Calcutta High Court (Appellete Side)
Biswanath Ghosh vs Bidyendu Ghosh on 4 May, 2026
2026:CHC-AS:656
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CO 3513 of 2022
Biswanath Ghosh
Vs
Bidyendu Ghosh
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.:
1. The civil revision has been preferred challenging Order No. 1
dated 20.09.2022 passed by the learned Appellate Tribunal-cum-
District 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
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
follows :
“DECISION WITH REASONS
….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.
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.
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.
In the considered view of
the undersigned it is therefore,ORDERED
That as soon as the written application of the
Appellant, Biswanath Ghosh is filed before the Officer-in-
Charge, 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.
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.
With this direction upon Appellant and the
Respondent, the instant appeal is disposed ofThe 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.”
.
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.
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
party.
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.
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.
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, Sub-
Divisional, Murshidabad, being case No. 2 of 2020.
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.
9. Being aggrieved by and dissatisfied with the order dated December
28, 2021, passed by the learned Sub-Divisional Officer, Sadar Sub-
Division, 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.
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.
12. The petitioner has relied upon the following judgments:-
i) State of Karnataka vs. Vishwabharathi House Building
Corporation Society & Ors. (2022 SCC OnLine SC 1684
para 13);
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);
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);
iv) Radhamani & Ors. vs. State of Kerala & Ors. (2015 SCC
OnLine Ker 33530, paras 6,7,8,9,10,11 & 12);
(2023 Supreme (Cal) 223 = (2023) 2 ICC 927 para 6 & 8;
vi) S. Sarojini Amma vs. Velyudhan Pillai Sreekumar (2019
11 SCC 391, paras 14, 15, 17, 18 & 19);
vii) Commissioner of Gift Tax vs. Alok Lata Sett (1989 SC
(Cal) 330 paras-8,9,18 & 19);
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);
x) Ashwin Bharat Khater & Ors. vs. Urvashi Bharat Khater
& Ors. (2023) 6 AIIMR 1, paras 24,25,27 & 30);
xi) The State of Punjab & Ors. vs. Davinder Singh (2025) 1
SCC 1, paras 107 & 108;
13. The opposite party herein has relied upon the following
judgments:-
i) Jayanta Ghosh & Ors. vs. Ajit Ghosh (2020 SCC OnLine
Cal 481, para 12;
ii) S. Vanitha vs. Deputy Commissioner, Bengaluru Urban
District & Ors. (2021) 15 SCC 730, para 22.
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 :
“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”.
Translated:-
“Deed acceptor you are my son and of great effection.
You respect me and have always taken care of me and
82026:CHC-AS:656
in future too you shall take care and look after me in the
same manner and this is my belief”.
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.
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.
17. Section 23 of the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 lays down :-
“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.
(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
92026:CHC-AS:656
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.
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)”.
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
Rahman Khan vs. The Andaman and Nicobar Administration
& Ors. held as follows:-
“10. In Urmila Dixit – versus – Sunil Sharan Dixit and Ors
reported in Civil Appeal No. 10927 of 2024 [Arising out
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of Special Leave Petition (Civil) No. 720 of 2023], theSupreme Court held that :-
“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.”.
11. In Kamalakant Mishra – versus – Additional Collector &
Ors reported in Civil Appeal No….2025 [@SLP(CIVIL) No. …D.No.
42786 of 2025], the Supreme Court held that:-
“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.”.
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.
13. In Sudesh Chhikara – versus – Ramti Devi and
Another reported in (2024) 14 Supreme Court Cases 225,
the Court held as follows :-
“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-be-
fulfilled:-
(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
(b) The transferee refuses or fails to provide
such amenities and physical needs to the
transferor.
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.
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.
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.”
19. In the present case the deed of gift executed in favour of the
opposite party herein clearly states:-
“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).
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.
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.
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.
24. Accordingly, the civil revision is disposed of on directing the
appellate tribunal being the District Magistrate, Beharampore, 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
Kamalakant Mishra (Supra).
25. Civil revision being C.O. 3513 of 2022 is thus disposed of.
26. Connected application, if any, stands disposed of.
27. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties expeditiously after due compliance.
(Shampa Dutt (Paul), J.)
