Biswanath Ghosh vs Bidyendu Ghosh on 4 May, 2026

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    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-

    SPONSORED

    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.
    2

    2026:CHC-AS:656

    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
    3

    2026:CHC-AS:656
    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 of

    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.”

    .

    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
    4

    2026:CHC-AS:656
    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
    5

    2026:CHC-AS:656
    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.

    6

    2026:CHC-AS:656

    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);

    v) Amar Nath Dutta vs. The State of West Bengal & Ors.

    (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);

    7

    2026:CHC-AS:656

    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
    8

    2026: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
    9

    2026: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
    10

    2026:CHC-AS:656
    of Special Leave Petition (Civil) No. 720 of 2023], the

    Supreme 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
    11

    2026:CHC-AS:656
    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
    12

    2026:CHC-AS:656
    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
    13

    2026:CHC-AS:656
    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.
    14

    2026:CHC-AS:656

    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.)



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