How to safeguard property rights of senior citizens

Under the Senior Citizens Act, a senior citizen may gift or transfer their property to a child with a condition that the child will provide basic amenities or physical needs to them. If the child fails to do so, then the senior citizen parent has the right to approach a Maintenance Tribunal established under the Senior Citizens Act to declare the gift or transfer as void on account of it being deemed fraudulent, coercive, or as made under undue influence.

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To protect their rights, senior citizens planning on gifting property to their child should consider including an express condition in the gift/transfer deed that the child will maintain them. If the child violates this condition, then the parent can approach the Maintenance Tribunal to declare the gift void and return the property to the senior citizen.Some courts have even observed that an express condition is not required in the deed and as such, a condition may be implied when a parent gifts property to a child out of love and affection or in lieu of services. However, it would be preferable to include such an express condition so that there is no scope for ambiguity.Notably, only a gift or transfer made after the enactment of the Senior Citizens Act in 2007 will be subject to its benefit.

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Although the Senior Citizens Act itself does not provide for eviction/removal from property, Indian courts, including the Supreme Court, have permitted eviction/removal of the children or relatives from the property of senior citizens in case of harassment or non-maintenance.Courts have also ordered removal of children from the parents’ home when children have resorted to harassing their parents to transfer the property to them on the ground that they are the future legal heirs. Eviction/removal of the child from the property has also been upheld if a child has entered into an agreement for the transfer of property on fraudulent grounds to harass an aged parent.

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The rights of the senior citizen will have to be balanced against the rights of the person sought to be evicted under other laws such as the Protection of Women from Domestic Violence Act, 2005, to avoid injustice. Thus, where a daughter-in-law is sought to be evicted, the Tribunal or court would ensure that her rights under the Domestic Violence Act are not overridden by the rights of the senior citizen under the Senior Citizens Act. (Text by Shaishavi Kadakia and Radhika Parthasarathy. The writers are advocates.)

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