Your uncle should make application before senior citizen tribunal to set aside gift deed executed by him as sonhas refused to take care of him
2) in addition uncle should seek maintenance from his son of Rs 10000 per month
Gift deed cancellation by senior citizen
My uncle gave his property to his son who has now decided to not look after him whilst taking the full possession of the property, he is applying for divorce from his wife who is the main carer for my uncle and also wants to sell the property asap. Since my uncle is blind and totally depended on others for all his needs can he file a case and request the property be returned to him At the time of transfer there were other two siblings who signed their share to this son. As per the recent Bombay judgement in which the court upheld the decision to revoke the property deed gifted to son by his father under the Senior Citizen act, please advise as to whether it is possible to do so and what is the procedure for this?
Asked 5 years ago in Property Law
Religion: Sikh
22 Answers
1. Your Uncle can file a petition before Senior Citizens Tribunal to seek the cancellation of the gift deed on the ground that he has been neglected by the donee i,e his son in the evening of his life and after the execution of the gift deed.
2. Your uncle should firstly issue a legal notice to his son.
Yes please file an application with the competent authority under the Senior Citizens Act for revoking gift deed to son and for claiming maintenance
1. Yes your uncle can file a case before the Senior Citizens Tribunal herein the Tribunal can order to return his property and restrain his son from ousting from his own property. The same Tribunal case grant him monthly maintenance as well.
2 . So he must file such case asap before the such Tribunal . He can also file a case u/s 125 crpc seeking monthly maintenance from his son which would be around 1/4th of his income.
Yes He can cancel the gift deed from his side. For this he can file a cancellation suit in the civil court
Was there was a conditional clause staying that the Donee will take care of the donor in the gift deed if so it will be more favouring the donor
He have three options:
1. He can revoke the gift deed if the condition of the gift is not made and complied.
2. We can get a stay from Civil Court for the sale of property gifted
3 he can claim maintenance from his son under maintenance and welfare of senior citizens and parents act 2007 for his maintenance
Yes your uncle can raise contention of fraud and coercion induced by his son while making gift deed and should file a suit for declaration that the gift deed is void and cancelling the deed from jurisdiction court. Also file application under order 39 rule 1 and 2 CPC for getting ex parte injunction restraining the son from selling property.
Alternatively he can file an application before senior citizen tribunal to set aside gift deed executed by him as his son is not taking care of him.
Yes sir under the Senior Citizen Welfare and maintenance act under section 23 it provides that in case the property is given as gift and no care of the elderly people is taken the gift deed can be revoked by filing an application with the tribunal. Furthermore there are judgements which clearly mentions that it is not required that gift expressly rights that you need to take care even if not written in that case also the gift can be revoked.
Can't be cancelled now since the person has already accepted the gift, and in furtherance thereof has already taken over the possession of the property in question.
If the parents are not only exposed to emotional neglect, feeling of rejection, social insecurity, but to physical and financial support also, throwing a major challenge to their very peaceful existence, then it is fundamental right of the parents to seek a life of dignity, peace and liberty at this stage and that it is necessary to enforce the provisions of law.
The question arose again; In the absence of specific recital as conditions referred in the Transfer Deed by the Transferor i.e. Parent to Transferee i.e. Child(ren), whether Tribunal has a power to declare transfer as void?.
The Kerala High Court decided; A deed can be declared as void on not fulfilling the two conditions; (a) transferee shall provide the basic amenities and basic physical needs to the transferor and (b) such transferee refuses or fails to provide such amenities and physical needs, and declared transfer as a fraud or coercion or under undue influence, as the case may be at the option of the transferor, even if there is NO recital of welfare clause in the Transfer Deed.
{A}The aged parents expect that their children whom they have raised with love, affection and care shall care for them and tend to their needs in their sunset years.
The moral obligation to support one's own aged parents can be found in different cultures and religions. Despite the preaching's by religion, teachings of teachers, learning's by education, moralities by cultures, traditions by customs, discourses by societies, upbringing by parents: The children when they become adults may abuse, torment, harass their own Parents and snatch their peace of mind, assets, properties.
The situation is at times complicated when aged parents transfer their properties to their children out of love and affection expecting care in return and thereafter children become negligent and don't care!
Then the Legislature, Law, Enactments, State, Courts of law have to rise and the Long Arms of Law are to be stretched to embrace the aged, Senior Citizens and Parents that are not able to defend themselves.
The real tension arises when this moral obligation of children to care for their aged parents crystallizes into a duty enforceable by law and dirt is spilled on parents by their own children.
{B} Incorporate stringent provisions in land registration deeds, that makes the transfer of property illegal or void if the elderly are not provided basic amenities by the beneficiaries.
In a letter to all sub-registrars and joint sub-registrars on December 26,2012, the district additional deputy commissioner (G) has directed them to make it mandatory to include Section 23 of the Maintenance and Welfare of Parents and Senior Citizenship Act, 2007, in the registration deeds of property, that the elderly transfer to their children or legal heirs.
The incorporation of the clause in the registries would in effect mean that the registries would be liable to be cancelled if the maintenance and physical needs of the senior citizens are not taken care of by the children or legal heir. Thirty five elderly persons of Amritsar had been benefited with the pronouncements of courts of the Tribunals under the Maintenance and Welfare of Parents and Senior Citizens Act in 8 months.
Properly informed and supported Parents can speedy, cost effective remedies from designated authorities per Rules framed Under the Maintenance and Welfare of Parents and Senior Citizen Act,2007
Thanks a lot The issue is that the property in question is in a small Himachal town where the lawyers are probably not aware of this recent movement and do not think it is possible to apply for a stay by anyone! My uncle lives in UK with this son and his wife and grandson and it may be argued that he can be supported over there by the State therefore the question of 'looking after' may not be so strong. But if this son files a divorce petition which he is forcing his wife to sign mentioning that there have been problems in marriage for five years which is not true; he effectively gets out of wedlock immediately and I believe if both sign then in six months this becomes a valid reason for separation, and courts will grant him divorce... In the meantime he is trying his best to sell this property and take the Cash asap. Please advise.
Asked 5 years ago
uncle should file application before senior citizen tribunal at the earliest .
seek orders as mentioned herein above
1. the fact that father is presently living in the UK with his son and his family may weigh against him in the application which the father will submit to the tribunal under senior citizens act
2. but file the application for whatever it is worth
3. father can say that the UK property is not his (which i assume) and belongs to his son and that father only has a small house in his home town in India
Sir the act is made for the purpose of the welfare of the citizen so the petition under the act on this ground is not maintainable as otherwise the gift cannot be revoked unilaterally and there is no fraud the maintenance and welfare act for senior citizen for there welfare provides such opportunity not for such courses so the ill treatment to them and there maintenance has to be alleged no other course,
Dear Client,
It can not be cancelled
As per the recent Bombay judgement in which the court upheld the decision to revoke the property deed gifted to son by his father under the Senior Citizen act, please advise as to whether it is possible to do so and what is the procedure for this?
You have rightly heard about this ruling.
The senior citizen can approach the tribunal for senior citizen welfare seeking relief and justice under this given situation and get the registered gift deed cancelled by an order of the court.
If the property is in India and your uncle is residing in UK how can he file a case in India against his son?
Divorce by his son against his wife is his personal affair, in which your uncle cannot interfere.
Your uncle has to move to India before his son is trying to sell the property.
1. There were unique grounds for the said Judgement referred by you which might not be applicable in all the cases.
2. In the instant case, the Gift Deed registered by your Uncle is unconditional for which it will be difficult for him to get his said Gift Deed cancelled unless your uncle can site similar condition as detailed in the said Bombay Judgement.
3. However, in the instant case, your uncle can file a maintenance application.
4. He can also lodge a police complaint against his son for willful cruel acts of his son and then file Writ Petition before the High Court against police inaction praying for relief and in all such cases, Calcutta High Court has insisted the son to maintain his parents/father and refrain from alienating his said prperty.
1. In the instant case, your Uncle is staying with his son in the UK and is being supported by him and is also expected to be supported by the State.
2. Your uncle has already gifted his said property in favour of his son for which he is legally entitled to deal with it in any way he feels like as per law.
3. His said son is attempting to divorce his wife which he is entitled to as per law and this issue has no connection with his proposed sale of the said property.
4.There shall have to be similar grounds in the case of your Uncle for attracting the Bombay Judgement which is apparently absent here.
5. The said Bombay Judgement is based on certain grounds and it has not shown a easy path for cancelling a registered gift deed executed by the father to his son in Ordinary case.
Hello
Your uncle's daughter in law can file a petition in the himChal court and even an ngo can file a petition in his interest as the Dr itself stipulates so.
Regards
Hi,
Under the provisions of maintenance of senior citizen act, 2007; the property will be revoked. The case will be filed in the local civil court i.e. Himachal.
Yes it is possible to do so and the Court has recently passed such order also.
A civil suit for cancellation of the sale deed can be filed by you on this ground before the civil court.
Regards
For the facts as mentioned by you, you may ask the court to pass a status quo order.
even otherwise if the suit is filed an the property is sold by him after filing of the suit then also the property will be subject to the outcome of the case as per section 54 of the Transfer of Property Act.
Reards