Who will pro­tect the rights of se­nior ci­ti­zens?

The Main­te­nance & Wel­fare of Par­ents & Se­nior Ci­ti­zens Act, 2007, seeks to en­sure that the el­derly are not de­prived of some­thing as ba­sic as hous­ing

HT Estates - - HTESTATES - Su­nil Tyagi

With the grad­ual ero­sion of the joint f am­ily sys­tem in In­dia,there have been many un­for­tu­nate cases of se­nior ci­ti­zens fac­ing lack of ba­sic needs such as hous­ing. There have been nu­mer­ous in­stances of many se­niors be­ing forcibly evicted from their own prop­er­ties or be­ing wrong­fully de­nied un­hin­dered ac­cess and en­joy­ment of their prop­erty by their chil­dren and/or rel­a­tives.

To t a ck l e t h i s g r ow i n g so­cial prob­lem, the Cen­tral Gover nment had e nacted the Main­te­nance & Wel­fare of Par­ents & Se­nior Ci­ti­zens Act, 2007. This is a model leg­is­la­tion passed by the Cen­tral Gov­ern­ment for adap­ta­tion and im­ple­men­ta­tion by re­spec­tive state gov­ern­ments.

This Act at present has been no­ti­fied in var­i­ous states such as Andhra Pradesh, As­sam, Delhi, Goa, Jhark­hand, Kar­nataka, Mad­hya Pradesh, Na­ga­land, Ra­jasthan and Tripura. Since the Act was en­acted, Main­te­nance Tri­bunals have in many cases di­rected the chil­dren/le­gal heirs to re­store peace­ful, phys­i­cal pos­ses­sion of the prop­erty un­der dis­pute to ag­grieved pe­ti­tion­ers. How­ever, many se­nior ci­ti­zens re­main un­aware of the reme­dies and re­lief avail­able to them un­der this Act.

One of the main ob­jects be­hind the Act is to pro­vide an in­sti­tu­tional frame­work for the pro­tec­tion of ‘life and prop­erty of older per­sons’. Par­ents, grand­par­ents and se­nior ci­ti­zens who are home­less, have been dis­pos­sessed of their prop­erty or who find them­selves un­able to main­tain them­selves from their own in­come and prop­erty are en­ti­tled to de­mand main­te­nance to­wards hous­ing from their chil­dren and spec­i­fied rel­a­tives. This is be­cause the Act takes care to de­fine the scope of main­te­nance as in­clud­ing the pro­vi­sion of res­i­dence.

To take into ac­count cases of child­less se­nior ci­ti­zens, the Act also makes a pro­vi­sion for claim­ing against ‘rel­a­tives’ who have suf­fi­cient means. Un­der the Act, a ‘rel­a­tive’ means any le­gal heir of a child­less se­nior cit­i­zen (not be­ing a mi­nor), who is ei­ther in pos­ses­sion of the im­mov­able prop­erty of the se­nior cit­i­zen or who would in­herit such prop­erty upon death of the se­nior cit­i­zen. Where more than one rel­a­tive is en­ti­tled to in­herit the se­nior cit­i­zen’s prop­erty, se­nior ci­ti­zens are en­ti­tled to claim main­te­nance to­wards hous­ing from each such rel­a­tive in the pro­por­tion in which these rel­a­tives would sub­se­quently in­herit the se­nior cit­i­zen’s prop­erty.

This brings us to the im­por­tant is­sue of what con­sti­tutes a se­nior cit­i­zen’s ‘ prop­erty’ for the pur­pose of this Act. To pro­vide a wider scope for se­nior ci­ti­zens who are seek­ing to re­claim or as­sert rights over their prop­erty, the term ‘prop­erty’ has been de­fined com­pre­hen­sively so as to in­clude ( i) both im­mov­able and mov­able prop­erty; ( ii) both an­ces­tral prop­erty and self- ac­quired prop­erty; ( iii) both tan­gi­ble and in­tan­gi­ble prop­erty.

While im­mov­able prop­erty in­cludes land to­gether with the build­ing con­structed on it (be it agri­cul­tural, res­i­den­tial, re­tail/ com­mer­cial, etc.), mov­able prop­erty would in­clude cash, jew­ellery, stocks, in­sur­ance poli­cies, etc. Self-ac­quired im­mov­able prop­erty in­cludes prop­er­ties that have been pur­chased by util­i­sa­tion of one’s own funds/ in­come.

Hence, one is usu­ally free to in­de­pen­dently deal with and trans­fer self-ac­quired prop­er­ties at one’s dis­cre­tion. The term ‘an­ces­tral im­mov­able prop­erty’ is to be un­der­stood in the con­text of ‘co­parce­nary prop­erty’ that is in­her­ited from one’s an­ces­tors as per the rules of Hindu Mi­tak­shara law. Re­gard­ing the dis­tinc­tion be­tween ‘tan­gi­ble’ and ‘ in­tan­gi­ble’, the lit­eral mean­ing of tan­gi­ble prop­erty refers to as­sets that are phys­i­cal/ ma­te­rial and ca­pa­ble of be­ing pos­sessed such as land and build­ings.

On the other hand, ab­stract rights and in­ter­est in an im­mov­able prop­erty such as leas­ing rights or pos­ses­sory rights are ‘in­tan­gi­ble’ in na­ture.

Sec­tion 23 of the Act in par- tic­u­lar has wide ram­i­fi­ca­tions in the con­text of trans­fer of im­mov­able prop­erty by se­nior ci­ti­zens and na­ture of their own­er­ship in such im­mov­able prop­erty, and will be dealt in our next col­umn.

The au­thor is se­nior part­ner at Zeus Law, a cor­po­rate com­mer­cial law firm. One of its ar­eas of spe­cial­i­sa­tion is real es­tate trans­ac­tional and lit­i­ga­tion work. If you have any queries, email us at ht­es­tates@ hin­dus­tan­times. com or ht@ zeus.firm.in


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