Calcutta High Court


Calcutta High Court : While deciding an application under Article 227 of the Constitution of India dealing with issue of maintenance and welfare of parents, Kesang Doma Bhutia, J. directed the daughter to allow her aged parents to reside with her in a residential flat which was gifted to her by her parents via gift deed. The Court also directed both son and daughter to pay Rs. 10,000/- per month respectively as maintenance to their parents.

Facts of the Case

The instant application was filed by the petitioner-daughter from being aggrieved by the order of cancellation of gift deed dated 10.07.2017 by the Additional District Magistrate in favor of her father.

The father of the petitioner, out of love and affection gifted the flat to petitioner before her marriage via gift deed. The father used to live with his wife and petitioner in that flat. Even after the petitioner's marriage, she along with her husband used to live with her parents in that flat. The relationship between petitioner and parents had deteriorated after the marriage of the petitioner. The petitioner had driven the parents out from the flat and they had taken shelter in the house of their married son.

The father filed an application under S. 4 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 seeking maintenance as well as for cancellation of the gift deed executed by him. The ADM after inquiry directed the cancellation of gift deed and ordered the son to pay maintenance of Rs. 5000/- per month to the parents.

Court's Observation

The Court observed that “…it has become a part of Indian society to see aged parents and aged senior citizens seeking shelter of the Courts for their social and economic safety as we see some of them driven away from their home by their own children and not being provided proper maintenance and basic necessaries. And some is taking shelter in old age home run by government or by NGOs.”

The Court placed reliance on Debashish Mukherjee v. Sanjib Mukherjee, 2018 SCC OnLine Cal 616 where it was held that gift deed for transfer of immovable property executed by the parents in favor of their children cannot be declared null & void by the Tribunal until and unless such deed contains a clause that the child in whose favor the deed is being executed is liable to maintain their parents and provide them with basic amenities then such cancellation.

The Court also observed that since the gift deed is not conditional as per S. 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, therefore order of the ADM is not maintainable.

Taking into consideration of the facts of the case, age and health conditions of the parents, the Court directed the petitioner to provide shelter to her parents in the disputed flat and restrained her from alienating the disputed flat during the life-time of her both parents. The Court further directed the petitioner to pay Rs. 10,000/- per month maintenance towards basic needs and medical expenses of her parents and also, directed the son to pay Rs. 10,000/- per month towards the maintenance of his parents.

[Piyali Tewari Dey v. Baidyanath Dey, C.O. 2059 of 2021, order dated 09.03.2022]

*Ritu Singh, Editorial Assistant has put this report together.

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