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1988 Supreme(Cal) 415
High Court Of Calcutta
Mahitosh Majumdar
SUJATA MAITRA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. 2734 Of 1978
Decided On : 11/24/1988
ASHOK LAHIRY, BIREN CHANDRA CHAKRABVARTY, K.D.MUKHARJI, PRODYUT KUMAR NANDY
The nominee of a deceased member of a co-operative society cannot claim the right to the disputed property over the legal heir. The nominee's right is limited to the shares and interest in the society left by the deceased member.
Headnote:
CO-OPERATIVE SOCIETY - SUCCESSION - NOMINATION - NOMINEE'S RIGHT TO PROPERTY - INTERPRETATION OF SECTIONS 69, 70 AND 72 OF THE WEST BENGAL CO-OPERATIVE SOCIETIES ACT, 1973 - NOMINATION CANNOT DEFEAT THE RIGHT OF HEIRS - NOMINEE CANNOT BE TREATED AS EQUAL OR EQUIVALENT TO HEIRS - SECTION 70 OF THE ACT DOES NOT DEAL WITH THE RIGHT TO THE SUITE OR THE PROPERTY - NOMINATION CANNOT AFFECT THE SUBSTANTIVE RIGHT.
Fact of the Case:
The petitioner, widow of Tapan Maitra, challenged the appellate order upholding the arbitrator's decision that the nominee of the deceased, Respondent No. 3, was entitled to the disputed Suite No. 22, Unit No. 1, instead of the petitioner, the legal heir. The petitioner claimed that upon the death of Maitra, the suite devolved upon her as the heiress under the law of succession and not to the nominee.
Finding of the Court:
The Court held that the Tribunal erred in misconstruing Sections 69, 70, and 72 of the West Bengal Co-operative Societies Act, 1973. The Court found that Section 70 of the Act cannot be construed as a third-party mode of succession provided by the statute and cannot defeat the provisions of the Hindu Succession Act. The Court held that the nominee cannot be treated as equal or equivalent to the heirs, and that the nomination cannot affect the substantive right.
Issues: 1. Whether the nominee of the deceased member of a co-operative society is entitled to the disputed property over the legal heir. 2. Interpretation of Sections 69, 70, and 72 of the West Bengal Co-operative Societies Act, 1973.
Ratio Decidendi: 1. The Court held that the nominee's right to the property is limited to the shares and interest in the society left by the deceased member. The nominee cannot claim the right to the disputed suite or property, which is governed by the law of succession. 2. The Court interpreted Sections 69, 70, and 72 of the West Bengal Co-operative Societies Act, 1973, and held that Section 70 does not deal with the right to the suite or the property. The Court further held that nomination cannot affect the substantive right of the legal heir to the property.
Final Decision: The Court set aside the impugned judgment of the Tribunal and directed Respondent No. 2 to act on the basis of the award made by the Arbitrator. The petitioner was declared entitled to the disputed Suite No. 22 left by the deceased member. The petitioner was directed to make payment of Rs. 1,00,000/- to Respondent No. 3 towards repairing charges, maintenance charges, and Corporation taxes incurred by him during the years.
( 1 ) THE writ petitioner impugned the appellate order arising of the award in Dispute Case No. 24/calcutta of 1975-76 passed by D. K. Sanyal, Arbitrator appointed ander Section 86 of Beagal co-operative Societies Act, 1973 for short (the said Act hereinafter) passed in appeal No. 29 of 1976 dated December 21, 1976 by Sri S. K. Chatterjee, judge, West Bengal Co-operative Tribunal.
( 2 ) LATE Tapan Maitra (for short the said Maitra hereinafter), was a member of Surendra Nath Co-operative Housing Society Limited having its office at No. 238, Manicktolla Main Road, Calcutta. The Writ petitioner is the widow of the said Maitra who was allotted Suite No. 22, unit No. 1, by the Managing Committee of the said Society on condition that the total price would be paid by instalments, in August, 1965. Total price of the suite was Rs. 23,000/- out of which the said Maitra paid Rs. 16, 923. 32 during his lifetime and died on April 15, 1974. Ranjan Kumar Maitra, respondent No. 3 was nominated by the said deceased. The said nomination in favour of Respondent No. 3 was made by the said Maitra before his marriage.
( 3 ) THE language of nomination is reproduced below :"i also wish to nominate and do hereby nominate my relation name, sri Ranjan Kumar Maitra, address : 78, Ashokegarh East, Calcutta-35, age 26 to whom the value of the shares I may be permitted to hold and the profit which may accrue thereon, as also any sum, or sums payable to me, on any account should be paid ia the event of my death. "
( 4 ) ON April 15, 1974 the said Maitra died leaving the petitioner as his widow as well as a widowed mother. Consequent upon the death of the said maitra the petitioner along with widow mother-in-law under the provisions of the law of succession became the heirs, successors and legal represen-tatives of the said Maitra. The allotment of the said Suite No. 22, unit no. 1 lying at No. 238, Manicktolla Main Road, Calcutta is for 99 years and in terms of the said agreement entered into between the said Maitra and respondent No. 2. The petitioner after her marriage resided in the said disputed suite and kept all her belongings, furnitures etc. and the same are still lying there. Just after seven days of the death of the Said Maitra, Respondent No. 3 made an application to Respondent No. 2 for transferring the shares as well as the flat in his favour.
( 5 ) ON May 17, 1974 the petitioner also presented an application before the Respondent No. 2 for transferring the flat only to her as heirness of the said Maitra, Sometime, in June, 1974 the petitioner was compelled; to leave, the said suite by reason, of the ill-treatment meted, out to her by Respondent no. 3 and was, further, compelled to stay at her father's place at, No. 9, panchanantolla Lane, Calcutta. Respondent No. 2 duly received the claims and counter-claims, from Respondent No. 3 as also from the petitioner and thereafter Respondent No. 3 transmitted all the relevant papers and records as also claims and counter-claims to the Joint Registrar Co-operative societies (Law), West Bengal and the Joint Registrar obtained opinion from sri B. C. Chakraborty, the learned Advocate, in the matter of transfer of the disputed Suite No. 22, unit No. 1 in the name of the said deceased.
( 6 ) B. C, Chakraborty duly, gave his opinion. The said opinion, is quoted belows"i have examined all the papers available in this file and the relevant law in connection with the question raised before me. So far I understand from the relevant papers the question raised before me is whether the wife of the Late Tapan Maitra will be the owner of Suite No 22 of premises No. 238, Manicktolla Main road, Calcutta or the nominee of the deceased will be the owner of the said flat. In this connection, I have carefully examined the letter dated 24-4-65 addressed to the Chairman, Surendra nath Co-operative Housing Society Limited by the deceased T. Maitra wherein, the deceased clearly expressed his intention
