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2017 Supreme(Mad) 2248
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
Thulukamuthur Primary Agricultural Co-operative Society, rep. By its President, Thulukamuthur – Appellant
Vs.
T.K.Natarajan, Kizahalathottam, Thulukamuthur Post, Avinashi, Tiruppur District – Respondent
C.R.P.(PD)No.3901 of 2013
Decided on : 09-08-2017
Advocate Appeared:
For the Petitioner: Mr.J.Hariharan for Mr.V.Nicholas
For the Respondent: Mr.S.V.Jayaraman, Senior Counsel for Mr.K.Goviganesan
Headnote:
Attachment - Tamilnadu Co-operative Societies Act - Section 81, Section 87, Section 146 - The court discussed the validity of a partition deed and its impact on the attachment of properties under the Tamilnadu Co-operative Societies Act. The court highlighted the provisions of Section 53 of the Transfer of Property Act and its applicability in determining the validity of the partition deed. The court emphasized the authority of the second respondent as a Civil Court under Section 146 of the Tamilnadu Cooperative Societies Act and the legal implications of the partition deed in relation to the creditor's interest.
Fact of the Case:
The first respondent's son and the Secretary misappropriated funds of the petitioner Society. The first respondent sought to raise the attachment of properties based on a partition deed. The court analyzed the validity of the partition deed and its impact on the attachment, considering the provisions of the Tamilnadu Co-operative Societies Act and the Transfer of Property Act.
Finding of the Court:
The court found that the partition deed was entered into with the intention to defeat the interest of the creditor, making it void. The court also emphasized the authority of the second respondent as a Civil Court under the Tamilnadu Cooperative Societies Act and confirmed the orders of attachment.
Issues: Validity of the partition deed and its impact on the attachment, applicability of Section 53 of the Transfer of Property Act, and the authority of the second respondent as a Civil Court under the Tamilnadu Cooperative Societies Act.
Ratio Decidendi: The court held that the partition deed was void as it was entered into with the intention to defeat the interest of the creditor. The court also emphasized the authority of the second respondent as a Civil Court under the Tamilnadu Cooperative Societies Act, confirming the orders of attachment.
Final Decision: The civil revision petition was allowed, setting aside the order of the learned Principal District Judge and confirming the orders of attachment dated 31.08.2000 and 18.01.2000.
This Civil Revision Petition has been filed against the fair and decreetal order dated 22.02.2013, made in C.M.A.No.32 of 2012 on the file of the Principal District Judge, Tiruppur, reversing the order of the Deputy Registrar Co-operative Societies, Coimbatore in C.E.P.No.169 of 2000 dated 02.01.2009.
2. Petitioner is the second respondent, first respondent is the appellant and second respondent is the first respondent in C.M.A.No.32 of 2012, on the file of the Principal District Judge, Tiruppur.
3. Facts of the Case: The first respondent's son, N.Venkatachalam was the President of petitioner Society from 24.03.1999. He, in collusion with the Secretary, Aruljothi, misappropriated a sum of Rs.32,54,243.53/- of the petitioner Society. An enquiry was conducted under Section 81 of the Tamilnadu Co-operative Societies Act, 1983 (herein after referred to as 'the act') against the said N.Venkatachalam and Aruljothi. The properties belonging to N.Venkatachalam were attached before the order of Circle Deputy Registrar by orders No.169 of 2000Sa.Pa3 dated 31.08.2000 and 18.01.2000. The first respondent filed petition Ni.Ma.169 of 2000Sa.Pa3 before the second respondent for raising the attachment dated 31.08.2000 in respect of an extent of 15.25 acres, on the ground that the said lands are allotted to his share in the partition effected on 21.07.2000 between himself and his sons, N.Venkatachalam, N.Palanisamy and T.N.Sanjay. The second respondent dismissed the said petition, on the ground that the enquiry under Section 87 of the Act is pending and the claim of the first respondent can be considered only after the orders being passed in the said proceedings.
4. The first respondent filed C.M.A.No.116 of 2001 on the file of the District Judge, Thiruppur (Co-operative Tribunal). By the order dated 03.08.2007, the learned District Judge, set aside the order of the second respondent and remanded the matter to the second respondent to consider and pass orders on merits.
5. On remand, the first respondent submitted that:
(i) The property in question was allotted to him by his father. After the demise of his father, by the partition deed dated 21.07.2000 registered as document No.3102 of 2000, all the properties were partitioned among himself and his sons N.Venkatacalam, N.Palanisamy and T.N.Sanjay. The property measuring 15.25 cents was allotted to him. The partition was effected before order of attachment. After partition, the property belonging to first respondent cannot be attached. After partition, each person is in possession and enjoyment of their respective shares. The first respondent is not a member of the Society. Enquiry under Section 81 of the Act was not conducted against the first respondent. Without any surcharge proceedings against the first respondent, attachment under Section 167 of the Tamilnadu Co-operative Societies Act, 1983 cannot be effected. The Secretary of the Society admitted the misappropriation and agreed to pay the amounts to the Society.
(ii) The petitioner opposed the petition of the first respondent on the ground that the first respondent was President of petitioner Society during the period, 1967-1977. For the misdeeds of the first respondent, by the order dated 28.05.1977, bearing No.Na.Ka.14707 of 77B4, the Joint Registrar Cooperative Societies, Coimbatore Circle permanently disqualified the first respondent. This Court, by the order passed in W.P.No.5773 of 1997, confirmed the same.
(iii) Enquiry under Section 81 of the Act and surcharge proceedings under Section 87 of the Act were initiated against the first respondent's son, N.Venkatachalam and the Secretary Aruljothi for their misappropriation of funds of the Society. The first respondent and his sons, in order to avoid attachment, hastily effected partition and the same is not binding on the petitioner. The Secretary, President and first respondent misappropriated the funds and knowing the steps taken by the petitioner Society, the first respondent and
