*senior citizen act: What are the rights of senior citizens to safeguard their property, other assets? – The Economic Times

Clipped from: https://economictimes.indiatimes.com/wealth/legal/will/what-are-the-rights-of-senior-citizens-to-safeguard-their-property-other-assets/articleshow/90875998.cms

SynopsisParents often concede and transfer ownership of the property to their children to avoid inheritance disputes. However, once parents become dependent on their children, the latter stop providing basic amenities or physical needs. Here are the legal rights of senior citizen to reclaim their property rights.

Property ownership is one of the most vexed aspects of relationships between elderly parents and their children, irrespective of social strata. While children seek assurance that they will inherit the family home, parents want to retain control over the ownership of their home. Many family disputes relate to such property fights.

In this familial tug of war, parents often concede and transfer the ownership of the family home to their children to avoid animosity or to prevent inheritance disputes after their demise. Consequently, once the elderly parent becomes dependent on the children, it is not uncommon for the children to stop providing basic amenities or physical needs to their parents.

Yet, many senior citizens are unaware of their legal rights to reclaim property transferred to children and to seek removal or eviction of their children or relatives from their property. Although 15 years have elapsed since the enactment of the Maintenance and Welfare of Parents and Senior Citizens Act in 2007 (Senior Citizens Act) which grants such rights, the awareness of such rights remains low.

Reclaiming property
Under the Senior Citizens Act, a senior citizen may gift or transfer their property to a child with a condition that the child will provide basic amenities or physical needs to them. If the child fails to do so, then the senior citizen has the right to approach a Maintenance Tribunal established under the Senior Citizens Act to declare the gift or transfer as void on account of it being deemed fraudulent, coercive, or as made under undue influence.

Accordingly, to protect their rights, senior citizens proposing to gift property to their child should consider including an express condition in the gift/transfer deed that the child will maintain them. If the child violates this condition, then the senior citizen may approach the Maintenance Tribunal to declare the gift void and return the property to the senior citizen.

Some courts have observed that an express condition is not required in the deed and as such, a condition may be implied when a parent gifts property to a child out of love and affection or in lieu of services. However, out of caution, it would be preferable to include such an express condition so that there is no scope for ambiguity.

Notably, only a gift or transfer made after the enactment of the Senior Citizens Act in 2007 will be subject to its benefit.

Essential points to note

  • If you are over 60 years of age, then you will be regarded as a ‘senior citizen’ under the Senior Citizens Act.
  • There are numerous Maintenance Tribunals established under the Senior Citizens Act for the benefit of senior citizens.
  • If you are a senior citizen who intends to gift or transfer property to a child/heir, you may consider inserting an express condition in the deed that such child should provide you basic amenities or physical needs after the gift/transfer.
  • Engage a legal advisor to draft or review this deed.
  • If you are a senior citizen who has gifted or transferred property to a child post 2007, and such child is not providing you with basic amenities or physical needs, then you may approach the Maintenance Tribunal to declare the gift void, if the gift deed has a condition requiring such child/heir to maintain you.
  • If you suffer from harassment at the hands of a child/relative who resides with you, you can approach the Maintenance Tribunal to have such child/relative evicted from your home.
  • The rights under the Senior Citizens Act cannot, however, be used to override rights of family members under other laws such as those protecting against domestic violence.

Eviction of children from property
Another common social tragedy is that of harassment caused to parents by children residing with them. When dealing with such situations, courts have adopted a welcome pro-elderly stance.

Although the Senior Citizens Act itself does not provide for eviction/removal from property, Indian courts, including the Supreme Court, have permitted eviction/removal of the children or relatives from the property of senior citizens in case of harassment or non-maintenance.

Courts have also ordered removal of children from the parents’ home when children have resorted to harassing their parents to transfer the property to them on the ground that they are the future legal heirs. Eviction/removal of the child from the property has also been upheld if a child has entered into an agreement for the transfer of property on fraudulent grounds to harass an aged parent.

However, the rights of the senior citizen will have to be balanced against the rights of the person sought to be evicted under other laws such as the Protection of Women from Domestic Violence Act, 2005, to avoid injustice. Thus, where a daughter-in-law is sought to be evicted, the Tribunal or court would ensure that her rights under the Domestic Violence Act are not overridden by the rights of the senior citizen under the Senior Citizens Act.

(The writers are advocates.)

(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not reflect the views of www.economictimes.com.)

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