Bombay High Court Orders Son to Vacate Gifted Flat After Failing to Care for Parents

The Bombay High Court considered Section 23 of the Senior Citizens Act. (Image for representative purpose only)

A couple gifted their son a flat that they had bought in 2005 on the condition that he take care of them. Years later, the Bombay High Court directed the son to vacate the flat. Here’s what the case is about. A recent Bombay High Court case involved a son who was directed to vacate his father’s flat after the court found that he had failed to honour the condition attached to the gift of the property. The flat had been transferred to him on the understanding that he would take care of his parents, an obligation he did not fulfil.

Why court ordered eviction

The Bombay High Court considered Section 23 of the Senior Citizens Act, which provides that where a senior citizen transfers property subject to a condition that the transferee will provide for their basic physical needs and the transferee subsequently fails to do so, the transfer can be treated as having been made by fraud or coercion and can be cancelled. Shrusti Shah, Associate Partner at King Stubb and Kasiva, told ET that the gift deed executed when the parents transferred the flat to their son specifically required him to look after them in all respects in the future. In other words, the responsibility was not merely an informal expectation between the parents and their son. It was expressly incorporated as a condition in the gift deed. Shah pointed out: “Here, both parts of that test were met: there was a clear condition in the deed, and the relationship broke down so badly that the parents actually had to leave their own home.” There is a specific safeguard available when parents want to transfer property to a child while making the child responsible for their care. Section 23 provides a legal mechanism in such circumstances. Shah explains that when a gift is made subject to the condition that the child will take care of the senior citizen parents, failure to honour that commitment can provide a legal basis for taking the property back. That is what happened in the Bombay High Court case. Proper documentation and registration can also be particularly important for senior citizen parents. The Bombay High Court judgment demonstrates the importance of recording the terms of a property transfer clearly, rather than relying on verbal assurances or claims made later. But, this raises another important question: after the gift deed has been cancelled and the son has been ordered to vacate the property, does he retain any inheritance rights in the flat?

Son’s inheritance rights

In the Bombay High Court case, the parents were senior citizens with sons and daughters. After getting married, the son began living with his wife in his parents’ Lower Parel flat. The property was the self-acquired asset of his father, who was a Hindu male, making the Hindu Succession Act applicable to the case. For others, the Indian Succession Act applies. Shah explained that once a gift deed is cancelled under Section 23, the legal position is that the transfer is treated as though it had not taken place. The property therefore returns to the parents. Since the Lower Parel flat was purchased by the parents in 2005 and was not inherited property that had passed down through the family, the son does not acquire any birthright in it while his parents are still alive. Shah says: “Under Hindu law, self-acquired property is for the owners’ to do with as they please.” According to Shah, the son could inherit the Lower Parel flat only after the death of his parents. Even then, if the parents have not left a Will, he would inherit the property along with his mother and sisters as a Class I heir. Alternatively, the parents could choose to leave the property to him through a Will.

When does a Hindu son have inheritance rights?

The Bombay High Court case involved a self-acquired property belonging to Hindu parents. The position, however, is different when the property is ancestral Hindu property. Shah says: “If it's ancestral property, meaning something that's been passed down through the male line without being divided, then yes, a son has a right to it simply by being born into the family. Interestingly, since 2005, daughters have that same right too.” A self-acquired property, such as the flat in this case that the parents purchased with their own money, is treated differently. The son does not have an automatic entitlement to such a property. Shah says: “He'd only inherit it if his parents die without a will, in which case succession law kicks in, or if they specifically choose to give it to him in a Will.” Therefore, the nature of the property is the first thing that determines whether a son has a claim over it. Where the property is self-acquired, the parents’ own decision, including whether they leave behind a Will, becomes important.

Can his inheritance be prevented?

Senior citizen parents generally have greater control over self-acquired property than over ancestral property. Shah says: “Self-acquired property doesn't automatically pass to children while the parents are alive or even necessarily after if the parent has executed a Will or a gift deed disinheriting the son or daughter.” A Will can therefore determine how the self-acquired property is distributed rather than leaving the property to be divided according to the default succession rules, Shah said. Shah says: “Parents can also just go ahead and transfer or gift the property to someone else during their lifetime, as long as it's done freely and without conditions attached, because once a transfer is unconditional, it generally can't be undone.”

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