Cancellation of gift deed by a senior citizen: No
fetter attAched
The
usual mode of conveyance of immoveable properties are by way of a registered
sale deed, though, even by way of registered agreement to sale and general
power of attorney also the transfer of property is sought to be conveyed,
though, such transfer by way of agreement to sale or general power of attorney
has its own inbuilt limitation. Yet another mode of transaction/transfer is by
way of gift deed, however, the same shall be permitted only due to love and
affection and no consideration is involved in such transfer by way of gift deed
and therefore, ad valorem stamp duty on the consideration are not envisaged in
such cases, though, stamp duty on the value attributed to the property sought
to be gifted shall be payable. The process of registration and refusal of the
same finds mention in the Registration Act 1908 as contained in section 71-77
of Part XII of the said Act and on such refusal the provisions of appeal before
the District Magistrate and even civil courts are contemplated. In the Specific
Relief Act 1963, for instance, suit for seeking cancellation of a registered
instrument could be filed u/s 31 of Specific Relief Act, 1963.
For
ready reference, the provisions of Section 31 of Specific Relief Act 1963 is
reproduced as under:
31.
When cancellation may be ordered-
(1)
Any person against whom a written instrument is void or voidable , and who has
reasonable apprehension that such instrument, if left outstanding may cause him
serious injury, may sue to have it adjudged void or voidable, and the court
may, in its discretion, so adjudge it and order it to be delivered up and
cancelled.
(2)
If the instrument has been registered under the Indian Registration Act, 1908,
the court shall also send a copy of its decree to the officer in whose office
the instrument has been so registered; and such officer shall note on the copy
of the instrument contained in his books the fact of its cancellation.
The
purpose for the present discussion has a very dimension, though. It is to
elucidate, as to what are the circumstances, when, order of cancellation of
gift deed could be passed. Yet another dimension of discussion, shall be as
regards the situation, if no mention of circumstances or conditions are
prescribed in the gift deed, when a gift deed , though executed, could be
cancelled. The moot point is whether a gift deed could be cancelled, for
violation of any condition attached thereto, and still further, assuming that
there are no such condition or conditions, yet, whether the transferor/donor,
could still, cancel the gift deed for lack of care from the donee, shall be the
pith and substance of the present discussion.
Another
pertinent aspect in this context is that if a gift deed is executed by Senior
citizen in favour of their sons/daughters/other close relatives, because of
love and affection, while assuming that in the twilight zone of their lives,
they will be treated with reciprocal care and affection, but it has been
observed that such expectations does not often resonate with the donee, once,
the gift deed is executed in their favour. It is also observed that the done, strenuously
contest the claim of care or lack of it for seeking cancellation of gift deed
by the senior citizen. It has often been observed that such cases are
contested/resisted aggressively, on a premise, that the condition of care was
not stipulated in the gift deed, hence, the gift deed cannot be cancelled. The
law that has evolved over the years, in a broad canvas, renders a gift deed
liable to be cancelled, if the condition of care is stipulated in the gift deed
and lack of care may render the gift deed to cancellation. However, parents/senior
citizen often fails to mention any such clause or condition in the gift deed
for a typical and inherent belief in their sons/daughter/relatives and the
donee use to exploit such situations to a hilt, with a typical nonchalance. The
donor finds themselves shattered. What
is significant in this context is that, whether the lack of mentioning of
conditions of care in already executed gift deed, shall in itself, should
disentitle a senior citizen from seeking cancellation of a gift deed? The very
basis of gift deed has the foundation of love and affection and care i.e
reciprocal care, then, why should failure of mentioning such conditions should
disentitle a senior citizen/parent from cancelling a gift deed. In other words,
why their belief in their near and dear one i.e donee should not be treated as
sacrosanct, and why lack of care, irrespective of the conditions mentioned in
gift deed should not entitle a senior citizen to seek cancellation of a gift
deed. The law seem to have been settled now, taking note of such predicament of
senior citizens. The said aspect shall be deliberated at length herein. Though,
the contents of The Maintenance and Welfare of Parents and Senior Citizens Act,
2007 (MOPSCA) is enacted to cater to the need of ailing parents, senior citizen,
but in case of execution of gift deed, due to the lack of the stipulations of
care in such gift deed, the senior citizen in the past, often found themselves to
be in the receiving end, while seeking cancellation of a gift deed due to lack
of acre. It is more so intriguing, as the parents inherently in a belief on
sons/daughters or close relatives, does not contemplate, putting such clause/condition
of care as an integral condition to a gift
deed. As has been noticed over the years, the faith in their off springs/close
relatives has generally been belied. The MOPSCA, though, have addressed the
concerns of senior citizens, but, it appears, only partially.
Taking
note of such inadequacies, the hon’ble Division bench of Delhi High Court in a
very recent judgment captioned as SMT VARINDER KAUR Vs SMT. DALJIT KAUR & ORS bearing no. LPA 587/2025 has
comprehensively dealt with the issue so that dusts is settled, fully and
finally in this regard.
In
Smt Varinder Kaur (Supra) an application under Section 23 of the MOPSCA
was preferred by respondent no.1 for seeking
cancellation of the gift deed executed by respondent no.1 in favour of the
appellant on a premise that Section 23 of the MOPSCA vests necessary power in the Tribunal to
declare any transfer by way of gift or otherwise, of a property void, in case
the Senior Citizen has transferred such property after pronouncement of the MOPSCA,
subject to the condition that the transferee shall provide basic amenities and
physical needs to the transferor, and such transferee refuses or fails to
provide such amenities and physical needs. The tribunal, in the present case, on
the application preferred by respondent no.1, had refused to grant the prayer
to respondent no.1 seeking cancellation of the deed by declaring it to be void.
However, the Tribunal directed the appellant not to take any rent and also
directed the S.H.O concerned, Police Station Janakpuri, to depute a Beat
Officer to visit the premises twice in a month to ensure the safety and
security of respondent no.1. According to the tribunal, the respondent no.1 failed
to prove the conditions, which would lead to cancellation of the gift deed;
rather, prayer for cancellation was made on the ground of fraud and cheating
and hence the relief of cancellation of gift deed was declined.
A
statutory appeal under Section 16 of the MOPSCA was preferred before the District Magistrate, who,
was pleased to allow the appeal, while, setting aside the order of the Tribunal
and had further directed the Sub-Registrar to cancel the gift deed in question.
A
writ petition was preferred by the appellant, before the Delhi High Court, against
the order of District Magistrate. The ld Single Judge of Delhi High Court was
pleased to dismiss the writ petition and therefore, the LPA in question was
filed by the appellant before the Division bench of Delhi High Court.
CONTENTIONS
OF APPELLANT BEFORE DIVISON BENCH
(i)
The order passed by the appellate authority under Section 16 of the MOPSCA is
not tenable for the reason that gift deed in question could have been declared
to be void, only, if it was executed with the condition that the appellant
shall provide basic amenities and basic physical needs to the respondent no.1
and further that the transferee refuses or fails to provide such amenities and
physical needs.
(ii)
No such case, which can be said to be covered by Section 23 of the MOPSCA was
pleaded by respondent no.1, and therefore, in the absence of any such
pleadings, the findings recorded by the learned Single Judge as also by the DM were
erroneous.
(iii)
In order to attract the provisions of Section 23 of MOPSCA, in an application
seeking declaration of a transfer deed/gift deed as void, it is necessary that that
the document concerned should have been executed subject to the condition that
the transferee will provide basic amenities and physical needs to the
transferor and that apart, the applicant has to prove that the transferee/donee
had either refused or failed to provide such amenities and physical needs to
the senior citizen.
(iv)
No such document in the above reference i.e., the gift deed, was executed with any
such condition, nor respondent no.1 could prove that the appellant had ever
refused to provide basic amenities and basic physical needs to her.
LAW
(i)
The Hon‟ble
Supreme Court in the case of Sudesh Chhikara v. Ramti Devi, 2022 SCC
OnLine SC 1684, has held that in absence of any pleading that
the deed was executed subject to condition that the transferee would provide
the basic amenities and basic physical needs, no such order for cancelling the
deed or declaring the same to be void could be passed. While effecting transfer,
subject to a condition of providing the basic amenities and basic physical
needs to the transferor-senior citizen shall be a sine qua non for the
applicability of sub-section(1) of section 23 and in absence of any such
pleading, the powers under Section 23 by the Tribunal could not be exercised.
Paragraph 13 to 15 of Sudesh Chhikara (supra), are extracted
herein below:-
"13.
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”.
“14.
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 in sub-section (1) of Section 23 are attached to a transfer,
existence of such conditions must be established before the Tribunal”.
“15.
Careful perusal of the petition under Section 23 filed by respondent no. 1
shows that it is not even pleaded that the release deed was executed subject to
a condition that the transferees (the daughters of respondent no. 1) would
provide the basic amenities and basic physical needs to respondent no. 1. Even
in the impugned order dated 22nd May 2018 passed by the Maintenance Tribunal,
no such finding has been recorded. It seems that oral evidence was not adduced
by the parties. As can be seen from the impugned judgment of the Tribunal,
immediately after a reply was filed by the appellant that the petition was
fixed for arguments. 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. In the
present case, as stated earlier, it is not even pleaded by respondent no. 1
that the release deed was executed subject to such a condition.”
(ii) In
Kanai Lal Sur vs Paramnidhi Sadhukhan, 1957 SCC OnLine SC 8, it
is held that primary rule of construction is that the intention of the
Legislature must be found in the words used by the Legislature itself and
further that if the words used are capable of one construction only then it
would not be open to the courts to adopt any other hypothetical construction on
the ground that such hypothetical construction is more consistent with the
alleged object and policy of the Act.
(iii) In
Kirshna Texport & Capital Markets ltd. V. Ilaa. Agrawal &
ors (2015) 6 S.C.R. 284, it is held that the language of a
statute is unambiguous and admits only one meaning, the question of
construction of a statute does not arise for the reason that the statute speaks
for itself.
(iv) In
Grasim Industries Ltd. v. Collector of Customs, (2002) 4 SCC 297 | (2002)
2 SCR 945, it is similarly held that in case in a statute, if
the words are clear without any obscurity, there is no scope for the Court to
take upon itself the task of amending or altering the statutory provision.
(v) In
Thomson Press (India) Ltd. v. Nanak Builders & Investors (P)
Ltd., (2013) 5 SCC 397 | (2013) 2SCR 74,
(vi) In
The Church of Christ Charitable Trust & amp; Educational Charitable
Society, Represented by its Chairman v. M/s Ponniamman Educational Trust B,
Represented by its Chairperson/ Managing Trustee (2012) 6 SCR 404.
The
sum and substance of the argument of appellant that in the absence of pleadings
to the effect, that, the deed in question was executed, subject to the
condition, that the transferee shall provide basic amenities and physical needs
of the transferor and such transferee refuses or fails to provide such
amenities and physical needs, provisions of Section 23(1) of the Senior
Citizens Act (MOPSCA), cannot be put to service for the declaration of the deed
as void. As no such case was pleaded by the respondent no.1 in her application
made under Section 23; rather, the cancellation of the gift deed was sought on
the ground that the gift deed was executed under pressure and cheating, as is
apparent from a perusal of the application moved by respondent no.1 before the
Maintenance Tribunal, hence, the grounds urged by respondent no.1 in her
application moved under Section 23(1) of the Senior Citizens Act, are not the
grounds available to the Maintenance Tribunal to declare the deed as void, and
therefore, the order passed by the Tribunal on the application of respondent
no.1 did not suffer from any illegality or error, which has, therefore, been
erroneously set aside by the appellate authority, i.e. the DM and the ld single
judge failed to take note of such error in the order of the District
Magistrate.
CONTENTIONS
OF THE RESPONDENT
(i)
There was enough material available on record to conclude that the conditions
for exercise of powers under Section 23(1) of the Senior Citizens Act (MOPSCA )and
that warranted granting of the prayer made by respondent no.1 before the
Tribunal and Tribunal failed to act in accordance with law.
(ii)
It was clearly stated therein that immediately after execution of the gift
deed, the attitude and behaviour of the appellant altogether got changed and
respondent no.1 even started receiving threats that she may be killed by
confining her in a room forcibly and further that the appellant shall neither
maintain her nor allow her to meet her daughters.
(iii)
A letter was submitted by respondent no.1 before the Presiding Officer of the
Tribunal, wherein it was clearly stated that the appellant after execution of
the gift deed had not provided any clothes neither the undergarments nor
personal articles and the medicines. It was also stated by respondent no.1 that
her son, i.e. the husband of the appellant had not even given her dentures and
further that whenever such articles are demanded by her, the appellant told her
that all these articles may be obtained by her from the police where she had
lodged complaints. It was also stated that she is a patient of high blood
pressure, heart disease and diabetes, however for the last two and a half
months she had not been provided with the requisite medicines.
(iv)
In yet another letter addressed by respondent no.1 to the Presiding Officer of
the Tribunal it was stated by her clearly that after getting the gift deed
executed, the appellant has made her life a hell, who has been misbehaving
continuously and further that even the dentures, medicines and medical
prescriptions have not been given to her. It was also stated that her
jewellery, cash, papers of other properties, health card, identity card, cheque
book, etc., have been stolen and even the amount of Rs.70,000/- from the HDFC
Bank Account of respondent no.1 was also withdrawn.
(v)
In yet another letter submitted by respondent no.1 to the Presiding Officer of
the Tribunal it was clearly stated that before execution of the gift deed ,those
who had made big promises of taking her care have rendered her helpless and
homeless.
According
to the respondent no.1, there was enough material placed by her before the
Tribunal which proved and established the pre-conditions under Section 23 of
the MOPSCA for declaration of the gift deed as void and therefore, the
appellate authority, i.e. the DM has rightly passed the order of cancellation
of the gift deed.
RELIANCE
(i)
Nitin Rajendra Gupta v. Collector, 2024 SCC OnLine Bom 1031;
(ii)
Mohamed Dayan v. The District Collector & Ors, WP No. 28190 of 2022 (
Madras High Court).
It
is no gainsaying that any gift deed is naturally and obviously executed
primarily on account of love and affection, showered by the transferee on the
transferor and, therefore, in execution of the gift deed itself, it is implicit
that its execution is with the condition that the transferee shall provide the
amenities and basic physical needs to the transferor, especially in a situation
where the transferor is an old aged mother-in-law of about 88 years of age of
the transferee, who is her daughter-in-law. Moreover, in essence, execution of
the gift deed is not a commercial transaction and that there is sufficient
material available on record which establishes not only existence of the
condition that the daughter-in-law shall provide basic amenities and basic
physical needs to the mother-in-law but also that the appellant completely
failed and denied to provide such amenities and physical needs, and therefore
the DM while reversing the order passed by the Tribunal cannot be said to have
erred on any count.
In
SMT VARINDER KAUR (Supra), it is held by the division bench of Delhi
High Court that:
“30. If we examine the facts of
the instant case in the light of the legal principles as discussed above, the
settled legal position which emerges is that for attracting the provisions of
Section 23(1) of the Senior Citizens Act, the deed in question need not
expressly contain a condition that transferee shall provide the basic amenities
and basic physical needs to the transferor, especially in the context of
execution of a gift deed”.
In
Urmila Dixit v. Sunil Sharan Dixit, (2025) 2 SCC 787, has inter
alia, held that the relief available to Senior Citizens under Section 23 of
the MOPSCA is intrinsically linked with the statement of object and reasons of
the MOPSCA that elderly citizens in our country in some cases are not being
looked after and further that it is directly in furtherance of the objectives
of the Senior Citizens Act (MOPSCA )which empowers senior citizens to secure
their rights promptly when they transfer a property subject to condition of
being maintained by the transferee. Paragraphs 23 to 25 of the Urmila
Dixit (supra) passed by the Hon‟ble
Supreme Court are relevant to be quoted here which read thus:-
“23.
The appellant has submitted before us that such an undertaking stands grossly
unfulfilled, and in her petition under Section 23, it has been averred that
there is a breakdown of peaceful relations inter se the parties. In such a
situation, the two conditions mentioned in Sudesh [Sudesh Chhikara v. Ramti
Devi, (2024) 14 SCC 225 : 2022 SCC OnLine SC 1684] must be appropriately
interpreted to further the beneficial nature of the legislation and not
strictly which would render otiose the intent of the legislature. Therefore,
the Single Judge of the High Court and the tribunals below had rightly held the
gift deed to be cancelled since the conditions for the well-being of the senior
citizens were not complied with. We are unable to agree with the view taken by
the Division Bench, because it takes a strict view of a beneficial legislation.
24.
Before parting with the case at hand, we must clarify the observations made
vide the impugned order [Sunil Sharan Dixit v.
Urmila Dixit, 2022 SCC OnLine MP 3776] qua the competency of
the Tribunal to hand over possession of the property. In S. Vanitha [S.
Vanitha v. Commr., (2021) 15 SCC 730] , this Court observed that Tribunals
under the Act may order eviction if it is necessary and expedient to ensure the
protection of the senior citizen. Therefore, it cannot be said that the
Tribunals constituted under the Act, while exercising jurisdiction under
Section 23, cannot order possession to be transferred. This would defeat the
purpose and object of the Act, which is to provide speedy, simple and
inexpensive remedies for the elderly. 25. Another observation of the High Court
that must be clarified, is Section 23 being a stand-alone provision of the Act.
In our considered view, the relief available to senior citizens under Section
23 is intrinsically linked with the Statement of Objects and Reasons of the
Act, that elderly citizens of our country, in some cases, are not being looked
after. It is directly in furtherance of the objectives of the Act and empowers
senior citizens to secure their rights promptly when they transfer a property
subject to the condition of being maintained by the transferee.”
Paragraphs
no.40 to 42 of the judgment in the case of Mohamed Dayan (supra) are
also extracted herein below: -
“40. "Love
and Affection" is an implied condition in the context of Section 23(1) of
the Act, and therefore, there need not be any express condition in the
Settlement Deed for the purpose of maintaining the senior citizen. Refusal of
maintenance after executing the Settlement Deed or Gift Deed, is the ground for
invoking the deemed ground of fraud or coercion or undue influence. When the
deeming clause has been incorporated under the provisions of Section 23(1) of
the Act, 'Love and Affection' to be construed as the consideration for
executing the Gift or Settlement Deed. Thus, the condition need not be
expressly made in the document and the love and affection, which resulted in
execution of the Deed by the senior citizen is to be construed as a condition
for the purpose of invoking the deeming clause for declaring the document as
fraud or coercion or undue influence”.
“41. The entire purpose and object of
the Senior Citizens Act, is to consider the human conduct towards them. When
the human conduct is indifferent towards senior citizen and their security and
dignity are not protected, then the provisions of the Act, is to be pressed
into service to safeguard the security and dignity of senior citizen.
Therefore, the purposive interpretation of the provisions are of paramount
importance and Section 23 of the Act, cannot be mis-utilised for the purpose of
rejecting the complaint filed by the senior citizen on the ground that there is
no express condition for maintaining the senior citizen. Even in the absence of
any express condition in the document, "Love and Affection" being the
consideration for execution of Gift or Settlement Deed, such love and affection
becomes a deeming consideration and any violation is a ground to invoke Section
23(1) of the Act. Thus, there is no infirmity in respect of the order passed by
the second respondent in the present case.”
“42. The human conduct in the context
of the senior citizen Act, is to be understood considering the relationship
between the senior citizen and the beneficiaries of the Gift or Settlement
Deed. Mostly the parents are executing the document in favour of their
children. Since they may not be in a position to maintain the property at their
old-age and more-so, they are intending to visibly express their love and
affection towards their children by settling their properties. In some cases,
the parents during their old-age are settling their property in order to avoid
conflict between their children and to ensure that all children get equal
share. If at all the parents decide to settle the property in favour of a son
or daughter, then they are doing so, only with love and affection and with a
fond hope that they will be taken care of by the son or daughter during their
old-age. Thus, love and affection, being the consideration and implied
condition, within the meaning of Section 23(1) of the Act. The subsequent
non-maintenance of senior citizen would attract Section 23(1) of the Act and
the Authorities in such circumstances are empowered to declare the document as
null and void.”
In
Smt Varinder Kaur (Supra) has held as under:
“31. Though,
Section 122 of the Transfer of Property Act, 1882 defines “gift” to mean a the
transfer of certain existing moveable or immovable property made voluntarily
and without consideration, by one person called the donor, to another called
the donee and accepted by or on behalf of the donee, however, in the context of
a gift deed executed by a senior citizen in favour of his or her son or
daughter or even daughter in law, it is not difficult to conclude that it is
the love and affection and care in the old age which impels such citizens to
execute gift deed”.
“35. In the
instant case apart from several averments in the application, respondent no.1
had placed before the Tribunal various other applications and letters which go
on to prove that the gift deed in question was executed by respondent no.1 with
such hope that in her old age the appellant shall provide her basic amenities
and basic physical needs. The material brought on record by respondent no.1
before the Tribunal also prove that appellant completely failed to provide such
care, amenities and physical needs to respondent no.1. The hand written letters
submitted by respondent no.1 before the Tribunal narrating the situation in
which the gift deed was executed and how the appellant immediately after
execution of the gift deed started ignoring the basic amenities and basic
physical needs of respondent no.1 and neglected her completely, clearly
establish the pre-conditions for exercise of power by the Tribunal under
Section 23 of the Act. The appellate authority, i.e. the DM while passing the
order dated 26.07.2023, on the appeal preferred by respondent no.1 under
Section 16 of the Senior Citizens Act has discussed the material available on
record and has, in our considered opinion rightly concluded that the deeming
clause as contained in Section 23(1) of the Senior Citizens Act is to be
invoked for cancelling the gift deed in question”.
What therefore clearly
emerges from the above, is that, firstly, if there are conditions laid down in
a registered gift deed that the donee shall take good care of the donor, and if
the donor is aggrieved due to lack of care, despite the conditions, in the gift
deed, the senior citizen can approach the appropriate authority for seeking
cancellation of registered gift deed and it can be cancelled. Another aspect
shall also have to be looked into i.e even if, no specific conditions are laid
down in a gift deed, whether due to lack
of due care a gift deed could be cancelled on an application by
transferor/senior citizen? The answer to the above is “Yes” in as much as the
aforesaid judicial precedents have clearly indicated that it is inbuilt in gift
deed, that the transferee/donee shall have implicit mandate to take due care of
the transferor. It cannot be inferred, that for want of such a clause in the
gift deed, on the premise of lack of due care, a senior citizen cannot seek cancellation
of gift deed. That will defeat the very purpose and object of a gift deed. What
clearly follows, thus, is that, the love and affection is the cornerstone of a
gift deed and even if no specific clause of care to be taken, as a condition is
prescribed in the gift deed, even then, the transferee/donee cannot claim to be
oblivious to the due care of the transferor. There is no longer any ambiguity,
therefore, now, a senior citizen can approach appropriate authority for seeking
cancellation of gift deed, if the done is not taking due care of him/them, even
when no such conditions are laid down in the gift deed. The law has evolved that
very basis of execution of a gift deed shall invariably be love and affection towards
donee. A parent/ senior citizen while executing a gift deed shall have inherent
and intrinsic faith and belief in their son/daughter or close relative as a
donee, however, interest of a parent/senior citizen cannot be allowed to be
relegated to suffer peril and cannot be
allowed to be defeated, merely, because, no such clauses are there in the gift
deed. A parent while executing a gift deed, due to the love and affection
towards their son/daughter or close relative shall have innate faith in them
and shall never even contemplate to think that no care shall be taken by such donee,
however, as now a days it is found that there has been abdication of solemn
responsibility towards parents and in case of such abdication/ dereliction of a
solemn responsibility, a donee cannot be allowed to reap benefit without adhering
to solemn obligation. In essence, therefore, a senior citizen shall be entitled
to get the gift deed cancelled, even when there are no such condition of due
care in the gift deed. There is no quarrel as regards proposition in law that While
exercising the powers under Section 23(1) of the Senior Citizens Act on an
application moved by a senior citizen seeking declaration that the deed is
void, the Tribunal is expected to look into all the relevant material and not
only the bare contents of the application so made.
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Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
