Biswanath Ghosh Vs Bidyendu Ghosh

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IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction APPELLATE SIDE

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Present:

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The Hon’ble Justice Shampa Dutt (Paul)

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CO 3513 of 2022

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Biswanath Ghosh Vs Bidyendu Ghosh

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For the Petitioner	:	Mr. Anup Kumar Mukhopadhyay, Mr. Abhijit Sarkar.
For the Opposite Party	:	Mr. Rwitendra Banerjee, Mr. Shibasis Chatterjee .
Judgment reserved on	:	24.03.2026
Judgment delivered on	:	04.05.2026
Shampa Dutt (Paul), J.:

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1. The civil revision has been preferred challenging Order No. 1 dated 20.09.2022 passed by the learned Appellate Tribunal-cumDistrict Magistrate, Murshidabad in Appeal Case No. 1 of 2022 under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Rules made thereunder thereby affirming the order dated December 28, 2021, passed by the learned Sub-Divisional Officer, Sadar, Sub-Division, Berhampore, Murshidabad in case no. 02 of 2020 under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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2. Vide the impugned order, the Appellate Tribunal-cum-District

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Magistrate, Murshidabad in appeal from an order in an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, disposed of the appeal by directing as

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follows :

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“ DECISION WITH REASONS

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….after hearing both the parties, and perusing all the necessary documents, the analogy which can be drawn is that Sub Section (1) of the Section 23 of the Act, inter alia, states that the transferee shall provide the basic amenities and basic physical needs to the transferor. However explicitly no such thing of "basie amenities and basic physical needs" (except the mutual consent that the Appellant or his wife will have the right to live in the gifted property and the property shall not be transferred by the Respondent) has been mentioned in the Deed of Life Estate executed between the Appellant and the Respondent as mentioned supra when the Appellant was gifting a piece of land to the Respondent on the same day. Nor the Appellant depends upon the Respondent to run his livelihood.

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The Appellant only claims to reside peacefully in the disputed property as mentioned supra and the Respondent may be ordered not to evict the Appellant from the said dwelling house in future.

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The matter is still sub-judice. However the Appellate Tribunal has duly taken note of the fact that the Appellant, who, presently lives in the house of his daughter has a right to live in the property mentioned above.

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In the considered view of

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the undersigned it is therefore,

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ORDERED

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That as soon as the written application of the Appellant, Biswanath Ghosh is filed before the Officer-inCharge, Berhampore Police Station, he at once shall provide the reasonable force necessary to aid the Appellant to enter into the premises previously occupied

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by him prior to his alleged eviction from the aforesaid property in dispute. The Sub-Divisional Officer, Berhampore Sadar is directed to make a close liaison with the Police Station so that when a written application is filed by the Appellant, Biswanath Ghosh before him, he shall take necessary actions to implement the aforesaid order.

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The Respondent Bidyendu Ghosh is hereby directed to Tender all sorts of co-operation to both Police and Civil Administration for execution of this Order.

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With this direction upon Appellant and the Respondent, the instant appeal is disposed of

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The original copy of this Order shall be kept in file and let the copy be communicated to Biswanath Ghosh the Appellant/Applicant/Petitioner in the instant appeal and Bidyendu Ghosh, herein after referred to as Respondent /Opposite Party.”

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3. The petitioner, a senior citizen in the present case being the father of the respondent/opposite party herein has preferred the writ application being aggrieved with the said order of the appellate tribunal.

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4. The further case of the petitioner is that the opposite party with the intent to grab the said property drove away his elder brother from the said dwelling house. The petitioner at that point of time was totally involved in the treatment of his wife. The opposite party taking the advantage of such situation forced the petitioner to alienate the said property in his favour by way of a deed of gift for taking more sincere and attentive caring of his mother, i.e., the wife of the petitioner. The petitioner being an old and aged person was totally handicapped, compelled to transfer his right, title and interest of the said dwelling house by a registered deed of gift vide

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deed No. I-8622 dated August 7, 2015 in favour of the opposite

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party.

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5. The opposite party, three days after the date of execution of the said deed of gift, executed another deed of “Jiban Sattar” in favour of his parents vide deed No.F-8625, dated August 10, 2015 stating inter alia that a registered deed of gift has been executed in favour of the opposite party by the petitioner, as such the petitioner would possess and enjoy the said dwelling house till their lifetime with the further averment that during that period the petitioner could not transfer the said dwelling house to anyone else. It was also stated in the said deed that on the death of the petitioner and his wife the right, title, interest of the said property would devolve upon only the opposite party No. 8, except the elder son and the daughter of the petitioner.

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6. One year thereafter lapsed, the petitioner along with his wife were there well. In the year 2017, the said opposite party got married. The said opposite party thereafter started misbehaving with the petitioner and instead of taking care of the petitioner and his wife, the opposite party was totally indifferent towards the petitioner, which ended in mental and physical torture upon the petitioner and his wife.

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7. The petitioner at that point of time had no other alternative but to take shelter at the residence of his daughter. The petitioner thereafter requested the opposite party on several occasions to let them reside in the dwelling house but on each and every occasion

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failed. As such the petitioner had no other alternative but to file an application on 11.08.2020 under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, praying for cancellation of the said deed of gift dated August 7, 2015 and the deed of life estate dated August 10, 2015 and also restoring the possession of the petitioner in the said dwelling house before the court of learned Sub-Divisional Officer, Sadar, SubDivisional, Murshidabad, being case No. 2 of 2020.

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8. The Sub-Divisional Officer, Sadar, Sub-Divisioin, Murshidabad by an order dated December 28, 2021 was pleased to allow the said application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, filed by the petitioner, being case No. 2 of 2020 with the direction upon the opposite party that the said respondent would look after his parents with respect i.e., the petitioner and his wife, till death and allow them to stay with him peacefully. The petitioner would enjoy the right over the property for life time after the death of his parents.

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9. Being aggrieved by and dissatisfied with the order dated December 28, 2021, passed by the learned Sub-Divisional Officer, Sadar SubDivision, Murshidabad in case No. 02 of 2020 under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the petitioner preferred an appeal before the learned District Magistrate, Murshidabad, being appeal case No. 1 of 2022.

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10. The appeal was disposed of by passing the impugned order which is under challenge before this Court.

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11. Written notes have been filed by both the parties.

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12. The petitioner has relied upon the following judgments:-

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i) State of Karnataka vs. Vishwabharathi House Building Corporation Society & Ors. (2022 SCC OnLine SC 1684 para 13);

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ii) Neutral Citation No. 2024: BHC-OC-5954 (High Court of Judicature at Bombay) (Nitin Rajendra Gupta vs. Deputy Collector, Mumbai & Ors. paras 20,21,23,38,39,40,41 and 42);

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iii) Mohamed Dayan vs. The District Collector, Tiruppur District & Ors. (2023 SCC OnLine Mad 6079 paras 27,33,34,35,36,39,40,41,42,43 & 46);

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iv) Radhamani & Ors. vs. State of Kerala & Ors. (2015 SCC OnLine Ker 33530, paras 6,7,8,9,10,11 & 12);

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v) Amar Nath Dutta vs. The State of West Bengal & Ors. (2023 Supreme (Cal) 223 = (2023) 2 ICC 927 para 6 & 8;

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vi) S. Sarojini Amma vs. Velyudhan Pillai Sreekumar (2019 11 SCC 391, paras 14, 15, 17, 18 & 19);

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vii) Commissioner of Gift Tax vs. Alok Lata Sett (1989 SC (Cal) 330 paras-8,9,18 & 19);

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viii) Urmila Dixit vs. Sunil Sharan Dixit & Ors. (AIR 2025 SC 458 paras 3 to 6, 6.1,6.2,12,14,15,17,18,20,22,23 & 25);

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ix) S. Mala vs. District Arbitrator & District Collector, Nagapatinam & Ors. (2025 MHC 706 paras 16, 18,22,25,28,31,32,33,34,35,36,38,40,45 & 47);

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x) Ashwin Bharat Khater & Ors. vs. Urvashi Bharat Khater & Ors. (2023) 6 AIIMR 1, paras 24,25,27 & 30);

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xi) The State of Punjab & Ors. vs. Davinder Singh (2025) 1 SCC 1, paras 107 & 108 ;

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13. The opposite party herein has relied upon the following judgments:-

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i) Jayanta Ghosh & Ors. vs. Ajit Ghosh (2020 SCC OnLine Cal 481, para 12;

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ii) S. Vanitha vs. Deputy Commissioner, Bengaluru Urban District & Ors. (2021) 15 SCC 730, para 22.

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14. By way of a supplementary affidavit, the petitioner has filed the copy of the gift deed bearing No. I 8622/2015 wherein it appears that opposite party (son) herein is the donee and the petitioner father herein is the donor. The relevant clause in the deed of gift is as follows :

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“Dalil grahita tumi amar ourashjato putro santan haitecho o otibo sneher patro. Tomake ami sneho kari o valobasi. Tumio amake jatesto vakti, srodha, dekasona o sebasusrosha karia asitecho, vabissateo bartamaner nei dekasona, sebasusrosha karibe eirup saral biswas amar ache” .

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Translated :-

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“Deed acceptor you are my son and of great effection . You respect me and have always taken care of me and

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in future too you shall take care and look after me in the same manner and this is my belief”.

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15. Another deed creating life interest in the disputed property was also executed by the opposite party in favour of the petitioner and his wife who is the mother of the opposite party herein. Admittedly the opposite party could execute a deed creating life interest in favour of his parents in respect of the disputed property, only after the deed of gift transferring the disputed property by way of gift in favour of the opposite party by the petitioner herein was complete and acted upon.

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16. It is only when the interest in the property has been created in favour of the opposite party by way of the deed of gift, the opposite party acquired his right in the property to execute the deed of life interest.

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17. Section 23 of the Maintenance and Welfare of Parents and

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Senior Citizens Act, 2007 lays down :-

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“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 froud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

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(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive

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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.

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(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 organisation referred to in Explanation to sub-section (1) of section 5.

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This clause provides that if a senior citizen after the commencement of the provision of this Act, transfers his property by way of gift or otherwise with the condition that the transferee shall provide basic amenities and basic physical needs and such transferee fails or refuses 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 the transfer be declared void by the Tribunal at the option of the semior citizen. It also provides that where any senior citizen has a right to receive maintenance out of an estate or part thereof and such estate or part thereof is transferred, the right may be enforced against the transferee. It further provides that if any senior citizen is incapable of enforcing the rights, action may be taken on his behalf by any of the voluntary association registered under the Societies Registration Act, 1860 or any other law for the time being in force. (Notes on Clouses)”.

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18. This Court in WPA 557 of 2025 at Circuit Bench at Port Blair vide a judgment dated 19.12.2025 in the case of Smt. Aaliya

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Rahman Khan vs. The Andaman and Nicobar Administration

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& Ors . held as follows:-

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“10. In Urmila Dixit – versus – Sunil Sharan Dixit and Ors

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reported in Civil Appeal No. 10927 of 2024 [Arising out

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of Special Leave Petition (Civil) No. 720 of 2023] , the

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Supreme Court held that :-

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“23. The Appellant has submitted before us that such an undertaking stands grossly unfulfilled, and in her petition under Section 23, it has been averred that there is a breakdown of peaceful relations inter se the parties. In such a situation, the two conditions mentioned in Sudesh (supra) must be appropriately interpreted to further the beneficial nature of the legislation and not strictly which would render otiose the intent of the legislature. Therefore, the Single Judge of the High Court and the tribunals below had rightly held the Gift Deed to be cancelled since the conditions for the well-being of the senior citizens were not complied with . We are unable to agree with the view taken by the Division Bench, because it takes a strict view of a beneficial legislation.”.

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11. In Kamalakant Mishra – versus – Additional Collector &

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Ors reported in Civil Appeal No….2025 [@SLP(CIVIL) No. …D.No.

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42786 of 2025] , the Supreme Court held that:-

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“7. The framework of the Act clearly notes that the law was enacted to address the plight of older persons, for their care and protection. Being a welfare legislation, its provisions must be construed liberally so as to advance its beneficent purpose. This Court on several occasions has observed that the Tribunal is well within its powers to order eviction of a child or a relative from the property of a senior citizen, when there is a breach of the obligation to maintain

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the senior citizen .2 In the present case, despite being financially stable, the respondent has acted in breach of his statutory obligations in not allowing the appellant to reside in the properties owned by him, thereby frustrating the very object of the Act. High Court fell in error in allowing the writ petition on a completely untenable ground.”.

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12. Thus, it appears from the said judgments, the Supreme Court has categorically held that eviction order could be passed under the said Act, when there is a breach of the obligation to maintain the senior citizen .

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13. In Sudesh Chhikara – versus – Ramti Devi and Another reported in (2024) 14 Supreme Court Cases 225, the Court held as follows :-

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“ 14 . 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-befulfilled:-

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(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

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(b) The transferee refuses or fails to provide such amenities and physical needs to the transferor.

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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

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Maintenance Tribunal gets jurisdiction to declare the transfer as void.

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15. When a senior citizen parts with his or her property by executing a gift or a release or otherwise in favour of his or 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 sub-section (1) of Section 23 are attached to a transfer, existence of such conditions must be established before the Tribunal.

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16 . Careful perusal of the petition under Section 23 filed by Respondent 1 shows that it is not even pleaded that the release deed was executed subject to a condition that the transferees (the daughters of Respondent 1) would provide the basic amenities and basic physical needs to Respondent 1. Even in the impugned order dated 22-5-2018 passed by the Maintenance Tribunal, no such finding has been recorded. It seems that oral evidence was not adduced by the parties. As can be seen from the impugned judgment of the Tribunal, immediately after a reply was filed by the appellant that the petition was fixed for arguments. Effecting transfer subject to a condition of providing the basic amenities and basic physical needs to the transferor - senior citizen is sine qua non for applicability of sub-section (1) of Section 23 . In the present case, as stated earlier, it is not even pleaded by

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Respondent 1 that the release deed was executed subject to such a condition.”

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19. In the present case the deed of gift executed in favour of the

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opposite party herein clearly states:-

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“vabissateo bartamaner nei dekasona, sebasusrosha karibe eirup saral biswas amar ache” . (In future too you shall take care of us in the same manner, this is my belief).

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20. In spite of such clause being in the gift deed, unfortunately both the sub-divisional officer and the appellate tribunal, the District Magistrate have clearly failed to exercise their power and act as per the provision of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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21. Instead the appellate tribunal keeping the matter subjudice has proceeded to ensure that the petitioner and his are wife put back into possession in the property in this case, may be thinking of the life interest created.

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22. The first step while complying with Section 23 of the Act is to proceed for cancellation of the gift deed, if the conditions as required are complied with/ or found present which in the present case has been done and is present and the appellant tribunal should have proceeded to cancel the deed by passing necessary directions upon the authorities to take steps regarding such cancellation and on such cancellation then taken steps to ensure that the senior citizens are put into possession of their property.

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23. As the deed creating life interest was dependent on the right having accrued to the opposite party on the gift deed being executed, the same would also stand revoked on the gift deed being cancelled.

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24. Accordingly, the civil revision is disposed of on directing the appellate tribunal being the District Magistrate, Murshidabad, to dispose of the case under this beneficial legislation as per the provision of Section 23 of the Act, expeditiously preferably within 30 days from the date of communication of this order on keeping in mind the observations in this judgment and following the observation of the Supreme Court in Urmila Dixit (Supra) and

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Kamalakant Mishra (Supra).

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25. Civil revision being C.O. 3513 of 2022 is thus disposed of.

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26. Connected application, if any, stands disposed of.

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27. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously after due compliance.

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(Shampa Dutt (Paul), J.)

Biswanath Ghosh v. Bidyendu Ghosh

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Biswanath Ghosh v. Bidyendu Ghosh

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