Elderly evicted by their heirs after gift deed can cancel it, seek relief under Senior Citizens Act

Ghaziabad/Noida: An 85-year-old retired journalist is facing eviction from his home of 24 years. Two years ago, the Vasundhara resident ‘gifted' his flat in Sector 9 to his only daughter. Since then, he has been fighting to keep a roof over his head.

The octogenarian alleged his daughter, in her 50s, was subjecting him to immense mental and physical torture in a bid to evict him from the flat.

"I bought this flat in Vasundhara's Sector 9 in 2020 years. Around 15 years ago, my daughter's marriage ended in divorce, and she moved in with me along with her son. Initially, everything seemed to be going well. In 2022, with the best of intentions, I transferred the ownership of my flat to her through a gift deed. Within a few months, my daughter's behaviour towards me changed drastically. She started to verbally abuse me. Then came the physical assaults. I'm now facing eviction from the flat," he said. On at least three occasions he was allegedly thrown out of the flat. "I went back as I had nowhere to go. On Aug 9, I was told that my daughter had sold the flat. She is forcing me to sign a letter to transfer the membership of the cooperative society too," the man said.

Another 86-year-old woman has found herself at an old age home days after she gifted her property to her son. Bipin Chauhan of Noida Senior Citizens' Home located in Sector 114 said the woman was brought to the NGO two years ago by her son.

"He told us that his mother had dementia and required specialised attention. We readily accepted her into our NGO, with the understanding that he would visit her regularly. For the first few months, he visited her often. Then one day, he took his mother out citing some bank-related work. After they returned that day, the son did not visit her again. His mother, who has age-related problems and dementia, could only tell us that she had signed a few papers. We suspect that the woman was made to transfer her property by way of a gift deed to her heir," Chauhan said.

Instances of children and legal heirs evicting an elderly person from their flats and properties, which they had transferred to them by the instrument of gift deed, are not new. According to Chauhan, the reasons for eviction and abandonment vary. "Some are cast aside due to illness, while others were deemed no longer useful when their caretakers' paycheques ran out. For many, the simple act of ageing was enough to warrant being thrown away, as if their lives held no value beyond their ability to serve."

Administrative officials and lawyers say the law on gift deed is clear: A senior citizen can get property given via gift deed back from their children/legal heirs if they fail to provide them food, clothing, residence, medical attention and treatment as mandated under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

The Act which came into effect on Dec 29, 2007, was amended by UP govt on Aug 3 last year to revise the stamp duty on property transfers via gift deeds. Earlier, the stamp duty was 5% for gift deeds in Noida and 7% for other parts of the state. The govt took into note that a gift deed has sentimental value attached to it, that such transactions are completely non-financial, based on mutual trust and love among family members, and reduced the stamp duty on gift deeds to just Rs 5,000.

AIG, stamp and registration (Ghaziabad), Pushpendra Kumar said there are cases where senior citizens revoked gift deeds (used to transfer property) mostly due to "neglect and abandonment" by their children. Lawyer Prashant Kanha, who practises in the Supreme Court, said a gift deed and a will were two different legal documents. A senior citizen can execute a gift deed to transfer property to a donee during their lifetime, which is based on trust and the promise that they will be looked after. Whereas a will becomes applicable only after the death of the senior citizen, he said.

"In case, a senior citizen feels the need to cancel a gift deed due to ill-treatment, eviction, etc, there are enough provisions in law, through which they can take back their property. The revocation of a gift deed will be done via Section 23 of the Act, under which one can apply to revoke the gift deed with the district magistrate, who can order local police to help out the senior citizen," Kanha added.

If a senior citizen is not in the condition to file an application or is incapable of doing so, then any voluntary association, registered under the Societies Registration Act 1860, or anyone can appeal on behalf of the elderly person.

However, there is a catch. If the gift deed was executed before the Act came into effect, that is before Dec 29, 2007, then the senior citizen does not have a remedy under this Act. However, they can challenge it in court, Kanha said.

"The practical problem is that not many senior citizens seek legal remedy either because they are infirm, lack awareness or because of the shame of acknowledging that they have been let down by their children. To deal with this aspect of the problem, a proactive approach beyond the boundaries of law is required," added Kanha.