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CALCUTTA HIGH COURT
Indra Prasanna Mukerji, J.
AUDREY CHRISTINNE BHATTACHARYYA - Petitioner
Versus
THE STATE OF WEST BENGAL & ORS. – Respondents
W.P. No. 4134 (W) of 2015
Decided On : 05-01-2016
Co-operative Society - Foreign National Ownership - The court held that a foreign national can be a member of a Co-operative Society and own property in India through testate succession, and that remarriage does not divest a woman of her property rights.
Fact of the Case:
Indumati Bhattacharyya, a Hindu woman and member of a Co-operative Society, passed away intestate. Her son succeeded to her properties, including a flat in the building owned by the Society. Upon his death, his British wife, now settled in New Zealand, became the executor and legatee under his will.
Finding of the Court:
The court found that the petitioner, as the legatee of her husband's will, was entitled to membership in the Co-operative Society and ownership of the flat, as there is no law preventing testate succession by a foreigner and no provision in Indian law to divest property from a woman upon remarriage.
Issues: The issues revolved around whether a foreign national could be a member of the Co-operative Society and own property in India, and whether remarriage would affect the petitioner's rights to the property.
Ratio Decidendi: The court relied on the Indian Succession Act, 1925, and Section 92(3) of the West Bengal Co-operative Societies Act, 2006 to establish the rights of the petitioner as the legatee of her husband's will and to affirm the heritability of immovable property, including the flat in question.
Final Decision: The court held that the petitioner was entitled to membership in the Co-operative Society and ownership of the flat as the legatee of her husband's will, subject to any formalities required for her to obtain membership as a foreign national.
The Judgment of the Court was as follows :
Indumati Bhattacharyya was a Hindu woman. She was a member of the Vidyasagar Samabaya Abasan Samity Ltd. a "Co-operative Society under the West Bengal Co-operative Societies Act, 2006. Being such a member, she was allowed to own a unit/flat (No. N-3) in the building owned by the Co-operative Society.
2. It appears that her only legal heir and representative was her son Dr. Amitabha Bhattacharyya.
3. He was married to the petitioner a British subject but now settled in New Zealand. The son arid the daughter-in-law resided in the United Kingdom. They had no children.
4. Indumati Bhattacharyya died intestate on 24th April, 1990. Upon her death, Dr. Amitabha Bhattacharyya succeeded on intestacy to all her properties, including the Said flat N-3. Dr. Bhattacharyya became a member of the Co-operative Society. He died testate on 23rd January, 2003, leaving behind the petitioner as the executor and legatee under his last Will and Testament. She obtained probate thereof.
5. Subsequently the petitioner remarried and has settled in New Zealand.
6. The question which is troubling the Co-operative Society and the Urban Development Department, Government of West Bengal is whether by virtue of her foreign nationality the petitioner can be a member of the Society and the owner of the said flat and if so, whether after remarriage the petitioner was divested of the above right?
7. In my opinion, on the death of Dr. Bhattacharyya the legal ownership of the flat in question and the right to become a member of the Co-operative Society vested in the petitioner, first as executor and thereafter as the legatee. There is nothing in any law, modifying the Indian Succession Act, 1925, so as to prevent testate succession by a foreigner.
8. In fact Section 92(3) of the West Bengal Co-operative Societies Act, 2006 declares that an "apartment" is a "heritable immovable property".
9. Having become the absolute owner of the property, there is nothing in our law, which divests property from a woman upon her remarriage.
10. Therefore, I dispose of this writ application by holding that the writ petitioner is entitled to membership in the said Co-operative Society and to the ownership and possession of flat N-3 as the legatee of her husband’s Will, subject to any formalities that she has to observe as a foreign national to be able to get membership of the Co-operative Society.
11. The Co-operative Society will dispose of the application of the petitioner for membership on the basis of this order within eight weeks of communication of this order.
12. All the papers are before this Court.
13. Affidavits were not invited. The allegations contained in the petition are deemed not to have been admitted.
14. This writ application is, accordingly, dispose of.
15. Urgent certified photo copy of this order, if applied for, be given to the learned Advocates for the parties upon compliance of all requisite formalities.
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