HOW SENIOR CITIZENS CAN TAKE BACK PROPERTY GIVEN VIA GIFT DEED
ALL VALUERS SHOULD BE CAUTIOUS BEFORE VALUING SUCH PROPERTIES REGISTERED ON GIFT DEEDS
We often hear or read in newspapers that children have neglected their senior citizen parents. Many elderly parents are sent to live in old-age homes because the children don’t want to take the responsibility of taking care of them. In some extremely sad cases, the children have taken their parents’ property as gift and then have driven these very parents out of their homes. Can a senior citizen take back a property/asset that they have given away via gift deed?
In that case what will be the consequences if a valuer valued such property for a bank sold on gift deeds by any senior citizen?
In 2007, the government enacted “The Maintenance and Welfare of Parents and Senior Citizens Act, 2007” for giving legal security to senior citizens. The Act came into effect on December 29, 2007.
If you are a senior citizen who has gifted property and assets to their children and now has been thrown out by them, then here’s how you can get back your property/asset.
The Maintenance and Welfare of Parents and Senior Citizens act define “senior citizen” as any person being a citizen of India and 60 years or above. Senior citizen is eligible to get back their property given via gift deed from their children/legal heirs if they fail to provide basic necessities as mandated under the law.
As per the law, the “maintenance” section of the Act implies that children/legal heirs must provide for food, clothing, residence, medical attention, and treatment of the senior citizen parent. The “welfare” refers to the provision for health care, recreation, and other amenities considered necessary for senior citizens. This Act was mainly passed for the senior citizens or parents who are unable to take care of themselves of their own earnings (such as pension etc.) or the assets and properties owned by them.
The Act also provides protection to senior citizens/parents’ who have signed away their property or assets to their legal heir/children thinking that they will take care of them in their old age but unfortunately the legal heirs do not fulfil their responsibility towards them.
It does not matter if a person became a senior citizen after the gift deed was executed. The intent of the Act is to allow the senior citizen to revoke the gift deed irrespective of the fact that they turned 60 after the grant of the deed, provided the gift deed was executed after the enactment of the Act.
If the gift deed was executed before the commencement of this Act, i.e., December 29, 2007, then the senior citizen does not have a remedy under this Act. However, they can challenge the same before a High Court.
Process of getting the property back
Once eligibility is confirmed, the senior citizen will be required to get the gift deed revoked. The revocation of gift deed will be done via section 23 of the Act. It is important to note that section 23 is prospective in nature. It only deals with those transactions which are made by senior citizens after the commencement of the Act. However, recently a petition has been filed challenging the retrospective provision of section 23 in Delhi High Court.
Under the Act, the revocation of a gift deed can be done through the maintenance tribunal. Each state has a maintenance tribunal where a senior citizen can file an application to revoke the gift deed and take the property back.
In Delhi, the Additional District Magistrate (ADM) is the chief tribunal officer or the presiding officer. The office of ADM is where the maintenance tribunal is situated. All the states have separate rules under The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The procedure to seek redressal is provided under the said rules.
For example, in Delhi, a senior citizen can file an application for maintenance under Rule 5 of the Delhi Government Rules, 2017 under the Act and seek relief of revoking the gift deed in the same. In case, despite service of notice, the opposite party (children/legal heirs) fails to respond to a notice, the tribunal shall proceed ex-parte, by taking evidence of the applicant (senior citizen).
The Delhi government in its 2017 Rules mentions the procedure for eviction of children/legal heirs from property/residential building of senior citizens. The rules state that a senior citizen may make an application before the Deputy, commissioner/District Magistrate (DM) of his district for eviction of his children/legal heir from his self-acquired property on account of them not taking care of them and ill-treatment. It further states that if the parent or senior citizen is not in the condition to file an application and are incapable of doing so, then any voluntary association registered under the Societies Registration Act 1860 or any other Indian can appeal on behalf of the elderly person.
A senior citizen is required to apply for declaration with the court/maintenance tribunal for making the old transaction (gift deed) void. A senior citizen can even apply for recovery of property and assets from her grandchild in the event of the grandchild refuse to take care of the senior citizen or does not comply with the obligations extending to the needs of the senior citizen to lead a normal life.
Such parents and senior citizens can certainly apply for recovery of vacant possession of the property and for a relief restraining such child or grandchild or his other family members who are claiming through such child from entering upon the property of such senior citizen or parents. It is also to be noted that under section 25 of this Act every offence under this Act is cognizable and bailable.
Cost of getting the property back
The amount of money a senior citizen has to spend to revoke the gift deed and get the property/gift deed back is subjective. The senior citizen does not need a legal practitioner/lawyer to be represented before the Maintenance Tribunal. The charges for getting property/assets via Maintenance Tribunal are the bare minimum.
The court charges are very low. Further, any, if stamp duty to be paid for getting property back, depends on the State rules.
On the other hand, if you are seeking relief before the High Court, it depends on the kind of lawyer/advocate you are engaging. The price range lies between Rs. 25,000- Rs. 1 lakh.
The Supreme Court in a catena of judgments has held that the right, title, or interest to any other person by gift or otherwise (which would include the transfer of possession by lease, mortgage, or license) transferred by the senior citizen would become void in the event of transferee refusing to provide amenities and physical needs.
The said transfer in such circumstances would be termed as a result of fraud, coercion, or undue influence and would be void.
