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CALCUTTA HIGH COURT
Moushumi Bhattacharya, J.
Amar Nath Dutta – Petitioner
versus
State of West Bengal and Ors. – Respondents
W.P.A.1013 of 2023
Decided on 24.3.2023
Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – Section 23 (1) – Transfer of Property Act, 1882 – Sections 122, 123 –Gift deed –Revocation-Senior citizen - Section 23(1) provides for declaration of transfer of property to be void in certain circumstances – This would apply where senior citizen transfers his property by way of gift or otherwise subject to condition that transferee shall provide basic amenities and basic physical needs to transferor and transferee refuses to provide such amenities and physical needs to transferor– Declaration is in form of undertaking given by petitioner containing specific condition that petitioner would look after basic amenities and basic physical needs of respondent no. 6 / transferor – Declaration/undertaking should be taken as continuation and part and parcel of Deed of Gift since declaration makes specific reference to Deed of Gift and both parties have put their signatures on it – Section 23(1) requires specific condition in Deed of Gift – Transferee/petitioner cannot take advantage of first deed and urge that transferee has no such obligation since specific clause as required by section 23(1) is contained in declaration – Sections 122 and 123 of Transfer of Property Act, provides for procedure for giving effect to transfer in case of gifts – These provisions do not assist petitioner since declaration/undertaking given by petitioner can be treated as supplement to Deed of Gift – No infirmity in impugned order. [Paras 5, 6, 7, 8, 10, 11]
Result: Petition dismissed.
JUDGMENT
Moushumi Bhattacharya, J.—The petitioner has challenged an order of the Sub-divisional Magistrate and Competent Authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The order impugned is dated 30.11.2022 and was passed in an application filed by the private respondent no. 6 whereby the private respondent no. 6 sought for revocation of a gift deed. The private respondent executed the Deed of Gift dated 3.7.2019 consisting of his residential building in favour of the petitioner herein. The petitioner was the opposite party no. 1 before the Tribunal.
2. By the impugned order, the Tribunal allowed the application and directed the petitioner to return the original copy of the Gift deed to the Tribunal within 7 days. The Tribunal declared the Deed of Gift to be void and accepted the arguments for revocation of the Deed as urged by the private respondent no. 6. The Deed was revoked under section 23 of the Act.
3. The relevant facts are briefly stated. The private respondent no. 6 is an octogenarian, whose wife died intestate on 4.9.2013. The private respondent no. 6 inherited the two-storey building (the property in question) after the death of his wife. The private respondent does not have any children. The petitioner and the private respondent no. 7, claiming to be a married couple were inducted as tenants in the said building in 2014. The private respondent no. 6, being alone and an aged widower became dependent on the petitioner and the respondent no. 7 and treated the petitioner and the respondent no. 7 as his children. The petitioner, the private respondent no. 7 and the private respondent no. 6 (the donor) became close to one another. The private respondent no. 6 later came to know that the petitioner was already married before and had a married daughter and a son. The Deed of Gift executed by the private respondent no. 6 in favour of the petitioner was dated 3.7.2019. A declaration was issued within a week thereafter on 10.7.2019 between the private respondent no. 6 and the petitioner incorporating a condition that the petitioner would look after the daily needs including medical needs of the private respondent no. 6. However, the petitioner and the respondent no. 7 refused to look after the private respondent no. 6 and treated him with cruelty. The private respondent no. 6 accordingly approached the Tribunal for revoking the Deed of Gift. The impugned order was passed in the said proceedings and is a subject matter of challenge in the present writ petition.
4. The only issue which falls for consideration is whether the order of the Tribunal revoking the Deed of Gift is amenable to challenge under section 23(1) of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
5. Section 23(1) provides for declaration of a transfer of property to be void in certain circumstances. This would apply where a senior citizen transfers his property by way of gift or otherwise subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and the transferee refuses to provide such amenities and physical needs to the transferor. In such circumstances, the transfer of property shall be deemed to have been made through coercion and in a fraudulent manner and the transferor shall have the option of seeking the transfer to be declared as void by the Tribunal. The Supreme Court in Sudesh Chhikara vs. Ramti Devi; 2022 SCC OnLine SC 1684 held that if the conditions under section 23 of the Act are satisfied, the transfer shall become voidable at the instance of the transferor. This provision has also been interpreted in several decisions including by a Division Bench of this Court in Debashish Mukherjee @ Zenacharya vs. Dr. Sanjib Mukherjee, 2018(1) CHN (Cal.) 481 relied on by a Co-ordinate Bench in Mita Panda vs. Minati Chakraborty, 2019(1) WBLR (Cal.) 668.
6. It is clear from the decisions that the Deed of Gift can be declared as void a
Gift deed –Revocation-Senior citizen - Deed of Gift can be declared as void and be revoked on that basis if transferee refuses to care for and look after basic needs of transferor where Deed contains....
A declaration/undertaking given by the transferee containing a specific clause that the transferee would look after the transferor can be treated as a continuation and part and parcel of the gift dee....
Revocation of Gift Deed – Condition to maintain transferor is pre-requisite for applying Section 23(1) of Senior Citizens Act, 2007.
The absence of an explicit maintenance condition in a gift deed is critical for determining its validity under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act.
The central legal point established in the judgment is that for the invocation of Section 23(1) of the 2007 Act, the transfer must be subject to the condition that the transferee shall provide basic ....
A property transfer by a senior citizen can only be declared void under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, if the deed explicitly stipulates that the ....
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