Can parents take back the property gifted to their children?
Let’s skip the mystery and come straight to the point!
The answer is – YES
Parents can indeed take back the property they have gifted to their children.
- All Gift transactions come under the purview of the Transfer of Property Act. Under this law, a valid gift once made and accepted, is irrevocable.
- However, one can challenge a gift deed if any of the elements vitiating the contract is present like undue influence, coercion or fraud.
- By its inherent nature, Law is dynamic and changes with change in the social milieu and other politico-cultural factors.
With a rapidly shifting society and apparent differences in the value system in human relationships, the question of parents being able to take back gifted property often arises.
Also Read: NRIs and commercial property
Family spaces have gradually moved from being Joint Family setups to nuclear ones. Children move out of family environs to build their career and independent lives.
There is an ethos of continuity, lineage and life security that motivates parents to gift property to their children. Normally one would expect the same to be reciprocated – meaning thereby, that children take care of their parents when the latter reach seniority. Unfortunately, there are increasing cases of children mistreating their parents once the property is transferred in their names.
Moreover, in India, the governmental support system for the elderly is still not very strong.
- Given the frequent cases of the abuse or ill-treatment of the elderly, Indian Law has provided a right to the parents to take back their gifted property from the children.
- This right has been recognized in the ‘Maintenance and Welfare of Parents and Senior Citizens Act, 2007’.
- It is social welfare legislation meant for care and well being of the older adults.
- It protects the rights of the elderly and has made it a legal obligation of the children to look after their parents.
Section 23 of the Act, as mentioned above, allows the cancellation of a gift deed by the parents. When a gift is made to the legal heir/child by the senior citizen upon a condition that the receiver will take care of the basic needs of the donor, but the receiver fails to fulfil the same; the gift can be cancelled. The condition can be expressed or implied.
If a child fails to fulfil such a condition it would be considered as an exercise of fraud, undue influence or coercion in the gift transaction, depending upon the facts of the case. The donor can challenge the gift deed and seek annulment of the same.
This provision assists the elderly persons who have made the gift of the property after coming into force of the Maintenance Act and want to cancel the gift deed later.
Parents gift a property to their children with an understanding that the donor (parent) would be taken care of after transfer of the property. But if the donee (child) is not fulfilling his obligation under the contract of the gift, the same can be cancelled.