Transfer of Property, Abandonment and the Rest of the Senior Citizens Act

Section 22 is the source of the District Magistrate's role under this Act, and it should not be confused with the District Magistrate's very different role under the Juvenile Justice Act, where since 1 September 2022 that officer makes the adoption order. Different statute, different function.

Section 23: a transfer may be declared void

This is the section to learn word by word.

Sub-section (1). 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.

Sub-section (2). Where a senior citizen has a right to receive maintenance out of an estate and that estate or part of it is transferred, the right may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous, but not against a transferee for consideration and without notice of the right.

Sub-section (3). If a senior citizen is incapable of enforcing his rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisations referred to in the Explanation to section 5(1).

The five ingredients of sub-section (1)

An answer is built by taking them one at a time.

A senior citizen. Sixty years or above, and a citizen of India. Note that sub-section (1), unlike section 4, speaks of a senior citizen and not of a parent, so the sixty-year threshold does apply here.

A transfer after the commencement of the Act. The Act does not reach back over transfers made before it came into force in the State.

By gift "or otherwise". The words are wide, and a gift is only the commonest instance. A settlement, a release or a transfer for nominal consideration is inside them.

Subject to a condition of care. The transfer must have been subject to the condition that the transferee provide basic amenities and basic physical needs. This is the ingredient a problem question turns on, and it is the one the parent must establish.

Refusal or failure. The transferee must have refused or failed to provide them. Failure is enough; ill will need not be proved.

What follows, and what does not

The deeming clause does the parent's work for him. Once the ingredients are made out, the transfer is deemed to have been made by fraud, coercion or undue influence. The parent proves the condition and the breach, not the fraud. That is the point of the section and it is what makes it usable by a person of eighty without a lawyer, section 17 having excluded lawyers anyway.

The transfer is voidable, not void. It is avoided "at the option of the transferor", so it stands until he asks. A student who writes that such a transfer is void from the beginning has misread the sub-section.

The Tribunal declares it. Not a civil court. And section 27 shuts the civil court out.

The section says the transfer may be declared void, and no more. Whether the Tribunal may, in addition, order the transferee to hand the property back or to move out is not something sub-section (1) states in terms, and this book does not attribute an answer to it that the text does not contain. What the text plainly gives is the avoidance of the transfer, and with it the return of the title to the parent.

Sub-section (2) is the same rule as the Hindu Act

Compare section 28 of the Hindu Adoptions and Maintenance Act, in [The Amount of Maintenance, and the Dependants]. The wording here is almost identical: the right follows the property into the hands of a transferee with notice, or a gratuitous transferee, and not into the hands of a purchaser for value without notice. The difference is only in who is protected: there, a dependant of a deceased Hindu; here, any senior citizen.

A worked problem

A widow of seventy gifts her flat to her son by a registered gift deed, the deed reciting that the son shall look after her and provide for her needs. Within a year he stops paying for her food and medicines and asks her to leave. What can she do?

Under section 4 she may apply to the Maintenance Tribunal for a monthly allowance, since she is a senior citizen unable to maintain herself and the son is a child not being a minor. The Tribunal may order up to the maximum the State has prescribed, which cannot exceed ten thousand rupees a month, and must decide within ninety days.

Under section 23(1) she may ask the Tribunal to declare the gift void. The transfer was after the commencement of the Act, it was by way of gift, it was subject to a condition of care recited in the deed, and the son has failed to provide the basic amenities and basic physical needs. The transfer is then deemed to have been made by fraud, coercion or undue influence and, at her option, is declared void.

She need not prove fraud, and she need not go to a civil court; section 27 has taken that jurisdiction away.

If the son has already sold the flat, sub-section (2) is the provision to consider, and the answer turns on whether the buyer paid and whether he had notice.

And if she is too ill to act, sub-section (3) allows a registered voluntary association to act on her behalf.

The safest form of the condition, from the drafting side, is the one in the problem: the promise of care recited in the deed itself. Where it was only spoken, the parent has to prove that the transfer was subject to the condition, and that is where these cases are usually fought.

Section 24: abandonment

Whoever, having the care or protection of a senior citizen, leaves such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months, or fine which may extend to five thousand rupees, or with both.

Three elements: the accused must have had the care or protection of the senior citizen, he must have left him in any place, and he must have had the intention of wholly abandoning him. The word "wholly" is doing work: a temporary leaving is not the offence.

The punishment is small, and the section should be answered as what it is, a summary offence rather than a serious one.

Sections 25 to 28: procedure and protection

Section 25. Notwithstanding anything in the Code of Criminal Procedure 1973, every offence under this Act shall be cognizable and bailable, and shall be tried summarily by a Magistrate.

Cognizable and bailable is a deliberate pair. Cognizable, so the police may act without an order; bailable, because the offence is a small one and the object is to get the senior citizen looked after rather than to fill a jail.

Section 26. Every officer or member of staff appointed to exercise functions under the Act is deemed to be a public servant within the meaning of section 21 of the Indian Penal Code 1860.

Section 27. No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies, and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.

That is a complete ouster and it is the counterpart of section 3. Read the two together: the Act overrides inconsistent law, and the civil court is shut out of everything it covers. It is also why section 23 sends the parent to the Tribunal and not to a suit for cancellation of the deed.

Section 28. No suit, prosecution or other legal proceeding shall lie against the Central Government, a State Government, a local authority or any officer of the Government in respect of anything done in good faith or intended to be done in pursuance of the Act or the rules or orders made under it.

Sections 29 to 32: the closing sections

Section 29: removal of difficulties. The State Government may, by order published in the Official Gazette, make provisions not inconsistent with the Act for removing a difficulty in giving effect to it. The proviso puts an end date on the power: no such order after two years from the commencement of the Act.

Notice that this power is the State Government's, which is unusual; in most Central Acts the removal-of-difficulties power belongs to the Central Government. It follows the scheme of this Act, where the State constitutes the Tribunals, prescribes the ceiling and makes the rules.

Section 30. The Central Government may give directions to State Governments as to the carrying into execution of the provisions of the Act.

Section 31. The Central Government may make periodic review and monitor the progress of the implementation of the Act by the State Governments.

Section 32: rules. The State Government may make rules for carrying out the purposes of the Act, and in particular for the manner of holding the inquiry under section 5, the powers and procedure of the Tribunal under section 8(2), the maximum maintenance allowance under section 9(2), the scheme for management of old age homes under section 19(2), the powers and duties of the implementing authorities under section 22(1), the comprehensive action plan under section 22(2), and any other prescribed matter. Every rule is to be laid before each House of the State Legislature, or before the single House where there is only one.

Clause (c) of sub-section (2) is the one that matters to a claimant. The actual ceiling on his maintenance is fixed by State rules, within the ten thousand rupee outer limit set by section 9(2), so the figure differs from State to State.

How the Act divides up

Learning the Act by its seven chapter headings is the quickest way to hold it, and it also shows what the Act is: not merely a maintenance statute, but a welfare statute with a maintenance chapter inside it.

A worked example

Savitri, aged seventy-two, gifted her flat to her son by a registered deed in 2019, the deed reciting that he would look after her and provide for her needs. In 2024 he stopped paying for her food and medicines and told her to leave. He has since sold the flat to a buyer who paid the full price and knew nothing. Savitri is now too ill to go to court herself.

Which route does she take? Section 23(1). The transfer was after the commencement of the Act; it was by way of gift; it was subject to the condition that the transferee provide the basic amenities and basic physical needs; and he has failed to provide them.

What must she prove? Only those ingredients. The transfer is then deemed to have been made by fraud or coercion or under undue influence, and she does not have to prove any of the three.

What order follows? The transfer is declared void by the Tribunal, at her option. It is voidable, not void from the start.

Can she go to the civil court instead? No. Section 27 bars the civil court from any matter to which the Act applies and forbids it to grant an injunction about anything done under the Act.

The buyer. Section 23(2) answers only the maintenance right, not the gift: a right to receive maintenance out of an estate may be enforced against a transferee with notice or a gratuitous transferee, but not against a transferee for consideration and without notice. This buyer paid and did not know.

She is too ill to act. Section 23(3): where a senior citizen is incapable of enforcing his rights, action may be taken on his behalf by an organisation referred to in the Explanation to section 5(1), that is a registered voluntary association.

And the son's conduct in putting her out? If he had the care or protection of her and left her in any place with the intention of wholly abandoning her, section 24 applies: three months, or a fine up to five thousand rupees, or both. By section 25 the offence is cognizable and bailable and is tried summarily.

What it does NOT mean

Section 23 does not require the parent to prove fraud. Once the ingredients are made out the transfer is deemed to have been made by fraud, coercion or undue influence.

The transfer is not void from the start. It is avoided at the option of the transferor, so it stands until he asks the Tribunal.

Section 23(1) does not reach a transfer made before the Act came into force in the State.

"Gift" is not the only transfer caught. The words are "by way of gift or otherwise".

Section 19 is not a duty. The State Government may establish old age homes; section 20, on medical support, says shall.

Section 24 does not punish every leaving. The accused must have had the care or protection of the senior citizen and must have left him with the intention of wholly abandoning him.

Section 27 is not a bar on the Tribunal. It bars the civil court, which is why an application under section 23 goes to the Tribunal and not to a suit for cancellation of the deed.

Section 29 is not a Central power. Uniquely, the removal-of-difficulties power belongs to the State Government, and it expired two years after commencement.

Quick revision

• s.19: the State may establish old age homes, at least one per district, for a minimum of one hundred fifty indigent senior citizens, and may prescribe a management scheme.
• s.20: the State shall ensure hospital beds, separate queues, expanded treatment of chronic, terminal and degenerative diseases, expanded research, and geriatric facilities in every district hospital.
• s.21: publicity, sensitisation training for officers including police and the judicial service, and inter-departmental co-ordination. s.22: powers and duties on a District Magistrate, and a comprehensive action plan.
• s.23(1): a transfer after commencement, by gift or otherwise, subject to a condition of care, followed by refusal or failure, is deemed made by fraud, coercion or undue influence and is declared void by the Tribunal at the transferor's option.
• s.23(2): a maintenance right follows the estate to a transferee with notice or a gratuitous transferee, but not to a purchaser for value without notice. s.23(3): an organisation may act for a senior citizen who cannot.
• s.24: abandoning a senior citizen with intent to abandon him wholly: three months or five thousand rupees or both. s.25: every offence is cognizable and bailable and tried summarily.
• ss.26 to 28: officers are public servants; no civil court has jurisdiction and no injunction may issue; good faith protection.
• ss.29 to 32: State removal of difficulties, expiring in two years; Central directions and review; State rules, including the actual maintenance ceiling under s.9(2), laid before the State Legislature.

Test yourself

1. A widow gifts her flat to her son on his written promise to look after her, and he then turns her out. What can she do about the gift? Apply to the Maintenance Tribunal under section 23(1). The transfer was after the commencement of the Act, by way of gift, subject to a condition that the transferee provide basic amenities and basic physical needs, and he has failed to provide them. The transfer is then deemed to have been made by fraud, coercion or undue influence, and at her option is declared void by the Tribunal. She need prove no fraud.

2. Is the transfer void or voidable? Voidable. It is declared void "at the option of the transferor", so it stands until she asks.

3. What is the punishment for abandoning a senior citizen? Under section 24, imprisonment of either description for a term which may extend to three months, or fine which may extend to five thousand rupees, or both. The person must have had the care or protection of the senior citizen and must have left him with the intention of wholly abandoning him.

4. Can a civil court entertain a suit about a matter the Act covers? No. Section 27 provides that no civil court shall have jurisdiction in respect of any matter to which any provision of the Act applies, and that no injunction shall be granted by any civil court in respect of anything done or intended to be done by or under the Act.