Senior Citizen cannot seek declaration of release deed as void unless he establishes twin conditions of section 23

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Shubham Budhiraja[1]

 

Mr. A, father filed a senior citizen petition seeking declaration of release deed as void and consequent possession of his property. The tribunal and High Court set aside the release deed created by father to son for reason that son is not taking care of them. Hon’ble Supreme Court held that unless twin conditions of section 23 are fulfilled, the sale deed/ release cannot be treated as void.[2]

 

(I)                   When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or her near and dear ones, a condition of looking after the senior citizen is not necessarily attached to it. On the contrary, very often, such transfers are made out of love and affection without any expectation in return. Therefore, when it is alleged that the conditions mentioned of Section 23(1) are attached to a transfer, existence of such conditions must be established before the Tribunal.

 

(II)                 Section 23(1) covers all kinds of transfers as is clear from the use of the expression “by way of gift or otherwise”.

 

(III)              For attracting Section 23(1), the following two conditions must be fulfilled:

 

a.    The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and

 

b.   the transferee refuses or fails to provide such amenities and physical needs to the transferor.

 

(IV)               If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void

 

(V)                  Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor – senior citizen is sine qua non for applicability of sub-section (1) of Section 23.


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com , +91-9654055315, Member, Legal Aid Committee-Bar Council of Delhi [2022-23], Member, Research Committee- NIRC ICSI [2021-2022], Secretary- NGO Shaura Ek Samman (Regd.)

[2] Sudesh Chikkara v. Ramti Devi, Civil Appeal No. 174 OF 2021, Judgment dated 06/12/2022

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