Calcutta High Court (Appellete Side)
Sri Dipesh Mondal vs Rekha Mondal & Ors on 25 February, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 37
25.02.2021
Court. No. 19
GB
C.O. 202 of 2020
Sri Dipesh Mondal
Vs.
Rekha Mondal & Ors.
(Through Video Conference)
Mr. Sarbananda Sanyal.
... for the Petitioner.
Mr. Mrinal Kanti Ghosh.
... for the Opposite Parties.
This revisional application has been filed by the
opposite parties in Case No.06 of 2014 which was an
application under Section 23 of the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007
(hereinafter referred to as the 'said Act'). The Sub-
Divisional Officer, Domkal, Murshidabad in. Case No.6
of 2014 passed an order on September 17, 2014
cancelling the deed No.10156 of 2011 dated October
21, 2011 executed by the father of the petitioner, late
Harendra Nath Mondal in favour of the petitioner and
declared the same void under the provisions of Section
23 of the said Act.
Aggrieved by the said order, the petitioner
preferred an appeal before the District Magistrate. By
communication dated June 10, 2019, the office of the
District Magistrate intimated the petitioner that the
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appeal before the District Magistrate was not
maintainable under Section 16 of the said Act.
Thereafter, this revisional application has been filed.
The contention of the petitioner is that the Sub-
Divisional Officer did not have the jurisdiction to
entertain the application under Section 23 of the said
Act and to pass the order impugned declaring the deed
of gift as null and void on the basis of the petition filed
by the father of the petitioner. In the petition it was
clearly and unequivocally stated that the petitioner by
practising fraud upon the father made him sign on
blank white sheets of paper under the plea of the same
being required for the treatment of the father and got
the property transferred in his name. It was further
stated that when the son started neglecting the
parents, the late father of the petitioner herein,
intimated the son that he would sell the property. At
this juncture, the father was told by the son that he
had created a deed of gift in his favour by practising
fraud on the father.
Emphasis has been placed on the deed of gift to
show that the gift was unconditional. It has been
mentioned in the deed that the father being happy
with the treatment of the son and being unable to look
after the property due to his old age, had voluntarily
gifted the said property to the son. It has been
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specifically stated that the father thought it fit to gift
the property to the son within such time he was still
keeping well and before his health started fading.
Reliance has been placed in the decisions of
Mita Panda & Ors. versus Minati Chakraborty &
Ors. reported in (2019) 1 WBLR (Cal) 668 and
Anirban Chakraborty versus State of West Bengal
& Ors. reported in (2019) 4 CivCC 340. In both these
decisions, this Court was of the opinion that when no
condition of looking after the parents was attached to
the deed of gift, the Sub-Divisional Officer would not
be empowered to declare the deed as void. It was only
a Civil Court, which could decide whether the deed
was obtained by fraud or misrepresentation.
Mr. Ghosh, learned advocate appearing on
behalf of the opposite parties submitted that the father
having died after the order impugned was passed, the
petitioner did not have any right to carry the
proceeding before this Court against the heirs of the
father. He relied on the decision of this Court in the
matter of Payel Sinha versus Ratna Biswas Sinha
passed in C.O. 420 of 2019 in support of his
contention that the section contemplated an action by
the transferor against the transferee and substitution
of the widow of the deceased transferor in the
proceeding under Section 23 of the said Act before the
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Sub-Divisional Officer was not maintainable as hled in
the said decision. But, if a condition was attached to
the deed of gift then the mother had the right to
receive maintenance under Section 23 (2) of the said
Act.
Mr. Ghosh further submitted that in the instant
case once the father had died, by applying the ratio of
the aforementioned decision, the revisional application
against the heirs of the deceased father (transferor)
was not maintainable. He further submitted that in an
enquiry report prepared by project officer ICDS project
during the pendency of the appeal, there was an
admission on the part of the petitioner that the parties
were living happily and accordingly the record of rights
have already been prepared in the names of all the
heirs of the deceased.
Mr. Ghosh further submitted that although the
petition before the Sub-Divisional Officer was filed
with the allegation of fraud, misrepresentation and
fraudulent creation of the deed of gift behind the back
of the transferor, yet, the correct interpretation would
be that the transferor gifted the property to the son
with the expectation that the son would look after the
parents.
Mr. Ghosh's contention was that the Child
Development Officer had made an enquiry and had
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recorded the submission of the petitioner that
everybody was happy with the decision of the court.
I have heard the rival contentions of the
respective parties.
The deed of gift does not impose any condition
on the donee to look after the father. Rather, the deed
of gift categorically stated that the father wanted to gift
the property to the son due to his failing health and
before he was rendered totally inactive due to old age
and infirmity. No condition for looking after the
parents in lieu of such gift has been mentioned. It is
settled law that a deed should be construed as it reads
and the terms and conditions of a deed should be
considered and interpreted on what has been written,
without adding or subtracting anything therefrom.
Implications, mind set and thought process of the
transferor are not to be read into any instrument, in
which the terms and conditions are unambiguous and
unequivocal.
In this deed of gift, there is no such covenant or
condition imposed upon the son to look after the
father and the said argument of Mr. Ghosh that an
implied condition should be read into the deed and the
court should look into the purpose behind such gift, is
not accepted. The clauses in the deed of gift cannot be
read down. In the petition filed before the Sub-
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Divisional Officer it has been categorically stated that
the son had practised fraud on the father and
obtained signatures of the father on blank sheets of
paper and fraudulently got the property transferred in
his name behind the back of the father and without
the father's consent and knowledge. The
transferor/father approached the Sub-Divisional
Officer under Section 23 of the said Act for an order to
set aside such a deed of gift and declare the same as
null and void on the ground of the same being a
fraudulent and a manufactured deed.
Section 23(1) of the said Act reads as follows:
"23. Transfer of property to be
void in certain circumstances.-(1) Where
any senior citizen who, after the
commencement of this Act, has transferred
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, the said
transfer of property shall be deemed to
have been made by fraud or coercion or
under undue influence and shall at the
option of the transferor be declared void by
the Tribunal."
Section 23 of the said Act is clear and it provides
that when the property is transferred subject to the
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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, the transfer of the said property shall be
deemed to be made by fraud, coercion or undue
influence and the transferor could approach the
tribunal for declaration that the same was void. Thus,
the very section itself does not support the contention
of Mr. Ghosh.
The next contention of Mr. Ghosh that once the
transferor dies, the proceeding lapses is also not
accepted. The decision of His Lordship in Payel Sinha
(supra) was on the point as to whether the widow of
the transferor could be substituted when the
proceeding under Section 23 of the said Act was
pending before the Sub-Divisional Officer.
From the very language of Section 23 of the said
Act, it is clear that only the transferor could pray for
declaration that the deed of gift was void. Thus, His
Lordship in Payel Sinha (supra) held that the cause of
action was only available to the transferor and the
widow of the transferor would not got substituted in
the proceeding.
In the instant case, the situation is completely
different. The transferor's application for declaration of
the deed of gift to be void was allowed. The result of
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such a declaration was that the property reverted back
to the heirs of the transferor, namely his widow and
children. The opposite parties herein are three sisters
and the mother of the petitioner, who by dint of the
order of the Sub-Divisional Officer got equal 1/5 share
in respect of the property along with the petitioner.
Thus, the petitioner who has suffered an order, has
every right to proceed against the heirs of the father
who stand to benefit from the order impugned before
this Court. The effect of the order has conferred
proprietary rights on the opposite parties by curtailing
the share of the petitioner. Thus the petitioner has
every right to have the order set aside by a superior
forum in a proceeding against the other heirs of his
deceased father.
Reference is made to the decision of Smt.
Yallawwa vs. Smt. Shantavva reported in (1997) 11
SCC 159, where the Hon'ble Apex Court has held that
even after a decree of divorce was obtained by the
husband against the wife, the wife had the right to file
an appeal and such appeal would not abate on
account of death of the respondent\husband. Whether
such death takes place prior to the filing of appeal or during the pendency of the appeal, in all such cases, other legal heirs of the deceased husband could be brought on record as opponent or respondents, in 9 such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased would naturally be interested in getting such a decree confirmed. Even if the proceedings were purely based on a personal cause of action till they reached finality at the trial, once a decree of divorce was passed certain legal effects regarding the status of the parties and even proprietary rights flowing from such decree would arise as a direct consequence of such a decree. This application is maintainable against the heirs of the transferor.
For the reasons aforesaid, the order dated September 17, 2014 does not have any legs to stand on and the same is accordingly set aside.
There may be an enquiry made by the District Magistrate but once the District Magistrate himself has said that the appeal was not maintainable such direction and enquiry have lost its value. However, the opposite parties may take recourse to the said report at the appropriate stage if permitted by law.
The revisional application is allowed. There will be, however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Shampa Sarkar, J.)