Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, is reproduced as under:
“23. Transfer of property to be void in certain circumstances.—(1) 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.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-section (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of Section 5.”
So, it is clear from its language that it is applicable where a senior citizen has transferred his property by way of gift or otherwise. In your case, when the property was transferred by the younger brother, he was not a senior citizen since at that time he was 56 years old.
Moreover, such transfer of property must have been on 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.
So, check whether the transfer in your case was made subject to this condition. Also check whether the elder brother has refused to or has failed to provide the amenities and physical needs as mentioned at the time of the transfer.
On the fact of the facts mentioned by you, it appears that Section 23 may not apply in your case. Note that it is difficult to give opinion on facts of a case by merely reading a question and without going through the detailed documents of the case (as mentioned in Tilak Marg Forum guidelines). In fact, you have not mentioned even whether the transfer was a gift or on the basis of some consideration; though I have presumed it to be as a gift or at least with inadequate consideration. Therefore, this is a tentative opinion on the basis of limited information being available.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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