In 2007, the government enacted the “Maintenance and Welfare of Parents and Senior Citizens Act, 2007” to give legal protection to senior citizens. This Act came into effect on 29 December 2007.
If you are a senior citizen who has gifted property and assets to your children and is now ousted by them, here is how you can get your property/assets back.
Eligibility Criteria for getting the property back
The Maintenance and Welfare of Parents and Senior Citizens Act defines a “senior citizen” as a citizen of India and any person of the age of 60 years or more. Senior citizens are eligible to get back their property given through gift deed from their children/legal heirs if they fail to provide the basic requirements as mandated under the law.
As per law, the “Maintenance” clause of the Act implies that children/legal heirs have to provide for food, clothing, residence, medical attention and treatment of the senior citizen parents. “Welfare” refers to the provision of essential health care, entertainment and other facilities to senior citizens. This act was mainly passed for senior citizens or parents who are unable to take care of their own earnings (like pension etc.) or the properties and assets owned by them.
The Act also provides protection to those senior citizens/parents who have handed over their property or assets to their legal heirs/children thinking that they will take care of them in their old age but unfortunately the legal heirs can ignore their responsibility towards them. do not complete.
It does not matter whether a person becomes a senior citizen after the gift deed is executed or not. The intent of the Act is to allow the senior citizen to cancel the gift deed, notwithstanding the fact that he has turned 60 years 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. on 29th December, 2007, the senior citizen has no remedy under this Act. However, they can challenge it before the High Court.
property recovery process
Once the eligibility is confirmed, the senior citizen will be required to cancel the gift deed. The gift deed will be repealed under section 23 of the Act. It is important to note that Section 23 is prospective in nature. It deals only with those transactions which are done by senior citizens after the enactment of the Act. However, recently a petition has been filed in the Delhi High Court challenging the retrospective provision of Section 23.
The gift deed can be repealed through the Maintenance Tribunal under the Act. Every state has a maintenance tribunal where a senior citizen can file an application for cancellation of the gift deed and take back property,
In Delhi, the Additional District Magistrate (ADM) is the Chief Tribunal Officer or Presiding Officer. The office of the ADM is the place where the Maintenance Tribunal is located. Different states have different rules under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The procedure for redressal has been provided under the said rules.
For example, in Delhi, a senior citizen can file an application for maintenance under the Act under Rule 5 of the Delhi Government Rules, 2017 and seek relief of cancellation of the gift deed in the same. If despite service of notice, the opposite party (child/legal heir) fails to respond to the notice, the Tribunal shall proceed ex-parte by taking evidence from the applicant (senior citizen).
The Delhi government in its 2017 rules has specified the procedure for eviction of children/legal heirs from the property/residential building of senior citizens. The rules state that a senior citizen can apply to the Deputy Commissioner/District Magistrate (DM) of his district for eviction of his children/legal heirs from his own property, as they are not being looked after. and are sick – treatment. It further states that if the parents or senior citizens are not in a position to apply and are unable to do so, any voluntary association registered under the Societies Registration Act 1860 or any other Indian senior citizen may make an appeal on behalf of the could.
A senior citizen is required to apply for declaration with the court/maintenance tribunal to make the old gift deed void. A senior citizen can apply for recovery of property and assets from his grandson, if the grandson refuses to take care of the senior citizen or does not comply with the obligations that the senior citizen needs to lead a normal life.
Such parent and senior citizen may certainly apply for recovery of vacant possession of the property and for restraining such child or grandson or other members of his family who, through such child, such senior citizen or parent claiming to have entered the property. It should also be noted that every offense under section 25 of this Act is cognizable and bailable under this Act.
property return cost
The amount to be spent to cancel the gift deed to a senior citizen and get the property/gift deed back is subjective. A legal practitioner/lawyer is not required to represent the senior citizen before the Maintenance Tribunal. The charges for obtaining the property/property through the Maintenance Tribunal are minimal. Court charge is very less. Also, if any stamp duty is to be paid to get the property back, it depends on the state rules.
On the other hand, if you are seeking relief before the High Court, it depends on the type of lawyer/advocate you are engaging. The price range is between Rs. 25,000- Rs. 1 Lac.
The Supreme Court has held in a series of judgments that the right, title or interest of a person transferred by a senior citizen by gift or otherwise (including transfer of possession by lease, mortgage or licence) shall become void. Transferee refused to provide facilities and material needs. In such circumstances the said transfer shall be deemed to be the result of fraud, coercion or undue influence and shall be void.
(The author is Partner, ANG Partners, Advocate and Solicitor.)