29.01.2025 Court No.13 Item No.6 sudipta FMA 1309 of 2018 Sumita Banerjee Vs. The State of West Bengal & Ors. Mr. Arnab Roy, Adv., Mr. Sagarmay Ghosh, Adv. ….for the Appellant Mr. Probal Kr. Mukherjee, Sr. Adv., Ms. Shebatee Datta, Adv. …..for the Respondent Nos. 6 (a) and (b) 1. The appeal arises out of the judgment and order dated 18th August, 2017 passed by a Single Bench of this Court in W.P. 14776 (W) of 2017. By the impugned order the writ petition was dismissed. 2. Challenge in the writ petition was to an order under Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act of 2007. 3. The application under Section 23 was filed by the late father of the writ petitioner/appellant. 4. The deceased father of the appellant sought cancellation of two deeds of gift both dated 7th August, 2013 of immovable property located at Hatkhola, Dayer Dhar Road, P. S. Chandannagar. 5. By the said two gift deeds, the entire property standing in the name of the petitioner’s late father, 2 was transferred in favour of the petitioner. Admittedly the petitioner is the youngest of three daughters of late Ajit Kumar Nan. 6. From the recitals to the gift deed the following transpires. (a) The eldest daughter Sujata Nan was given in marriage by the deceased father during his lifetime. She is living comfortably well with her husband. She does not need any maintenance or bequest of any property according to the deceased father. (b) The second daughter Sulata Nan was also given in marriage as per the choice of the deceased father but is divorced and was living with her father. (c) The third daughter i.e. the petitioner/appellant, married against the wishes of her father. For some period after such marriage the relations between the father and the third daughter remains strained. Since the year 2006 the appellant started visiting father regularly and taking care of him. (d) The deceased father was very happy with the third daughter’s care and concern and that she 3 would continue to take care of him in future till his death. (e) Since the father did not expend any money towards the third daughter’s marriage, he thought it fit that he should gift his property to the third daughter. 7. The gift was accepted by the appellant, knowing the actual letter and spirit as well as intention of the Donor/her father. 8. Since after the execution of the gift deeds in the year 2013 the relations between the appellant and her father started to deteriorate. 9. The father continued to live in the said house in a room. The appellant locked three rooms in the house on the ground that the deceased father and her divorced sister entered the rooms to steal foods and other items. It is also accepted by the appellant that she locked three rooms to prevent access of her father to the same and particularly out of fear that she would throw out a knitting machine that she kept thereat. 10. It is alleged by the appellant that (a) The father did not need any maintenance as he had income from the interest on his terminal benefits from his ex-employer M/s. Dunlop. 4 (b) The gift deed was not executed on the condition that the appellant would maintain her father. (c) Hence the instant case does not come within the dicta of the Supreme Court in the case of Sudesh Chhikara Vs. Ramti Devi & Anr. reported in 2022 SCC OnLine SC 1684 particularly paragraphs 11 and 12 thereof and does not satisfy the twin conditions stipulated therein. (d) The application under Section 23 was not voluntarily made by the father but at the instance of her two elder sisters. (e) The Tribunal did not follow the principle of natural justice as she was not granted an opportunity to file an affidavit to counter her father’s application or even the enquiry report relied upon by the Tribunal. 11. It is, therefore, submitted that the Single Bench has failed to notice the same and ought to have entered into the merits of the case and has summarily dismissed the writ petition erroneously. 12. This Court has carefully considered the arguments of learned counsel for the appellant and Mr. Probal Kr. 5 Mukherjee, learned Senior Advocate, appearing on behalf of the respondents. 13. The facts scenario has changed since after the appeal was filed and today when the matter is being finally heard. The senior citizen applicant before the Tribunal has died. That would by itself not have any bearing on the issues that arise for consideration for appeal. 14. A plain reading of Section 23 sub-Clause 1 would indicate that provisions of basic amenities and physical needs of the senior citizen are the essence of the said Section. Merely because the senior citizen had some income from his terminal benefits, the same would not automatically absolve the donee of a gift deed, under Section 23 from the obligations of supporting physically, financially, mentally and emotionally, the senior citizen. 15. The first arguments of learned counsel for the appellant, therefore, cannot be accepted. 16. Insofar as the second argument concerned that there was no condition precedent attached to the gift deed, this Court is unable to agree with the submissions of the learned counsel for the appellant. 6 17. The following extract from the gift deed in the Bengali vernacular duly translated is set out hereinbelow. “তাহােক আিম এ ন পয কান প সাহায কির নাই অথচ স িনাথ ভােব আমােক আমার এই বৃধ বয়েস দখা#না কিরয়া আিসেতেছ। তাহার সবা যে& আিম একপ বাঁিচয়া আিছ। স কারন তাহার উপর আমার অপিরসীম *হ ও ভালবাসা জি.য়ােছ। স আমার জীব/শা পয এই1প সবা য& আমােক কিরয়া আিসেব বিলয়া আমার 2ীর িব3াস আেছ। আমার এই জীবন সায়ে4 আমার তপশীল বিনত স5ি6র একটা সু বব2া ও আমার মেনামত উপযু9 উ6রািধকারীেক হ:ার করা ;েয়াজন বিলয়া আিম মেন কির নেচৎ আমার মৃতু র পর আমার িবেদহী আ=া শাি পাইেব না। So far I didn't help but she is selflessly taking care of me in my old age. I am alive in her care. I am alive in her care. For that reason I have developed immense affection and love for her. I have firm faith that she will take care of me like this during my lifetime. I think it necessary during my life to make a good disposition of my property and to pass it on to suitable heirs at my discretion, my departed soul would not rest in peace after my death.” 18. The aforesaid recitals of the gift deed, leave no doubt in our minds that the gift by the senior citizen, carried within a condition precedent that the third daughter would take care of the senior citizen physically, financially, mentally and all respects, and until his death. Otherwise the senior citizen would not have gifted his entire property exclusively to her. 19. In the backdrop of the above facts, this Court sees that the first condition in paragraph 11, 12 of the Sudesh Chhikara decision (supra) is fulfilled. 7 20. In the application under Section 23 before the Tribunal, the senior citizen deceased father has categorically recorded that the donee third daughter was not taking care of him in any manner whatsoever. In addition, it was alleged that the senior citizen was not being allowed to move freely in the house and physically threatened. 21. The enquiry was conducted by the SDO (another SDO) where the statements of the senior citizen as well as the appellant have been recorded. Insofar as the statements of the appellant are concerned, there is no denial of the fact that the appellant did not maintain her father. On the contrary the appellant alleged that her father was a miser and had given gifts to the two elder sisters and not to her. A donee of entire share of the senior citizen’s property cannot by any stretch of imagination call her father a miser. 22. The allegations of the senior citizen under Section 23 of the Act wholly, therefore, sustainable and have been rightly found maintainable by the SDO. The second condition at para 12 of the Sudesh Chhikara decision (supra) is also satisfied. Section 23 is therefore fully attracted in the instant case. 23. Insofar as a procedured impropriety alleged by the appellant in the proceeding before the Tribunal, this 8 Court notices from the order sheet that no prayer was made by the appellant before the Tribunal to ask for leave to file any written objection or counter to the application under Section 23. The allegations in the application of the senior citizen, therefore, remain uncontroverted. 24. There is no ground in the writ petition taken that the petitioner was deprived of any opportunity to defend the proceeding initiated by senior citizen. No such grounds are available even in the memorandum of appeal, before this Court. In the above circumstances, the order passed by the Tribunal cannot be faulted. 25. The other decisions cited by learned counsel for the appellant, namely, the case of Debashis Mukherjee Vs. Dr. Sanjib Mukherjee reported in 2018 SCC OnLine Cal 616 and the case of Amar Nath Dutta Vs. State of West Bengal reported in 2023 SCC OnLine Cal 5486 do not improve the case of the appellant. 26. For the reasons stated hereinabove, the appeal fails. FMA 1309 of 2018 shall stand dismissed. 27. There shall be no order as to costs. 9 28. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Rajasekhar Mantha, J.) (Ajay Kumar Gupta, J.)