A.H. Joshi, J.

1. 1. This appeal arises out of the judgment and decree passed by the appellate Court wherein the first appellate Court dismissed the appeal confirming the decree of the trial Court where the plaintiffs suit for delivery of possession of suit land admeasuring 4 acres 13 gunthas out of Survey No. 77, was decreed.

2. 2. The plaintiff filed the suit for setting aside the alienation made by father. The findings of facts being concurrent on the point of alienation being done for legal necessity and as to the deceased father of the plaintiff not being addicted to vices and, therefore, the debts not being immoral, etc., are held in favour of the defendant concurrently.

3. The alienation was set aside only on the ground of being violative of Section 47 of the Maharashtra Co-operative Societies Act. The concurrent findings of facts as to alienation

being for legal necessity, was not challenged by the plaintiff in first appellate Court, as well consequently before this Court. The concurrent finding on the question of the alienation being illegal due to Section 47 of the Maharashtra Co-operative Societies Act, is challenged by the aggrieved defendant in the present second appeal.

3. 4. The substantial question of law which is raised is in relation to effect of Section 47 of the Maharashtra Co-operative Societies Act. The learned counsel for the appellants has placed reliance on the following four Judgments :

(i) AIR 1985 SC 694 = 1985 All.LJ. 278 (Ram Pyare v. Ram Narain and Ors.) (ii) 1994 Mh.L.J. 558 (Narayan Kisan Gade v. Machhindranath Pundalik) (iii) AIR 1997 SC 3479 = 1997 AIR SCW 3570 (Sindav Hari Rancchod v. Jadav Lalji Jaymal) (iv) AIR 2001 SC 2552 (Dhurandhar Prasad Singh v. Jai Prakash University and Ors.)

These Judgments are relied upon by the learned counsel in order to demonstrate :

.(i) That Sections 47 and 48 contained in Maharashtra Co-operative Societies Act lay down a scheme for protecting the interest of the co-operative societies and the alienor or his legal heirs are not entitled to challenge the alienation on the ground of the transaction being in violation of Section 47.

.(ii) That a transaction which is regarded void by law has to be construed for advancing the mischief sought to be remedied by the rule of law concerned, and a person voluntarily entering into a transaction ought not, later on, be permitted to rescile from his promise by taking shelter of the provisions of law denoting it to

be mandatory in nature for annulling the transaction

so entered to be void.

(iii) The distinction between (i) the transactions, decrees etc. which are "void ab initio" and those can be avoided without aid or assistance of the Court, (2) such transactions or decrees, which need to be avoided by adopting legal remedies only. The transaction of the first category is void ab initio while the transaction falling in the second category is not ipso facto or ab initio void and requires to be so declared and that transaction in question falls in later category.

5. In the contrast, the learned counsel for the respondent placed reliance on reported judgments and attempted to show that once the law denotes or declares a particular transaction to be void, is void ab initio and no further classification is permissible. The learned counsel also sought to persuade to disagree from the judgment delivered by this Court (Aurangabad Bench) (Narayans case) and prayed for matter to be placed before the Chief Justice for reference to larger bench. He cited the following judgments:

(i) 1950 Nagpur Law Journal 598 (Pratapmal Raghunath v. Laxman and Ors.) (ii) 1965 Mh.L.J. 694 (Laxmibai and Ors. v. Ramrao Mhatarji and Ors.) (iii) 7979 Mh.L.J. (SC) 283 - AIR 1979 SC 653 (Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi)

All the Judgments relied upon by Mr. Deshpande are on the question as to the transaction being void in view of violation of mandatory provisions of law. Reported judgments in 7950 Nagpur Law Journal 598 and 196