Sushanta Kumar Mukhopadhyay vs The State Of West Bengal & Ors
2023 Latest Caselaw 4745 Cal

               IN THE HIGH COURT AT CALCUTTA
                 Constitutional Writ Jurisdiction
                             Appellate Side
BEFORE:-

THE HON'BLE JUSTICE RAJASEKHAR MANTHA


                         W.P.A. 16054 of 2022

                   Sushanta Kumar Mukhopadhyay
                              -Versus-
                    The State of West Bengal & Ors.

Mr. Ashok Kumar Banerjee,
Mr. Debjit Mukherjee,
Ms. Manideepa (Paul) Roy,
Ms. Urbasi Banerjee
                                                       ...for the petitioner

Ms. Chaitali Bhattacharya,
Mr. Mrinal Kanti Biswas
                                                           ...for the State


Hearing concluded on : 28.07.2023
Judgement on         : 04.08.2023


Rajasekhar Mantha, J.

1. This Court had, at the interim stage on the 18th of January 2023,

directed the daughter-in-law and son to explain as to why they should not

be escorted out of the house along with their two daughters.

2. Against the said order, the respondent/daughter-in-law preferred

MAT 180 of 2023. The said appeal was disposed of by order dated 1st

March 2023, by a Division Bench of this Court directing this Court to

consider the maintainability issue of the writ petition first, before

proceeding further in the matter. The matter is taken up after remand.

3. The facts relevant to the case are that the writ petitioner is the

absolute owner of premises No. D-11, New Garia Co-operative Housing

Society Limited, Kolkata- 700094 under the Panchasayar Police Station.

4. The added respondent no. 6/son, Saikat Mukherjee, along with the

respondent no. 5/wife, Satarupa Mukherjee, since after marriage, had

been living with his father/the writ petitioner at the aforesaid premises.

The son and daughter-in-law have two daughters one of whom has

attained majority as on date, and live in the same house.

5. Disputes and differences arose in the marriage of the son and

daughter-in-law, as a consequence whereof, the daughter-in-law filed

Matrimonial Suit 893 of 2016 before the Learned District Judge at

Alipore, South 24 Parganas. In the suit, on 26 September 2016, a decree

of divorce by mutual consent was passed.

6. As part of the consent terms filed by the said son and daughter-in-

law before the learned District Judge, the daughter-in-law was given a

right by the son to live in the said premises of the writ petitioner/father

along with her two daughters. The father was totally unaware of the said

right of residence conferred on Respondent no. 5 and her daughters. The

father is not a signatory to the terms of settlement between the son and

the daughter-in-law. He could not have been a party to MAT Suit 819 of

2017.

7. The writ petitioner thereafter lodged several complaints with the

Panchasayar police, DSP, and SP, alleging harassment and torture by the

daughter-in-law.

8. Learned counsel for the writ petitioner submits that he allowed the

daughter-in-law to stay in the premises even after divorce out of his love

and affection for his granddaughters. He has now filed the instant writ

petition seeking eviction of both the son and daughter-in-law along with

the granddaughters, from his premises, unable to bear the torture by the

son, daughter-in-law and their children.

9. On the question of maintainability of such prayers in a writ petition

under Article 226 of the Constitution of India, this Court had, in WPA

5605 of 2023 (Indu Bhushan Gayen v. State of West Bengal), by

judgment and order dated March 27, 2023, held as follows:-

"On the question of alternative remedy available to the petitioner under the Act of 2007, a Constitution bench of the Supreme Court, in Calcutta Discount Co. Ltd. v. Income-Tax Officer, Companies District I Calcutta and Anr. reported in 1961 SCR (2) 241, observed the following:

"27. .........The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action."

Following the said decision, the Hon'ble Supreme Court in Assistant Collector Of Central Vs. Jainson Hosiery Industries reported in AIR 1979 SC 1889, 1980 SCR (1) 134, observed the following:

"1.....It is correct to say that the High Court must have regard to the well established principles for the exercise of its writ jurisdiction and unless it is satisfied that the normal statutory remedy is likely to be too dilatory or difficult to give reasonably quick relief, it should be loath to act under Article226...."

It would not be out of place to quote what the Hon'ble Supreme Court, in Whirlpool Corporation Vs. Registrar Of Trade Marks, Mumbai & Ors reported in (1988) 8 SCC 1, considered:

"16. Rashid Ahmad vs. Municipal Board, kairana, AIR 1960 SC 163, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S.Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still beentertained in exceptional circumstances.

18. This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs. Bombay vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961 SC 1506 and was affirmed and followed in the following words: "The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".

10. On the right of a senior citizen to seek eviction of his children and daughter-in-law, in the said Indubhushan Gayen (Supra), it was held as follows:-

The Hon'ble Supreme Court in the case of S. Vanitha Vs. Deputy Commissioner, Bengaluru Urban District and Others reported in 2020 SCC OnLine SC 1023, observed the following regarding the power of eviction:-

"20. The substance of sub-Section (2) of section 23, as submitted by the Second and Third respondents, is that the Tribunal had the jurisdiction to pass an order directing the eviction of the appellant who is their daughter-in-law. According to the submission, the power to order eviction is implicit in the provision guaranteeing a 'right to receive maintenance out of an estate' and the enforcement of that right. In supporting the submission, they have referred to the view which has been taken by several High Courts, indicating that the Tribunal may order the eviction of a child or a relative from the property of a senior citizen, where there has been a breach of the obligation to maintain the senior citizen. The Tribunal under the Senior Citizens Act 2007 may have the authority to order an eviction, if it is necessary and expedient to ensure the maintenance and protection of the senior citizen or parent. Eviction, in other words would be an incident of the enforcement of the right to maintenance and protection. However, this remedy can be granted only after adverting to the competing claims in the dispute. It is necessary to recapitulate that the situation in the present case is that the eviction was sought of the daughter-in-law, i.e. the appellant. The land, where the house has been constructed, was originally purchased by the son of the applicants who are seeking eviction of their daughter-inlaw. The son had purchased the property a few months before his marriage to the appellant. He had subsequently transferred the property by a registered sale deed to his father and the fact that it was for the same consideration after the lapse of several years is of significance. The father, in turn, executed a gift deed in favor of his spouse. The appellant has asserted that she had been living in the house, as her matrimonial residence, until the application was filed. Her spouse has (according to her) deserted her and their minor daughter and left them in the lurch. The electricity to the premises was disconnected for non- payment of dues. Their daughter has sought admission to an engineering degree course however her father-Fourth respondent has not provided any financial support. The transfers which took place cannot be viewed in isolation from the context of the on-going matrimonial dispute which has taken place. The issue is whether the appellant as the

daughter-in-law and the minor daughter could have been ousted in the above manner."

(Emphasis added)

A Division bench of this Court in the case of Ms. Sahidun Nisa v. The Lieutenant Governor & Ors, reported in 2017 SCC OnLine Cal 16231 has considered the scheme of the Act of 2007 in the light of the power of eviction of children. It was observed that:

"15. Section 22(2) of the Act of 2007, which falls under Chapter V, even goes to the extent of providing for the State Government to prescribe a comprehensive action plan for providing protection of life and "property" of senior citizens. The scheme of the Act of 2007 which provides, inter alia, for protection of life and "property" of older persons, nowhere specifically excludes passing of an order of eviction/vacation by a competent Tribunal in respect of a property where an elderly parent or a senior citizen has a 'right' or 'interest', if the same is required to be passed for the purpose of protection of both life and "property" of the older person/s. As such, the statute is wide enough for the purpose of issuance of such an order, as was passed by the Maintenance Tribunal on 14 January, 2016, while correctly appreciating its scope."

A Division Bench of the Bombay High Court in the case of Ritika Prashant Jasani v. Anjana Niranjan Jasani decided on August 13, 2021 reported in 2021 SCC OnLine Bom 1802, has held that when it is established that the senior citizen is the exclusive owner of the concerned property, it is his discretion whether to allow the son and his family members will live in the said property, and eviction of the latter will follow if the latter becomes dangerous for the former. The relevant Para is set out hereunder:

"20.1Petitioner in Dattatrey Shivaji Mane (supra) was the son of respondent No.1 mother. The tenement in question belonged to respondent No.1 exclusively. In paragraph 13 of the said judgment, there is a clear finding of fact by learned Single Judge that respondent No.1 has exclusive rights in the tenement which was allowed to be occupied by the petitioner and his family members by respondent No.1. In fact in paragraph 14, it is clarified that petitioner could not point out any legal right to occupy the tenement owned by respondent No.1. The only submission made was that since petitioner was maintaining respondent No.1 for last several years, no order of eviction should be passed by the Tribunal against the petitioner. On the other hand, it was found that respondent No.1 had produced sufficient material showing that she was harassed by the petitioner and his family members for the last several years. Petitioner also did not dispute that complaints

were filed by respondent No.1 alleging harassment by the petitioner. Proceeding on the basis that petitioner could not show any right of any nature whatsoever in the tenement of respondent No.1 under any provisions of law, learned Single Judge held that it is exclusively for respondent No.1, as a senior citizen, to decide whether she wants to permit the petitioner and his family members to stay with her or not. Since she had decided not to allow the petitioner and his family members to stay with her in the house owned by her, therefore, learned Single Judge held that Tribunal was fully justified in passing an order of eviction, not only against the petitioner but also against his other family members."

11. On the question of efficaciousness of alternative remedy available to the petitioner before the maintenance tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, this Court had in the said Indubhshan Gayen @ Indu Bhushan Gayen (supra) held as follows:-

"This court, in the case of Ramapada Basak & Anr Vs. The State of West Bengal and Ors decided on 23rd July 2021 in W.P.A. 10835 of 2021, held the following on the question of alternative remedy:

"On the question of alternative remedy, this Court is conscious of the principles laid down by the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trademark reported in (1998) 8 SCC 1 and upheld recently in the year 2021 in the case of Radha Krishan Industries Vs. State of Himachal Pradesh and Ors. reported in 2021 SCC Online SC 334. However, the right of senior citizen to exclusively reside in his own house must be viewed from the prism of Article 21 of the Constitution of India. To compel a senior citizen to approach either a civil court (the jurisdiction of which is any way barred under Section 27 of the 2007 Act) or take recourse to a special Statute like the 2007 Act would in most cases be extremely onerous and painful for a person in the sunset days of life. This Court is, therefore, of the view that the principle of alternative remedy cannot be strictly applied to Senior Citizens and a Writ Court must come to the aid of a Senior Citizen in a given case."

Therefore, the High Court can exercise jurisdiction to grant relief to a senior citizen under Article 226, despite the existence of an alternate remedy under the Act of 2007. Such jurisdiction should be exercised when the alternative remedy would cause unnecessary delay and harassment. The Writ Court should not be handicapped in granting relief in a given set of facts whereof the life of a citizen and in this case a senior citizen is at stake.

Rule 7(7)/(a) of The West Bengal Maintenance and Welfare of Parents and Senior Citizens Rules 2008 makes the police duty bound to protect the life and property of the senior citizens. The said rule reads as under:

"7(7)/(a) In case of exercising the powers as provided in the Act for this purpose, the tribunal may ask the police Officer of the respective Police Station within its jurisdiction, to ensure the protection of the person and property of the applicant."

Unlike rules framed by other States, the West Bengal Rules of 2008 do not clearly empower the tribunal to order eviction of children. Although the expression "duty bound to protect the life and property" in Rule 7(7)(a) must be interpreted to confer such power. The tribunal however cannot be expected to give such interpretation. There is therefore substantial doubt as to whether the Tribunal has or will exercise jurisdiction to evict the private respondent/son and his family.

A conjoint reading of Rules 7(3)/(a), 7(4), 7(5), of The West Bengal Maintenance and Welfare of Parents and Senior Citizens Rules 2008, that the Maintenance Tribunal may take a long time to decide an application, filed by a senior citizen. The statutory period for disposal of an application by the Tribunal is 90 days, as provided in section 5(4) of the Act. Rule 7(1) does not mandate the maintenance tribunal to sit regularly. The tribunal may sit at least once in a month, or for such number of times considering the requirement and urgency of the business of the tribunals. There are a large number of applications pending."

12. Counsel for the appellant also relied upon a decision of the

Supreme Court in the Case of Baburam Prakash Chandra Maheshwari

v. Antarim Zila Parishad now Zila Parishad reported in AIR 1969 SC

556 at paragraph 3 thereof.

13. In the backdrop of the aforesaid discussion, this Court is of the

clear view that the prayers made in the writ petition can be entertained

by this Court under Article 226 of the Constitution of India.

14. Counsel for the respondents would rely upon a decision of a

Division Bench of this Court in the case of Swati Das v. State of West

Bengal dated 12 July 2022 passed in MAT 683 of 2022. In the said

case, a Division Bench of this Court had set aside the order of eviction

passed by the Single Bench against the daughter-in-law therein, in a writ

petition filed by the father-in-law.

15. The facts of the said Swati Das case (Supra) were that the son of

the petitioner had obtained an ex parte decree against the daughter-in-

law from a District Court outside Calcutta. The daughter-in-law/Swati

Das continued to live in the residence of the father-in-law. She had not

sought or applied for any right of residence under the provisions of the

Protection of Women from Domestic Violence (PWDV) Act, 2005.

16. The son was staying away from the writ petitioner/father's

residence. The daughter-in-law often disturbed the writ petitioner and

created disharmony in his house. The writ petitioner/father-in-law

sought eviction of the daughter-in-law as she was at best a licensee,

which was allowed. The daughter-in-law applied before the Single Bench

for recall of the order of eviction since she claimed that she was not

served a copy of the writ petition.

17. It is now well-settled that a decision is an authority for the finding

of a Court rendered in the particular fact of the said case. A decision of

the Court cannot be cited as a precedent when the facts of such case are

completely different from the facts on which the decision of the Hon'ble

Supreme Court is rendered. The reliance placed on paragraphs 11 and 14

of the decision of the Supreme Court in the case of State of Rajasthan

Vs. Ganeshi Lal reported in AIR 2008 Supreme Court 690, by the

learned counsel for the appellant Mr. Ashok Kumar Banerjee needs to be

considered:-

"11. "12. ... Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra and Union of India v. Dhanwanti Devi.) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.""

18. The said Swati Das decision (Supra) is, therefore, not relevant in

the facts of the case.

19. The next question to be addressed is as to whether a consent

decree, obtained by the son and daughter-in-law, being Respondent nos.

5 and 6, is either valid or even binding on the writ petitioner/father-in-

law.

20. Admittedly, the said consent decree was under the provisions of the

Hindu Marriage Act, 1955. In a suit for divorce under Section 13, the

father-in-law is neither a necessary or proper party, nor had he been

made a party. Consent recorded by the Respondent nos. 5 and 6 amongst

themselves, in respect of the petitioner's property, and decree passed by

the District Court, therefore, cannot bind the writ petitioner or his

property.

21. This Court also finds that the consent decree dated 26 September

2016 in MAT 893 of 2016 has been obtained by fraud. The father-in-

law/writ petitioner has neither consented to the daughter-in-law staying

in his property nor has he signed on any such consent term filed by the

respondent nos. 5 and 6 in the said MAT 893 of 2016. Respondent nos. 5

and 6, by including the father's/writ petitioner's property in the consent

terms filed in the suit, and reserving the right of Respondent no.

5/wife/daughter-in-law and her two daughters staying therein, had

undoubtedly obtained the said decree by fraud and/or misrepresentation

to the District Court.

22. It is now well-settled that fraud unravels all. A fraudulent decree

can be declared a nullity in either the same proceedings or at any time

and can be challenged in any Court in appeal, revision, a writ petition, or

even in a collateral proceedings.

23. Reference in this regard is made to paragraphs 22 to 26 of the

decision of the Supreme Court in the case of A.V. Papayya and Others

v. Govt. of A.P. and Others reported in (2007) 4 SCC 221:-

"22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord Denning observed : (All ER p. 345 C) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud."

24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said : fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."

24. In A.P. State Financial Corporation v. M/s Gar Re-Rolling Mills

and Another reported in (1994) 2 SCC 647, at paragraph 18, the Court

has observed that a writ Court, while exercising its equitable jurisdiction

should prevent the perpetration of legal fraud as Courts are obliged to do

justice by promotion of good field. Equity is always known to defend the

law from crafty prevention and new satellites invented to rebate the law.

The said paragraph has been set out below:-

"18. There is no equity in favour of a defaulting party which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover its dues from the defaulting party. Thus, the intention of the Legislature in using the expression "without prejudice to the provisions of Section 29 of the Act" clearly appears to be that recourse to the provisions of Section 29 of the Act is not prohibited, where an order or decree under Section 31 of the Act obtained by the Corporation has not been complied with or honoured by the defaulting concern or is otherwise insufficient to satisfy the dues of the Corporation and the Corporation withdraws and abandons to pursue further proceedings under Section 31 of the Act. Passing a money decree for recovery of the outstanding dues, not being within the jurisdiction of the court under Section 31 of the Act, the Corporation retains its right to recover its dues by invoking the provisions of Section 29 of the Act in the manner prescribed therein notwithstanding any order, final or interim, obtained by it under Section 31 of the Act by withdrawing from and abandoning those provisions at any stage of the proceedings. A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law. Since, the Legislature enacted Sections 29 and 31 with a view to aid the Corporation to recover its legitimate dues etc. from the defaulting party, the saving clause in Section 31 of the Act, preserving the rights under Section 29 of the Act by giving up the pursuit under Section 31 at any

stage of the proceedings is available to the Corporation. The two provisions must be so harmonised as to facilitate the Corporation to recover its dues from the defaulting party. The Act was enacted by Parliament with a view to promote industrialisation and offer assistance by giving financial assistance in the shape of loans and advances etc. repayable in easy instalments. The Corporation has to recover the loans and advances, so as to be able to give financial assistance to other industries and unless it recovers its dues, the money will not remain in circulation for long. It is with this end in view that Parliament gave the Corporation the right to proceed under Section 31 of the Act, preserving at the same time its rights and remedy under Section 29 of the Act, so that the Corporations are not choked by the defaulting debtors by adopting frustrating or dilatory tactics in the proceedings in the court initiated under Section 31 of the Act."

25. Reference in this regard is also made to the decision of the

Supreme Court in the case of Jamia Masjid v. Sri K.V. Rudrappa

reported in (2022) 9 SCC 225, at paragraph 24 thereof:-

"24. It has been held by this Court that a determination of whether res judicata is attracted raises a mixed question of law and facts. In Madhukar D. Shende [Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85] and Ram Harakh [Ram Harakh v. Hamid Ahmed Khan, (1998) 7 SCC 484] , it was held that the plea of res judicata was a mixed question of law and facts. In both the cases, the plea of res judicata was taken for the first time before this Court. K. Ramaswamy, J. writing for a three-Judge Bench of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra [Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193] held that the principle of res judicata cannot be fit into the pigeonhole of "mixed question of law and facts" in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable : (Sushil Kumar Mehta case [Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193] , SCC pp. 205-206, para

26) "26. ... The doctrine of res judicata under Section 11CPC is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court

over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.""

26. It follows from the above that a decree obtained by fraud can be

declared a nullity and unenforceable in collateral proceedings and even in

a writ petition. A decree which is a nullity cannot attract the principle of

res judicata in a subsequent proceeding. A Court cannot allow any party

to benefit from its own wrong. The writ Court can and should do

everything to rectify the wrong. The said decree of divorce dated 26

September 2016, is declared fraudulent and unenforceable, to the extent

and in respect of the property of the writ petitioner/appellant.

27. Paragraph 4 of the decision of Prithvichand Ramchand Sablok v.

S.Y. Shinde reported in AIR 1993 SC 1929, cited by the writ petitioner

is also relevant in this regard. Respondent no. 5/daughter-in-law and the

son/Respondent no. 6, therefore, cannot claim or assert any right in the

writ petitioner's property on the basis of the said consent decree for

divorce.

28. The arguments of the learned counsel for the respondents, Mr.

Ayan Banerjee, that this Court should not exercise jurisdiction under

Article 226, particularly, in view of the fact that a senior citizen has been

a victim of fraud in the facts of the case, therefore, cannot be accepted.

29. The other argument of Mr. Ayan Banerjee, that fraud has neither

been pleaded in the writ petition nor is there a prayer for setting aside of

the said decree dated 26 September 2016, also cannot also be accepted

by this Court. The very basis of the right asserted by Respondent nos. 5

and 6 to reside in the premises is fraudulent. Indeed too demonstrate

fraud in a contractual relationship, particulars and specific pleadings are

normally required and mandated. Such requirement may not be there in

respect of a decree that is ex facie fraudulent in the eye of law.

30. Mr. Ayan Banerjee, learned counsel for the respondents has

thereafter tried to distinguish the cases of Indubhshan Gayen @ Indu

Bhushan Gayen (supra) and Ramapada Basak (supra), on the ground

that no plea has been advanced by the son and daughter-in-law in those

cases of any right under the PWDV Act, 2005.

31. Indeed, it is true that in the aforesaid two cases, the right of the

daughter-in-law under the right of residence in a shared household of the

daughter-in-law was not the subject matter of the facts of the said case.

However, it is seen that even in the instant case, the daughter-in-law,

Respondent no. 5 is not staying in the said premises under any orders of

a competent Court under the PWDV Act, 2005, no such right has been

asserted or proceedings instituted till date. The daughter-in-law is staying

along with her daughters in the writ petitioner's property completely and

wholly based on the aforesaid fraudulent decree dated September 26,

2016. The arguments on the right of residence of a daughter-in-law and

that too in a shared household are not germane or relevant to the facts of

the instant case.

32. Mr. Ayan Banerjee has taken great pains to place the provisions of

Section 3A and explanation I(iv)(c) and Section 3(g) of the PWDV Act,

2005. He also placed reliance on the decision of the Supreme Court in the

case of Satish Chander Ahuja v. Sneha Ahuja, reported in (2021) SCC

414, particularly at paragraphs 91, 100, 104, 110 and 124 thereof in the

context of Section 17 and 26 of the PWDV Act, 2005. It is argued that the

rights of a daughter-in-law of residence in the shared household have

been recognized in the said decision as also that of the case of S.

Vanitha v. Deputy Commissioner, Bangaluru Urban District and

Others reported in 2020 SCC Online SC 1023. It is argued that the right

of a daughter-on-law under the PWDV Act has to be balanced with the

right of a senior citizen under the Maintenance and Welfare of Parents

and Senior Citizens Act, 2007.

33. There can absolutely be no quarrel whatsoever to the aforesaid

provision if the respondent/daughter-in-law had either asserted such

rights or even taken out any proceeding under the PWDV Act. In the

instant case, it is seen that the right of residence of the daughter-in-law

has been based entirely on the said fraudulent decree dated September

26, 2016 and have not been agitated or adjudicated under the PWDV Act

2005.

34. Some undisputed facts have subsequently emerged, that the

daughter-in-law has received a sum of Rs. 25 lakhs from her ex-

husband/Respondent no. 6, out of which she has purchased a residential

flat unit in a place called "Nager Bazar" in the city of Calcutta. The

younger daughter has been admitted to a school nearby the new flat. The

elder granddaughter visits her grandfather/writ petitioner's house from

time to time.

35. The dicta of the Supreme Court in the case of Satish Chander

Ahuja (supra) and S. Vanitha (supra), are rendered academic and,

would even otherwise have no manner of application whatsoever in the

instant case in the light of the subsequent developments referred to

above. If any right subsists in law for seeking any further rights of

residence from the Respondent no. 6, ex-husband, or the writ petitioner,

the same may be agitated by the private respondents in accordance with

law.

36. In the facts and circumstances aforesaid, the Respondent no. 5,

daughter-in-law who has already moved out of the residence of the writ

petitioner and is living in a flat of her own at Nager Bazer, 68/105,

Amarpally Collony, Calcutta- 64, is prevented from in any way visiting the

house of the writ petitioner. The Respondent no. 5 and her two daughters

shall otherwise remain barred from entering into the house of the writ

petitioner except the latter's expressed consent. A period of two months is

however given to the daughter-in-law to remove any of her and her

daughter's belongings from the house of the writ petitioner.

37. The son of the writ petitioner, along with the Respondent no.

5/daughter-in-law, shall also be restrained from entering into the

property, except with the express permission of the writ petitioner.

38. The daughter-in-law may take out proceedings to seek a right of

residence against her husband and father-in-law, if she is entitled to do

so in law.

39. With the aforesaid observations, the instant writ petition is allowed

and disposed of.

40. There shall be no order as to costs.

41. All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Rajasekhar Mantha, J.)