Calcutta High Court (Appellete Side)
Jayanta Ghosh & Ors vs Ajit Ghosh on 25 February, 2020
Author: Shampa Sarkar
Bench: Shampa Sarkar
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Sarkar
C.O. No.4243 of 2019
Jayanta Ghosh & Ors.
Versus
Ajit Ghosh
For the petitioner : Mr. Rwitendra Banerjee,
Mr. Sandip Kundu
For the Opposite Party : Mr. Samarjit Basu
Hearing concluded on: 06/01/2020
Judgment on: 25/02/2020
Shampa Sarkar, J. :
The petitioners were the opposite parties in Maintenance Case No.26 of 2019 which was filed by the opposite party herein, before the learned Maintenance Tribunal, Hooghly, under Sections 10 (I), (4), 23, 2(b), 2(d), 2(f), of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the said Act). The petitioners are aggrieved by an order dated November 13, 2019 passed by the learned Tribunal on the following grounds:-
a) The learned Tribunal did not have jurisdiction to cancel the two registered deeds executed by the opposite party in favour of the petitioner No.1 dated July 18, 2018 and dated November 14, 2018 executed by the 2 petitioner No.1 in favour of the petitioner Nos.2 and 3 respectively.
b) The order of cancellation of the two registered deeds of gifts and the direction to vacate the premises within six months were perverse in view of the fact that a Civil Court had already granted status quo with regard to the nature, character and possession of the self same property.
c) The deed of gift executed by the opposite party in favour of the petitioner No.1 was unconditional and as such the learned Tribunal wrongly exercised jurisdiction under Section 23 of the said Act.
d) The learned Tribunal did not have any jurisdiction to pass an order of eviction of the petitioners from the disputed property.
2. The facts of the case in an nutshell is that by a registered deed of gift dated July 18, 2018, Ajit Ghosh, the opposite party herein, transferred a two storied building together with the appurtenant land measuring 0.026 Acre situated at L.R. plot no.639, L.R. khatian no. 53, Mouja and Police Station - Chinsurah (J.L. no.20), District- Hooghly, Municipal holding no.71/24 under Ward no.22, Chinsurah Municipality (hereinafter referred to as the said property), to his son Jayanta Ghosh, the Petitioner No.1. Thereafter, by a registered deed of gift dated November 14, 2018, the Petitioner No.1transferred the suit property to his wife and son, the petitioners Nos.2 and 3 herein. The petitioners reside on the first floor and the parents reside in the ground floor. Both have separate entrances and toilet facility for their exclusive use in their respective floors. The petitioners have alleged that the married daughters of the opposite party and their husbands with ulterior motive tried to grab the said property, conspired with few developers and created a cloud over the petitioners' title over the suit 3 property. Under such circumstances, being left with no other alternative the petitioners Nos.2 and 3 were constrained to institute a civil suit being Title Suit No.371 of 2019 (hereinafter referred to as the suit), seeking a decree for declaration of title and injunction against the daughters and sons-in-law of the opposite party. In the said suit, the petitioner nos.2 and 3 filed an application for injunction, thereby seeking to restrain the defendants therein from disturbing the peaceful possession of plaintiffs in respect of the suit property. By an Order no.2 dated September 17, 2019, the Court of Learned Civil Judge (Jr. Division), 1st Court, Hooghly directed the parties to maintain status quo in respect of nature, character and possession of the suit property. The opposite party filed an application seeking maintenance under the said Act which was registered as Maintenance Case No.04 of 2019. By an order dated August 7, 2019, the learned Tribunal directed the petitioner No.1 to pay maintenance of a sum of rupees 10,000/- per month. The opposite party further filed Maintenance Case No.17 of 2019. The learned Tribunal by an order dated August 30, 2019, directed the inspector- in-charge, Chinsurah to restore the possession to the opposite party and his wife in the said property. The opposite party again filed an application before the learned Tribunal seeking cancellation of the said deed of gift. The said application was registered as Maintenance Case No.26 of 2019.
3. Ultimately by an order dated November 13, 2019, the learned Tribunal allowed Maintenance Case No.26 of 2019, thereby cancelling the two registered deeds of gift dated July 18, 2018 and November 14, 2018, and further directing the petitioners to vacate the said property within six months from the said order. Pursuant to the said order, the appropriate 4 authorities have already cancelled the mutation which was made in the name of the petitioners in respect of the property. The order dated November 13, 2019 is set out below:-
"1. In exercise of power u/s 23 of the Maintenance & Welfare of Parents & Senior Citizens Act 2007, Gift Deed No.I-0601-09933 of 2018 executed by the petitioner Ajit Ghosh in the name of O.P.No.1 i.e his only son Jayanta Ghosh which is being conditional is hereby declared void with effect from 13/11/2019. Again, the Gift Deed No. I-0601-13998 of 2018 executed by the petitioner's only son Jayanta Ghosh free of const in the name of his wife (O.P. No-2) and son (O.P. No-3) who are bing the daughter-in-law and grandson of the petitioner is also declared void for the reasons already stated above with effect from 13,11,2019.
2. The payment of monthly maintenance @ Rs.10,000/- (ten thousand) by O.P.NO-1 Jayanta Ghosh to the petitioner w.e.f 1st August 2019 by 15th of the said month and subsequent months shall be continued till the opposite parties vacate the said residential premises of the petitioner, schedule of which is given below. And as soon as the opposite parties vacate the said residential premises of the petitioner, the amount of monthly maintenance shall be reduced from Rs.10,000/- to Rs.2,000/- only per month from the ate of vacate of the said premises. The monthly maintenance shall have to be deposited by the O.P.NO-1 i.e Jayanta Ghosh in petitioner's A/C No.6828967305, Indian Bank, Chinsurah Branch, IFSC Code- IDIB000C044. The opposite parties are directed to vacate the said residential premises of the petitioner within six months from the date of this order so that the petitioner can earn money by giving some portion of his residencial premises to tenants on rental basis.
3. As per provision vested upon this Tribunal Under Rule-7 (7) (a) of the W.B maintenance & Welfare of Parents & Senior Citizens Rules 2008, the Inspector-in Charge, Chinsurah Police Station is directed to protect the life and property (Residential & others property) of the Senior Citizens petitioner. The old wife of the petitioner along with his daughters, Sons-in law & other relatives will have liberty to look after him in all respect i.e fooding, medical treatment etc and the Police of Chinsurah P.S is to see that they are not restrained by the opposite parties in any way.
4. The petitioner will have liberty to mutate his name as per W.B.L.R Act 1955 from the office of B.L & LRO, Chinsurah Mogra Block.
In case of violation and non-compliance of any of the aforesaid orders by the opposite parties, the petitioner will have liberty to file execution Case as per provisions of the very Act & Rules.
No further petition of the petitioner in the said matter shall be entertained in future by this Tribunal except execution Case.5
The petition of this Case is thus disposed of.
Let a copy of this order be served for taking necessary action to:
The Inspector-in-Charge, Chinsurah P.S."
4. Aggrieved, this revisional application has been filed. The property being a residential house was gifted to the petitioner No.1 along with the appertaining land by a registered deed of gift dated July 18, 2018. The said property was again gifted to the petitioner Nos. 2 and 3 by the petitioner No.1, by a registered deed of gift dated November 14, 2018. On April 19, 2019, the opposite party preferred an application for maintenance before the learned maintenance Tribunal. The learned Tribunal directed payment of Rs.10,000/- per month on and from August 1, 2019 month by month every month within 15th of every month, failing which the opposite party was given liberty to file Execution Case before the Tribunal for recovery/realization of the arrear maintenance. The said order was passed on August 7, 2019. That the opposite party again filed another application before the learned Tribunal on August 19, 2019, which was registered as Maintenance Case no 17 of 2019 under Section 10 (1) of the said Act. The opposite party prayed that the conditional gift bearing deed No.006010-9933/2018 registered by the opposite party in the name of the petitioner No.1 (son) was void as per the provisions of Section 23 of the said Act and also prayed for orders so that the opposite party and his wife could live in that house. Further prayers to provide police protection to him and his wife while residing at their own house was also made. Injunction was prayed for in order to prevent further transfer of the residential house gifted by him to his son/petitioner No.1 and thereafter gifted by the petitioner No.1 to the petitioner Nos.2 and 3. 6
5. The prayers made in the Maintenance Case 17 of 2019 are quoted below:-
"i) The gift deed No.006010-9933/2018 executed by the opposite party i.e., both the deeds are required to be declared void according to the provision of the very Act, So that the petitioner aged about 84 years along with his 67 years old wife can live in the their said residential house peacefully and can earned money from that property for their maintenance and can pass their last stage of life by praying to the holy God and in that case, the petitioner shall have not obligation if the monthly maintenance allowance of Rs.10000/- per month is stopped.
ii) The petitioner prays police protection of their life and property before this Ld. Tribunal a per provision of Rule 7(7) (a) of W.B. Maintenance & Welfare of Parents and Senior Citizens Rule 2008.
iii) Pending disposal of this application the petitioner prays before this Ld. Tribunal to issue an interim order of injunction against the further transfer of the scheduled property of the petitioner gifts to the opposite party.
iv) Call for original records of maintenance case no.04/2019, issue summon to the opposite party and after hearing pass necessary order as prayed by this old petitioner for himself and his old wife in the changed circumstances or pass appropriate order or orders which this Ld. Tribunal deems fit and proper for the beneficial of the old Senior Citizen Parents after modifying the order dated 07/08/2019 passed by Ld. Tribunal in case no.04 of 2019. And your petitioner as in duty bound shall ever pray."
6. The said application was disposed of by the order dated August 30, 2019 and the earlier order dated August 7, 2019 was modified. The relevant portion of the order dated August 30, 2019 is set out as follows:-
"1. The opposite party son shall pay a maintenance allowance of pay Rs.10,000/- (Ten thousand) per month to the petitioner i.e. Senior Citizen father with effect from-1st August-2019 by 15th of the said month and for subsequent months having proof of such payment failing which the petitioner will have liberty to file execution Case before this Tribunal for realization/recovery of arrear maintenance.
2. To prevent the shelter less condition which may take place in future at the last stage of life of the Senior Citizen parents i.e petitioner and his Senior Citizen wife i.e mother o the opposite/son, an order of injunction against the further transfer of the below scheduled gifted property by sale or gift deed or by any other means issued till the life time of the petitioner and his wife.
3. As per provision vested upon this Tribunal under Rule 7(7)(a), the Inspector-in-charge, Chinsurah Police Station is directed 7 to put the Senior Citizen father i.e petitioner and his Senior Citizen wife with proper police protection to their residence immediately (schedule given below) which was gifted to the opposite by the petitioner so that the Senior Citizen parents can live peacefully at the last age of their life at the entire ground floor with bath room and other facilitity like electricity, water supply and the like of the 3- storied building as given in the schedule below though the said 3- storied building as given in the schedule below though the said 3- storied residential house has been gifted again by the opposite party in the name of his wife and son. Petitioner's two daughters and other relatives will have liberty to enter in the premises (ground floor) of the said building & to ensure their fooding, medical treatment etc and in that case, the opposite party, his wife and son and other relatives are restrained to create any nuisance and disturbed conditions in the place i.e ground floor of the building which may hurt to the petitioner and his wife.
The inspector-in-charge, Chinsurah P.S. is also directed ot ensure the protection of life and property of the petitioner and his wife who are the Senior Citizens and Parents of the opposite party.
In case of violation & non-compliance of any of the aforesaid orders, by the opposite party and his wife & son, the petitioner and his wife will have liberty to file a petition u/s 10 (1) of the Act again before this Tribunal for further alteration of this order along with original order dt.07/08/19 passed in Maintenance Case No.04 of 2019.
The case is thus disposed of.
Let a copy of this order be served for taking necessary action to:-
The Inspector-in-charge, Chinsurah Police Station. A copy of this order be also served for compliance to both the parties.
SCHEDULE OF PROPERTY Mouza-Chuchurah J.L No.-20, 0.026 Bastu land With 3-storied Building at Bunokalital, M.G-Road"
7. It appears form the said order that although, the opposite party prayed for cancellation of the deeds of gift registered by him in favour of the petitioner No.1, and the subsequent deed as well, but the learned Tribunal did not pass an order cancelling the deeds of gift, but instead, passed an order directing the police authorities to put the opposite party and his wife 8 into possession of the ground floor of the residence and further directed that the said opposite party and his wife would reside in the entire ground floor and the daughters would have liberty to enter into the ground floor of the said property to then ensure regular supply of food and medical treatment etc. The petitioners were restrained from creating any nuisance and disturbance in the ground floor in the building and also restrained from further transferring the said property.
8. That on September 12, 2019 the petitioners No.2 and 3 filed a title suit before the learned Civil Judge (Junior Division) First Court at Hooghly being Title Suit No.371 of 2019, and an interim order of injunction was passed by the learned Civil Court on September 17, 2019, directing the parties to the suit to maintain status quo with regard to the nature, character and possession over the suit property.
9. Again, the opposite party filed an application before the learned Tribunal for cancellation of the two deeds of gift. One registered by the opposite party in favour of the petitioner no.1 and the other registered by the petitioner No.1 in favour of the petitioners No.2 and 3.
10. It has been urged on behalf of the opposite party that the first deed of gift was a conditional gift. The opposite party gifted the property in favour of the petitioner No.1 on July 18, 2018 on a condition that the petitioner No.1 would maintain and look after the parents and provide all basic amenities and basic physical needs to the father. As the petitioner No.1 failed to do so the deed of gift was liable to be cancelled and declared void in terms of Section 23 of the said Act. It was further contended that the subsequent gift of the said property in favour of the petitioner Nos.2 and 3 9 by the petitioner No.1, was also liable to be cancelled, inasmuch as, once the registered deed of gift dated July 18, 2018 was cancelled and declared to be void, the subsequent deed also became null and void. It was further contented that application for cancellation of the two deeds of gifts being Maintenance Case No.26 of 2019 was filed pursuant to a liberty granted by the learned Tribunal to the opposite party to file a further application for alteration of the order, in case of violation or non-compliance with the order dated August 30, 2019.
11. Having heard the learned Counsels for the parties, it is necessary to deal with the deed of gift which was registered on July 18, 2018. The deed of gift is in Bengali. From the recitals in the deed of gift, it appears that the opposite party being pleased and satisfied with the love and respect shown by the petitioners, considered it his fatherly duty to secure his son in the future and thus had gifted the said property to the petitioner No.1. It has been categorically recorded that the petitioners had shown immense love and respect to the opposite party and the opposite party in turn always had love and affection for them. With the same expectation, of such love and respect, the opposite party chose to gift away the said property in favour of the petitioner No.1. In my view, the deed of gift was unconditional. No condition was attached with regard to the duty upon the petitioner No.1 to provide basic maintenance and basic physical needs to the opposite parties. In my opinion, Section 23 of the said Act does not have any manner of application in this case. Section 23 of the said Act is quoted below:-
"23. Transfer of property to be void in certain 10 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 the transferee refuses or fails to provide such amenities and physical needs, the said transfer or 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.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or party thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organization referred to in Explanation to sub-section (1) of Section5."
12. The only condition that may be read into the deed of gift is that the opposite party expected that the petitioners would continue to love and respect the opposite party in future as they had done before. This cannot be construed as a condition envisaged under the provisions of Section 23 of the said Act. It is settled law that a deed or indenture should be construed as it is. Nothing could be added to or subtracted from it. It is also relevant to record that a prayer for cancellation for deeds of gift was also made in the application dated August 19, 2019 being Maintenance Case No.17 of 2019. The said prayer was not granted, instead the opposite party was allowed to reside in the ground floor of the premises with his wife and necessary directions were passed directing on the police authorities to ensure that the opposite party and his wife were put into possession of the ground floor. The petitioners were restrained from creating any disturbance in the enjoyment of the ground floor premises by the opposite party and the wife. 11 Injunction was also granted restraining the petitioners from further transferring the said property. Liberty was granted by the learned Tribunal to the petitioner to file a subsequent application under Section 10 (1) of the said Act, in case of violation of the order dated August 30, 2019. Section 10 is quoted below:-
"10.Alteration in allowance. - (1) On proof of misrepresentation or mistake of fact or a change in the circumstances of any person, receiving a monthly allowance under Section 9, for the maintenance or ordered under that section to pay a monthly allowance for the maintenance, the Tribunal may make such alteration, as it thinks fit, in the allowance for the maintenance.
(2) Where it appears to the Tribunal that, in consequence of any decision of a competent Civil Court, any order made under section 9 should be cancelled or varied, it shall cancel the order or, as the case may be, vary the same accordingly."
13. Section 10 of the said Act enables any person to pray for alteration in the allowance of maintenance on proof of misrepresentation or mistake of fact or a change in the circumstances. But, when on an earlier application, the gift deeds were not cancelled although prayed for, but alternatively shelter was provided by the learned Tribunal in the ground floor by an order dated August 30, 2019, and injunction was ordered restraining future transfer, it means that the prayer for cancellation of the deeds were denied. A liberty was granted to the opposite party only to pray for alteration of allowance/maintenance as provided in Section 10(1) but such liberty could not be construed as a liberty to apply afresh for a declaration that the deeds of gift dated July 18, 2019 and November 14, 2019 were void under Section 23 of the said Act. Subsequent prayer for the cancellation of deeds of gifts will be barred by the principles of constructive res judicata as also under Order 2 rule 2 of the Code of Civil Procedure. The 12 order dated August 30, 2019 had attained finality in this regard. Further prayer in Maintenance Case No.26 of 2019, for cancellation of the deeds of gifts could not have been granted in terms of liberty granted in the order dated August 30, 2019. The opposite party was granted liberty to file an application under Section 10(1) of the said Act, for alteration of the maintenance allowance by the learned Tribunal. The judgments cited by the opposite parties, with regard to the power of the Tribunal to direct the petitioners to vacate the premises are not necessary to be dealt with in view of the observations made hereinabove. The deed of gift not being a conditional gift, the order dated November 13, 2019 is liable to be set aside. The order impugned is set aside in its entirety and all reliefs granted therein stand set aside and quashed.
14. This revisional application is allowed.
15. There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)