Calcutta High Court (Appellete Side)

Syed Imran Ali vs Rahana Begum & Anr on 14 July, 2023

14.07.2023 Sl. No.7(DL) srm

C.O. No. 3361 of 2022

Syed Imran Ali

Versus

Rahana Begum & Anr.

Mr. Sounak Bhattacharya, Mr. Sounak Mondal, Mr. Abhirup Halder ...for the Petitioner.

Mr. Amal Krishna Saha, Mr. Souvik Sarkar ...for the Opposite Party No.1.

The petitioner is the younger son of the opposite party

No.1 (mother). The petitioner is aggrieved by an order dated

August 17, 2022 passed by the Chairman, Tribunal for

Maintenance and Welfare of Parents and Senior Citizens,

constituted under the Act of 2007.

The deeds of gift executed by the opposite party No.1,

being Deed No.I 3154 dated 03.06.2020 and I 3153 dated

03.06.2020, by which 24 decimals of land in Plot Nos.2730,

2729, 2767 and 2768 and 2769 of mouza Uttarhat, had been

transferred in favour of the petitioner, was declared as void

and was cancelled.

The petitioner submits that the deeds of gift do not come

with any condition with regard to assurance of future

maintenance and supply of essential needs to the mother.

Mr. Bhattacharya, learned Advocate for the petitioner

relies on a decision of this Court in the matter of Himangshu

Mondal vs. Smt. Sachirani Mondal (In Re: C.O. 1891 of 2021).

Mr. Saha, learned Advocate appearing on behalf of the

opposite party No.1 submits that the learned tribunal rightly

directed the deeds of gift to be set aside in terms of Section

23(1) of the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 (hereinafter referred to as the Act of 2007).

According to Mr. Saha, if a senior citizen, after the

commencement of this Act, transfers by way of gift or

otherwise, his property, 'subject to' the condition that the

transferee shall provide the basic amenities and basic physical

needs to the transferor and such transferee refuses or fails to

provide such amenities and physical needs, it shall be deemed

that the transfer of the property was made by fraud or coercion

or undue influence. The tribunal had the power under the said

provision of law to declare the transfer to be void.

Laying emphasis on the expression 'subject to', Mr. Saha

submits that the tribunal had the power to go beyond the

recital and assess the intention of the transferor who executed

the two deeds of gift. According to Mr. Saha, such power of

the tribunal is clearly spelt out in the non-obstante clause

under Section 3 of the said Act of 2007. Mr. Saha submits that

the general rules of interpretation of a deed and the provisions

of Section 92 of the Indian Evidence Act would be overridden

by the provisions of the Act of 2007.

Interpreting the expression 'subject to' Mr. Saha relies

on the decision of the Hon'ble Apex Court in the matter of

K.R.C.S. Balakrishna Chetty Sons & Co. vs. State of Madras,

reported in AIR 1961 SC 1152. In the said decision, while

dealing with the issue of grant of licence and the interpretation

of Sections 5 and 13 of the Madras General Sales Tax Act, the

Hon'ble Apex Court interpreted the expression 'subject to'.

The Hon'ble Apex Court held that the licence given under the

said Act would be subject to the rules and other requirements

of submission of returns, etc. The expression 'subject to' did

not mean upon fulfilment of condition but meant 'liable to the

rules and the provision'.

Relying on such interpretation of the Hon'ble Apex

Court, Mr. Saha contends that the transfer, in this case, was

liable to the condition that the transferee/donee should

maintain the mother and provide the essential amenities and

physical needs.

Dealing with the first submission of Mr. Saha that the

tribunal had the power to interpret the intention of the donee,

this Court finds from page 3 of paragraph 2 of the deeds of gift

that the intention was clearly spelt out. The deeds are in

Bengali, which if translated, would indicate that the mother

and the son had a strong bonding and love and affection for

each other. The mother was pleased with the son's dedication,

devotion, respect and the physical care and the medical

facilities provided by the son. Hence, as an acknowledgement

and return for the son's behaviour and the love which the

mother felt for the son, she had decided to gift the property in

favour of the son, not only as a mark of her love and blessings,

but also to prevent any future dispute with regard to the

enjoyment of the property after the mother's death. Thus, such

intention is available from the deed itself. No further

background check of the interpretation would be necessary.

The care and affection which the son had given, was

appreciated, and in lieu thereof the mother wanted to settle the

property in favour of the son. Further, as a precautionary

measure and to avoid any future dispute with regard to the

property, such decision was taken. Thus, the deed does not

reflect that the mother had gifted the property 'subject' to the

condition that the son would provide the physical needs and

essential amenities. The gift deeds did not make the petitioner

liable to maintain his mother. The gift was unconditional as

would be reflected from the recitals.

The contention of the petitioner that adequate

opportunity was not given to him to file his objection to the

application for maintenance, is not accepted as summons was

served upon the petitioner and the petitioner was asked to

appear before the tribunal on August 17, 2021 with his written

objection.

From the order impugned, it does not appear to the

Court that the tribunal had embarked upon any exercise to

draw the correct inference with regard to the intention of the

transferee. No such satisfaction is recorded. No condition in

the deeds have been discussed. The tribunal simply applied

the provision of Section 23(1) of the Act of 2007 assuming that

any gift made by a senior citizen should be declared as void on

the presumption that the same was obtained by coercion or

misrepresentation, if there is any complaint of failure of the

children to provide for the mother. That cannot be the true

import and meaning of Section 23(1)

The intention as available from a bare reading of the

deeds, does not indicate that the son was liable to supply the

basic amenities and look after the physical needs of the

mother. The expression 'subject to', as discussed by the

Hon'ble Apex Court, meant liable to abide by certain

conditions and provisions. Such liability is absent in these

deeds. However, the law is that children have to maintain the

mother.

Reliance is placed on the decision of this Court in the

matter of Mastak Hossain Alias Mostak Hossain vs. Jarina

Bewa & Ors. (In Re: C.O. 1141 of 2023). The relevant portion is

quoted below:-

"Having gone through the deed of gift meticulously,

this court finds that the opposite party as the mother thought it

to be her bounden duty to bestow landed properties in favour

of her children so that the children do not face any problems in

future and they were sufficiently provided for. With such

emotion which is reflected in each and every sentence of the

recitals, the mother thought it proper to transfer the landed

property to her children who were mentioned as donees in the

deed of gift."

The Hon'ble Apex Court in the matter of Sudesh

Chhikara vs. Ramti Devi & anr. decided in Civil Appeal

No.174 of 2021, had held that when a transfer was made out of

love and affection and without any expectation in return from

near and dear ones and the children, the provisions of Sub-

Section (1) of Section 23 of the said Act would not be attracted.

Only when the gift was executed, subject to a condition

that the donee would provide the basic amenities and basic

physical needs to the parent and the donee fails to provide

such amenities, the power under Section 23 can be invoked by

the Tribunal. It shall then be deemed that the deed was

executed by fraud, coercion or undue influence and under

suspicious circumstances. The deed shall be declared as void

under the law. The relevant portion of the Hon'ble Apex

Court's judgment is quoted below:

"12. Sub-section (1) of Section 23 covers all kinds of transfers as is clear from the use of the expression "by way of gift or otherwise". For attracting sub-section (1) of Section 23, the following two conditions must be fulfilled:

a. The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor; and b. the transferee refuses or fails to provide such amenities and physical needs to the transferor. If both the aforesaid conditions are satisfied, by a legal fiction, the transfer shall be deemed to have been made by fraud or coercion or undue influence. Such a transfer then becomes voidable at the instance of the transferor and the Maintenance Tribunal gets jurisdiction to declare the transfer as void.

13. When a senior citizen parts 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."

Thus, in my view, the petitioner is liable to maintain the

mother irrespective of the deeds. Hence, the petitioner shall

pay a sum of Rs.8,000/- to the mother every month on account

of her maintenance. Failure to comply with this direction, will

entitle the mother to approach the tribunal in future, under the

relevant provisions of the Act of 2007.

The order impugned is set aside.

The order impugned does not reflect how such

expectation of the mother was established before the Tribunal

as the deeds do not impose any condition at all.

The revisional application is, thus, disposed of.

There will be, however, no order as to costs.