Divergent judicial opinions have forged an oscillating jurisprudence on the scope of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Act, finds Rahul Machaiah.
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The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 recognizes ageing as a social challenge and acknowledges that elderly citizens are vulnerable to emotional neglect and financial insecurity.
To bolster the rights of senior citizens, the Act and the Rules empower ‘maintenance tribunals’ presided over by sub-divisional officers such as assistant commissioners to adjudicate claims of maintenance and even set aside alienations of property.
The scope of a tribunal’s power to annul alienations has remained a contentious issue, with divergent judicial opinions exacerbating the inconsistency.
The gamut of Section 23
Section 23 (1) of the Act governs transfers of property executed by senior citizens, subject to the condition that the transferee is bound to provide ‘basic physical needs’ and ‘basic amenities’ to the transferor.
The expression “subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor” appears to have flummoxed maintenance and appellate tribunals and even some high courts.
It deploys a legal fiction to declare that the transfer shall be deemed to have been made due to fraud, coercion or undue influence if the transferee fails to provide basic amenities and basic physical needs to the senior citizen.
In such cases, the aggrieved senior citizen may approach a tribunal, seeking annulment of the transfer.
Section 23 (2), on the other hand, specifically pertains to senior citizens’ right to receive maintenance out of an estate and provides for the enforcement of the right against gratuitous transferees and transferees who are aware of such a right. Unlike Section 23 (1), the transfer of the estate need not necessarily have been made by the senior citizen.
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To enhance the accessibility of remedies, Section 23 (3) allows registered organisations to act on behalf of senior citizens if they are incapable of enforcing their rights under Section 23.
Divergence on the condition to provide needs and amenities
The expression “subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor” appears to have flummoxed maintenance and appellate tribunals and even some high courts.
In several cases, senior citizens who had gifted their property to their children sought cancellation of the gift deed on the ground that the children failed to look after them despite reaping benefits from the property.
Unsurprisingly, the children resisted the attempts to annul the gift deeds by adverting to the absence of a specific condition or a recital in the gift deed imposing an obligation to provide amenities to the transferor.
The absence of a cohesive interpretation and consistent application of Section 23 is glaring. A brief analysis of a few decisions of the Karnataka High Court and the Madras High Court would be useful to appreciate divergent judicial opinions and the failure to adhere to precedent.
In 2018, the Karnataka High Court upheld the annulment of a gift deed executed by a senior citizen in favour of her daughter after she failed to look after her.
The absence of a cohesive interpretation and consistent application of Section 23 is glaring.
Though the gift deed did not explicitly impose an obligation on the daughter to provide basic needs and amenities, the court opined that insisting on such a condition would defeat the purpose of the Act and went on to observe, “The main object of the Act is to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution of India and to protect senior citizens at the fag end of their life.
“Even otherwise, it is the duty and dharma of children to take care of their aged parents.”
In June 2022, a division Bench of the Karnataka High Court overruled this judgment on the ground that in the absence of an explicit condition pertaining to the obligation of the donee, the tribunal was not justified in annulling the gift deed.
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Thereafter, in December 2022, the Supreme Court in Sudesh Chhikara versus Ramti Devi held that transferring a property subject to a condition to provide basic needs and basic amenities was “sine qua non” for Section 23 of the Act to apply.
Relying on this decision, a division Bench of the Karnataka High Court categorically held that unless a gift deed contained a stipulation to provide basic needs and basic amenities, it could not be annulled under Section 23.
However, in December 2023, a single-judge Bench of the Karnataka High Court ordered two children of a senior citizen to pay ₹7 lakh each, annually, to their mother, though admittedly, the gift deed executed by the mother did not impose a condition to pay annual maintenance or provide basic amenities.
Interestingly, the maintenance tribunal had annulled the gift deed while the appellate tribunal set aside the annulment and directed the children to provide amenities, attend to physical needs and pay maintenance that was being paid without specifying the amount!
Without expressing a definitive opinion on the correctness of the tribunals’ decisions and examining the applicability of the precedents cited, the high court ordered the children to pay the annual amount.
Despite the absence of such a condition in the gift deed or an agreement to pay maintenance, the Court heavily relied on the fact that both the children had transferred ₹7 lakh each to their mother for three years after receiving coffee plantations as gifts.
Based on this finding, the court held that the children would be entitled to “enjoy the fruits of the gift deeds” if they paid ₹7 lakh each to their mother, annually, during her lifetime.
The course adopted by the high court appears to be ill-suited to the scheme of the Act. By reading into the gift deed an obligation to pay ₹7 lakh annually, the court effectively converted an unconditional gift into a conditional gift.
The legal fiction in Section 23 is confined to fraud, coercion and undue influence and does not stipulate that a condition to provide amenities is deemed to exist.
Admittedly, the senior citizen had received ₹48 lakh from her children ever since she executed the gift deed. The judgment is silent on whether failure to pay a relatively high amount of maintenance is tantamount to denying basic needs and basic amenities so as to attract Section 23 (1).
The legal fiction in Section 23 is confined to fraud, coercion and undue influence and does not stipulate that a condition to provide amenities is deemed to exist.
Also, the statutory maintenance that a tribunal may award is a maximum of ₹10,000, except in cases covered under Section 23(2).
Furthermore, the direction to pay ₹7 lakh annually was a result of an extrapolation based on previous money transfers to the mother for three years which does not conclusively indicate that there was an obligation to pay this sum every year during the mother’s lifetime.
Though the Act has an overriding effect over other laws, it is pertinent to note that generally, evidence of an oral agreement may not be admitted to vary or contradict the terms of a written agreement.
The relief sought by the senior citizen before the tribunal and the high court was the annulment of the gift deeds. It was the high court that concluded that payment of a maintenance amount of ₹14 lakh annually was more appropriate.
Similarly, the Madras High Court’s interpretation of Section 23 has not been consistent. For instance, in September 2023, a single-judge Bench held that a settlement deed need not contain an explicit condition to provide basic needs and amenities as such a condition was implicit.
Strangely, the court opined that the Supreme Court’s judgment in Sudesh versus Ramti Devi (discussed earlier) was not binding and chose to follow the Supreme Court’s judgment in S. Vanitha versus Deputy Commissioner.
Though the Act has an overriding effect over other laws, it is pertinent to note that generally, evidence of an oral agreement may not be admitted to vary or contradict the terms of a written agreement.
This is intriguing as the Supreme Court in S. Vanitha has not held that Section 23 would apply even in the absence of an explicit condition in a gift deed. On the contrary, in S. Vanitha, the Supreme Court observed: “In other words, sub-Section (1) deals with a situation where the transfer of the property is accompanied by a specific condition to provide for the maintenance and needs of a senior citizen.”
Thereafter, in November 2023, another single-judge Bench pointed out that the reliance on S. Vanitha’s judgment was misplaced and that a division Bench of the Madras High Court had already held that Section 23 applies only when a document contains an explicit stipulation regarding the condition to provide basic needs and amenities.
Setback for stare decisis and financial planning
The divergent judicial opinions have forged an oscillating jurisprudence on the scope of the Act. The doctrine of stare decisis seeks to enable citizens to arrange their affairs with the confidence that the law would remain reasonably certain.
An unconditional gift deed without a stipulation to pay maintenance or provide basic needs and amenities may induce a third party to lend money to the donee, enter into a lease agreement, etc.
An unconditional gift deed without a stipulation to pay maintenance or provide basic needs and amenities may induce a third party to lend money to the donee or enter into a lease agreement.
Such rights are bound to be defeated if the tribunals and courts annul the deeds by supplying terms pertaining to maintenance and amenities. Furthermore, a good number of donees may not have accepted certain gifts had they been aware of the risk of being compelled to pay maintenance amounts that are well above the statutory amount, even in the absence of stipulations to pay maintenance annually.
It is perhaps needless to state that altering the scope of a registered instrument through oral evidence is fraught with the risk of causing severe prejudice to the parties. It might take a fresh clarification from the Supreme Court to put an end to the looming confusion.
