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Judgment
Subhasis Dasgupta, J
The impugned order No. 4 dated 11.05.2018, passed by the District Magistrate, Nadia in connection with case No. 02 of 2017/2018 being the Presiding Officer of Appellate Tribunal under Section 16 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, affirming the order dated 03.07.2017, passed by the learned Sub-Divisional Magistrate, Tehatta, Nadia, being the learned Tribunal Judge in canceling the gift deeds, being numbered as I-06932/2008 and I-05933/2010 in Maintenance Case No. 005 of 2016 after causing modification of maintenance amount from Rs. 3500/- per month to Rs. 2000/- per month to the mother, is the subject of challenge in this Revisional Application under Article 227 of the Constitution of India.
Admittedly, mother/opposite party No. 1 made an application for maintenance, dated 31.08.2016 before the Maintenance Tribunal at Tehatta, in connection with case No. 005 of 2016, furnishing some information, shown in Form. No. A of Rule 4(1) of West Bengal Maintenance and Welfare of Parents and Senior Citizens Rules, 2008. In such petition for maintenance allowance being a senior citizen, the mother alleged against her son describing son/petitioner to have inflicted torture, cruelty, both verbally and physically upon her and also abused her putting the mother in a state of extreme oppression after causing violence on repeated occasions. The petitioner/son was further alleged to have refused to provide basic amenities and basic physical needs of senior citizen mother in violation of the condition of deed of gifts, allegedly cancelled by Appellate Tribunal in this case. The Tribunal on the basis of the enquiry report believed the case of the senior citizen mother being a victim of oppression, caused by her own son/petitioner, and granted maintenance at the rate of Rs. 3500/- per month in order to ensure a modest living to senior citizen mother. Since the son/petitioner expressed no remorseful words towards causing ill-treatment to his mother, the Tribunal proceeded to make application of the provision of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in order to cancel the deeds, said to have been transferred by mother in favour of son, the reference of which was shown in the application for maintenance itself. By impugned order dated 11th May, 2018, District Magistrate, Nadia, in connection with case No. 2 of 2017/2018, being the Presiding Officer of the Appellate Tribunal while affirming the order of the Tribunal not only cancelled the gift deeds being Nos. I-06932/2008 and I-05933/2010, but also reduced the maintenance amount to Rs. 2000/- per month from Rs. 3500/- per month to senior citizen mother in modification of the amount of maintenance to mother.
Learned advocate for the petitioner argued that the District Magistrate, Nadia, being the Presiding Officer of the Appellate Tribunal, improperly exercised his authority/power while making cancellation of two gift deeds. Adverting to Serial No. 10 of the application dated 31.08.2016, with reference to Form No. A under Rule 4(1) of West Bengal Maintenance and Welfare of Parents & Senior Citizens Rules, 2008 filed by the senior citizen mother before the Maintenance Tribunal at Tehatta, learned advocate for the petitioner submitted that the deed of gift, sought to be cancelled, was executed long before the five years prior to the date of filing the instant application. Learned advocate for the petitioner further submitted that the deed allegedly made within five years before the date of tendering the maintenance application, could be cancelled in view of the deeming provisions, engrafted in Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, subject to the option being exercised by the transferor mother, but in the instant case, no conspicuous and manifest option being exercised by the transferor mother, the deed of gift could not be cancelled.
Learned advocate for the opposite party No. 1/mother refuting the submission raised by the petitioner submitted that the Appellate Tribunal committed no illegality while making cancellation of the deed of gift in a case, where admittedly the petitioner son failed to express his repentance, penitence, contrition, compunction for the ill-treatment caused to his mother. It was proposed by the learned advocate for the opposite party/mother that the deed of gift transferred by the mother was conditioned that the son would provide basic amenities and basic physical needs to the mother, and when son being transferee, deliberately refused to provide such amenities and basic physical needs to his senior citizen mother, the deeds already transferred in favour of the son were rightly cancelled upon consideration of deeming provision of the law, mentioned in Section 23 of Senior Citizens Act, 2007. According to O.P./mother, failure to provide basic amenities and basic physical needs to the mother deliberately by the son in violation of the condition of transfer would tantamount to the commission of fraud, coercion, and undue influence in getting two deeds prepared in the name of son by the senior citizen mother, and the Appellate Tribunal upon due consideration of the factual matrix together with Enquiry report received, duly cancelled the transfers being deeds of gift. It was also submitted by the learned advocate for the O.P./mother that a separate petition furnishing valuable information pertaining to the text under reference requiring decisions from this court, mentioned against Serial No. 14 of claim application, was purposefully suppressed by petitioner to serve his ill-designed purpose. Learned advocate fore the opposite party producing copy of such petition, annexed with claim application, further argued that such petition sufficiently contained materials in exercise of right of option for cancellation of deed of gifts, and such information furnished by mother would be sufficient enough to construe that the mother appropriately exercised her option to cancel the deeds being dejected with the behaviour of her son together with the treatment, she received from her son.
At the very threshold of this case, learned advocate for the petitioner candidly submitted that he would not dispute the maintenance granted by the Appellate Tribunal. In this case, the Tribunal granted maintenance at the rate of Rs. 3500/- per month to opposite party/mother. The Appellate Tribunal having considered the order passed by the learned ACJM, Tehatta, in connection with M.R. Case No. 10 (IV) of 2017, under Section 23 of the Protection of Women from Domestic Violence Act, 2005, ordering maintenance at the rate of Rs. 1500/- per month, reduced the quantum maintenance amount from Rs. 3500/- per month to Rs. 2000/- per month for the senior citizen mother. This part of the impugned order, however, went unchallenged in this case.
In course of hearing before the Tribunal, the petitioner/son expressed his willingness to provide shelter to his mother, what was alleged to have been denied by son to his senior citizen mother.
Admittedly, there are two houses, of which the petitioner/son was in possession of one portion and the other portion was under lock and key. Though the petitioner/son expressed his conscious willingness to provide shelter to his mother, but the senior citizen mother refused to stay with his erring son apprehending further commission of ill-treatment and violence upon her, and as such, being highly apprehensive of further commission of violence upon her, she expressed her unwillingness to stay with her son/petitioner. Upon consideration of the enquiry report, the Tribunal, however, believed the case of senior citizen mother alleging to have received torture, negligence, cruelty, violence, oppression in the hands of her son apart from denying her shelter, and granted maintenance to mother and further proceeded to cancel the gift deeds, for having made violation of the condition of transfer by refusing to provide amenities and basic physical needs to mother by son.
The seminal point required to be addressed by this court is whether the deed of gifts, admittedly executed by the opposite party/mother in favour of son/petitioner, was rightly cancelled in application of the provision of Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 or not. Before addressing the issue, relevant provisions governing the field may be mentioned as hereunder, which is shown in Section 23 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Transfer of property to be void in certain circumstance.-
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 fail 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.
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.
If, any senior citizen is incapable of enforcing the rights under sub-section (1) and (2), action may be taken on his behalf by any of the organization referred to in Explanation to sub-section (1) of Section 5.
There are ingredients specifically mentioned in Section 23 of the Act, which would have to be necessarily fulfilled before making cancellation of the deeds, describing the same to have been made five years before the date of tendering application for maintenance by the senior citizen mother. The ingredients shown in Section 23 of Act may be mentioned as follows:
There must be a transfer by deed of gift or otherwise, and such transfer made by applicant claiming maintenance has to be made effective five years prior to the date of filing the claim application, and obviously after the commencement of the Act.,
The transfer must be conditioned that the transferee shall provide the basic amenities and basic physical needs to the transferor,
The transferee refuses or fails to provide such amenities and physical needs to the transferor committing breach of the condition of transfer. Upon fulfillment of such grounds, mentioned hereinabove, the transfer, if any effected within the qualifying period, shall be deemed to have been made by fraud, coercion or undue influence, and the transfer shall at the option of the transferor to be declared void by the Tribunal. The presence of the word "and" followed by the words at the option of the transferor be declared void by the Tribunal would necessarily construe to mean that legislature intended to put a last check upon the transferor, keeping in view the relationship of parties to the transfer, providing transferor ultimate discretion to exercise for the last time before urging for cancellation of transfer, and in that view of the matter to uphold the legislative intendment behind the instant legislation, the word "and" appearing at the last part of Section 23 (1) of the Act, 2007 has to be read conjunctively. The fulfillment of the ingredients, mentioned above alone, will not give rise jurisdiction to the decision making body, shown in the Act of 2007 itself, for recording an order making cancellation of deed of gifts, unless the option is exercised by the transfer expressly, what is exactly contemplated in the Act itself.
Learned advocate for the petitioner persuaded this court to believe that unless fraud or coercion or under influence, shown in Section 23 of the Act, 2007 is proved, the transfer could not be declared to be void. This argument raised, appears to be contrary to the provisions of law, mentioned in Section 23 of Act, 2007, wherein it is specifically mentioned that upon fulfillment of grounds, discussed herein above, the transfer, if any effected within the mischief period, as provided in Form 'A' of claim application under Sub-Rule (1) of Rule 4 of West Bengal Maintenance and Welfare of Parents and Senior Citizens Rules, 2008, shall be deemed to be void by fraud, coercion or undue influence subject to the option being exercised by transferor expressly. Thus by operation of deeming clause, the transfer shall be treated to be cancelled, where independent proof of coercion or fraud or under influence is not necessary.
Here in this case, there left nothing to reveal that the senior citizen mother duly exercised her option to cancel the deed of gifts in express terms, though she preferred to stay away from her son apprehending further commission of violence upon her by her son. A copy of document said to be enclosed with Sl. No. 14 of claim application furnishing valuable in formation supportive of exercising option for cancellation of deeds, was brought to the attention of court by learned advocate for O.P, wherein there was a prayer for cancellation of transfer already effected by transferor mother, but there was no specific averment in such petition in demonstration of clear, explicit and free option being exercised by mother/petitioner for cancellation of deeds, without which, the prayer alone would not be sufficient to meet the requirement of law. The option being not lawfully exercised by transferor the cancellation of deeds cannot be said to be according to law. Mere prayer in the absence of specific pleadings in the form of an averment supported by document, if any, will not be strong enough, indicative of exercising the option in tune with legislative intent, expressly shown in Section 23 of Act of 2007, itself. Therefore, required option has to be exercised by transferor in an explicit and unambiguous terms, not qualified by anything, revealing the true intention of transferor, proposing for cancellation of transfer, already effected, which, however, can not be inferred even by necessary implication. Since Maintenance and Welfare of Parents and Senior Citizens Act, 2007 contains special provision for cancellation of registered gift deed or any alike transfer, proof of ingredients alone would not make the gift deed cancelled, unless option of the transferor of gift deed is strictly established, which appears to of immense potentiality, so far as cancellation of transfer is concerned.
Upon perusal of the order, it appears that this aspect could not be taken care of by the Appellate Tribunal, while making cancellation of deeds of gift. In the absence of any option being appropriately exercised by the transferor mother in proof of the requirement of law as shown in Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the cancellation of deed, finds no sanction of law.
Another question begging answer from this court is whether deed No. I-06932/2008 and deed No. I-05933/2010 would hit by the mischief period, shown in Sl. No. 10 of the claim application vide Form-'A' under Sub-Rule 1 of Rule 4 of West Bengal Maintenance and Welfare of Parents and Senior Citizen Rules, 2008, or not. According to Rule 4(1) of West Bengal Maintenance and Welfare of Parents and Senior Citizen Rules, 2008, the application for maintenance under Section 5 of the Act shall be filed before the Tribunal in Form- 'A'. Sl No. 10 of such claim application vide Form- 'A' has succinctly made it clear that the person claiming maintenance has to mention the details of transfer of any property, both movable and immovable made by the applicant five years prior to the date of filing this application. Without any controversy the claim application by the transferor was made on 31.08.2016 meaning thereby the transfer effected within 31.08.2011 was supposed to come within the mischief period for invoking the jurisdiction of Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007. Since both the deeds, mentioned in Clause 10 of the claim application, were relatable to 2008 and 2010, not relatable to 2011, the above deeds (gift deeds) obviously stood beyond the scope of application of mischief period, shown specifically in Clause 10 of the claim application.
Learned advocate for the opposite party though argued that the mischief period of five years, as shown in Clause 10 of the claim application, regarding the properties transferred by the applicant 05 years prior to filling the claim application, had no sanction of law, as per provisions of law incorporated in Act of 2007, but when there has been conspicuous mention regarding which transfers to come under the rigour of Section 23 of the Act and thereby providing transfers, made effective 05 years prior to filling claim application, only to come under the mischief of Act leaving other transfer to remain unaffected, the same would be prevailed over treating Clause 10 of Form 'A' to be sufficiently backed by the sanction of law for having essence of law. As such the deed of gifts pertaining to the year 2008 and 2010 would be construed to be beyond the scope of application of Clause 10 of Form 'A' so as to become cancelled in application of provisions of Section 23 of Act of 2007.
The impugned order of the Appellate Tribunal, dated 11.05.2018 passed by District Magistrate, Nadia, in connection with case No. 2 of 2017/2018, making cancellation of deeds is as such not sustainable and can not go unaltered.
The impugned order is thus set aside.
Consequently, further direction given by the Appellate Tribunal asking the Additional District Sub-Registrar , Tehatta, Nadia to take steps for cancellation of two gift deeds, is also set aside.
The Revisional Application succeeds for the discussions made hereinabove.
Petitioner is directed to make communication of this order to the Appellate Tribunal as well as to the Office of Additional District Sub-Registrar, Tehatta, within fifteen (15) days from the date of this order.
Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.