SENIOR CITIZEN ACT AND AMENDMENT

Many senior citizens are unaware of their legal rights to reclaim property transferred to children and to seek removal or eviction of their children or relatives from their property. Although 16 years have elapsed since the enactment of the Maintenance and Welfare of Parents and Senior Citizens Act in 2007 (Senior Citizens Act) which grants such rights, the awareness of such rights remains low.

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.

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.

Recently, the Madras High Court in?N. Nagarajan and others Vs. Schekar Raj (S.A.No.602 of 2020 and C.M.P.No.12757 of 2020)?upheld the judgement and decree of the trial court and cancelled a settlement deed executed in favour of their son?after the court was convinced that the son failed to look after the aged parents.?The court noted that the case fell within the contours of Section 23 of the Maintenance Act which enables a parent or senior citizen to have a?transfer made by them declared void. This provision was introduced to ensure that the children took care of the parents even after receiving the property. https://www.livelaw.in/pdf_upload/nagarajan-v-schekar-438496.pdf

The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 was introduced by the centre in the Lok Sabha. The legislative intent with which the bill is drafted is to bring significant changes in the existing Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and introduce provisions such as : (i) setting up of care-homes, (ii) creating accessible public facilities for senior citizens, and (iii) regulating private care-homes and homecare services.??

The Act also amends the maintenance amount may not exceed a maximum of Rs 10,000 per month.?The Bill removes this upper limit on the maintenance fee and allows Tribunals to set the fee by considering: (i) the standard of living and earnings of the senior citizen, and (ii) the earnings of the children.??But fails to mention anything about evection.

In the light of the above-mentioned judicial pronouncements passed by different state high courts, it can be concluded that the draft bill still needs improvements and in the absence of express mention of eviction as a remedy in the Bill, the objective with which it is drafted will not get fulfilled.?Further, it would be difficult for every senior citizen to approach the High Court for an eviction order.