There are nearly 138 million elderly persons in India in 2021, including 67 million men and 71 million women, according to the report by Bloomberg Quint. An increase of nearly 34 million elderly persons was seen in 2021 over the population census of 2011. This number is expected to increase by 56 million by 2031.
“The increasing share of older persons in the population is poised to become one of the most significant social transformations of the twenty-first century, with implications for nearly all sectors of society, including labour and financial markets, the demand for goods and services, such as housing, transportation and social protection, as well as family structures and inter-generational ties,” as per Bloomberg Quint. This means that every one of five Indians is likely to be senior citizen.
In the absence of a social security network and rising instances of incidents which saw senior citizens at the receiving end from those whom they loved most, it was high time for the government to protect the interests of senior citizens. With this in mind Government had framed a policy and passed an act called the – Maintenance and Welfare of Parents and Senior Citizen Act 2007.
Objective of the Act :-The Act provides for the maintenance and welfare of the aged parents by their children or legal heirs as an obligation on their shoulder so that they (senior citizens) are not abused, abandoned, neglected and their property taken away from them by use of unfair, illegal, unlawful and immoral means leaving them without any support base.
In common parlance when we interpret the Senior Citizen Act we include daughter in law and/or son in law as a part of the family because a daughter in law is the legally wedded wife of the son or the son in law is the legally wedded husband of the daughter who has an equal responsibility of maintaining her parents. However the Senior Citizen Act does not consider them to be responsible till the time that they fall in the definition of legal heir or if he or she would inherit the property after the death of the senior citizen. Section 2(a) of the Senior Citizen Act clearly says that children include son, daughter, grandson and grand-daughter but does not include a minor.
Section 4 of the Act provides the list of people who are legally responsible to maintain the parents or the senior citizens they are
Children who is not a minor Relative who is a legal heir and in the possession of the property or will inherit the property after the death of the concerned senior citizen.
When we analyse both the elements of Section 4 of Welfare and Maintenance of Parents and Senior Citizen Act 2007 as well as the Hindu Succession Act and Indian Succession Act the enactments does not give a right to the daughter in law or the son in law to be a legal heir in the property of their respective in-Laws until and unless the spouse predeceases the concerned daughter in law or son in law as the case may be or till the time a will/testament is executed in their favour. Thus we can say that law sees daughter in law and son in law in a different category as far as Senior Citizens Act is concerned as they are not legal heirs who would be entitled to inherit the property till their spouse is alive. By a proposed amendment Bill of 2019 legislature has planned to include these two relatives in the ambit thus giving a responsibility on the shoulders of the Daughter in law and the Son in law to maintain their in-laws but till now the bill has not converted into an Act and is thus not enforceable.
Senior Citizen entitled to take possession under Senior Citizen Act :-
A senior citizen is entitled to take back possession of his property from his children or legal heirs without alleging negligence. This is the view taken by the Courts. The Punjab & Haryana High Court, in its judgment dated 01.12.2015 passed in Gurpreet Singh v. State of Punjab and Ors., has held as under:
“Section 22 falling in Chapter V of the Act enjoins a duty upon State Government to prescribe a comprehensive action plan for providing protection of life and property of senior citizens. Section 32 (2) (f) also empowers the State Government to frame Rules in respect of comprehensive action plan for providing protection of life and property of senior citizens. In terms of such provisions, the Rules have been framed which causes a duty on the District Magistrate to ensure that the life and property of senior citizens are protected and they are able to live with a sense of security and dignity. Apart from framing such Rules, the Action Plan for protection of life and property of the senior citizens has been published which inter alia provides for eviction of unauthorized occupants as reproduced above.
The petitioner is a licensee living in the premises on the basis of concession given by his father to live in the property owned by him. As a licensee, the petitioner is only permitted to enjoy the possession of the property licensed but without creating any interest in the property. A licence stands terminated the moment the licensor conveys a notice of termination of a licence. There is no vested right of any kind in the licensee to remain in possession of the property licensed. Admittedly, respondent No. 4 is the owner of the property in question. The petitioner is living in part of the property. Such property owned by respondent No. 4 is required to be protected as mandated by Section 22 of the Act read with Rule 23 of the Rules and para 1 of the Action Plan. There cannot be any effective protection of property of the senior citizens unless the District Magistrate has the power to put the senior citizen into possession of the property and/or to restrain or eject the person who wishes to interfere in the possession of the property of the senior citizen. Protection of the property of a senior citizen includes all incidences, rights and obligations in respect of property in question. Once a senior citizen makes a complaint to District Magistrate against his son to vacate the premises of which the son is a licensee, such summary procedure will enure for the benefit of the senior citizen.”
In a recent judgment titled Anil Kumar Dhiman and another vs State of Haryana and others in CRWP-1357-2019 delivered on September 21, 2021 upheld an eviction order passed against a son and his wife at the insistence of the father under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizens Act). It must be apprised here that the father in this case had not transferred the house in question to the son by way of gift or any other deed. Court held unequivocally that the son cannot insist that he has the right to stay in his father’s house by saying that he has contributed to the renovation of the ground floor of the house.
This view has also been taken by the Delhi High Court in the matter of Smt. Darshna v. Government of NCT of Delhi & Ors. WP(C) 6592/2018 and followed in Sandeep Gulati and Others V/S Divisional Commissioner W.P. (C) 2761/2020 and W.P. (C) 2795/2020.
The judgment in Sandeep Gulati matter was challenged before Hon’ble Supreme Court however the same was dismissed in limine by a three Judge bench.
Other relevant judgments :-
Case Smt. C. Kamlamma vs. Sri P Gopal and State of Karnataka High Court of Karnataka has reiterated that Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is prospective in nature and deals with transactions which are made by Senior Citizens after commencement of the Act and not prior.
Section 23 of the Senior Citizen Act says Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
In Ramesh Vs Ishwar Devi, the Punjab and Haryana High Court held, “it is often seen that after receiving the property from their parents, the children abandon them. In such a situation, Section 23 is a deterrent to this and hence is beneficial for the elderly old aged people who are incapable of taking care of themselves in their last phase of life.”
According to recent trends, courts have been interpreting section 23(1) in a way that keeps the interest of senior citizens in mind in deciding the validity of gift deeds regarding the transfer of property from a senior citizen to their children.
In Sunny Paul and Anr. Vs. State NCT of Delhi and others LPA no. 205/2017 a Division Bench of High Court of Delhi has held as follows: “23. We agree with the conclusion arrived at by the High Courts in the aforesaid judgments. At the cost of repetition, we may state here that having regard to the object of the Act (i) the term “transfer” shall include actual transfer of title or ownership; the act of allowing possession of property / allowing stay in the property or in part of property from which the Senior Citizen / Parents can earn income to maintain themselves and (ii) similarly the term “transferee” shall mean the children / legal heir in whose favour the property, is transferred or is in possession of or are staying in the property or part of the property (but without consideration).”
Harvinder Kaur Bawa vs. Appellate Tribunal
Panchkula and another- 17 October 2016 (Punjab- Haryana High Court)In this case the application has been filed by petitioner under Section 23(1) of Senior Citizen Act it was held that the application can only be filed in order to avoid the document by which title of the property has been transferred, without filing a suit for declaration in the civil court. All that has to be proved by senior citizen is that he /she had transferred the title of the property to other party with a condition that the said beneficiary shall provide basic amenities and basic physical needs and have to prove that the said transferee has refused or failed to provide such amenities and basic physical needs. The parent /senior citizen is also required to prove that the said transfer of property has been made after commencement of the act, meaning thereby any transfer of property prior to the commencement of the act cannot be avoided by filing an application under section 23 (1) of the Act.
Conclusion :-
Even though the State has framed a law but its implementation still leaves a lot to be desired especially in a large number of states. Uttar Pradesh the biggest State in India does not provide for a law for taking of possession by Senior Citizen under this Act. The Uttar Pradesh Law Commission had made a recommendation in 2021 to make an amendment to incorporate an amendment to provide for taking back possession in case of negligence. It needs to examined as to whether adding the words “negligence” is really warranted.
Moreover the State by enacting this Act does not provide anywhere for its own social responsibility. It is high time that the state instead of abdicating its responsibility fulfils its moral, social and Constitutional obligations.
T.S.Ahuja
Managing Partner/Advocate Ahuja Law Offices With inputs from Pankhuri Saxena and Prakshi Kushwaha 5th year students of Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapeeth, Rajasthan
