Bombay High Court
Smt. Shantabai Jogeshwar Bankar And ... vs Trisharan Cooperative Housing Society ... on 13 December, 2018
Author: Manish Pitale
Bench: Manish Pitale
1312wp206.17-Judgment 1/18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 206 OF 2017
PETITIONERS :- 1) Smt.Shantabai Jogeshwar Bankar,
(Org.Disputants) aged about 70 years, Occ. Retired, R/o.
Gopal Nagar, Near Varsha Buddha Vihar,
Nagpur.
2) Smt.Jyoti Jaichand Moon, aged about 55
years, Occ. Service, R/o. Ram Nagar,
Opp. S.T.Stand Depot, Wardha.
3) Smt.Shivarabai Govinda Raut (Dead)
4) Shri Ramdas Govinda Raut (Dead)
...VERSUS...
RESPONDENTS :- 1) Trisharan Cooperative Housing Society,
(Org.Oppnt.) through its Secretary,
C/o. Plot No.26, Sarvodya Nagar, (Old
Trisharan Nagar), Post Khamla, Nagpur-
25.
2) Shri Ramdas Bhagwan Raut, aged about
67 years, Occ. Retired, R/o. Plot No.18,
Siddarth Society, Trisharan Housing
Society, Takli Sim, Jaitala, Nagpur-36.
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Mr. S.V.Sohoni, counsel for the petitioners.
Mr.H.N.Bhondge, counsel for respondent No.1.
Mr. M.A.Randive, counsel for respondent No.2.
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1312wp206.17-Judgment 2/18
CORAM : MANISH PITALE, J.
DATE : 13.12.2018.
ORAL JUDGMENT
By this writ petition, the petitioners have challenged concurrent orders passed by the Cooperative Court, Nagpur and the Cooperative Appellate Court, Bench at Nagpur, whereby dispute bearing No.171 of 2000 filed by the petitioners under section 91 of the Maharashtra Cooperative Societies Act, 1960 was dismissed.
2. On 01/03/2000 the petitioners i.e. the original disputants filed a dispute before the Cooperative Court at Nagpur. At that point in time, there were four disputants before the Court, being the widow and the children of one Govinda Raut. Respondent No.1-Cooperative Society sold property in question i.e. Plot No.18 in Mouza Takli (Sim), District Nagpur to the said Govinda Raut by registered sale deed dated 27/09/1982. The said registered document categorically recorded that by virtue of the said sale deed, the interest and rights of respondent No.1- society stood extinguished and that the said Govinda Raut became KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 3/18 the owner of the aforesaid plot. It was also recorded in the said document that if any further transfer by way of sale or mortgage was to be made in respect of the said plot, permission of respondent No.1-society would be required. Hence, by virtue of the said registered sale deed dated 27/09/1982, Govinda Raut became owner of the aforesaid plot. The original disputants before the Cooperative Court were admittedly the legal heirs of the said Govinda Raut, being his widow and children.
3. It was claimed by the said disputants before the Cooperative Court that when they noticed construction activity on the said plot, cause of action arose for them on 13/02/2000. It was claimed that illegal construction was being undertaken by respondent No.2 (original opponent No.2), as a result of which, they were constrained to approach the Cooperative Court. It was claimed by them that respondent No.2 was a rank trespasser and that a document by virtue of which respondent No.2 was claiming right in the said plot was obtained fraudulently from the widow of Govinda Raut, who was also one of the disputants in the dispute. It is relevant to note that the said Govinda Raut had expired on 11/06/1986.
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4. Upon being put to notice, the respondents appeared before the Cooperative Court and claimed that during his lifetime, Govinda Raut had submitted an application dated 26/02/1986 before respondent No.1-society requesting the society for transferring the aforesaid plot in the name of respondent No.2. As stated above, the said Govinda Raut died on 11/06/1986. Thereafter, according to the respondents, on 21/12/1986 a resolution was passed by the society approving the request of transfer made by Govinda Raut in favour of respondent No.2 by virtue of which, the plot in question stood transferred in the name of respondent No.2 and he became member of the respondent No.1-society. On this basis, it was claimed that there was no merit in the dispute raised by the petitioners and that, therefore, it deserved to be dismissed.
5. Both the parties led oral and documentary evidence before the Cooperative Court. Although the widow of Govinda Raut, being one of the disputants, submitted an affidavit of evidence in the said Court, she did not appear for being cross- examined by the respondents and hence, her evidence was discarded. One of the daughters, also being a disputant and KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 5/18 petitioner before this Court, appeared as a witness in support of the claim of the petitioners. It was pointed out that respondent No.2 was not justified in basing his claim on the aforesaid alleged document of transfer deed executed by the widow of Govinda Raut dated 04/05/1998, which was a notarized document and the alleged will deed dated 29/10/1999, being a registered document executed by the widow of Govinda Raut. The said witness supported the claim made in the dispute on the basis that the disputants were the legal heirs of Govinda Raut and that respondent No.2 had no right to interfere with their right, title and interest in the said plot. On the other hand, on behalf of respondent No.1-society, the secretary appeared as a witness. He deposed in respect of the letter received from the deceased Govinda Raut for transfer of the said plot to respondent No.2 and he was cross-examined on the question of the manner in which the resolution was passed by the society in favour of respondent No.2, as also the effect of the registered sale deed dated 27/09/1982 executed in favour of Govinda Raut.
6. On the basis of oral and documentary evidence on record, the Cooperative Court framed various issues while KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 6/18 deciding the dispute. A perusal of the impugned order passed by the Cooperative Court shows that the reason why the dispute raised by the petitioners was rejected was that the petitioners had failed to place on record any documentary evidence to prove the alleged fraud played by respondent No.2 and the fact that after the demise of Govinda Raut, the petitioners as legal heirs had not approached the society to stake their claim. The Cooperative Court also found that the transfer deed dated 04/05/1998 could not have said to be forged or illegal and further that respondent No.2 could not be said to be rank trespasser in the plot in question. On this basis, the dispute was dismissed.
7. Aggrieved by the said order, the petitioners filed an appeal before the Cooperative Appellate Court. The appeal was dismissed by the Appellate Court confirming the findings of the Cooperative Court. It was held that the theory of the petitioners that respondent No.2 had taken possession of the suit plot on the basis of forged document could not be believed because they had not made any complaint to respondent No.1-society or to any police station as regards the alleged fraud committed by respondent No.2. Additionally, it was held that the petitioners KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 7/18 could not claim any relief because they had failed to challenge the will deed or to claim any relief in respect of the said document. On this basis, the appeal stood dismissed.
8. Mr. S.V.Sohoni, learned counsel appearing for the petitioners, has submitted that the concurrent orders passed by the two Courts below are unsustainable because the documents on record and the evidence, particularly that of the secretary of respondent No.1-society, was not correctly appreciated by the two Courts below. It was pointed out that Govinda Raut became owner of the plot in question by way of registered sale deed executed by the society on 27/09/1982. The relevant clause in the said registered sale deed categorically stated that the interest and rights of the society stood extinguished by virtue of the said document. According to the learned counsel, once the society had lost interest or right in the plot in question, there was no way in which, it could have either entertained the request of transfer of the said plot in favour of respondent No.2 or executed any document or resolution in favour of the said respondent. According to the learned counsel, upon the death of Govinda Raut on 11/06/1986, the petitioners being legal heirs had become KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 8/18 owners of the said plot and, therefore, respondent No.2 was the trespasser. It was pointed out that the Courts below erred in holding that the petitioners were required to challenge the will deed as it was registered document, because the person, who had allegedly executed the will deed, herself was before the Cooperative Court stating that any claim made by respondent No.2 was fraudulent and in any case the will deed would have come into operation upon the death of the said person. It was further pointed out that the alleged transfer deed dated 04/05/1998 said to have been executed by the widow Govinda Raut was only notarized document, which could not in law have the effect of transfer of the plot in favour of respondent No.2. It was submitted that when the said widow of Govinda Raut was herself disputant No.1 before the Cooperative Court, the Courts below were not justified in holding in favour of respondent No.2. On this basis, it was submitted that the petition deserved to be allowed.
9. Mr. M.A.Randive, learned counsel appearing for respondent No.2, submitted that even if there was registered sale KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 9/18 deed dated 27/09/1982 executed in favour of Govinda Raut, a specific clause in the said document required that prior permission of respondent No.1-society was to be taken, if any transfer by way of sale or mortgage or any other manner was to be undertaken in respect of the said plot. According to the learned counsel, therefore, it was not an absolute transfer of title in favour of Govinda Raut and that respondent No.1 retained control over the same. In that context the learned counsel relied on section 30 of the Maharashtra Cooperative Societies Act, 1960, to contend that the letter dated 26/02/1986 sent by Govinda Raut to respondent No.1-society requesting for transfer of the said plot in favour of respondent No.2 was enough to initiate the process of transfer. It was then submitted that when resolution dated 21/12/1986 was passed by the society approving such transfer, respondent No.2 became a valid owner of the plot in question and that he could not have been stated to be a rank trespasser. It was submitted that receipts in the form of Exhibits-68 to 70 were placed on record to demonstrate that part of the consideration was in fact paid by respondent No.2 in respect of the said plot and that therefore, he was the valid owner of the plot in question. It was submitted that KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 10/18 the petitioners, who claimed to be the legal heirs of the deceased Govinda Raut, admittedly never approached respondent No.1- society upon the death of Govinda Raut on 11/06/1986 and that therefore, they had no right to raise the dispute in respect of the said plot. It was further submitted that the transfer deed dated 04/05/1998 was executed by disputant No.1 i.e. the widow of Govinda Raut because respondent No.2 was the nephew of Govinda Raut and he was residing with him in their house and that he had taken care of Govinda Raut. On this basis, it was submitted that the writ petition deserved to be dismissed.
10. Mr.H.N.Bhondge, learned counsel appearing for respondent No.1, submitted that the plot in question stood transferred by virtue of operation of section 30 of the aforesaid Act because before his death Govinda Raut had submitted an application for transfer of the said plot in favour of respondent No.2 and that when resolution dated 21/12/1986 was passed, the transfer had validly taken place. On this basis, it was submitted that the Courts below were justified in dismissing the dispute raised by the petitioners.
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11. Heard counsel for the parties. The few relevant facts in the present case are that respondent No.1-society executed registered sale deed dated 27/09/1972 in favour of the said Govinda Raut. He died on 11/06/1986. Before his death, the said Govinda Raut allegedly sent a letter to respondent No.1- Society on 26/02/1986 requesting for transfer of the said plot in favour of respondent No.2. Thereafter, a resolution of the society dated 21/12/1986 was passed, whereby the society resolved and approved the transfer of the said plot in favour of respondent No.2. In this backdrop, the question that arises for consideration is, whether the documents on which respondent No.2 placed his reliance i.e. the letter dated 26/02/1986, which was allegedly sent by the said Govinda Raut to respondent No.1-society and the resolution dated 21/12/1986 passed by the said society were enough to transfer the right, title and interest in the said plot in favour of respondent No.2.
12. In this context, a perusal of the registered sale deed dated 27/09/1982 is relevant. A specific clause in the said KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 12/18 registered document records that upon execution of the same, the title of the society stood extinguished and that the said Govinda Raut became the owner of the said plot. There is also a clause in the said document indicating that any transfer in the form of sale, mortgage or otherwise of the said plot would require a prior consent of the said society. The said registered document clearly shows that from 27/09/1982, any right, title or interest of respondent No.1-society in the said plot was completely extinguished. As opposed to this, the two documents on which respondent No.2 has relied for claiming right and title in the said plot are the aforesaid letter dated 26/02/1986 allegedly sent by the said Govinda Raut to the society and the resolution passed by the said society on 21/12/1986. A perusal of section 30 of the aforesaid Act shows that when a member of the society dies, a society is required to transfer the share or interest of the deceased member to a person, who is nominated in accordance with the rules or if no person is nominated to such legal heirs as the committee of the society may be appropriated. Respondent No.2 has claimed that once Govinda Raut sent a letter dated 26/02/1986 to respondent No.1-society, the requirement of KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 13/18 section 30 of the said Act was satisfied and, therefore, the process of transfer of rights in the said plot in his favour was initiated, which stood validly culminated by resolution dated 21/12/1986 passed by the society.
13. The first question that would arise in this context is, as to whether a society could transfer the said plot in favour of respondent No.2 on the basis of the said letter dated 26/02/1986 when by virtue of the registered sale deed dated 27/09/1982, the said society had admittedly lost all rights and title in the plot in question. The registered document clearly records that the title of the society stood extinguished in the plot in question. As regards the clause requiring prior consent of the transfer of the plot, it would appear that the said single clause would not wipe out the import of the express clause that the title and rights of the society in the said plot were extinguished. A perusal of the evidence of the secretary of the society, particularly cross-examination of the said person, shows that there is a clear admission given by the secretary of the society that once a registered sale deed was executed in respect of a plot, unless such registered sale deed was KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 14/18 cancelled, the same plot could not be allotted to another member. It was also admitted that the aforesaid registered sale deed dated 27/09/1982 was never cancelled and that it still existed. Apart from this, in cross-examination the said witness i.e. secretary of the society has conceded that the original of the letter dated 26/02/1986 was not found in the record of the society. It is also conceded that when the resolution was passed on 21/12/1986, the subject matter of the application submitted by Govinda Raut for transfer of plot in favour of respondent No.2 was not on the agenda of the meeting. It was added subsequently by permission of the Chairman. It was further stated by the said witness that he was not sure whether that resolution was at all passed on the said date.
14. The aforesaid nature of documentary and oral evidence clearly shows that the application dated 26/02/1986 allegedly submitted by Govinda Raut to respondent No.1-society and the resolution dated 21/12/1986 are rendered suspicious. As the original of the letter dated 26/02/1986 was never produced, it could not even be treated as a valid nomination in favour of KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 15/18 respondent No.2 under section 30 of the said Act. Even otherwise, when the society had lost its title and interest in the plot in question by virtue of registered sale deed dated 27/09/1982, the right, title and interest in the said plot could never have been transferred by the society by virtue of the said two documents i.e. alleged application dated 26/02/1986 sent by Govinda Raut to the society and the resolution dated 21/12/1986 passed by the society.
15. The other two documents, specifically relied upon by respondent No.2 in the present case are the registered will deed dated 29/10/1999 allegedly executed by disputant No.1 widow of Govinda Raut in favour of respondent No.2 and the alleged transfer deed dated 04/05/1998. These are the two documents heavily relied upon by the two Courts below to hold in favour of respondent No.2. In fact, the Cooperative Appellate Court has gone to the extent of holding that the petitioners did not claim any relief in respect of the said will deed and therefore, they were not entitled to claim any relief in respect of the said plot. The alleged transfer deed dated 04/05/1998 was also heavily relied KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 16/18 upon to hold against the petitioners. Even if the will deed dated 29/10/1999 was a registered document, it would come into operation and accrue to the benefit of respondent No.2, only upon the death of the widow of Govinda Raut. Admittedly, the said widow of Govinda Raut was the first disputant in the dispute raised before the Cooperative Court and it is evident that she was very much alive when the said dispute was raised. This clearly demonstrated that she repudiated the said will deed and in any case it had not come into effect as she was very much alive. Therefore, the courts below were not justified in insisting upon the petitioners to raise a challenge as regards the said registered will deed.
16. As regards the alleged transfer deed dated 04/05/1998, admittedly it was a notarized document and not a registered one. Therefore, it could never be any transfer of the immovable property in favour of respondent No.2 by virtue of the alleged transfer deed. Even otherwise, the person, who had allegedly executed the said document i.e. the widow of Govinda Raut had disputed it and claimed before the Cooperative Court KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 17/18 that it was obtained in a fraudulent manner by respondent No.2. In the face of such material, the Courts below were not justified in relying upon the said documents and holding that the petitioners were required to challenge the said documents to prove their claim.
17. The discussion of the oral and documentary evidence in the present case clearly shows that the approach adopted by the two Courts below was not justified. Respondent No.2 could not be said to have become owner of the plot in question on the basis of the two documents dated 26/02/1986, being the alleged letter sent by Govinda Raut to respondent No.1-society and the resolution dated 21/12/1986, passed by the said society, in the face of the registered sale deed dated 29/09/1982, whereby the society had lost all rights, title and interest in the plot and Govinda Raut had become the exclusive owner thereof. Being the legal heirs of Govinda Raut, a fact which is not disputed by the respondents, the petitioners certainly were entitled to the plot in question. Respondent No.2 had failed to place on record cogent material to demonstrate the source of his title in the said property KHUNTE ::: Uploaded on - 17/12/2018 ::: Downloaded on - 27/12/2018 07:02:46 ::: 1312wp206.17-Judgment 18/18 and, therefore, the petitioners were entitled to claim that he was a rank trespasser. The Courts below failed to appreciate the controversy in the correct perspective leading to perverse findings and erroneous conclusions.
18. In the light of the above, the present writ petition is allowed. The orders passed by the Cooperative Court and the Cooperative Appellate Court are quashed and set aside and the prayers made by the petitioners in the dispute raised by them before the Cooperative Court are granted. As a consequence of respondent No.2 shall hand over vacant possession of the plot in question to the petitioners within a period of eight weeks from today.
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