Calcutta High Court (Appellete Side)
Biplab Ganguly vs Biswanath Ganguly And Anr on 22 December, 2022
17
22.12.2022
(BM,JR) C.O. 2606 of 2019
Ct 652
Biplab Ganguly
Vs.
Biswanath Ganguly and Anr.
Mr. Indranath Mukherjee,
Ms. Gargi Acharya .... For the petitioner.
Ms. Juin Dutta Chakraborty
...for the opposite party nos. 1 & 2.
Being aggrieved by the order dated 28.11.2018
passed in Case No. 81/2018 by Sub-divisional Officer,
Barasat (Sadar), North 24-Parganas this revisional
application has been preferred.
The petitioner contended that the opposite party
no.1, being father of the petitioner was owner of a plot of
land measuring 13 decimal of land together with two
storied building at Ashoknagar, North 24 Parganas. The
opposite party no. 1 was a State Government employee
and retired from service and used to reside with his elder
son, i.e. the petitioner in the said property. The opposite
party no.1 by way of amicable settlement, decided to
settle all the amounts he got at the time of retirement, as
retiral benefits and his other properties to his sons after
retirement. Amicably , he decided to give his retiral
benefits to his younger son opposite party no.2 and the
aforesaid house property to the petitioner, i.e. elder son.
The petitioner used to take care of his parents since
long and maintained a cordial relationship with them. As
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a result of such amicable settlement, opposite party no.1
executed a deed of gift in favour of his elder son, the
petitioner herein and gifted such property measuring 13
decimal of land along with two storied building as above.
The petitioner further claims that in the said deed of
gift it has been clearly stated by the opposite party no.1
that he was very pleased with the conduct of elder
son/petitioner and he was very much compassionate to
his son and he also mentioned in the deed that he has
gifted his retiral benefits to his youngest son/opposite
party no.2.
It is further submitted that the petitioner has duly
accepted the said deed of gift and his name also recorded
in the concerned land records.
Petitioner alleged that in the above backdrop, all on
a sudden the opposite party no.1 made an application
before the Tribunal for annulment of the aforesaid deed of
gift without serving any copy of the same upon the
petitioner herein under the provision of maintenance and
welfare of parents and senior citizens Act,
2007(hereinafter called as Act of 2007).
The petitioner contended that he has, however,
received a notice from the Tribunal without any copy of
the application and contested the same. The petitioner
alleged that the he was not allowed to represent through
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any advocate or law knowing person.
However, the learned Tribunal after contested
hearing was pleased to declare the said deed of gift as
void by its impugned order dated 28.11.2018.
Learned counsel appearing on behalf of the
petitioner submits that no grievance was found to have
recorded that the petitioner has ever neglected his
parents or acted against any terms of the deed either in
fact or in law. The Tribunal has acted illegally with
material irregularity by declaring the said deed of gift as
void under Section 23(1) of the Act of 2007. As there is
no such refusal or failure on the part of the petitioner
herein in providing any basic amenities and physical
needs which is a condition precedent in applying section
23(1) of the Act, Learned Tribunal acted illegally without
appreciating that in the order it is clearly stated that it is
the only wish of opposite party no.1 to divide his property
equally between his two sons. It is to be mentioned that
the said order of annulment of deed of gift is being passed
to respect the desire of the opposite party no. 1 to divide
the properties equally amongst two sons and, accordingly,
Tribunal has no jurisdiction to apply said provision of
such Act. The Act of opposite party no. 1 itself ultra vires
being contrary in nature since there cannot be conditional
gift nor there is any cogent ground to pass for such order
of annulment of deed. Accordingly, his prayer is for
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setting aside the order passed by the Tribunal.
Learned counsel appearing on behalf of the
opposite party no.1 refers to the preamble of the Act and
contended that this is an Act to provide more effective
provisions for the Maintenance and Welfare of Parents
and Senior Citizens guaranteed and recognized under the
Constitutional provisions and for matters connected
therewith. She also referred Section 300A of the
Constitution of India and contended that a senior citizen
must not be deprived of his property, which is his legal
right. She also referred in this connection Section 3 of the
Act of 2007 contending that the provisions of such Act
has overriding effect notwithstanding anything
inconsistent therewith contained in any enactment.
She further submits that as to whether the gift deed
is liable to be revoked or not at the option of the father/
opposite party no.1, conduct of transferee after transfer is
to be taken into account. It can be presumed that the gift
was obtained by the transferee with intention to deceive
by pretending love and affection. She further submits any
donor before execution of the deed as a natural course of
human conduct expect that done will continue to behave
in the same manner as behaved before execution of deed.
Love and affection that influenced for the execution of
deed certainly must be enduring and without any barrier
and on account of the human conduct in relation to a
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particular relation is presumed to exist in all set of
circumstances for governing relationship of those
individual and therefore, transferee cannot disown his
own action of love and affection after the transfer comes
into effect.
She further submits that when there is some
amicable transfer by deed of gift the intention of the
parties must be deduced from the surrounding
circumstances. Since the preamble declares to provide
more protection for the maintenance and welfare of the
senior citizens guaranteed under the Constitution,
interpretation shall always be in favour of the parents
and senior citizens.
Before going to further details, let me reproduce the order
impugned to reflect the reason assigned by the Tribunal
in supporting of cancelling the impugned deed
"Mr. Biplob Gganguly, the respondent as well as the elder
son of the petitioner used to live separately at another
place but shifted to this residence post retirement and
illness of the petitioner and always pretended to maintain
a cordial relation with parents. On the pretext of taking
loan from Bank for his business Mr. Biplob Ganguly has
deceitfully taken the signature of his father Mr Biswanath
Ganguly on the 100% share of property registration
documents (gift Deed No-150108587 dated 09.11.2015)
showing it as a gift to Biplob Ganguly from his father
Biswanath Ganguly instead of registering first floor of the
building which Mr. Biswanath Ganguly has consented to
give to his elder son Biplob Ganguly. The deceitfulness
was detected sometimes in March 2018 by the petitioner
when some people came to the house to inspect the said
building for the purpose of purchasing it.
His only wish now is to divide his property (the
building in question) equally between his two sons.
Statement of Sri Bipob Ganguly, the respondent
Mr Biplob Ganguly refused to accept the fraud he has
committed instead he replied that his father Mr Biswanath
Ganguly has willfully gifted the residential building to him
on being satisfied with the behavior and taking care of his
father during his illness and bearing the major portion of
the cost of treatment.
After hearing both side the tribunal find that the petitioner
Sri Biswanth Ganguly is very much hurt and aggrieved
with the respondent for misleading him to sign on a deed
which he is not ready for.
The Tribunal has finally decided to declare void the
gift deed in the name of respondent Sri Biplob
Ganguly for the building which stands on a land
measuring 13 decimal in L.R. Dag No-419, R.S.
Khatiyan No-266 corresponding to L.R. Khatiyan
No-719 under Mouza-pukurkona, J.L. No-105, police
Station-Habra, Dist-North 24 Parganas in accordance
with Chapter-V, Section 23(1) of The Maintenance
and Welfare of Parents and Senior Citizens Act,
2007."
In the present case, the entire pleadings impugning
the deed of gift in question revolve around allegations of
mis-representation and fraud which can only be the
subject matter of a civil suit. Section 23 of the Act of
2007, cannot confer jurisdiction on a Magistrate or Sub-
divisional Officer to exercise the power of a regular civil
court as envisaged in the Code of Civil Procedure
particularly when the pre-condition of Section 23 are not
met. Even the language of the deed of gift is completely
silent as to the transfer contemplated in the deed of gift
being conditional upon the transferee providing the basic
amenities and/or basic physical needs of the transferor.
Previous good conduct of the transferee could be a reason
for the gift but could not be construed as a condition of
basic amenities or physical needs being provided by the
donees to the donor.
In this context, it would not be out of place to
mention that in order to attract section 23 of the Act
three conditions needs to be fulfilled. I) transfer by way of
deed of gift or otherwise and secondly II) there must be
condition that the transferee shall provide basic amenities
and basic physical needs to the transferor and III) such
transferee refused or failed to provide such amenities and
physical needs.
Here in the present case the deed of gift is absolutely
unconditional, reserving no right at all to the donor. No
conditions were attached that the petitioner herein would
have to provide basic amenities and basic physical needs
to the transferor.
The power of the tribunal to declare a transfer deed void,
such power can be exercised only when the transfer is
subject to the condition that the transferee shall provide
the basic amenities and basic physical needs to the
transferor and such transferee refused or fails to provide
such amenities and physical needs. Normally recital in
the deed is the best guide to answer the question as to
whether such a condition was attached to the transfer. In
the event the recital of deed is clear and unambiguous no
extrinsic aid of construction need to be resorted to in
order to gather intention of the parties but where there is
some ambiguity in the transfer deed, the intention of the
parties will have to be gathered from surrounding
circumstances.
In Debashish Mukheree @ Zen Acharya -Vs.-
Dr. Sanjib Mukherjee reported in 2018 (1) CHN (Cal) 481,
the Division Bench of this Court was pleased to observe
"12. we have carefully gone through a copy of te deed
of gift dated 29th April, 2015. It is clear that the flat in question
was gifted absolutely and unconditionally to the appellant
reserving no right at all to the donor being the mother of the
appellant. No conditions were attached that the appellant
would have to provide basic amenities and basic physical
needs to the transferor. Accordingly in our opinion, section 23 of
the Act can have no manner of application to the facts of the
present case".
In another judgment the Apex Court Sudesh
Chhikara -Vs._ Ramti Devi & Anr., reported in 2022 Live
Law (SC) 1011 observed as follows :
"13. when a senior citizen part withs with his or her
property by executing a gift or a release or otherwise in favour of
his or her near and dear ones, a condition of looking after the
senior citizen is not necessarily attached to it. On the contrary,
very often, such transfers are made out of love and affection
without any expectation in return. Therefore, when it is alleged
that the conditions mentioned in sub-section (1) of Section 23 are
attached to a transfer, existence of such conditions must be
established before the Tribunal."
"14. Careful perusal of the petition under section 23 filed by
respondent no. 1 shows that it is not even pleaded that the
release deed was executed subject to a condition that the
transferees (the daughters of respondent no.1) would provide the
basic amenities and basic physical needs to respondent no. 1.
Even in the impugned order dated 22nd May 2018 passed by
the Maintenance Tribunal, no such finding has been recorded.
It seems that oral evidence was not adduced by the parties. As
can be seen from the impugned judgment of the Tribunal,
immediately after a reply was filed by the appellant that the
petition was fixed for arguments. Effecting transfer subject to a
condition of providing the basic amenities and basic physical
needs to the transferor senior citizen is sine qua non for
applicability of sub-section (1) of Section 23. In the present case,
as stated earlier, it is not even pleaded by respondent no. 1 that
the release deed was executed subject to such a condition."
"15. We have perused the counter affidavit filed by respondent
no.1 Even in the counter, it is not pleaded that the release was
subject to such a condition. It is merely pleaded that the
appellant had no intention to take care of her mother. Thus, the
order of the maintenance Tribunal cannot be sustained as the
twin conditions incorporated in sub-section (1) of Section 23 were
not satisfied. Unfortunately, the High Court has not adverted to
the merits of the case at all."
In view of the aforesaid facts and circumstances of
this case and for the reasons, as stated above, this
revisional application is allowed and the impugned order
of the Tribunal dated 28.11.2018 is hereby set aside.
C.O. 2606 of 2019 is thus allowed.
However, the opposite party no.1 being old aged father , I
trust and hope that the petitioner shall make every
endeavour for opposite party No. 1's accommodation
either in the flat in question or in any similarly situated
alternative accommodation.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Hon'ble
Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance of
all necessary formalities.
(Ajoy Kumar Mukherjee, J.)
