Calcutta High Court (Appellete Side)
Debashish Mukherjee @ Zen Acharya vs Dr. Sanjib Mukherjee & Ors on 3 January, 2018
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Acting Chief Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Arijit Banerjee
M.A.T. 993 of 2017
(CAN 5991 of 2017)
(CAN 5993 of 2017)
Debashish Mukherjee @ Zen Acharya
-versus-
Dr. Sanjib Mukherjee & Ors.
For the Appellant : Mr. Naba Kumar Das,
Ms. Diana (Sen) Ghosh Dastidar.
Heard On : 3rd January, 2018.
Judgement On : 3rd January, 2018.
Arijit Banerjee, J.
Re : CAN 5991 of 2017.
As per the report of the Stamp Reporter, the instant appeal was filed within the period of limitation.
Under such circumstances, Mr. Das, learned advocate, appearing for the appellant submits that his client will not press the application for condonation of delay.
The application for condonation of delay is, thus, disposed of.
Re : M.A.T. 993 of 2017.
The appellant before us is the son of the writ petitioners/respondents. The appellant contends that flat no.10/2 on the second floor of premises no.6, Sunny Park, Ballygunge, Kolkata - 700019 was gifted to him by his mother who was the sole owner of the said flat by execution of a registered deed of gift on 29th April, 2015. The appellant contends that he has been residing in the said flat.
The parents of the appellant approached the Maintenance Tribunal, set up under the Maintenance and Welfare of Parents and Senior Citizens' Act, 2007 (the said Act), alleging that the appellant herein exerted undue emotional influence on them and thereby procured the deed of gift. They wanted cancellation of the said deed of gift under Section 23 of the said Act. They further alleged before the Tribunal that their son being the appellant herein was not permitting them to reside in the said flat and they had no other place of residence in Kolkata.
The learned Tribunal directed the appellant herein to allow his parents to reside in the said flat until they can arrange accommodation for themselves. The prayer for cancellation of the deed of gift made by the appellant's parents was rejected by the learned Tribunal.
Being aggrieved, the parents of the appellant approached this Court by filing a writ petition being W.P. No.8972(W) of 2016 and an interim order was passed by the learned Single Judge on 16th august, 2016 which reads as follows:-
" In the meantime, the parties are directed to comply with the order dated April 19, 2016 passed by the Presiding Officer, Maintenance Tribunal at Kolkata and the officer-in-charge of the concerned police station shall ensure due compliance in the event there is any allegation of breach thereof.
In the event, the private respondent no. 4 fails to comply with the order as aforesaid, it shall be open to the officer-in-charge to take necessary steps for making the premises-in- question available to the petitioners for their residential accommodation in terms of the order dated April 19, 2016 by resorting to appropriate measures breaking open the padlocks, if necessary."
The writ petition was finally disposed of by a judgment and order dated 12th May, 2017. The learned Single Judge confirmed the earlier interim order. The learned Judge further ordered that the appellant herein being the respondent no. 4 before the learned single Judge shall not, in the life time of the petitioners, interfere with their peaceful possession and enjoyment of the said flat. Further, the respondent no. 4 shall not take out any proceeding or continue any proceeding for eviction of the writ petitioners from the said flat. It was further ordered that the writ petitioners would not part with possession of the property. The parties were granted liberty to move any Court or Forum for adjudging the validity of the gift or its alleged revocation without insisting on any order for eviction of the writ petitioners.
Being aggrieved, the son being the respondent no.4 before the learned Single Judge, has preferred the instant appeal.
In spite of service nobody appears on behalf of the writ petitioners/respondents.
We have heard Mr. Naba Kumar Das, learned Counsel for the appellant, and also Mr. Banibrata Dutta, learned Counsel for the state respondents.
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 said Act can have no manner of application to the facts of the present case.
The learned Tribunal, according to us correctly held that the application under Section 23 of the said Act filed by the parents of the appellant was not maintainable.
Once we hold that Section 23 of the said Act is not attracted, we are unable to sustain the directions given by the learned Single Judge. We also observe that it was not proper for the learned Tribunal to direct the appellant to permit the writ petitioners/respondents to reside in the flat-in-question indefinitely till such time that they can arrange for alternative accommodation.
It is now submitted before us that the writ petitioners have put padlocks on the main door of the said flat and have gone back to Canada where they ordinarily reside and the appellant has no place to stay. We are told that the writ petitioners are both Canadian citizens.
We are of the opinion, that since it appears from the deed of gift that the appellant is the owner of the said flat, the padlocks should be opened, if necessary by breaking the same and for that purpose we appoint Mr. Rabi Sankar Dutta, learned Advocate, Bar Association Room No.11, as the Special Officer for breaking open the padlocks on the main door of the flat-in-question and handing over possession of the flat to the appellant.
The remuneration of Special Officer is fixed at Rs.25,000/- (Rupees Twenty Five Thousand) only to be paid by the appellant.
The Special Officer shall also prepare an inventory of the articles that are found in the said flat in the presence of the appellant.
This exercise shall be carried out as soon as possible and in any even within three days from date.
The Special Officer shall be entitled to obtain police help in implementing this order and the Officer-in-charge of the jurisdictional police station is directed to extend all assistance and cooperation to the learned Special Officer in carrying out this order, if he is approached by the learned Special Officer.
The order under appeal is accordingly set aside.
This order will not preclude the writ petitioners from approaching the appropriate forum with their contention that the deed of gift in favour of their son stands revoked on the ground of the same being vitiated by fraud.
List the matter on 8th January, 2018 as 'To Be Mentioned' for filing of the report of the learned Special Officer in Court.
The appeal and the application for stay, filed in connection with this appeal, are deemed to be disposed of.
Let a photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to the learned advocate for the appellant on usual undertaking.
The learned Special Officer and the concerned Officer-in-Charge are directed to act on a plain copy of this order.
(Jyotirmay Bhattacharya, A.C.J.) (Arijit Banerjee, J.) ac