Calcutta High Court
Sri Abinash Chandra Chakraborty vs The State Of West Bengal And Ors. on 13 September, 1991
Equivalent citations: (1992)1CALLT423(HC)
JUDGMENT Nirendra Krishna Mitra, J.
1. In short, the facts of the case inter alia, are, that one Sri Ranendra Kr. Acharya, was a member of the Manicktola Co-operative Housing Society, and he was allowed Flat No. K-82 in the housing complex of the said Society, upon full payment of his contribution towards the cost of construction of the said flat, and get possession of the same. At first, Sri Acharya had made his mother Smt. Sushila Devi as his nominee in respect of his share and interest in the said Co-operative Society, but subsequently in 1974, he changed his nominee, and the writ petitioner was made his new nominee, which was approved by the Co-operative Society at its meeting dated 21st September, 1974, and the writ petitioner's name was recorded as the nominee of the said Sri Acharya in place of his mother. The said Sri Acharya died on September 14, 1975, and the writ petitioner made an application to the said Co-operative Society for admitting him as a member of the said Society, in place of the said deceased member, as his nominee, and the Society by its resolution dated January 10, 1976, admitted the writ petitioner as a member of the said Society. Subsequently, on or about January 24, 1976, when the writ petitioner went to take possession of the flat of the deceased member, in respect of which, he was made a nominee, as on the death of the said member, the said flat stood transferred in his favour as per the Co-operative Societies Act, 1973, he found one Smt. Suruchi Bala Bhattacharya, since deceased, and her family were in occupation of the said flat on the alleged claim that they were the heirs of the said Sri Ranendra Kumar Acharya. The writ petitioner then filed a dispute case before the Assistant Registrar of Co-operative Societies, Calcutta being case No. 39/CaI/1975-76 claiming inter alia, that the Society must make over vacant possession of the disputed flat to the writ petitioner being the nominee of the deceased member of the Society. As a counter-blast, Smt. Suruchi Bala Bhattacharya also filed another dispute case being No. 40/Cal/1975-76 before the same authority alleging inter alia, that the resolution of the Society dated 10th January, 1976 as referred to above, was illegal and void and further alleged that the nomination in favour of the writ petitioner was subsequently changed by the deceased member himself before his death. Prior to the aforesaid two disputed cases, the said Smt. Suruchi Bala Bhattacharya also filed another dispute case being No. 34/Cal/1975-76 before the Assistant Registrar of Co-operative Societies, Calcutta challenging inter alia the transfer of the disputed flat in favour of the writ petitioner by the Society. The dispute case No. 39/Cal/1975-76 as filed by the writ petitioner, however, was ultimately dismissed, against which an appeal, being Appeal No. 76 of 1982 was preferred by the writ petitioner before the West Bengal Co-operative Tribunal, and the Tribunal by its judgment and order dated 26th April, 1983, allowed the said appeal in part and remanded the matter for re-hearing by the Assistant Registrar, holding inter alia, that the arbitrator was wrong in holding the preliminary point against the writ petitioner that he was not entitled to get possession of the disputed flat.
2. Against the said judgment and order passed by the Appellate Tribunal, the heirs of the said Smt. Suruchi Bala Bhattacharya, who had died in the meantime, namely, the respondent Nos. 4 to 11 in the present Civil Order, moved a writ application in this Hon'ble Court and obtained a Rule, being C. R. No. 9412(W) of 1983, in which an interim order was passed. The Hon'ble Mr. Justice G.N. Ray (as His Lordship then was), on 23rd September, 1983, while dealing with the application for extension of the interim order directed the respondent No. 3 herein to dispose of the aforesaid two other pending dispute case being Case Nos. 34/Cal and 40/Cal preferably within December, 1983 as, according to His Lordship, it was essentially necessary to decide first, as to whether or not a valid nomination under Section 69 of the West Bengal Co-operative Societies Act, 1973 had been made by the deceased member of the Society, Sri Ranendra Kumar Acharya, in favour of the writ petitioner. Subsequently, the said two dispute cases were disposed of by the respondent No. 3 by his judgment and award dated November 5, 1984 holding inter alia, that the nomination in favour of the writ petitioner as made by the deceased member Sri Ranendra Kumar Acharya, was valid and binding, but the writ petitioner was not entitled to get possession of the disputed flat. Against the said judgment and award, the writ petitioner and the respondent Nos. 4 to 11 had filed four separate appeals being Appeal Nos. 54 of 1984, 1, 58 and 59 of 1985 before the West Bengal Co-operative Tribunal, and all the said appeals were analogously disposed of by the said Tribunal by a single judgment and order dated July 25, 1985 dismissing the appeal Nos. 58 and 59 of 1985, but allowing the appeal Nos. 54 of 1984 and 1 of 1985 holding inter alia, as follows :-
"In this view of the matter, Appeal Nos. 58 and 59 of 1984 fail and Appeal Nos. 54 of 1984 and 1 of 1985 succeed. Accordingly, Appeal Nos. 58 and 59 of 1984 are dismissed on contest affirming decision of learned Arbitrator about validity of nomination and membership of the nominee. Appeal Nos. 54 of 1984 and 1 of 1985 are allowed on contest. Decision of learned Arbitrator that the flat shall go to the heirs is set aside, keeping it open to parties to have their respective claim on question of title decided, if so advised, in proper proceedings before a proper forum."
3. Against the said judgment and order of the tribunal, the writ petitioner has moved a writ application in this Hon'ble Court and obtained the present Civil Order.
4. It is submitted by Mr. Ghosh, learned Counsel for the writ petitioner that as per the provisions of Section 69 of the West Bengal Co-operative Societies Act, 1973, any member of the Society may, in accordance with the rules, nominate a person, in whose favour, the Society shall dispose of the share or interest of such member on his death, and also refers to Section 70 of the said Act which says inter alia, that when any member of a Co-operative Society dies, his share and interest in the Society shall, subject to the provisions of Sections 50 and 68 of the said Act and to the further provisions of this section, be transferred to the person, if any, nominated in accordance with the provisions of Section 69. Thus, according to Mr. Ghosh, since a valid nomination was made by Sri Ranendra Kumar Acharya, the deceased member of the Society, in respect of his share and interest including the disputed flat in favour of the writ petitioner, before his death, on the death of the said member, the writ petitioner is entitled to get the share and interest of the said deceased member in the Society including the disputed flat transferred in his name by the Society as per the aforesaid provisions of law, and as such, the observations made by the tribunal in the impugned judgment and order, that the question as to whom the disputed flat would go, should be kept open for the purpose, to have the respective claims of title over the disputed flat, of the nominee and the heirs of the deceased member, decided in proper proceedings before proper forum, was bad in law, inasmuch as, since the Tribunal held that the nomination made in favour of the writ petitioner by the deceased member of the Society, was valid and so also the subsequent decision taken by the Society in favour of the writ petitioner admitting him as a member of the Society, the Tribunal had no other alternative but to hold that the writ petitioner was entitled to get possession of the disputed flat by virtue of such nomination. Mr. Ghosh also refers to the decision of this Court in in support of his contentions.
5. Mr. Neogi, learned Counsel, appearing on behalf of the respondent No. 4, however, contents inter alia, that the finding of the Tribunal regarding the validity of the nomination made in favour of the writ petitioner and his subsequent inclusion as a member of the Society was not correct, inasmuch as, a nominee is entitled only to receive the share and interest of a member in a Co-operative Society on his death, but does not get any interest therein and in support of his said contention refers to the decisions in and .
6. Mr. Bhattacharya, learned Counsel, appearing on behalf of the State respondents, contends inter alia, that the impugned judgment and order of the Tribunal does not suffer any irregularity and/or illegalilty and this Court sitting in writ jurisdiction should not interfere with such judgment and order.
7. Sections 69 and 70(1) of the West Bengal Co-operative Societies Act, 1973, which are quoted below, respectively speaks of the nomination of transferee and disposal of deceased member's share or interest in the Society to such nominee :
69. "Nomination of transferee--If the by-laws of a co-operative society so permit, any member of the society may, in accordance with the rules, nominate a person in whose favour the society shall dispose of the share or interest of such member on his death."
70(1) "Disposal of deceased member's share or interest--(1) When any member of a co-operative society dies, his share and interest in the society shall, subject to the provisions of Sections 50 and 68 and to the further provisions of this section, be transferred--
(a) to the person, if any, nominated in accordance with the provisions of Section 69".
8. From the wordings of Section 69 and Section 70(1) as quoted above, it is thus clear, that any member of the Society may, nominate a person in whose favour, the society shall dispose of the share and interest of such member on his death, and when such nomination is made, the share and interest of the deceased member in the Society, shall, on his death, be transferred to such nominee.
9. So far as the decisions in the case of Life Insurance Corporation of India v. United Bank of India Ltd. and Anr. and Smt. Sarbati Devi and Ors. v. Smt. Usha Devi , are concerned, in , it was held inter alia, so far as the statute of a nominee under Section 39 of the Insurance Act, 1938 was concerned, that the proceeds of the insurance policy do not vest in the nominee though they were payable to the nominee in the event of the death of the holder of the policy. They do not, by virtue of nomination under Section 39 alone, become a part of the nominee's estate before or after the policy matured. The right of the nominee to receive money is a personal and not a heritable right. The nominee has no title to the policy money. The Supreme Court in its above decision , has also held inter alia, discussing the status of a nominee under the said Act, that a mere nomination made under Section 39 of the Insurance Act 1938, does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which, the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. The summary of the relevant provisions of Section 39 establishes clearly, that the policy holder continues to hold interest in the policy during his lifetime, and the nominee acquires no sort of interest in the policy during the life time of the policy holder. If that is so, on the death of the policy holder, the amount payable under the policy becomes part of his estate, which is governed by the law of succession applicable to him. Such succession may be testamentary or interestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament'. The provision in Sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belolng to the nominee or nominees. The language of Section 39 is not capable of altering the course of succession under law, and the Supreme Court also approved in its said decision, the decision of this Hon'ble Court in .
10. However, in dealing with the provisions of Sub-section (2) of Section 10 of the Employees' Provident Funds and Miscellanous Provisions Act, 1972, Monoj Kumar Mukherjee & Satya Brata Mitra, JJ., in the case of Smt. Usha Majumdar and Ors. v. Smt. Smriti Basu, 1988 (1) CHN 194 : CAL. LT. 1988(1) HC 35 held inter alia, distinguishing the above Section 39 of the Insurance Act, that from Section 10(2) of the Provident Funds Act, it was abandantly clear that immediately upon the death of the member, the provident fund money becomes part of the asset of the nominee whereas under the Insurance Act, after the death of the Assured, the money continued to be his asset. The nominee under the Provident Fund Act, unlike the nominee under the Insurance Act, gets a right to the money, because in Sub-section (2) of Section 10 of the Provident Fund Act, it is stated inter alia, that any amount standing to the credit of a member in the Fund or of an exempted member any of the provident fund at the time of his death and payable to his nominee under the scheme or the rules, subject to any deduction authorised by such scheme or rule, vest in the nominee.
11. In the case of Rama Chakraborty v. Manager, Punjab National Bank and Ors., 1991 (1) CHN 75 : CAL. LT. 1991 (1) HC 324 where Anandamoy Bhattacharjee, J. also dealing with Section 10(2) of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 held inter alia, referring to Section 370 of the Indian Succession Act, 1923 and Sections 45ZA(2), 45ZC(3) and 45ZE of the Banking Regulation Act, 1949 that a nominee, notwithstanding, a valid nomination in his favour, would not acquire any right, title or interest in the property itself to the exclusion of the heirs unless the law governing such nomination clearly vests the same in the nominee. A nomination under Section 39 of the Insurance Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable, but only indicates the hand which is authorised to receive the amount on the payment of which the insurer gets a valid discharge. under Section 10(2) of the Employees' Provident Fund Act, however, the amount is to vest in the nominee, and the nominee has not merely the right to receive the fund, but the right to the fund itself and Section 45ZA of the Banking Act purports to confer on a nominee in respect of the deposit of money, not only the right to receive the amount but also the right to the amount itself. Under Section 370 of the Succession Act, there can be succession Certificate only for debts and securities and security does not include the right of access to a safety locker and the right to receive or remove its contents. The expression 'debt' does not include movable property other than a specific or ascertained sum of money.
12. In the decision of this Hon'ble Court in the case of Smt. Kusum Debi Jhinjhani v. Smt. Pushpa Devi Khurda which is a direct decision on the question of status of a nominee under the West Bengal Co-operative Societies Act, 1973, Baboolall Jain, J. has held inter alia, discussing the scope of Sections 69, 70(1) and Section 141 of the said Act, that if a member of a co-operative society appoints a nominee in respect of his share and interest in the Co-operative Society, on the death of such member, as per Section 69 read with Section 70 of the said Act, the society shall dispose of the share or interest of such member in the society on his death to the nominee by way of transferring such share or interest in favour of such nominee, and if the membership of the co-operative society and the flat held by the deceased member are transferred in favour of the nominee, they cannot, by virtue of the Co-operative Societies Act, be transferred in favour of any other persons. Even the property cannot be held by a person, who is not a member of the Society. Furthermore the Act also provides that the provisions of the said Act will supersede any other law.
13. The above mentioned decisions would clearly show that there is a marked difference between the status of a nominee as appointed under Section 39 of the Insurance Act and one appointed under Section 69 of the West Bengal Co-operative Societies Act, 1973 and one appointed under Section 10(2) of the Provident Fund Act, inasmuch as, in the case of a nominee appointed under the Life Insurance Act, the nominee is only entitled to receive the money from the insurer on the death of the Assured, but does not have any right to the same, while under Section 10(2) of the Provident Fund Act the money which the nominee is to receive on the death of the member employee under the said Act, vests in such nominee and if a member of a Co-operative Society appoints a nominee as per Section 69 of the West Bengal Co-operative Societies Act, 1973, on the death of such member, the membership and the flat held by the deceased member are to be disposed of by the Society by transferring those in favour of the nominee and accordingly, the same also vests in the nominee to the exclusion of all others, because of the oversiding character of the Act over other laws. Such being the position, since, the Tribunal by its impugned order (Annexure 'C') approving the findings of the Arbitrator, has held, that the nomination made in favour of the writ petitioner by the deceased member and the subsequent transfer of the membership in favour of the nominee by the Society was valid and legal, and set aside the finding of the Arbitrator that the disputed flat should go to the heirs of the deceased member of the Society, the Tribunal itself should have declared the right of the nominee over the disputed flat and asked the society to deliver possession or the same to the nominee, instead of keeping the question open regarding the right of the nominee namely, the writ petitioner and the private respondents over the disputed flat till a decision is arrived at in proper proceeding before proper forum. Thus, the Tribunal was wrong in not making the consequential order directing the Society to act in terms of the nomination and to transfer the shares and interest of the deceased member of the Society to the writ petitioner who is his nominee, including the flat held by the deceased member during his life time, without relegating the writ petitioner to other forum and other proceeding overlooking the fact that under the Act, the Tribunal itself was the appropriate forum and no separate proceeding was called for, as the relief was consequential to the Tribunal's upholding the nomination, and as such, the said part of his order cannot be sustained in law.
14. Accordingly, part of the impugned order of the Tribunal (Annexure 'C') whereby the tribunal has kept the question regarding the right of the writ petitioner and the private respondents over the disputed flat till a decision is arrived at in proper proceeding before a proper forum pending is quashed being unsustainable in law for the reasons as aforesaid, and I hold, that the writ petitioner, who is the nominee of Sri Ranendra Kumar Acharya, a deceased member of the Manicktala Co-operative Housing Society, and whose nomination, has been, held to be valid and legal by the Arbitrator and the Tribunal also, is entitled to get the flat, held by the said deceased member, in the said society during his life time, to the exclusion of all others including the private respondents, as the same had for all practical purposes vested in the writ petition in view of the provisions of Sections 69, 70(1) and 141 of the West Bengal Co-operative Societies Act, 1973 and also as per the ratio of the decision in . The decisions cited by Mr. Neogi as referred to and discussed above, however, are quite distinguishable and do not apply to the facts of the present case.
15. The Society is now to act in terms of the nomination of the writ petitioner, held to be valid and legal, and to transfer in his favour the share and interest of the deceased member in the Society, held by him during his life time and to allow the writ petitioner to occupy and enjoy the disputed flat to the exclusion of all others. The respondent Nos. 4 to 11 are also directed to vacate the disputed flat positively by January 31, 1992 and hand over and deliver vacant and peaceful possession of the same to the writ petitioner within the aforesaid period, failing which, both the petitioner as well as the Manicktela Co-operative Housing Society will be at liberty to remove the said respondents or anybody claiming through them from the disputed flat and/or found to be in possession thereof, with the help of police and if any help or assistance is sought for in the matter from the Officer-in-charge of the local Police Station or the higher police authorities, as the case may be, either by the writ petitioner or the said Co-operative Society, the said Police authorities are directed to render all such help and/or assistance as would be required to the applicant, without any delay.
16. The Civil Order is thus allowed without, however, any order as to costs.