Right to Property with Responsibility:

I. Introduction

Until four decades earlier, the Indian society comprised of joint families only. Further to the western influence and fast urbanisation, the concept of joint families waned away giving birth to nuclear families consisting of just husband, wife and children. In such a change in trend in the constitution of families, parents, particularly those who are aged and ailing, were perceived as a burden to the family and have become neglected sect of the society.

It is to be borne in mind that as per Indian culture and values, the parents are to be taken care very well by their wards and it was deemed to be a service rendered to the Almighty.

As per holy Hindu scriptures, no son can get relieved of the debt he owes to his parents². The Kurma Purana (one among the Eighteen Mahapuranas) prescribes that,

“… No person can repay his parents even in hundred years for all the troubles that they go through to give birth to him and raise him to adulthood³…

…. The son who pleases his parents by his good qualities acquires the fruit of all good virtues⁴. Service to one's parents is the only essence of Dharma and it leads one to Moksha upon death⁵.”

In terms of Manusmriti,

“… Always a person should try to do whatever pleases his parents, because only then does any religious worship done by him will bear any fruit⁶. Therefore, as long as the parents are alive, no one should devote himself to any other religious undertaking. Rather, he should continue to serve them with full diligence and do whatever pleases them and is beneficial to them⁷…

… In fact, by serving one’s parents, a person fulfils all his major religious duties. Other religious acts like worshiping are minor, compared to serving these elders⁸.

Holy Quran mandates that Children must show respect, humility and compassion to their parents. They must neither be patronizing nor condescending to them, for God Almighty says:

“And be humble with them out of mercy, and pray, ‘My Lord, be merciful to them both, as they raised me up when I was young.’”⁹

Children must also be grateful to their parents and acknowledge their favours, for God Almighty says:

“And We have commanded people to ‘honour’ their parents. Their mothers bore through hardship upon hardship, and their weaning takes two years. So be grateful to Me and your parents. To Me is the final return.” ¹⁰(Quran 31:14).

Speaking of children’s responsibilities towards their parents Holy Bible states as follows:

“Children, obey your parents in the Lord, for this is right. Honor your father and mother, this is the first commandment with a promise, that it may go well with you and that you may live long in the land.”¹¹

“Listen to your father who gave you life, and do not despise your mother when she is old.”¹²

Hence, to take care of parents is a virtue propounded by all the religions and faiths and a globally accepted culture, norm and ethic. Nevertheless, mushrooming old age homes across the length and breadth of the country stands testimony to the fact the aged parents in the Indian society are being neglected, despised and are left uncared for.

In order to uphold the centuries old traditional culture, virtue and moral value that was prevalent in the Indian society until some decades back, in the interest of aged parents who are to be duly taken care of, the lawmakers of the country felt it appropriate to legislate a new law to care for the elderly and thus the “Maintenance and Welfare of Parents and Senior Citizens Act” (herein “Act)¹³ came into being. The said act not only provides for the maintenance and welfare of aged parents/senior citizens but also casts upon the persons who would be inheriting the property of such parent/senior citizen, obligations, duties and responsibilities to take care of the latter when they are old and become dependent physically and psychologically¹⁴.

II. Response towards elderly – global and national perspective

At the international level, the Universal Declaration of Human Rights, 1948 guarantees right to social security to all, especially to the persons during their old age¹⁵. The United Nations Principles for Older Persons was adopted by the UN General Assembly that provides for principles related the care, independence, dignity, independence and self-fulfilment of old persons across the globe¹⁶. Furthermore, UN General Assembly has declared October 1 as International Day for Older Persons to raise awareness among the people regarding the impact of aging and to elevate consciousness about the points that are affecting the aged such as elder abuse and senescence. Under the Indian Constitution, Article 41 mandates the state to make effective provision for securing the old age within its economic capacity and development¹⁷. Article 46 of the Constitution also directs the state to promote the economic interest of weaker section of the society (which includes aged persons) with special care¹⁸.

So far as the personal laws of our country are concerned, Section 20 of the Hindu Adoption and Maintenance Act, 1956 (herein “HAMA”), provides that a Hindu, in his/her life time, has to maintain his/her aged or infirm parents if they are not in a position to maintain themselves from their own earnings or property. In the case of Smt. Krishna Kamalini Debeya v. Junior Land Reforms Officer, the Calcutta High Court held that,

“Under Section 20 of the Hindu Adoption and Maintenance Act, 1956, it would mean that when property passes without any distinction, the liabilities which are concomitants of it, must also pass.”¹⁹

In terms of Section 22 of HAMA, the heirs of a deceased Hindu are bound to maintain the dependents of the deceased out of the estate inherited by them from the deceased. The liability of relatives to maintain their aged relatives shall be in proportion to the value of the share or part of the estate taken by them.

The term “Hedaya” in Islam defines ‘maintenance’ as all those things which are necessary to the support of life such as, food, clothes and lodging. Under the Muslim law the obligation to maintain one’s aged and infirm parents arises only if one is in easy circumstances and the parents are destitute. The obligation to maintain other relations arises only if one is in easy circumstances and the relations are poor, and it extends to only those relations who are within the degree of prohibited relationship and then too, only in proportion to the share one would inherit from them on their death. According to Hedaya, the quantum of maintenance should be determined on the basis of rank and financial position of both the parties. Every child whether male or female, adult or minor, who has sufficient property, is responsible to provide maintenance to their parents. If some of the children are themselves poor, then the obligation lies on them who are in easy circumstances. A person is bound to maintain his paternal and maternal grandfathers and grandmothers, if they are poor and not otherwise to the same extent as he is bound to maintain his poor father. Under the Hanafi Law, the dedicator can provide in the waqf deed that during his lifetime he will be maintained out of the income of the waqf property. He can even reserve the whole income for himself for his life. The dedicator may provide that the payment of debts be made out of the income of the waqf property. A Shia Muslim on the other hand can create waqf by will²⁰.

There is no express provision for maintaining the elderly under the personal laws of Christian and Parsi. However, in India, the care has been taken by the State to ensure that elderly are maintained by their near and dear ones besides there being provision for maintaining elderly people under personal laws. Thus, parents who are in need to be maintained can invoke the powers of the court under the provisions of Section 125 of the Code of Criminal Procedure, 1973 irrespective of their religion. Though this section uses the expression ‘his father or mother’, this does not exclude daughters whether married or unmarried as it only takes into account only the capacity of the children to maintain and refusal by them to maintain their parents. Hence, parents if they do not have sufficient means to maintain themselves can claim maintenance from daughters including married ones provided the latter is capable of maintaining them.

On one hand, the provisions of the personal laws discussed above, are applicable to those belonging to the particular religion and only deal with the rights of the parents and not senior citizens. On the other hand, the procedure/ proceeding for claiming maintenance under Section 125 of the Code of Criminal Procedure, 1973 are time consuming and cumbersome²¹.

III. Brief analysis of the act

Keeping in view the need to have inexpensive, simple and speedy provisions related to claiming of maintenance by aged and ailing parents/senior citizens and to protect their interest, the legislators have earnestly endeavoured to come forth with various bills since 2005 until the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was enacted. This Act enables senior citizens/aged parents to make out an application for their maintenance, if they are unable to maintain themselves from and out of their own means, against their children or such person on who will be inheriting their property as the case may be²². The Act also provide for filing an application for maintenance through such authorised person or organisation if the senior citizen/aged parent is incapacitated to file the application for maintenance by himself²³.

In terms of the Act, a Tribunal is required to be constituted to enquire into and adjudicate upon the application for maintenance filed by senior citizens/aged parents²⁴. The said Tribunal has to be presided over by an Officer of the state not below the rank of Sub-Divisional Magistrate²⁵. The Act also provides for choosing any person having special knowledge to assist the Tribunal for the purpose of deciding upon the claim made for maintenance²⁶. The Act also empowers the Tribunal to take suo motu cognizance of the claim for maintenance for the senior citizens/elderly persons despised by their near and dear ones²⁷. Upon receipt of a claim for maintenance, the Tribunal may refer the matter to Conciliation Officer for an amicable settlement of the matter²⁸. In case such conciliation fails, the Tribunal may proceed to enquire into the claim and pass appropriate orders. In the proceedings before the Tribunal no legal practitioner is authorised to represent any party²⁹. However, if the complainant/senior citizen/aged parent so desires, he can choose to represent his/her claim on his behalf through the Maintenance Officer so designated by the State³⁰. Any claim application filed before the Tribunal is required to be disposed of within 90 days, from the date of service of notice on the person against whom the claim has been preferred, extendable by another 30 days for the reasons to be recorded in writing by the Tribunal³¹. The Tribunal is empowered to order for maintenance of the applicant up to a sum of Rs.10,000/- per month³² together with interest at the rate of not less than 5% but not exceeding 18% as may be decided by the Tribunal³³. In case the person against whom the claim for maintenance has been filed evades service of notice, the Tribunal may proceed ex-parte to decide the claim³⁴. Every order passed by the Tribunal shall be provided free of cost to the applicant³⁵. For any breach of the order of the Tribunal, Tribunal may issue a warrant for levying appropriate fine against the children or relative of the complainant and the defaulting person may be committed to prison for a month or until payment of maintenance as ordered by the Tribunal³⁶.

Any appeal to the order of the Tribunal shall be filed within 60 days with the Appellate Tribunal constituted for the purpose which will be headed by an officer not below the rank of a Magistrate³⁷. The Appellate Tribunal shall endeavour to dispose of the appeal within 30 days from the date of filing of the appeal³⁸.

In terms of the Act, every state is required to establish old age homes in every district of the State so that at least 150 impoverished senior citizens/aged parents could be accommodated³⁹. The old age homes are supposed to be of such standard so that appropriate medical care, basic amenities and means of entertainment are made available to the inhabitants⁴⁰. For establishment of such old age homes with food, shelter and medical facilities, the central government provides for grant-in-aid to the Non-Government Organisations (NGOs). Under the Act, the state governments are mandated to ensure that all the government hospitals have geriatric department headed by a geriatric specialist to take care of the medical needs of the senior citizens/elderly parents⁴¹. The Act also requires every state to give wider publicity through print and electronic media, sensitize all the stakeholders like police, judicial officers, medicare providers, personnel of law, health and welfare and home affairs so that needy senior citizens/aged parents are duly taken care of in terms of the Act⁴². The State Government is obligated to lay down a comprehensive action plan for protecting the life and property of the senior citizens/aged parents⁴³. The State Government may confer upon the Magistrate of the State with such powers and duties to ensure security and safety of the senior citizens for they are soft targets of anti-social elements⁴⁴. The central government is obliged to monitor the steps taken by the state governments in implementing the Act in the State⁴⁵.

The Act has enabled the Tribunal to declare any transfer of property done by the claimant/complainant, by way of settlement or gift or otherwise to his children or relative in the hope that the transferee will take care of the transferor but eventually the transferor is left uncared for, as void and shall deem such transfer as one obtained under duress or by fraud or by undue influence⁴⁶. An order for maintenance could be enforced against the transferee if he has notice of the right or if the transfer is gratuitous but not for valuable consideration and without notice⁴⁷. If any children or relative of a senior citizen who is supposed to take care of the senior citizen/elderly parent tries to abandon the senior citizen/aged parent in order to shirk their responsibility to maintain the senior citizen/aged parent is punishable with imprisonment up to 3 months or fine up to Rs.5000/- or both⁴⁸. Any offence under the Act is cognizable, bailable and can be tried by the Magistrate summarily⁴⁹. Civil courts are completely ousted in jurisdiction insofar as the matters relating to this Act⁵⁰.

IV. The maintenance and welfare of parents and senior citizens (amendment) bill, 2019

The legislature intended to amend this decade old Act since the number of cases of neglect, exploitation, crime and abandonment of parents and senior citizens are soaring⁵¹. Certain key amendments proposed by the Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 (herein “proposed amendment bill”) to the Act are as follows:

• In the definition of “children” adoptive or stepchildren, children-in-laws and legal guardian of minor children have been added. Similarly, parent-in-laws and grandparents have also been included under the definition of “parents”⁵².
• The mode of submission of application for maintenance by the parents/senior citizens has been enlarged⁵³.
• Provision for expeditious disposal of maintenance applications with special preference to the applications of senior citizens above eighty years of age⁵⁴, so as to enable them to receive necessary relief has been enacted⁵⁵.
• The upper limit of rupees ten thousand as monthly maintenance amount that may be awarded by the Tribunal⁵⁶ has been removed and the number of days from the order of the Tribunal within which maintenance amount is to be paid is reduced to 15 days⁵⁷.
• The right to file appeal has been extended to children and relatives who are aggrieved by the order of the Maintenance Tribunal, if they continue to pay the maintenance amount as ordered by the Maintenance Tribunal⁵⁸.
• This bill provides for compulsory registration of Senior Citizens’ Care Homes, Multi-Service Day Care Centre for Senior Citizens and other institutions providing Homecare Services for Senior Citizens⁵⁹.
• Provision for constitution of Special Police Unit for Senior Citizens in each district appoint Nodal Officers for Senior Citizens in every Police Station has been incorporated⁶⁰.
• Provision to establish and maintain Helpline for the safety and security of senior citizens has been added⁶¹.
• This bill provides for stringent punishment to those who abuse or abandon their parents/senior citizens⁶².

V. Critical analysis of section 23(1) of the act

Many a times, senior citizens either to fulfil the demands of their children or out of love and affection transfer their properties in favour of the latter. Section 23(1) of the Act comes to the rescue of the former if they are ill-treated or neglected by their children/relative after such transfer. Under Section 23(1), such transfer is irrevocable at the option of the senior citizen⁶³. It provides that where a senior citizen has transferred his property by way of a gift deed or otherwise, subject to the condition that the transferee shall provide basic amenities and physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the transfer of such property shall be deemed to have been made by fraud or coercion, or under undue influence⁶⁴.

In the case of Promil Tomar and Ors v. State of Haryana and Ors⁶⁵ it was held that the word “otherwise” used under Section 23(1) of the Act would include transfer of ownership, possession by way of a lease deed, mortgage, licence, gift or sale deed.⁶⁶ The extract from the judgement of the aforesaid case is as under;

“The word "otherwise" cannot be ignored for the objective of Section 23 (1) of the Maintenance Act. In context to the objectives of the Act, "transfer" would mean that transfer of property by senior citizen need not be a gift only but it could be any transfer within the meaning of Transfer of Property Act or would even include transferring of any right of the nature of title or possession... A senior citizen who had transferred his right, title or interest to any other person by gift or otherwise (which would include transfer of possession by lease, mortgage or licence) 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 fraud and would be void.”⁶⁷

The words of Justice A. Muhamed Mustaque in the case of G. S. Manju v. K. N. Gopi are as follows;

“If love and affection was the circumstances for executing such deed, any failure on the part of the transferee to provide amenities and physical needs to the transferor would attract the grounds for revocation under Section 23.”⁶⁸

Hence, any emotional detachment or creation of an atmosphere as opposed to the one demanded by a senior citizen is sufficient to attract Section 23(1)⁶⁹.

In the case of Raksha Devi v Deputy Commissioner cum District Magistrate, Hoshiarpur and Ors⁷⁰, it was held that Section 23(1) does not contemplate that the “condition” should form part as recital in the deed of transfer⁷¹. The exact words of the S. J. Vazifdar, then Chief Justice of Kerala, in the said case are as under,

“The plain language of Section 23 does not require the condition referred to therein namely the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor, to be stated in writing in the document that transfers the property or in any other document”.⁷²

The “condition” can be either express or implied and should be understood based on the conduct of the transferee before and after the execution of gift/ settlement deed⁷³. As per Section 17 of the Indian Contract Act, 1872, “fraud” includes any promise made without an intention of performing it⁷⁴. The third proviso to Section 92 of the Indian Evidence Act, 1872 provides that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under such contract, grant or disposition of property may be proved.⁷⁵ Thus, it is evident that there is no requirement even under law that the “condition” should form part of the written document⁷⁶.

Section 122 of the Transfer of Property Act, 1882 (herein “TP Act”) defines a gift as any transfer of certain existing movable and immovable properties made voluntarily without any consideration⁷⁷. Section 126 of the TP Act provides for the suspension or revocation of a gift on happening of any specified event upon which the donor and done have agreed upon⁷⁸. Condition for maintenance during old age cannot be assumed as a consideration for gift.⁷⁹ More so, consideration specified under Section 122 refers to monetary consideration and natural love and affection.⁸⁰ The gift/settlement deed on a promise that the donee will look after the donor at the old age is a transaction without consideration⁸¹.

It is, therefore, clear that there is no inconsistency between the provisions of the TP Act and Section 23(1) of the Act⁸². Moreover, Section 23(1) is only an addition to the provisions of the TP Act as it provides additional safeguards to the senior citizens⁸³. Even if there is any inconsistency between Section 23(1) and provisions of the TP Act, the former will prevail not because it has an overriding effect over the other laws for the time being in force⁸⁴ but, based on the legal maxim “Generalia specialibus non derogant”, i.e., special enactment (the Act) prevails over the general enactment (TP Act – a general law relating to transfer of property)⁸⁵.

By the proposed amendment bill, Section 23(1) has been made applicable to senior citizens as well. Upon analysing Section 23(1) of the Act it can be inferred that this Act contemplates the right of senior citizens beyond the right of maintenance⁸⁶.

VI. Suggestions and conclusion

There is no doubt that this Act aims to provide much needed financial independence and decent living to the senior citizens/aged parents during their lifetime, keeping in view that they are more vulnerable physically and have become dependent on others to lead a normal life. Yet, there are certain legislative drawbacks in the Act/proposed draft bill which if revisited and acted upon, would be more beneficial to the aged population of our country. The said drawbacks and suggestions to fix it are as follows;

The act/proposed amendment bill is silent about the case where the senior citizens/aged parents do not have their own means of income or property and either they do not have any relative/children to take care of them or the legal heirs/ relatives of the senior citizen/aged parent themselves do not have sufficient means to take care of themselves. Anticipating this scenario, it is suggested that the Central/State Government may bring up a Senior Citizen Security Assistance by way of a lump sum of at least Rs. 1000/- per month to be paid to such senior citizens/aged parents/economically weaker senior citizens by way of direct benefit transfer (DBT). A group insurance scheme may also be put in place with regard to such senior citizens to take care of serious/ chronic/age related ailments from which they may suffer.

• With regard to the Section 23(1) of the Act it is proposed that necessary amendments be made in the Act /proposed amendment bill such that those properties bequeathed by relatives/ legal heirs of the senior citizens/aged parents cannot be encumbered in any way i.e., by way of lease or mortgage or sale or gift or settlement etc. until such time the senior citizen/aged parent are alive.
• In the case of Rajeev Bhel v. State and Ors, the Delhi High Court by invoking Rule 22(3)(1) of The Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 amended by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, 2016 held that a senior citizen/parent can evict his son, daughter and legal heir from the property of any kind whether movable and immovable, ancestral or self-acquired and tangible or intangible by making an application before the Deputy Commissioner/District Magistrate of that district⁸⁷. Such a rule as inserted by the State of Delhi can be made part of the Central Act or be emulated by other states.

The suggestions stated above are not exhaustive and are subject to discussion and debate. The author believes that if the afore-stated points are to effect it would be helpful in achieving the very object of Act.

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