by Arti Chaudhary
Property gifting is a tradition that has been going on for years. The majority of parents gift their property to children out of generosity. And then there some do so anticipating that their kids will look after them in their old age. Technically, these practices keep the joint family culture alive. However, on the contrary, with numerous youngsters picking to relocate abroad for work, and many others getting into the nuclear family setup, the joint family system is slowly getting extinct. In such circumstances, the parents find themselves in the ‘no man’s land’.
So the question is what should be done in such circumstances, where parents are ill-treated by their kids, once the property is transferred to the children? Is it possible to get back their property from the children? Yes, of course, there is a solution for such cases in our judiciary system.
Basically, under the Indian Contract Act, 1872, once a property is gifted and accepted by the recipient is conclusive, it can’t be repudiated later on. This means if all the conditions are met, the equivalent can’t be dissolved by the benefactor later on, except in case the donor was obtained by extortion, undue impact or compulsion. The Court made it very clear that once the property is gifted, it can’t be taken back in any condition.
However, the ‘Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ bill passed by the government of India, ensures that children do take proper care of their parents and senior citizens. The provisions under this clause say that it is possible that property gifted by parents and senior citizen can be canceled. This provision is contained in section 23V of the act which states that:
“If any elderly has transferred his/her property as a gift to their children after the inception of the Maintenance Act, on a condition that the receiver will fulfill the basic needs and basic facility to the donor and if in any instinct receiver fails to do so, then it will considered that exchange of property will be esteemed to have been made by extortion or compulsion or under undue impact and will, at the choice of the donor, be proclaimed void by the court”.
As the allocation of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 revoke the provisions of some other laws, the Section 23 of the clause prevails, and in such occurrences the gifting or transferring of the property that has been made after coming into power of The Maintenance Act, becomes revocable at the choice of the donor.
Therefore, technically, if the property has been gifted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, can be taken back. Though it is highly unlikely that the parents would seek the help of such law, they should take legal help in case their children abandon them.