Switch Deed Can Be Declared Void U/s 23 Senior Residents Act Solely If It Expressly Incorporates Situation To Present Primary Facilities/Bodily Wants To Senior Citizen : Kerala HC [FB]

Transfer Deed Can Be Declared Void U/s 23 Senior Citizens Act Only If It Expressly Contains Condition To Provide Basic Amenities/Physical Needs To Senior Citizen : Kerala HC [FB]

The Kerala Excessive Court docket has held that the situation as required below Part 23(1) of the Upkeep and Welfare of Mother and father and Senior Residents Act, 2007, for provision of primary facilities and primary bodily must a senior citizen needs to be expressly acknowledged within the doc of switch, which switch can solely be one by means of reward or which partakes the character of reward or an analogous gratuitous switch.

The bench comprising Justices Ok.Vinod Chandran, VG Arun and TR Ravi noticed that there will be no implied situation to imagine jurisdiction below Part 23(1) merely given that the doc comprises a reservation of life curiosity.

Reference

As per Part 23 of the Act, the place any senior citizen who, after the graduation of the Act, has transferred by means of reward or in any other case, his property, topic to the situation that the transferee shall present the fundamental facilities and primary bodily must the transferor and such transferee refuses or fails to offer such facilities and bodily wants, the stated switch of property shall be deemed to have been made by fraud or coercion or below undue affect and shall on the choice of the transferor be declared void by the Tribunal.

In 2012, a division bench of the Excessive Court docket in Malukutty Ponnarassery v. P.Rajan Ponnarassery discovered that the absence of an categorical recital of an enterprise by the transferee, to make provision of primary requirements and facilities to the transferor, would divest the Tribunal of the authority to declare void a switch effected by a senior citizen. With out noticing this judgment, two different division benches in Shabeen Martin v. Muriel [2016 (5) KHC 603] and Sundhari v. Income Divisional Officer [2018 KHC 4655 = 2013 (3) KLT 1082], held that such a situation might be implicit as properly. The matter was referred to full bench in view of those conflicting division bench dictums.

Switch can solely be one by means of reward or which partakes the character of reward or an analogous gratuitous switch.

The bench noticed that phrases ‘reward or in any other case’ in Part 23 of the Act have a restricted utility. It stated: 

We’re of the opinion that wanting on the textual content of the Act and searching on the context wherein it was enacted and has utility, the intention of qualifying the switch of property by a senior citizen with the phrases ‘reward or in any other case’, initiatives a transparent indication to limit the phrases ‘or in any other case’ to such class of transfers that are within the nature of items or partakes the character of reward.

No implied situation to imagine jurisdiction below Part 23(1) merely given that the doc comprises a reservation of life curiosity

One other concern thought of by the bench was whether or not reservation of life curiosity or enjoyment of usufructs from the property gifted or settled in favour of the transferee may lead to an implied situation that the transferor expects the transferee to take care of the senior citizen until his/her demise? On this regard, the bench made following observations:

“A mere reservation of life curiosity or proper to gather usufructs from the property needs to be enforced towards the beneficiary of the doc or a subsequent transferee and Part 23(1) doesn’t come to the help of a transferor searching for that treatment. Neither can Part 23(1) be thought of to have interfered with the dear rights of the transferee nor be taken as imposing any restriction on his/her proper; when there’s a settlement made with reservation of life curiosity for residence or taking usufructs from the property. There will be no implied situation to imagine jurisdiction below Part 23(1) merely given that the doc comprises a reservation of life curiosity.”

“Very pertinent is the truth that Part 23(1) is potential and applies solely to agreements executed after the enactment got here into power. Part 23 applies solely to transfers after the graduation of the Act. This additional fortifies our interpretation that the availability insists on there being an categorical situation, written as a part of the recitals, within the deed. If it have been in any other case and the circumstances which led to the execution or a reservation clause might be relied on to deduce or suggest such a situation having regulated the execution, it could have been made relevant to deeds of all instances, executed by senior residents of a like nature. The measures of publicity as spoken of in Part 21, below Chapter 5 is  additionally supposed at informing each senior citizen concerning the speedy treatment offered for upkeep as additionally revocation of a gratuitous switch and to alert them of the situation to be specified; which needs to be part of the recitals of the doc.”

 That the kids ought to take care of their dad and mom, as a precept or a worth, require no validation from scriptures or philosophical sources

Whereas overruling the observations in Manju G.S. v. Ok.N.Gopi [2020 (1) KHC 10], the bench famous that the stated judgment has referred to spiritual and philosophical texts to focus on the normal worth techniques. On this context, the bench stated:

“We’re of the opinion that in deciding the scope of Part 23(1), it could be unsafe to take a look at non secular texts or philosophical treatises. That the kids ought to take care of their dad and mom, as a precept or a worth, require no validation from scriptures or philosophical sources. The Act makes an attempt to offer a dignified existence to the aged and in drawing the contours of the facility conferred below Part 23(1) we’ve to essentially take heed to the inter-play of the rights of the senior citizen and that of the beneficiaries to a transaction; of these acquired on property as regulated by numerous statutes. The Preamble speaks of the Act as one to offer efficient provisions for the upkeep and welfare of fogeys and senior residents assured and acknowledged below the Structure. Although not specified it has a reference to Article 21 and 41 of the Structure of India.”

The judgment authored by Justice Vinod Chandran begins with this quote by Oscar Wilde: “Kids start by loving their dad and mom; as they get older they decide them; typically they forgive them”. The decide stated:

Solely typically; however that’s no motive to cease loving them, refuse to take care of them and alienate them, is the precept on which the Upkeep and Welfare of Mother and father and Senior Residents Act, 2007 [for brevity ‘the Act’] has been interpreted in majority of the choices of this Court docket and another Excessive Courts. Sure Benches trode a distinct path to seek out that the statute although impressed by conventional values, all the identical needs to be interpreted strictly and there might be no query of unrequited love raised; to usher in drastic penalties to the rights on property gifted or settled by motive of the love and affection of the donor or settler for the beneficiary.”

Case no.: SUBHASHINI vs.  DISTRICT COLLECTOR
Case identify: WA.No.1460 OF 2015
Coram: Justices Ok.Vinod Chandran, VG Arun and TR Ravi 
Counsel: Advocates P.B.Krishnan and Parvathi Menon;  Sr. GP P.Narayanan

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