Meaning of “Transfer and “Transferee”: Section 23 of the Senior Citizens Act, 2007

Pointwise Analysis:

1.   From perusal of the provisions of the PSC Act (the Maintenance and Welfare of Parents & Senior Citizens Act, 2007), it can be seen that the same has been enacted to provide for effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution of India, 1950 (hereinafter referred to as the COI) and for matters connected therewith or incidental thereto. The necessity of framing the PSC Act was because of the erosion of joint family system resulting in the elderly parents and senior citizens getting neglected by the children including lack of physical and financial support from them.

2.   Section 3 of the PSC Act gives an overriding effect to the PSC Act over any other enactment/ instrument.

3.   Section 4 of the PSC Act enables a senior citizen including parent who is unable to maintain himself from his own earnings or out of the property owned by him to make an application under Section 5 of the PSC Act for his/ her maintenance so that he/ she can lead a normal life.

4.   Section 23 (1) of the PSC Act confers a power on the Maintenance Tribunal to declare transfer of property in certain circumstances as void. Moreover, Section 23 (2) of the PSC Act inter alia stipulates that a senior citizen has a right to receive maintenance out of an estate and if 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.

5.   There is nothing in Section 23 of the PSC Act which pre-supposes an application for maintenance as a pre-requisite for seeking a relief under it.

6.   The scope of Section 23 of the PSC Act is to declare the transfer of property by a senior citizen with an intent that the transferee shall provide the basic amenities and physical needs to the transferor and if such transferee refuses or fails to provide such amenities and physical needs, in such an eventuality, the transfer of property can be declared void by the Maintenance Tribunal.

7.   Sub-rule 3 (1) (i) of Rule 22 of the Delhi Maintenance and Welfare of Parents and Senior Citizens Rules, 2009 (as amended in the year 2017) states as follows:

“… A senior citizen/ parents may make an application before the Deputy Commissioner/ District Magistrate of his district for eviction of his son and daughter or legal heir from his property of any kind whether movable or immovable, ancestral or self-acquired, tangible or intangible and include rights or interests in such property on account of his non-maintenance and ill- treatment.”

8.   In the matter of: Sunny Paul V/s State of NCT of Delhi[1], it was held that:

“… Sub-rule 3 has been incorporated in Rule 22 of the Rules to give effect to Section 23 of the Act and not to Section 4 of the Act. So, it follows that it is not necessary that to invoke Section 23, one has to seek maintenance under Section 4.”

9.   That the Maintenance Tribunal does have the jurisdiction to direct vacation by the children of any property in which the senior citizen has a right of residence/ possession.

10. In the matter of Sunny Paul (supra) having regard to the object of the PSC Act, it was held that:

(a) The term “transfer” regard being had to Section 23 of the PSC Act 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.

(b) 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).

11. That the condition as regards transferee to provide basic amenities and basic physical needs to the transferor need not be required to be made in express terms in the document by virtue of which the transfer had been affected. The same would be read into the document by way of a deeming fiction keeping in view the objective of the PSC Act.[2]

Excursus:

1.   Dissection of Section 23 of the PSC Act[3]:

i.          It applies to “senior citizen” as defined under Section 2 (h) of the PSC Act;

ii.         It applies to the transfer of property as defined under Section 2 (f) of the PSC Act, after the commencement of the PSC Act[4];

iii.       It applies if the transfer is with a condition that the transferee would provide the basic amenities and basic physical needs to the transferor;

iv.        It applies if the transferee refuses or fails to provide such amenities and physical needs, then the transfer of the property shall be deemed to have been made by fraud or coercion or undue influence;

v.         It would be at the option of the transferor to get the transfer declared void by the Maintenance Tribunal.

2.   It is meritless to state that a petition under Section 23 of the PSC Act shall not be maintainable in absence of a claim for maintenance.

3.   That direction of eviction is a necessary consequential relief or a corollary to which a senior citizen would be entitled upon a transfer being declared void thereby the right over the immoveable property, possession and ejectment thereof have been recognized under Section 23 of the PSC Act as rights which are incidental and/ or ancillary to the main relief provided for by Section 23 of the PSC Act.[5]