Gift Deed Cancellation by senior citizen parent
9 months ago
My father (senior citizen) has 3 sons from his 1st wife and I’m only son from second wife (marriage after death of first wife). My father gifted single flat to each of the 4 sons (all flats in same building) through unconditional gift deed in 2020. The building (father's self fund not inherited) was constructed in 2016 and my both parents reside with me in my flat since 2016. Now, due to family dispute between my mother (non-senior citizen) and my 3 step-brothers, my father is siding with my step-brothers and threatening to cancel my gift deed (through falsely claiming non-maintenance of him by me) and throw out me and my mother from the gifted flat. Religion – Muslim.
Please answer this :-
1) if my father is staying with me only since 2016 under my expenses of food, clothing and shelter. can he still fraudulently use "Maintenance and Welfare of Parents and Senior Citizens Act, 2007" or any such Act against me and cancel the gift deed ?
2) if I gift the same flat to my mother, will my father still have "Maintenance and Welfare of Parents and Senior Citizens Act, 2007" or any such Act to use against the gifted flat ?
In case your father makes an application for cancellation of the Gift Deed invoking the provision of Sec,23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, you may implead three stepbrothers who being donee of the property are equally obliged to maintain the basic needs of their parents along with you to share the burden of maintenance of parents. Further, in the absence of any express condition in the Deed of Gift that the donee will look after and maintain their basic needs, your father might be disallowed by the Maintenance Tribunal constituted under the Sr. Citizens Act where Advocates are not allowed in the proceedings. So, the Applicant and OP require to establish their claim before the Tribunal. So prepare yourself for argument after consulting an Advocate before the schedule date of hearing before the Tribunal.
As per section 23 of The Maintenance Act
“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.”
Hence, it 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
However, in your case, you have mentioned that the parent is living with you and you are taking care of their food, shelter and clothing expenses. This comes under the ambit of basic amenities and thus, your father cannot use the maintenance act to revoke the gift.
2) If you gift the flat to your mother, you cease to be the owner, hence your father cannot use the maintenance act against you with respect to that flat
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