The parents gave their son an apartment on the condition that he would take care of them; After he neglected them, Bombay HC canceled the gift, but here’s why he may still inherit it later.

A couple gave their son an apartment they had bought in 2005 on the condition that he would take care of them. Years later, the Bombay High Court ordered the son to vacate the apartment. This is what the case is about.A recent Bombay High Court case involved a son who was ordered to vacate his father’s apartment after the court found that he had not complied with the condition attached to the gift of the property. The apartment had been given to him with the understanding that he would take care of his parents, an obligation that he did not fulfill.

Why did the court order the eviction?

The Bombay High Court examined Section 23 of the Senior Citizens Act, which provides that where a senior citizen transfers property subject to the condition that the transferee provides for his basic physical needs and the transferee subsequently fails to do so, the transfer may be deemed to have been made by fraud or coercion and may 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 take care of them in all aspects in the future.In other words, responsibility was not simply an informal expectation between parents and their child. It was expressly incorporated as a condition in the deed of donation.Shah noted: “Both parts of that test were met here: there was a clear condition in the contract and the relationship broke down so badly that the parents had to leave their own home.”There is a specific safeguard available when parents wish to transfer property to a child while making them responsible for their care. Article 23 provides a legal mechanism in such circumstances.Shah explains that when a gift is made subject to the condition that the child care for his or her elderly parents, failure to fulfill that commitment can provide a legal basis for recovering the property. That is what happened in the Bombay High Court case.Proper documentation and record-keeping can also be especially important for parents of seniors. The Bombay High Court judgment demonstrates the importance of clearly recording the terms of a transfer of property, rather than relying on verbal assurances or statements made later.But this raises another important question: after the deed of gift is canceled and the son is ordered to abandon the property, does he retain any inheritance rights to the apartment?

Child’s inheritance rights

In the Bombay High Court case, the parents were elderly people with sons and daughters. After getting married, the son started living with his wife in his parents’ Lower Parel flat. The property was an asset acquired by him from his father, who was a Hindu man, so the Hindu Succession Act was applicable to the case.For others, the Indian Succession Act applies.Shah explained that once a gift deed is canceled under Section 23, the legal position is that the transfer is treated as if it had not taken place. Therefore, the property reverts to the parents.Since the Lower Parel apartment was purchased by the parents in 2005 and was not an inherited property that had been passed down from generation to generation, the son does not acquire any birthright over it while his parents are 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 only inherit the Lower Parel apartment 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 child have inheritance rights?

The Bombay High Court case concerned a property acquired by Hindu parents. The situation, however, is different when the property is Hindu ancestral property.Shah says, “If it is ancestral property, that is, something that has been passed down through the male line without being divided, then yes, a son has a right to it simply by being born in the family. Curiously, since 2005, daughters also have the same right.”A property acquired by oneself, such as in this case the apartment that the parents bought with their own money, receives a different treatment. The child does not automatically have the right to said property. Shah says: “You will only inherit it if your parents die without a will, in which case the law of succession comes into effect, or if they specifically choose to give it to you in a will.”Therefore, the nature of the property is the first thing that determines whether a child has a right to it. When property is acquired by the parents themselves, the parents’ decision, including whether or not to leave a will, becomes important.

Can your inheritance be prevented?

Parents of older people generally have greater control over self-acquired property than over ancestral property.Shah says: “Self-acquired property does not automatically pass to children while the parents are alive or even necessarily afterwards if the parent has executed a will or deed of gift disinheriting the son or daughter.”Therefore, a will can determine how self-acquired property is distributed rather than letting property be divided according to predetermined succession rules, Shah said.Shah says: “Parents can also simply transfer or gift property to another person during their lifetime, as long as they do so freely and unconditionally, because once a transfer is unconditional, it generally cannot be undone.”