HIMANGSHU MONDAL v. SACHIRANI MONDAL, Calcutta High Court, Judgment, Law, casemine.com

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CO/1891/2021

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The Hon'ble Justice Ajoy Kumar Mukherjee

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"Sub-section (1) of Section 23
section 2(f)

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HIMANGSHU MONDAL v. SACHIRANI MONDAL

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE C.O. 1891 of 2021

Himangshu Mondal

Smt. Sachirani Mondal

For the Petitioner : Mr. Saunak Bhattacharyya Mr. Shiladitya Barma

Mr. Sumitava Chakraborty

Ms. Apurbaa Patra

For the Opposite party : Mr. Ramkrishna Bhattacharjee Mr. Kaushik Choudhury

Ms. Basea Khatun

Heard on : 05.01.2023

Judgment on : 30.01.2023

Ajoy Kumar Mukherjee, J.

1. challenging order dated September 13, 2019 passed by the Sub- Divisional Magistrate, Balurghat, Dakshin Dinajpur in Maintenance Tribunal Case No.11 of 2018, present revisional application has been preferred.

2. The petitioner's case gist is that the opposite party along with her late husband, namely, Prabir Chandra Mondal being the parents of the petitioner herein in consideration of the natural love and affection which they bear

towards the petitioner, have jointly executed a registered deed of gift dated July 7, 2011 and thereby transferred their respective shares into different plots of land under two different moujas total measuring about 1.09 acres and 18 chittak in favour of the petitioner.

3. Subsequently, the petitioner mutated his name in the record of rights and paying the revenue thereof. Thereafter, all of a sudden, parents of the petitioner approached the Maintenance Tribunal at Balurghat, Dakshin Dinajpur and preferred an application, alleging thereby that the petitioner after procuring the said deed of gift has failed to provide the basic amenities and the necessary physical needs as required by them and inter alia prayed for a monthly allowance to the tune of Rs.3000/- for the opposite party/mother and Rs.6000/- towards the father of the petitioner and revocation of the said deed of gift dated July 7, 2011, in accordance with the provisions of Section 23 of Maintenance and welfare of parents and senior citizens Act, 2007, (hereinafter called as Act of 2007). During pendency of the said proceeding, the father of the petitioner being one of the applicants before the Maintenance Tribunal, expired on January 5, 2019.

4. Mr. Sounak Bhattacharyya, learned counsel appearing on behalf of the petitioner submits that the application under the said Act is collusive in nature. He further submits that the learned tribunal failed to appreciate that it is settled principle of law that a deed should be construed as it is and nothing could be added or substracted on it. He further submits that the learned tribunal erred in observing that it is not the legislative requirement or intent that the document evidencing the transfer either by gift or otherwise should contain express condition that the transferee shall provide for the

basic amenities and physical need of the transferor. Learned tribunal further erred in holding that after execution of said gift deed the petitioner did not take care or maintain the opposite party to her expectation and as such the petitioner committed fraud in getting the gift deed.

5. Mr. Bhattacharjee further submits that petitioner always supported his parents financially and provided them with all basic amenities and their physical needs to the best of his ability. He further submits that under section 126 of the transfer of property Act the gift may be suspended or revoked under three conditions namely when donor or donee mutually agreed to cancel the gift, when donee fails to accept the gift and when condition of the gift are rescinded. Similarly, to a contract, the gift can be made subject to the fulfillment of certain conditions and failure to comply those conditions result in cancellation of gift as if gift was obtained by fraud. Here the gift is unconditional. The order impugned has been passed without any application of mind and is clearly without jurisdiction. It should have been considered by the Tribunal that the deed of gift dated 7^thJuly 2011, was executed by the opposite party herein along with her deceased husband in favour of the petitioner, out of love and affection and as a reward for the respect and care, shown by the petitioner towards his parents. No condition was attached with regard to the duty upon the petitioner to provide basic maintenance and basic physical needs to his parents and as such section 23 of the Act does not have any manner of application in this case. Accordingly the tribunal exercised jurisdiction wrongly under section 23 of the said Act of 2007. It should have appreciated that unless fraud or coercion or undue influence as stipulated in section 23 of the Act of 2007 is proved, the transfer could not be declared to

be void. Petitioner's case is he never neglected or harassed his parents and has been providing the amenties and needs as required. Accordingly petitioner has prayed for setting aside the order impugned.

6. Mr. Ram Bhattacharya learned counsel appearing on behalf of the opposite party relied upon the judgment passed by Kerala High Court on 06.11.2015 in Radhamani Vs. State of Kerala, and contended that the Act of 2007 was framed considering the Indian societal frame work and practically comprehends a scheme of welfare provisions for the parents and the senior citizens. The term "welfare" has been defined under section 2(k) of the Act which means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. He further contended that section 126 of the Transfer of Property Act makes a provision to suspend or revoke the gift on happening of any specified event on which donor or donee may agree. The gift or settlement on a promise to look after the donor at the old age is a transaction without any consideration. If such promise and expectation are treated to be a consideration, certainly transaction as a gift will be deemed to be void. He further submits that section 23 of the Act does not contemplate that the condition should form part as recital in the deed of transfer but what it refers is that there should be a condition for such transfer and such condition can be express or implied. The tribunal is empowered to look around circumstances to find out whether conduct otherwise dispel the intention of donor to revoke, where the condition has not been made expressly. He further submitted that in the present case transfer was made out of love and affection and every donor in a gift deed would expect in a natural course of human conduct, donee will continue to behave in the same

manner as behaved before the execution of the deed. Accordingly the transferee/petitioner cannot disown his own action of love and affection after the transfer comes into effect. Admittedly the deed of gift was executed on the basis of love and affection which accordingly forms part as a condition of the transaction for future conduct as well. So in the absence of any other circumstances to dispel, it must be presumed that the transferor expects continuation of care from the transferee, even after execution of the deed, in the same manner as he had taken before the execution of the deed. Mr. Ram Bhattacharya further submits that under section 17 of the Indian contract Act, 'fraud' includes a promise made without any intention of performing it. The third proviso to section 92 of the Evidence Act provides that the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property may be proved. Accordingly condition as such may not be form part of written document but it can be implied from the circumstances of natural course of human conduct. Accordingly the opposite party submits that the impugned order passed by the tribunal is justified and does not call for any interference.

7. At first let me reproduce the relevant portion where reason given by the Tribunal in support of passing the order;

"Consequent upon the facts and circumstances of the case, it is abundantly clear that the gift deeds were executed with the back ground that the donor was happy and satisfied with the services rendered by the petitioner. The donor wanted to reward the OP member for services rendered to her. Therefore, gift deeds were executed. The recital of the deeds denotes that taking care of the donor was a continuous feature and is implicit that the petitioner expected that the same case will be reflected in future too by the OP member. If Section 23 of the Act is read with respect to the aforesaid recital of the gift deed, the same would make it abundantly clear that all the ingredients of the section have been satisfied as the senior citizen is covered under section 2(h) of the Act.

Property is defined under section 2(f) of the Act. Since taking care of the donor was a continuous feature and the donor was happy and satisfied with the services of the OP member, therefore, the transfer by way of gift deed was a with a view that transferee would provide basic amenities and physical needs to the petitioner herein in future. The refusal on the part of the transferee in maintaining the transferor is writ large as per allegation made by the petitioner wherein she has specifically alleged that she has no other shelter to live in as on date except the property in question and is not happy with the OP member. The petitioner is so upset and dissatisfied with the OP member that the petitioner does not want to live with her. Thus on perusal of above sections and sub-sections and in view of above observations, it is,

ORDERED

That the gift deed mentioned hereinabove executed infavour of the OP members vide No. 2665 dt.-07.07.2021 is declared as null and void and cancelled with the consent of the petitioner by invoking the provisions of section 23 of the Act as the gift deeds were deemed to have been made by fraud or undue influence of emotional biasness. The share of property of Smt. Sachirani Mondal henceforth shall belong to her absolutely."

8. Accordingly the entire reasoning given by the Tribunal in support of cancelling the deed, based upon finding that taking care of the donor was a continuous feature and the donor was happy and satisfied with the services of their son/petitioner herein, therefore the transfer by way of gift deed was with a view that the transferee would provide basic amenities to his parents in future and refusal on the part of transferee in maintaining the transferor shall be deemed to have been procurement of the deed of gift by practicing fraud .

9. The sum and substance of section 23 of the Act is (1) it applies to the senior citizen defined under section 2(h) of the Act (ii) to the transfer of the property defined under section 2(f) after the commencement of the Act i.e. 29.12.2007(iii) the transfer is with a condition that the transferee would provide the basic amenities and basic physical needs to the transferor (iv) if the transferee refuses or fails to provide such amenities and physical needs then the transfer of the property shall be deemed to have been made by fraud

or coercion or undue influence (v) it would be at the option of the transferor to get it declared void by the Tribunal.

10. Apex Court in Sudesh Chhikara Vs. Ramti Devi & another reported in (2022 live Law (SC) 1011) has been pleased to held in para 12 as follows:-

"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."

11. Their lordship further pleased to held in that judgement, when a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his / 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 subsection (1) of Section 23 are attached to a transfer, existence of such condition must be established before the Tribunal.

12. Accordingly the only question that the maintenance Tribunal ought to have considered was whether there is express condition attached to deed or whether an implied condition can be inferred that the petitioner herein is obliged to provide them their basic amenities and physical needs and in the presence of such condition whether petitioner herein refused and/or failed to provide such amenities and physical needs.

13. In the present case the Tribunal was of the view that the deed of gift had to be declared as void and such declaration was made without entering into definite finding that the petitioner failed to provide basic amenities and basic physical needs to opposite party herein. As stated above two conditions under section 23 needs to be satisfied, firstly that the transferee at the time of transfer agreed to provide basic amenities and basic physical needs to the transferor and secondly the transferee had refused or failed to provide such basic amenities and physical needs after the transfer.

14. In the present case admittedly there is no such express condition in the deed. The tribunal made a sudden inference that if section 23 of the Act is read with respect to the recital of the gift deed, it is abundantly clear that all the ingredients of section 23 have been satisfied. There is no judicial exercise undertaken by the Tribunal to examine whether the document contained any condition and whether there had been any demand made by the mother /opposite party to the petitioner that provided the proof for the tribunal to render a finding that the transferee refused to provide such amenities and physical needs. The order does not even say that the transferee/petitioner herein refused to maintain the donor, especially when it is specific case of petitioner herein that he has never neglected or harassed his parents and has always been on a regular communion with them by providing the amenities and physical needs as required. All that the tribunal has relied is the averment and the report of District Protection Officer which reflected in the judgment as follows:-

"perused the report of the District Protection Officer, Balurghat vide Memo no. 217/PO/SW/DD dated 27.12.2018 where from it is

transpired that it is fact that the applicants transferred the property. The opposite party member (petitioner herein) does not reside with their parents as he is a constable of Kolkata Police and hence he is unable to render physical needs to the applicants".

15. In my considered view aforesaid report is not sufficient to come to a conclusion that the petitioner herein refused or failed to provide the basic amenities and basic physical needs to the transferor, even assuming for argument's sake that such a latent condition is existing. The decision rendered without examining the legal requirement of what was required to be found, is untenable.

16. 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 the 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".

17. If the deed of gift in question revolve around allegations of mis- representation and fraud, that 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. The language of the deed of gift does not speak that 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. The power under section 23 of the Act has to be exercised circumspectly and the Tribunal has to find out whether there was any deliberate and willful negligence on the part of the transferee after the transfer, to maintain the transferor. Mere allegation in the application is not sufficient, the Tribunal has to consider all the circumstances surrounding the transfer and the conduct of the parties after transfer. The finding made by Tribunal is without any relevant materials before the Tribunal. When a power is exercised without authority, certainly that order can be interfered invoking the same under Article 227 of the Constitution.

18. 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 13^thSeptember, 2019 is hereby set aside to the extent of cancellation of deed of gift only. Since Tribunal has not passed any order regarding maintenance in the impugned order, this order will not preclude opposite party to claim maintenance against petitioner before Tribunal or before any other appropriate authority as per law, if it has not yet been granted.

19. C.O. 1891 of 2021 is accordingly disposed of.

20. However, the opposite party no.1 being old aged mother of the petitioner , I trust and hope that the petitioner shall make every endeavour for opposite party No. 1's accommodation and will also take care of her basic amenities and basic physical needs.

There will be no order to as to costs.

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.)

HIMANGSHU MONDAL v. SACHIRANI MONDAL

HIMANGSHU MONDAL v. SACHIRANI MONDAL

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