Payel Sinha vs Ratna Biswas Sinha

Sabyasachi Bhattacharyya, J

Two revisional applications are taken up together for hearing due to identity of causes of action.

In both the revisional applications, the daughter has challenged the orders, whereby the mother was substituted in place of the donor-father as a petitioner in an application under Section 23 of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, and thereafter the Sub-divisional Officer proceeded to allow such application under Section 23 of the 2007 Act ex parte without issuance of any further notice on the present petitioner, despite the previous abatement having been recalled behind the back of the petitioner.

Learned counsel for the petitioner in both the matters argues that the mother has no locus standi to carry on with the proceeding under Section 23 of the 2007 Act in view of sub-section (1) of Section 23 contemplating only the transferor to be an applicant therein.

Moreover, it is argued that the abatement could not be recalled ex parte and the proceeding could not be continued behind the back of the petitioner without further notice to the petitioner.

It is also argued that the intention was mala fide on the part of the original applicant, in taking out the proceeding in the forum below, inasmuch as notice was served on the petitioner, who is a married daughter, at the address of the original applicant himself.

Learned counsel for the opposite party, on the other hand, argues that Section 23 of the 2007 Act takes within its broader fold the mother as well, in view of certain amenities and basic facilities having been provided for the mother as well, in the gift deed-in-question.

It is argued that since the mother-opposite party is also a senior citizen and there was a provision in the gift deed itself for extending basic amenities and looking after the physical needs of the mother as well as the transferor-father, the mother ought also to be permitted to have continued with the application under Section 23, in view of the rights having accrued in favour of the mother.

Learned counsel for the opposite party also places reliance on Section 23(2) of the 2007 Act to highlight that the maintenance rights to the mother from the property-in-question could not be denied.

However, learned counsel for the opposite party, in his usual fairness, concedes that the proceeding ought not to have continued ex parte after the abatement was recalled and the present opposite party was substituted as applicant in the forum below.

A perusal of Section 23 of the 2007 Act, on the face of it, shows that sub-section (1) of the said section contemplates only an application by a transferor himself/herself and not a successor of such transferor. The said provision contemplates that a senior citizen, who 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.

Therefore, despite the fact that the mother, who was substituted, might also be a senior citizen, sub-section (1) of Section 23 ties up the incidents of the said provision to a transferor, both as regards institution of the proceeding and as regards the amenities and physical needs, which are provided in the deed to be catered, but refused to be catered by the transferee, to entitle a declaration that the deed of transfer is void.

In such view of the matter, the substitution of the mother and the impugned orders at the behest of the mother, despite she not being the transferor, were bad in law.

However, needless to mention, since apparently certain rights of maintenance were provided to the mother in the deeds of gift-in-question, she has a prima facie right to maintain an application for maintenance under Section 23(2) of the 2007 Act. However, such proceeding has to be independently instituted by the mother-opposite party and cannot form a continuance of the instant proceeding, which was distinct and different in nature, being under sub-section (1) of Section 23 of the 2007 Act, for declaring the gift deeds void.

Accordingly, C. O. No. 420 of 2019 and C.O. No. 421 of 2019 are allowed, thereby setting aside the orders impugned therein.

However, the present opposite party is granted liberty to institute appropriate proceeding(s) under Section 23(2) of the Maintenance and Welfare of Parents and Senior Citizen Act, 2007, if she intends to do so, against the petitioner. If such an application is initiated, the Sub-divisional Officer-in-question shall dispose of the same, upon giving hearing to both sides and upon consideration of the materials on record, in accordance with law, without being unduly influenced in any manner by the observations made herein or in the orders impugned herein.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.