and due care existed in the transfer deed at the time of execution of the said deed and it must be necessarily so established/proven by the donor parent in the proceedings before the Tribunal/Court. The Court categorically held thus:

13. 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.

The Court finally held that in the facts and circumstances of the case, the release deed executed by the respondent no.1 did not contain any specific/express condition for taking due care and maintenance of the respondent no. 1 and therefore set aside the order of the Maintenance Tribunal and the High Court. The Apex Court allowing the appeal held thus:

"Thus, the order of the Maintenance Tribunal cannot be sustained as the twin conditions incorporated in sub-Section (1) of Section 23 were not satisfied."

The said case is a 'Precedent' and the subordinate judiciary, the High Courts and the Apex Court itself is bound to follow the dictum of the said case. As far as the interpretation of Section 23(1) of the said Act is concerned, the Apex Court appears to have interpreted the said Section verbatim, as it exists in the statute book.

But, with due respect to the Apex Court, the interpretation ought to have been done keeping an eye on the very purpose and objectives of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, which would become nugatory with this hyper- technical interpretation. The cardinal rule of interpretation of a statute is that it should be interpreted in a such a way that it promotes the objectives & the purpose of the enactment.

The interpretation, as given by the Apex Court is bound to defeat the purpose of the Act. Even with this interpretation, the Court could have considered the ground reality that the condition of maintenance and upkeep of donor parents is implicit, latent and implied.

When an old parent gifts his hard earned property, at the time when he is old, weak, ill, almost not earning, dependent & weary, it is not only expected but the donee children are both under moral & legal obligation and bounden duty to take care of their donor parent(s).

Could this section not have been interpreted that the donor parent had not expressed his/her specific negation/denial that there would be no obligation on the donee to provide the basic amenities and basic physical needs to the transferor as the said condition is otherwise implicit/implied with the transfer itself?

It is my view Section 23 of the Senior Citizens Act, 2007 does not contemplate that the condition should form part as recital in the deed of transfer. It only refers that there should be a condition for such transfer. This condition can be either express or implied. If there is no express recital in the deed, the Tribunal ought to gather the intention of the donor from the surrounding circumstances.

It cannot be denied that the Transfer by a parent to his children would necessarily be out of love and affection. However, the donor would invariably expect that the donee continues to behave in same manner as behaved before the execution of the deed. The Transferee cannot be permitted to disown his own action of love and affection after the transfer comes into effect.

Thus, in the absence of any other circumstances to dispel, it must be presumed that transferor expects continuation of the care and love from the transferee even after execution of the deed in same manner, he had taken care prior to execution of the deed. Thus, it is not necessary that there should be a specific recital or stipulation as a condition in the transfer of deed itself. Thus even if there is no reference in the recital of deed that the transferee will provide basic amenities and physical needs to the transferor, it should be always treated as implied.

The Apex Court also did not consider the provisions of the Indian Contract Act, 1872 wherein Section 17 defines 'fraud' to include a promise made without any intention of performing it. It is worth mentioning that Section 92 of the Evidence Act places a restriction on the admissibility of evidence in variance or in contradiction of the term of a registered document in writing. However, under second proviso to Section 92, the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved.

Under third proviso to Section 92, the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property may be proved. Thus, there appears no requirement under law that condition as such should form part of written document. It can be implied from the circumstances of human conduct.

Moreover, the Apex Court has probably not considered the aftereffects of this judgment. It is a cause of worry for the aged people who have gifted/ transferred their property to show their concern/ parental love to their 'dear' children who were perforce caring for their upkeep and maintenance for the fear of their parents moving to the maintenance tribunal for cancellation of the transfer deed. Now, they have become free and would stop taking any care in view of the new interpretation and categorical judgment of the Apex Court.

The senior citizens are indeed worried about their future which seems dismal after this authoritative pronouncement by the Apex Court. Already the aged parents are being ill treated and harassed throughout our country, in both rural or urban background, irrespective of region, caste, creed, religion & educational background. The Court should have understood & found redressal to the deep agony & pain faced by the aged parents in the hands of their children. This would be aggravated by this recent judgment of the Apex Court.

India has been a land of culture, value & ethics. It is a land of legendary 'Shravan Kumar' who sacrificed his life serving his aged blind parents. The traditional norms and values of the Indian society emphasize on the duty of taking care of elders. Joint families were prevalent in different forms across the country.

In traditional Indian society, duties of children towards one's parent were considered as a debt owed to them. It is pertinent that the Kurma Purana, one of the Eighteen Mahapuranas and named after the tortoise avatar of Vishnu recites: "No Deva can equal the mother and no superior can equal one's father. Hence, no son can get relieved of the debt he owes to them."

[Kurma Purana 2.12.36] Similarly in Manusmriti, 2/227, it is given that, "Parents who give birth and rear children face agony that cannot be overcome in a hundred years. Therefore, the father, mother and teacher must always be kept happy and content through care and service.

This is important to attain truth and success in life." Contrary to our culture & ethics the Apex Court has put the final nail in the coffin of the happiness and solace of the aged people of our country in the fag end of their lives and put them at the mercy of their 'ruthless' children.

It would be relevant to mention that the Court was oblivious to the factors which compel the aged lonely & desolate parents, particularly the widows, to succumb to the mental, emotional, physical pressures being exerted to torment the aged parents and force them to sign the transfer deeds in their favour, sometimes at point of gun or knife.

They are threatened for disobeying the illegal 'commands' of their children. In a one sided affair how can a donor parent insist on incorporating the condition of maintenance on the children in the transfer deed? Most of the donor parents do not even know or understand the document they are signing.

Moreover, the scribes/deed writers, who draft these deeds, are not legal experts and do not really know the aftereffects of what they are writing in the deed. How can an aged parent be made to suffer for the ignorance of the deed writers? It is indeed a sorry state of affairs that there is no awareness of the Maintenance Act and the rights & obligations of the parents and senior citizens.

It is high time that either the Apex Court should reconsider the matter or the Legislature must bring suitable amendment so that the purpose of this enactment is achieved. The implied/implicit liability of the children towards their donor parents should be made mandatory at the earliest so that the aged parents live fearlessly and with dignity.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021