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2016 DIGILAW 1005 (CAL)

Namita Rani Marjit v. Bhakta Das Saha

2016-12-14

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This first Miscellaneous Appeal is directed against an order – Order No. 28 dated May 24, 2016 passed by the learned Civil Judge (Senior Division), at Sealdah in Title Suit No. 28 of 2013, at the instance of the defendant. 2. By the impugned order two applications filed by the respective parties were disposed of. The plaintiffs’ application for injunction for restraining the defendant from interfering with the peaceful possession of the plaintiffs in respect of the suit property was allowed by the learned trial Judge. By the said order the defendant’s application for restraining the plaintiffs from inducting any third person as the tenant in respect of the first floor flat of the suit premises was rejected by the learned trial Judge. 3. The instant appeal is directed against that part of the impugned order by which the defendant’s application for injunction was rejected by the learned trial Judge. 4. The instant appeal was admitted for hearing on November 28, 2016 under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 5. After the appeal was admitted for hearing, we, on an application for interim relief filed by the appellant, passed an interim order restraining the respondents from letting out and/or transferring and/or creating any third party interest in respect of the suit property in any portion thereof till December 20, 2016 or until further order whichever is earlier. 6. Service of notice relating to the proceeding for interim injunction has already been effected upon the plaintiffs/respondents. They are represented by their learned counsel Mr. Kali. 7. When the application for interim relief filed by the appellant was taken up for hearing today, we were invited by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are informed that all relevant documents, which are necessary for disposal of this appeal, are annexed to the application for interim relief filed by the appellant. Considering such submission made by the learned counsel appearing for the parties, we have decided to hear out the appeal on merit. 8. Let us now consider the merit of the instant appeal in the facts of the present case. 9. The parties are closely related to each other. The defendant is the youngest daughter of the plaintiffs. Admittedly, the parents, viz. 8. Let us now consider the merit of the instant appeal in the facts of the present case. 9. The parties are closely related to each other. The defendant is the youngest daughter of the plaintiffs. Admittedly, the parents, viz. the plaintiffs in the suit, executed a deed of gift bequeathing the suit property in favour of their youngest daughter, the appellant herein with an understanding that the defendant would look after the plaintiffs during their old age so long as they will remain alive. It is alleged that since the time of execution of the said deed of gift in favour of the defendant, she was not looking after the plaintiffs in compliance with her promise which she made. It is further alleged that the defendant is now trying to take forcible possession of the suit premises by ousting the plaintiffs therefrom. 10. Under such circumstances, the parents filed the present suit for cancellation of the deed of gift executed by them in favour of their daughter. Such cancellation was sought for on several grounds, including the ground of fraud and coercion which was allegedly exercised upon them while executing the said deed of gift in favour of their daughter. 11. After filing the said suit, the plaintiffs filed an application seeking temporary injunction for restraining the defendant from interfering with their peaceful possession in the suit property. The suit property is a two-storied building. The parents are staying in the ground floor of the said building. The first floor of the said premises was in occupation of the licensee. The said licensee has vacated the first floor of the said premises. Since the plaintiffs were trying to let out the said first floor flat, the defendant/daughter filed an application seeking injunction for restraining the parents from letting out the suit property to the tenant. 12. The parents contested the defendant’s said application for temporary injunction by contending, inter-alia, that since their daughter is not maintaining her parents as per the promise she made before the execution of the said deed of gift bequeathing the suit property in her favour, they have no other alternative but to maintain themselves with the rent which would be realised by them from the tenant after his induction in the first floor of the said premises. 13. 13. The learned trial Judge was pleased to allow the plaintiffs’ application for injunction and thereby the defendant was restrained from interfering with the plaintiffs’ possession in the suit property. The defendant is not aggrieved by this part of the impugned order by which the plaintiffs’ application for temporary injunction was allowed by the learned trial Judge. 14. We, thus, concentrate ourselves to consideration of the merit of the defendant’s application which was rejected by the learned trial Judge. The learned trial Judge, after considering the provision contained in section 23(1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 held that the plaintiffs have a strong prima facie case to go for trial of the suit. Section 23(1) of the said Act provides that where any senior citizen who, after the commencement of the said 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 fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the tribunal. 15. Though the defendant claims that she regularly sends money to her parents for maintaining them and some receipts showing remittance of some money to the father’s bank account by the daughter are annexed to this application for interim injunction, but we find that such remittance is very irregular. 16. We are of the view that if regularity is not maintained in remittance of such money to the old parents, it will be difficult for them to maintain themselves. At the same time, we feel that if the parents are permitted to let out any portion of the suit property during pendency of the suit and if ultimately they fail to succeed in the suit, then unnecessarily the defendant will have to accept the burden of such letting as eviction of such tenant is not only difficult but also is a time-consuming factor. 17. Thus, we feel that justice will be sub-served if the remittance of a fixed amount to the parents by their daughter at a regular interval is secured. 18. 17. Thus, we feel that justice will be sub-served if the remittance of a fixed amount to the parents by their daughter at a regular interval is secured. 18. Accordingly, we dispose of this appeal and the application by directing the defendant- appellant to send a sum of Rs. 60,000 per quarter – i.e. Rs. 20,000 per month. First of such payment for the month of December 2016, January 2017 and February 2017 shall be paid by December 31, 2016 and the subsequent payment for the next quarter shall be made by the last day of the third month – i.e. March 31, 2017 and will continue the same until disposal of the suit. 19. It is made clear that in the event such payment is made regularly by the defendant- daughter to her parents on account of their maintenance, the plaintiffs will be restrained from letting out any portion of the suit premises and/or creating any third party interest therein till disposal of the suit. 20. It is further clarified that in the event the defendant commits any default in complying with the aforesaid condition for any single period, the interim order of injunction as passed hereinabove shall stand automatically discharged and in that event the parents will be permitted to induct any tenant and/or licensee in respect of any portion of the suit premises for maintaining their livelihood with the income derived therefrom during pendency of the suit.