BY BALWANT JAINSEPTEMBER 25, 2019 Can parents take back property gifted to their children? Housing.com

 

A gift of a property that is valid and accepted by a donee, cannot be revoked by the donor, except under certain special circumstances. We look at the cases where a revocation is possible

With many children opting to migrate out of India for employment and the gradual disappearance of the joint family system, parents with limited means may find it difficult to make ends meet, in case their children do not support them. Often, many parents also transfer their properties to their children due to various reasons. After the property is gifted to their children, the promise that they shall be taken care of by the transferee, is not always fulfilled. In such situations, the parents are put in a very difficult situation.

What are the remedies available to such parents, who face neglect from their children, after their property has been transferred to them? Can they take back the property from such children? Recently, the Bombay High Court had an occasion to deal with a similar situation.

 

Facts of case

When the widowed father of a Mumbai-based person wanted to get remarried, the son insisted and made the father gift half of the rights in the property owned by the father to the son, to safeguard his interest in the property.

After half of the share in the property was transferred, the father and stepmother faced troubles from the son and the daughter-in-law. The son and daughter-in-law were willing to maintain and support the father but not the stepmother, which was not acceptable to the father. So, the father wanted the gift of half of the property, made in favour of his son, to be cancelled. He, therefore, approached the tribunal appointed under the provisions of ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’.

 See also: Gift deed or a will: Which is a better option to transfer property

 

Legal provisions governing gift of property

Gifts are governed by the Indian Contract Act, 1872. The law provides that any gift that is made and accepted by the donee, is final and cannot be revoked later on. So, if all the conditions of a valid gift are present, the same cannot be annulled by the donor later on, except on the ground that the consent of the donor was obtained by fraud, undue influence or coercion. The Supreme Court has held many times that a gift once validly made, cannot be cancelled later on, under any circumstances.

In order to ensure that parents and senior citizens are taken care of properly by their children or legal heirs, the central government passed ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ (The Maintenance Act), which provides for certain circumstances under which gifts of property made by parents and senior citizens can be cancelled, at the option of the parent/senior citizen. This provisions is contained in Section 23 of The Maintenance Act and it reads as under:

“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.”

As Section 23 of The Maintenance Act specifically provides that where the property has been gifted on the understanding that the transferee child/legal heir shall provide the basic needs and maintain the senior citizen or parent, any failure on the part of the child to honour such promise made, is tantamount to fraud. Such promise may be express or may be implied and may be inferred from the circumstances surrounding the transaction. Under such circumstances, the agreement to transfer the property shall be deemed to have been obtained by way of fraud and can be voidable by the aggrieved parent/senior citizen.

As the provisions of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 override the provisions of any other law in force in India, Section 23 will prevail and in such instances, the gifts/transfer of property that is made after coming into force of The Maintenance Act, becomes voidable at the option of the transferee. However, if the property had been transferred before The Maintenance Act came into force, it would be difficult for the parents to get the property back from their children.

 

Decision of the court in the case of father wanting half property back from son who ill-treated him

The tribunal, before which the father had filed the case for cancellation of the gift of half of the property, declared the gift of the 50% share in the property as void and restored the ownership of the whole of the property to the father. Aggrieved by the decision of the tribunal, the son preferred an appeal before the Bombay High Court. A division bench of justices Ranjit More and Anuja Prabhudesai upheld the decision to cancel the gift given by the father. The court also observed that as the gift of half of the share in the property was made by the father at the request of his son, it was implied that the son and daughter-in-law would take care of the father and his second wife, after half of the share in the flat was transferred in the son’s name. As the son and daughter-in-law failed to meet their promise, the father was entitled to ask for annulment of the gift made in favour of the son.

So, although a property given under a valid gift is generally final and irreversible, in special circumstances like desertion of parents by the child, the same can still be annulled.

(The author is a tax and investment expert, with 35 years’ experience)