In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon’ble Justice Sabyasachi Bhattacharyya
C.O. No. 3988 of 2017
Mita Panda and others
Vs.
Minati Chakrabarty and another
For the petitioners : Mr. Ankit Agarwala,
Ms. Alotriya Mukherjee
For the opposite party : Mr. Hiranmoy Bhattacharya,
Mr. Tanmoy Mukherjee,
Mr. Kajal Roy
Hearing concluded on : 17.12.2018
Judgment on : 09.01.2019
Sabyasachi Bhattacharyya, J.:‐
1. The present application under Article 227 of the Constitution of India has
been preferred against an order whereby the Sub‐Divisional Magistrate,
Chandernagore declared a gift deed dated June 26, 2015, executed by the
opposite party no. 1 Minati in favour of the petitioners, void in terms of
Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act,
2007 (hereinafter referred to as “the 2007 Act”), by accepting a deed of
revocation filed by the opposite party no. 1 and granting 8 weeks to the
2
petitioners to hand over the gifted property to the opposite party no. 1 after
vacating their belongings, failing which they would have to be evicted.
2. The petitioner no. 1, namely Mita, is the younger (married) daughter of the
opposite party no. 1, namely Minati, and the petitioner nos. 2 and 3 the
husband and son, respectively, of the petitioner no. 1. During pendency of the
revisional application, the opposite party no. 2 Indranil (son of the elder
daughter of the opposite party no. 1) was added as a party on the strength of
a gift deed executed by the opposite party no. 1 in favour of the opposite
party no. 2 subsequent to the impugned order being passed.
3. Learned counsel for the petitioners argues that previously the opposite party
no. 1 had instituted against the present petitioner nos. 1 and 2 a suit, bearing
Title Suit No. 410 of 2015, in the First Court of Civil Judge (Junior Division) at
Chandernagore for declaration that the plaintiff (present opposite party no. 1)
was the absolute owner of the suit property and her right, title and interest
had not been affected in any way by the forged, fraudulent so‐called deed of
gift dated June 26, 2015 being No. 2015 of DSR II, Chinsurah Hooghly and the
same was not binding upon the plaintiff, for further declaration that the
defendant no. 1 therein (present petitioner no. 1) had not acquired any right,
title interest in the suit property by dint of forged, fraudulent, void aforesaid
alleged deed of gift and for consequential reliefs.
3
4. In the said suit, the petitioner nos. 1 and 2, being the defendants therein, filed
an application under Order VII Rule 11 of the Code of Civil Procedure for
rejection of the plaint on the ground that the plaintiff had not prayed for the
further relief of cancellation of the gift deed‐in‐question, which was available
to her, and as such the suit was barred by the proviso to Section 34 of the
Specific Relief Act. The civil court, vide Order No. 15 dated March 4, 2017
passed in the said suit, allowed the said application, thereby rejecting the
plaint of the present opposite party no. 1.
5. The basis of the said previous suit was the allegation that the present
petitioner nos. 1 and 2, on the misrepresentation that a power of attorney was
being executed by the present opposite party no. 1 for looking after the suit
property, obtained the signature of the opposite party no. 1 on the impugned
gift deed, took the opposite party no. 1 to the Chinsurah DSR II registration
office and got the deed registered fraudulently.
6. It is argued that although the previous suit was filed before the civil court by
the opposite party no. 1 herself, thereby submitting to the jurisdiction of the
civil court, the present application was filed under the 2007 Act by the
opposite party no. 1 on similar grounds, by suppressing the fact of institution
of the previous suit and its dismissal for default. As such, the tribunal ought
to have dismissed the application for such suppression.
4
7. Moreover, it is argued, the tribunal had inherent lack of jurisdiction to
entertain the proceeding, in view of the allegations of fraud and
misrepresentation, which form the plinth of the proceeding, falling within the
exclusive domain of civil courts and outside the purview of Section 23 of the
2007 Act, thereby denuding the tribunal of the power to grant relief in the
matter.
8. Further, by placing reliance on the contents of the gift deed‐in‐question,
learned counsel for the petitioners argues that the said document contained
no clause to show that the gift was made subject to the condition that the
transferees were to provide the basic amenities and basic physical needs to
the transferor. As such, the provisions of Section 23 of the 2007 Act, under
which the tribunal passed the impugned order, were not attracted at all.
9. Going one step further, learned counsel argues that not only did the gift deed
not reveal any such condition as mentioned above, no ingredient of Section 23
was even pleaded by the opposite party no. 1 in her application under Section
4, thereby leaving no scope for Section 23 of the 2007 Act to be attracted at all.
10. Learned counsel for the petitioners next argues that the application under
Section 23 of the 2007 Act was presented before the tribunal by an advocate,
which was in violation of Section 17 of the said Act, which contains a non
obstante clause preventing parties to proceedings under the said Act from
5
being represented by legal practitioners. As such, it is argued, the proceeding
ought to have been dismissed in limine.
11. The petitioners next argue that the since the impugned order was passed
behind the back of the petitioners, the petitioners did not get proper
opportunity to present their case. The opposite party no. 1, it is alleged,
suppressed that she earns around Rs. 20,000/‐ per month as pension. Since
Section 9 (2) of the 2007 Act precludes the tribunal from granting maintenance
of an amount more than Rs. 10,000/‐ per month, and the opposite party no. 1
had already been earning double that amount, the tribunal did not have
jurisdiction to entertain the proceeding at all.
12. Even otherwise, in view of such income of the opposite party no. 1 being
sufficient to maintain herself, the tribunal could not consider non‐payment of
maintenance by the petitioners to the opposite party no. 1, as it did, while
passing the impugned order.
13. In this context, the petitioners cite a judgment of a division bench of this
court, reported at 2018 (1) CHN (Cal) 481 [Debashish Mukherjee ‐v‐ Sanjib
Mukherjee Ors.], which held inter alia that the flat‐in‐question there was
gifted absolutely and unconditionally to the appellant therein, 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
6
basic physical needs to the transferor. Accordingly, in the opinion of the
division bench, Section 23 of the 2007 Act could have no manner of
application to the facts of the said case.
14. Learned counsel for the opposite party no. 1 contended at the outset that the
application under Article 227 of the Constitution of India was not
maintainable, since the same has been preferred against an order passed by an
‘authority’ under the 2007 Act and not a ‘tribunal’. The order of a magistrate
under the said Act, according to counsel, is not amenable to review under
Article 227 of the Constitution. It was also hinted that, in any event, the
challenge against an order of a magistrate, exercising criminal jurisdiction,
could not be decided by this bench which is taking up civil revisional
applications under Article 227 of the Constitution of India.
15. It is next argued by opposite party no. 1 that Section 4 of the 2007 Act permits
an application for maintenance to be filed even if the applicant therein has
some income, if such income is insufficient to maintain the applicant. In the
present case, even if the applicant, that is, the present opposite party no. 1, has
some income from her pension, the same does not ipso facto debar her from
taking out an application under the said Act.
16. By placing reliance on Section 4 (3) of the 2007 Act, learned counsel for the
opposite party no. 1 argues that the said provision casts an obligation on the
7
children to cater to the needs of the parents so that the parents may lead a
normal life. The said provision ought to be read into Section 23 of the 2007
Act, which obliges the tribunal to declare a transfer void when the transferee
refuses or fails to provide amenities and physical needs of the parents. A
conjoint reading of the two provisions, it is argued, would signify that a
transfer deed can be declared void if the children refuse or even fail to
provide the physical needs of a parent which are necessary for the parent to
lead a ‘normal life’.
17. It is argued that if the gift deed is read in this context, it will be seen that the
same records, as the reason for the gift, the cordial behaviour and
performance of duties by the donees/petitioners in respect of the donor. This
necessarily implies that the duty to provide the physical needs for the
opposite party no.1‐donor was a pre‐condition of the gift, attracting the
principle embodied in Section 23 of the 2007 Act. Since the gift deed itself was
pleaded in the application before the tribunal, its contents must necessarily be
deemed to have been relied on by the applicant/opposite party no. 1,
providing the necessary handle to the tribunal to exercise jurisdiction under
the 2007 Act.
18. The opposite party no. 2, being the donee in a gift deed dated November 30,
2017, which was executed by the opposite party after the impugned order was
8
passed, is obviously bound by the ultimate result of the said maintenance
proceeding and cannot have any independent right beyond that of the
opposite party no. 1.
19. In reply, the petitioners rely on a judgment reported at AIR 1985 S.C. 364
[Manmohan Singh Jaitla ‐v‐ Commissioner, Union Territory, Chandigarh Ors.],
wherein it was laid down that statutory authorities operating under the
Punjab Aided Schools (Security of Service) Act, 1969 were quasi‐judicial
authorities and would be comprehended in the expression ‘Tribunal’ as used
in Article 227 of the Constitution and would be subject to judicial review. In
tune with such proposition, it is argued, the present application under Article
227 of the Constitution is also maintainable since the maintenance tribunal
acted as a ‘tribunal’ in exercise of its quasi‐judicial powers under the 2007 Act.
20. Upon hearing both sides, it is evident that the following sections of the 2007
Act are necessary for a complete adjudication of the disputes involved herein:
Maintenance and Welfare of Parents and Senior Citizens Act, 2007:
“4. Maintenance of parents and senior citizens. – (1) A senior citizen including
parent who is unable to maintain himself from his own earning or out of the property
owned by him, shall be entitled to make an application under section 5 in case of –
(i) parent or grand‐parent, against one or more of his children not being a minor;
9
(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section
2.
(2) The obligation of the children or relative as the case may be, to maintain a senior
citizen extends to the needs of such citizen so that senior citizen may lead a normal
life.
(3) The obligation of the children to maintain his or her parent extends to the needs of
such parent either father or mother or both, as the case may be, so that such parent
may lead a normal life.
(4) Any person being a relative of a senior citizen and having sufficient means shall
maintain such senior citizen provided he is in possession of the property of such senior
citizen or he would inherit the property of such senior citizen:
Provided that where more than one relatives are entitled to inherit the property of a senior
citizen, the maintenance shall be payable by such relative in the proportion in which
they would inherit his property.
…. ….
….
8. Summary procedure in case of inquiry. ‐ (1) In holding any inquiry under section
5, the Tribunal may, subject to any rules that may be prescribed by the State
Government in this behalf, follow such summary procedure as it deems fit.
(2) The Tribunal shall have all the powers of a Civil Court for the purpose of taking
evidence on oath and of enforcing the attendance of witnesses and of compelling the
discovery and production of documents and material objects and for such other
10
purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court
for all the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(3) Subject to any rule that may be made in this behalf, the Tribunal may, for the
purpose of adjudicating and deciding upon any claim for maintenance, choose one or
more persons possessing special knowledge of any matter relevant to the inquiry to
assist it in holding the inquiry.
9. Order for maintenance. – (1) If children or relatives, as the case may be, neglect or
refuse to maintain a senior citizen being unable to maintain himself, the Tribunal
may, on being satisfied of such neglect or refusal, order such children or relatives to
make a monthly allowance at such monthly rate for the maintenance of such senior
citizen, as the Tribunal may deem fit and to pay the same to such senior citizen as the
Tribunal may, from time to time, direct.
(2) The maximum maintenance allowance which may be ordered by such Tribunal shall
be such as may be prescribed by the State Government which shall not exceed ten
thousand rupees per month.
…. …. ….
17. Right to legal representation. – Notwithstanding anything contained in any law,
no party to a proceeding before a Tribunal or Appellate Tribunal shall be represented
by a legal practitioner.
…. …. ….
11
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.
(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 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 organisation referred to in
Explanation to sub‐section (1) of section 5.”
21. Taking up the question of jurisdiction first, it is evident that the tribunal
under the 2007 Act exercises quasi‐judicial powers to say the least, and
judicial powers in certain contexts. The power conferred on the tribunal under
Section 23 of the Act, to declare a deed void, for example, is comparable to
that of a civil court. Moreover, the power to grant maintenance, which also
contemplates the right to residence, is parallel and co‐extensive with the
12
jurisdiction of civil courts under several statutes, including the Hindu
Adoptions and Maintenance Act, the Hindu Marriage Act, the Special
Marriage Act, etc.
22. This apart, Section 8 (2) of the 2007 Act vests in the tribunal all the powers of a
civil court for the purpose of taking evidence on oath and of enforcing the
attendance of witnesses and compelling the discovery and production of
documents and material objects and for such other purposes as may be
prescribed; and the tribunal shall be deemed to be a Civil Court for all the
purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure,
1973.
23. The aforesaid discussion unerringly indicates that the tribunal under the 2007
Act exercises powers akin to civil courts in certain respects and has the
trappings of civil courts. Hence the tribunal under the said Act can be deemed
to exercise the sovereign power of adjudication of the State, sufficient to make
it amenable to judicial review under Article 227 of the Constitution of India as
a tribunal.
24. It ought to be added here that the Magistrate acted as a tribunal as defined in
Section 2 (j), read with Section 7, of the 2007 Act, and as such exercised power
under the said Act, which was civil in nature, and not pertaining to any
criminal jurisdiction. Hence this bench, taking up civil revisional applications
13
under Article 227 of the Constitution, has the determination to take up the
matter.
25. As regards the power of the tribunal to declare a transfer deed void, such
power can be exercised only when the transfer is 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.
26. Under normal circumstances, the deed itself is the best guide to answer the
question as to whether such a condition, as envisaged in Section 23, was
attached to the transfer. In the event the deed is clear either as to such
condition being, or not being, attached to the transfer, no extrinsic aid of
construction ought to be resorted to in order to gather the intention of the
parties.
27. However, when there is some ambiguity in the transfer deed, the intention of
the parties may very well be deduced from the surrounding circumstances. In
fact, since the preamble of the 2007 Act declares the avowed purpose of the
Act to be to provide for more effective provisions for the maintenance and
welfare of parents and senior citizens guaranteed and recognized under the
Constitution and for matters connected therewith or incidental thereto, any
14
interpretation ought to lean in favour of making the process of getting justice
simple and summary for the parents and senior citizens.
28. Since the purpose of the statute is to provide prompt and effective remedy to
a particular section of the society, being parents and senior citizens,
preponderance of probability ought to be somewhat biased in favour of the
said target group to achieve equity over equality.
29. Yet, a golden rule of quasi‐judicial proceedings of civil nature is that the scope
of adjudication is limited by the circumference of the pleadings. No evidence,
however unimpeachable, can be looked into if the same is not supported by,
or is beyond, the pleadings.
30. In the present case, the entire pleadings impugning the gift deed‐in‐question
revolve around allegations of misrepresentation and fraud, which can only be
the subject‐matter of a civil suit. However liberal an interpretation is
attributed to Section 23 of the 2007 Act, the same cannot confer jurisdiction on
a magistrate or a sub‐divisional officer to exercise the powers of a regular civil
court as envisaged in the Code of Civil Procedure, 1908, particularly when the
pre‐conditions of Section 23 of the 2007 Act are not met.
31. In the case at hand, not only is there total absence of pleadings as to the
conditions, as contemplated in Section 23, being attached to the gift‐in‐issue,
15
no evidence is borne out by the records to establish any intention of the
parties to the gift deed to attach any such condition to the gift.
32. Even the language of the impugned deed of gift itself is completely silent as to
the transfer contemplated in the gift deed being conditional upon the
transferees providing the basic amenities and/or basic physical needs of the
transferor. Previous good conduct of the transferees could be a reason for the
gift, but could not be construed as a condition of basic amenities or physical
needs being provided by the donees to the donor.
33. Another question, though not raised by the parties, is implicit in the facts of
the present case. It is, whether the opposite party no. 2, the subsequent
transferee of the property from the opposite party no. 1, can take advantage of
the provisions of Section 23 of the 2007 Act, being neither a parent nor a
senior citizen under the said Act. Since the purview of the said Act is
specifically limited to a particular weaker section of the society, the special
benefits conferred by the said statute lose their utility if such benefits are
taken advantage of by the opposite party no. 2, in view of opposite party no. 1
having relinquished her sub judice rights to the property in favour of the
opposite party no. 2. It would be unfair to extend the benefit of the 2007 Act to
the opposite party no. 2, who is neither a parent nor a senior citizen as
envisaged by the said statute.
16
34. Another aspect of the matter is that the opposite party no. 1 herself instituted
a suit previously before the civil court, thereby submitting to the jurisdiction
of the civil court. Although there cannot be any estoppel against the law, in
the present context the opposite party no. 1 is debarred by the principle of
issue estoppel from forum‐shopping, only after her previous plaint was
rejected by the civil court.
35. In any event, the scope of the present proceeding is confined by the pleadings
to the question as to whether the gift deed‐in‐question was vitiated by
misrepresentation and/or fraud, which is within the exclusive domain of the
civil court and not covered by the 2007 Act.
36. Hence the petitioners are correct in submitting that the tribunal under the
2007 Act acted without jurisdiction in passing the impugned order.
37. However, the argument of the petitioner as to the presentation of the
application under Section 4 of the 2007 Act by a legal practitioner having
vitiated the proceeding itself is a bit far‐fetched and cannot be accepted, more
so since the proceeding was conducted thereafter by the opposite party no. 1
herself. It is well‐settled that procedure is the handmaid of justice and as such
the proceeding itself could not be held to be vitiated on such a trivial
technicality.
17
38. As regards the power of the tribunal being fettered by Section 9 (2) of the 2007
Act since the opposite party no. 1 allegedly earns pension of about
Rs. 20,000/‐ per month, the said argument cannot also be accepted. This is
because Section 9 (2) circumscribes the power of the tribunal to grant
maintenance and restricts the upper limit of such grant to Rs. 10,000/‐. This
does not mean that the tribunal cannot entertain and adjudicate a claim of
maintenance under Section 4 merely because the applicant already earns more
than that amount. Such an adjudication is essentially to explore whether the
parent/senior citizen is unable to maintain herself/himself from their own
earning, sufficient to lead a normal life. The normalcy of the particular life
and the inability in the context of the applicant’s requirements befitting their
lifestyle are subject‐matters of adjudication in such a proceeding. Even if an
applicant earns more than Rs. 10,000/‐ per month, the said income could be
adjudicated to be insufficient to maintain the applicant to lead a ‘normal life’
from the perspective of the applicant and her/his lifestyle.
39. It is only the grant of maintenance by the tribunal which has been restricted to
an upper limit of Rs. 10,000/‐ per month, which ingredient is not a pre‐
condition for the maintainability of an application under Section 4 of the 2007
Act.
18
40. However, in view of the preceding discussions, the tribunal under the 2007
Act exercised jurisdiction not vested in it by law in entertaining and allowing
the application of the opposite party no. 1 under Section 4 of the 2007 Act.
41. Accordingly, C.O. No. 3988 of 2017 is allowed on contest, thereby setting
aside the impugned order.
42. It is made clear that this order will not preclude the opposite party no. 1 from
instituting a fresh suit, if otherwise maintainable, before a regular civil court
having jurisdiction, challenging the gift deed‐in‐question on the allegations as
made in the present proceeding. If such a suit is instituted, the court before
which the same is filed will decide the same in accordance with law, without
being influenced on merits by any of the observations made herein or in the
order impugned herein.
43. There will be no order as to costs.
44. Urgent certified website copies of this order, if applied for, be made available
to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )
