Calcutta High Court
Pradip Kr. Chatterjee vs Registrar Of Co-Operative Society And ... on 18 September, 2001
Equivalent citations: (2002)1CALLT487(HC)
Author: P.K. Ray
Bench: Pratap Kumar Ray
JUDGMENT P.K. Ray, J.
1. This application under Article 227 of the Constitution of India has been filed by one Sri Pradip Kr. Chatterjee who intended to be a party in a Dispute Case No. 53/RCS of 1998-99, challenging the Order dated 13th August, 1999 passed by the Registrar of Co-operative Societies, West Bengal exercising power as an arbitrator under the West Bengal Cooperative Societies Act, 1983 whereby and where under application for addition of parry was rejected only on the ground of non-maintainability on holding that under the concerned Co-operative Society's Act read with the Rules made therein there was no concept of joint nominee. The fact leading to this present revisional application under Article 227 of the Constitution of India as follows ;
2. One Haripada Chatterjee and Gairik Bhusan Ganguly both under the relationship of Maternal Uncle and nephew were residing earlier in 8/A Nalini Sarkar Street, Calcutta and even after marriage of Gairik Bhusan Ganguly with Banalata, such living in a joint mess in the said premises continued. The petitioner herein since his birth also is staying with the family of Gairik Bhusan Ganguly in the said premises and at different places thereafter. Petitioners mother Smt. Bibhas Kumari Chatterjee and said Gairik Bhusan Ganguly jointly applied for membership of a Co-operative Housing Society namely Iswar Chandra Vidyasagar Samabay Nibas Limited at Bagmari Road, Calcutta hereunder refer to as said Society and such joint membership was approved by Assistant Registrar of Co-operative Society by his Order No. 5372 dated 6th July, 1976. Both the two families accordingly namely the family of Smt Bibhas Kumari Chatterjee and family of Gairik Bhusan Ganguly started to leave in joint mess in said flat being Flat No. A/5/3. After death of petitioner's father Sri Hari Pada Chatterjee sometime in the year 1984, Gairik Bhusan Ganguly became the guardian of petitioner. Petitioner got married sometime in April, 1990 and a female child was begotten out of such wedlock. All started to continue their leaving in the joint mess in the said flat. Petitioners mother Bibhas Kumari Chatterjee, and said Sri Ganguly both jointly nominated present petitioner and Banalata Ganguly as nominees relating to such flat, which was accepted and recorded by the said Housing Co-operative Society. Petitioner's mother Smt. Bibhas Kumari Chatterjee withdrew her membership relating to the said flat, when accepting such in the year 1987, flat was declared under single membership of Gairik Bhusan Ganguly by said Housing Society. Despite such fact, petitioner's mother, petitioner's wife, daughter, all were leaving in the joint mess in the said flat with Gairik Bhusan Ganguly and his family. On 17th August, 1982 a fresh nomination by way of declaration was given by Gairik Bhusan Ganguly as a sole member of Cooperative Society relating to the said flat whereby Banalata Ganguly, wife of Gairik Bhusan Ganguly and the present petitioner were declared as nominee and such joint nomination was accepted by the Co-operative Society in substitution of the earlier nomination dated 23rd March, 1986. In terms of the by-laws of the Co-operative Society since there was a provision for joint nomination, said Co-operative Society accepted such joint nomination, which as per their procedure used to be converted to joint membership after death of the original member or members. There are at least 40 to 50 members who are enjoying such benefit and privilege in this Society holding joint membership. On 10th January, 1998 Gairik Bhusan Ganguly died and the petitioner performed all ritual and 'Sradh' Ceremony including the ritual of 'Mukhagni'. Petitioner, after demise of said Gairik Bhusan Ganguly applied for joint membership on the basis of the joint nomination in the said Co-operative Society on 3rd December, 1998 but Banalata Ganguly filed application for Individual membership as a sole heir and successor before the Co-operative Society who referred the matter to the Deputy Registrar, Co-operative Society (Housing), Calcutta Metropolitan Area for their opinion about the grant of joint membership. While such is pending. A Dispute Case was filed being the Dispute Case No. 53/RCS of 1998-99 by Banalata Ganguly praying necessary direction upon the said Housing Society to grant exclusive membership in respect of the flat in question. Deputy Registrar, Co-operative Societies aforesaid who was requested to opine however held against the present petitioner about joint membership by his decision dated 5th March, 1999 only on the ground that joint membership was not permissible as there was no concept of joint nominee under the present Act. Petitioner filed a writ petition being No. WP 12735(W) of 1999 challenging the decision of Deputy Registrar, Co-operative Society aforesaid and the same is pending at the Calcutta High Court. Since in the Dispute Case, the petitioner was not made a party as filed by Banalata, an application for addition of party was filed but same has been rejected by the Registrar, Co-operative Societies only on the sole ground that the concept of joint nomination was not permissible under the West Bengal Co-operative Societies Act 1983 and Rules of 1987 made therein. It is further held that petitioner's nomination made by deceased member was illegal since he is not a member of family as per definition of family in the statute. Hence, this application under Article 227 of the Constitution of India was filed.
3. Learned Advocate of the petitioner submits that since in the Dispute Case filed by Banalata Ganguly claiming her sole right to be the member of Co-operative Society in lieu of joint membership as filed by present petitioner is the subject matter which is touching the interest of the present petitioner, more particularly, in view of filling of the writ application by the petitioner assailing the decision of the Deputy Registrar, Co-operative Society aforesaid whereby application for such joint membership was rejected, the petitioner was entitled to be added as a party in the Dispute Case not only for effective adjudication of the points as taken but for consideration of all event namely purchase of the flat under the joint membership by predecessors in interest of both the parties, application for joint nomination by both the parties who were predecessors in interest of Banalata Ganguly and present petitioner and the permissibility of joint membership under the By-laws of the Society which as yet has not been amended and furthermore in view of acceptance of other 40 to 50 member relating to the different flats under joint memberships of the parties therein. It is further contended that the petitioner is a party necessary and the party affected in this proceeding and as such impugned order is not legally tenable. Such contention has been vehemently opposed by the learned Advocate of the Opposite Party, the applicant of the Dispute Case Banalata Ganguly, urging. Infer alia, that under the West Bengal Co-operative Societies Act 1983 and the Rules of 1987 therein since there is no scope of joint nomination with any outsider of family and also joint membership, petitioner is not at all a necessary party of Dispute Case which is an action on point about applicant's right to remain as sole member of the Cooperative Society as a sole surviving heir of deceased member.
4. Learned Advocate of the opposite party has submitted from relevant provisions of the statute to satisfy this Court that concept of joint membership is foreign under the present West Bengal Co-operative Societies Act in view of amendment irrespective of existence of such provision in the By-laws of-the Housing Society. Considering the rival contention of the parties the point for consideration is only on a single Issue whether the present petitioner has a right to be added as a party being a necessary and a proper party in Dispute Case filed by Banalata Ganguly particularly when a writ application is pending on the same subject matter filed by the present petitioner.
5. The Impugned order in this application under Article 227 of the Constitution of India is the order of the rejection of the application filed by present petitioner praying to be added as a party in the Dispute Case filed by Banalata Ganguly claiming her absolute right, title and interest in the flat in question and thereby her sole right to remain as member after demise of her husband. Hence, to consider such question, the relevant settled Judgment of the apex Court is the guiding principle which now to be looked into. In the case Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors., , the apex Court held as follows:
"It cannot be said that the main object of the rule is to prevent multiplicity of actions though it may incidentally have that effect. But that appears to be a desirable consequence of the rule rather than its main objective. The person to be Joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer. i.e., he can say that the litigation may lead to a result, which will affect him legally that is by curtailing his legal rights. It is difficult to say that the rule contemplates Joining as a defendant a person, whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck and Sons Ltd., wherein after quoting the observations of Wynn-Parry, J. In Dollfus Mieget Compagnie S.A. v. Bank of England, that there true test lies not so much in an analysis of what are the constituents of the applicants' rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:
"The test is 'May the order for which the plaintiff is asking directly affect the Intervener in the enjoyment of his legal rights'."
6. Relying upon the said judgment, apex Court in the latest Judgment passed in the case Savitri Devi v. District Judge, Gorakhpur and Ors.. , Judgment of three Judges Bench in paragraph 9 held as follows :
"Order I Rule 10 CPC enables the Court to add any person as a party at any stage of proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of a multiplicity of proceedings is also one of the objects of the said provision in the Code."
7. In the said Judgment Savitrt Devi (supra), apex Court considered and relied the case Razta Begum v. Anwar Begum, . On consideration of the aforesaid judgment in this field the following riders emerge for adjudication of the application under Order 1 rule 10 of the Civil Procedure Code namely:
(i) if the Intervener has a cause of action against the plaintiff relating to the subject matter of the existing action, the Court has power to join the intervener so far as to give effect to the primary object of the order which is to avoid multiplicity of actions.
(ii) Said provision enables to Court to add any person as a pary at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settled all the questions involved in the suit.
8. In the angle of the aforesaid legal position, the present fact scenario of the Dispute Case qua the application for addition of party filed by the petitioner now is being considered. On bare perusal of the contentions as made by the parties in their respective applications, the following facts are not disputed:
(a) Predecessors in interest of both the parties were admitted as joint member of the said Housing Society relating to the concerned flat on due approval of such by Assistant Registrar, Co-operative Societies by his decision dated 6th July, 1976.
(b) Both the predecessor in interest aforesaid nominated both contesting parties namely petitioner of this revision application and the applicant of the Dispute Case as nominees and such nomination was accepted and recorded in the office of the Society as per the concerned Act applicable at the material time.
(c) Predecessor in interest of present petitioner submitted an application praying withdrawal of membership that is resignation relating to the said flat in question and the Society by the communication dated 29th February, 1988 granted such prayer by resolution of the Managing Committee and thereby declared Gairik Bhusan Ganguly as a sole owner of the said flat.
(d) Gairik Bhusan Ganguly in his capacity as a sole owner of the flat submitted the nomination in favour of the present petitioner and his wife Banalata Ganguly in terms of the nomination clause of the Co-operative Society as stated in the By-laws, which provides joint nomination.
(e) That both the petitioner and the opposite party Banalata Ganguly are still leaving in the said flat jointly.
(f) That Banalata Ganguly, applicant of the Dispute Case while applied to the Housing Society for recording her names as a sole member relating to the flat after demise of her husband, present petitioner filed application for joint membership along with Banalata Ganguly in the said Society, which became a cause of action to file dispute case.
(g) Writ application is pending where joint nomination qua the right of petitioner to be a member is the subject matter.
9. On the aforesaid fact situation Banalata Ganguly, the Opposite Party herein filed a Dispute Case contending, inter alia, that she is the absolute owner of the flat in question as per nomination of her deceased husband and claimed to have membership of said society alone on transfer of all interest of deceased husband.
10. Hence, in considering the application for addition of party in the aforesaid angle as settled by the apex Court, the only question is whether the petitioner is the necessary party for effective and complete adjudication of dispute case and also to settle all the question involved in the Dispute Case with the object to avoid multiplicity of proceeding. Learned Arbitrator under the Dispute Case decided the question only on point that there was no scope of a person not belonging to a family to have the nomination and even if there was any nomination by the husband of Banalata in favour of the petitioner, said nomination was bad due to the statutory provisions In that field as laid down in the said Co-operative Society Act, 1983 read with Rule 1987. But the learned Arbitrator below did not consider the main Issue namely presence of the present petitioner whether would be necessary for effective and complete adjudication and to settle all the questions as involved and raised in the Dispute Case.
11. The relevant provisions of the said Co-operative Societies Act also will throw a light on the issue that the present petitioner's presence is necessary for effective and complete adjudication of all the points as raised. It is admitted position that predecessor in interest of the petitioner was a member of the said Housing society jointly with husband of Banalata and both of them nominated present petitioner and Banalata as their nominee. The application for withdrawal for membership of the Society as well as in respect of the flat as allotted in their favour now to be looked into under the concerned Act. Section 82 of the West Bengal Co-operative Society Act, 1983 is a guiding Act in this field, which reads as follows:
"Section 82. Restriction on transfer of possession of, and interest in, land held under co-operative society.
Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force,
(a) a member of a co-operative society, the object of which is the reclamation and colonization of land or the acquisition of land and the leasing thereof to its members, shall not be entitled to transfer his possession of, or interest in, any land held by him under the co-operative society except to the co-operative society or with Its previous approval in accordance with its by-laws, to a member thereof,
(b) when the membership of a member of a co-operative society referred to in Clause (a) terminates by reason of death, expulsion, resignation or Insanity or any other cause, his possession of, or interest In, any land held by him under the co-operative society shall vest in his heir, executor or administrator or in the person, if any, nominated by him under Section 79, if such heir executor, administrator or person is willing to be admitted as a member of the co-operative society and is eligible for membership under Section 69.
(c) if the heir, executor, administrator or person referred to in clause (b) does not become a member of the co-operative society, the possession of, and interest in, the land including the structure thereon, if any, of the deceased, expelled, resigned or Insane member shall vest in the co-operative society, and the co-operative society shall pay to such heir, executor, administrator or person, as the case may be, a sum equivalent to the value of the land Including the structure, if any, as determined in accordance with the rules or the by-laws of the co-operative society.
(d) No land held by a member under a co-operative society referred to in Clause (a) or vested in his heir, executor or administrator or in the person under Clause (b) shall be attachable in any suit or proceeding for the recovery of any debt other than a debt due to the co-operative society or to a member thereof."
12. On bare reading of said provision without taking any resort to the clauses of statutory interpretation, it is clear that the present Society is attracted under Section 82 Clause (a) and accordingly withdrawal of membership of Bibhas Kumari Chatterjee and the decision of the Cooperative Society declaring Gairik Bhusan Ganguly as sole owner of the flat is to be considered in terms of Clause (b) of Section 82. Said Clause (b) of Section 82 provides that in the event of resignation which also will encompass the word "withdrawal', interest of a member in the concerned flat of the Housing Society would vest to the heir, executor or administrator or in the person, if any nominated under Section 79 if persons are willing to be admitted as member under the Society. Hence, on 29th February, 1988 when membership of predecessor in interest of the present petitioner ceased out of withdrawal and/or resignation, the Society had no power prima facie to declare the entire ownership of the flat in favour of other member. In terms of Clause (b) of Section 82 which is a special provision regarding Housing Society the present petitioner being the sole legal heir of Bibhas Kumari Chatterjee as well as being in the status as a nominee in terms of the nomination filed by the joint members namely predecessor in interest of both the parties automatically got a right in respect of the flat in question, subject to condition of his willingness to be admitted as member. Under the provisions of the said West Bengal Co-operative Societies Act, when one of the joint members resigns, law never provides that interest of such retiring member would automatically vests to the other member but law provides that the legal heirs and/or nominee of said retiring member would be entitled to have the interest and possession as was existing to the said member.
13. In the instant case it is an admitted position that both the two members who were predecessor in interest of contesting parties were the joint members of said Society and after allotment of the flat started to reside therein. Hence, whatever the interest in the flat in question and/or the possession as was existing in favour of predecessor in interest of the present petitioner, Section 82 of said Act would hold the field for decision. This point has not been looked into at all while passing the impugned order by the arbitrator. Hence, from factual matrix of the case it is clear that question about possession and ownership of the flat Including the interest thereof after withdrawal of membership of predecessor in interest of the present petitioner qua the Co-operative Society Act, 1983 and the Rule 87, legal aspect and effect about nomination in favour of the present petitioner even by the husband of Banalata are all the questions involved vis-a-vis the question of absolute ownership of the flat in question by Banalata and her right to remain as a sole member in the Housing Society, are required to be dealt with in adjudicating the Dispute Case.
14. Furthermore, the point about membership and joint nomination are required to be dealt with by a full fledged trial in the dispute case in view of discussion on this point as made by me herelnbelow.
15. There is no dispute on the fact that originally Smt. Bibhas Kumarl Chatterjee, mother of the present petitioner and Galrik Bhusan Ganguly, husband of the opposite party No. 2. Smt. Banalata Ganguly were admitted as joint members of said Society relating to the flat No. 1/5/3 of said Society being duly approved by the Assistant Registrar, Co-operative Society by his decision dated 6th July, 1976. It is not disputed that husband of opposite party No. 2 nominated opposite party No. 2 and the present petitioner as nominee in respect of the concerned flat. It is not disputed that in the present Housing Society in terms of its By-laws nomination can be made in respect of person or persons.
16. The West Bengal Co-operative Societies Act, 1973 hereinafter refer to as Act, 1973 got effect from 1st November, 1973 whereas West Bengal Co-operative Societies Act, 1983 hereinafter refer to as Act, 1983 was passed in the Gazette in the 3rd week of July, 1984 though antidating effect namely with effect from 28th May, 1984 was given but in view of the Judgment Jayanta v. State, , the effect should be from the date of Gazette notification that is 3rd week of July, 1984. West Bengal Co-operative Society Rules, 1987 was published on 24th July, 1987 and except certain rules, other provisions were given effect to. Hence, from the admitted fact which is not at all disputed that on 6.7.76 the decision was made by the Assistant Registrar, Co-operative Society admitting predecessors in interest of both the parties herein namely petitioner and respondent No. 2 as joint members in terms of the West Bengal Co-operative Society Act, 1973 and when it is admitted that both the said joint members of the Society nominated present petitioner and the respondent No. 2 as joint nominees in respect of the flat sometime on 20th March, 1986, the joint membership of the predecessors in interest of both the parties would be controlled and guided by said Act of 1973 whereas joint nomination in favour of the petitioner and the respondent No. 2 by the said joint members would be controlled and guided by West Bengal Co-operative Societies Rules, 1974 as the West Bengal Co-operative Society Rule, 1987 did not see the light of the date prior to 24th July, 1987. Such joint nomination even was allowed to be continued by the predecessor in interest of respondent No. 2 while he was acting as sole member of the Co-operative Society by filing a fresh nomination to that effect on 17th August, 1992 nominating present petitioner and respondent No. 2 as joint nominees. The relevant provisions accordingly to be looked into only for the purpose of a prima facie case for adjudication the application for addition of party. Such consideration also to be guided and controlled by the Judgment of the apex Court passed in the case Anil Kumar Singh v. Shivnath Mishra, on the principle as decided for addition of party holding inter alia, that even a person may not be a necessary party in the proceeding but if he is a proper party for adjudication of the matter, the person to be added as a party. Principle for addition of party based on public policy to avoid the multiplicity of proceeding and to adjudicate the lis finally in between the different parties who are agitating different Issues with reference to the same subject matter. In the instant case already a writ application is pending assailing the decision of Assistant Registrar, Cooperative Societies whereby prayer for joint membership in respect of this particular flat as referred to him for a decision on the basis of the application of the present petitioner was rejected. The lis in respect of the particular flat has been raised by the respondent No. 2 by filling a dispute case contending her sole right to remain as a sole member excluding the claim of petitioner.
17. The relevant provision of the West Bengal Co-operative Society Act, 1973 about joint membership and joint nomination is now being considered first. Under Section 2 Clause (y) of the said Act. 1973, 'Member' has been defined as follows:
"member' means a person [Joining in an application for registration of a society which is subsequently registered or a person) admitted to membership of a society after its registration in accordance with this Act, the rules and the by-laws, and Includes, subject to the provisions of Section 59, a nominal and an associate member."
18. Hence, under the said Act of 1973, membership relates to admission of a member in accordance with Act, Rules and By-laws of the Society including the nominal member or associate member. Under Act of 1983, 'Member' has been defined under Section 2 Clause (28) as follows:
"Section 2 Clause (28) "member" means a person Joining in an application for registration of a Co-operative Society which is subsequently registered or a person admitted to the membership of a Co-operative Society after its registration under this Act, and includes joint member.
Explanation.--For the purpose of this clause 'Joint member' shall mean any one of the persons (Including husband any wife and father and son or unmarried daughter) jointly admitted to the membership of a Cooperative society."
19. From the aforesaid provision of definition of 'member' under Act, 1983 it appears that joint membership concept was firmly accepted even by the Act, 1983 by explanation that there was no restriction of joint membership if the members are not related to each other with reference to the relationship as mentioned in the said explanation by using the word 'including' which has been used in the statute only to mean that even the members being of close relationship of the family are eligible to remain as joint member of the Co-operative Society. It clearly means that concept of joint membership in respect of the members who were not related to each other was accepted. The present Society was registered under West Bengal Co-operative Society Act, 1973 whereby under Clause 8 of By-laws a member was entitled to nominate a person or persons. In Clause 9(1) of By-laws, disposal of the share of deceased member's share or interest has been provided by stipulating that members share or interest in the society would be transferred to the nominated person or persons if any. Relevant provision of the By-laws, Clause 8 and Clause 9(1) reads as follows:
"8. (1) A member may, by writing under his hand depose with the Society during his life time, or by a statement made in any book kept threat, nominate a person or persons to whom or to those credit his share or interest in the Society or the value of such share or interest or so much thereof as is specified in such nomination shall, on his decease, be paid or transferred under and subject to the provisions of the Act and the rules.
(2) (a) A nomination so made and registered by the Society may from time to time be revoked or varied by any similar writing or statement under the hand of the nominator deposited or made as aforesaid and similarly registered. In case the nominee of the member dies the member shall forthwith report the death to the Society.
(b) The Society shall maintain a register of all persons if any, so nominated.
(3} A nomination made at the time of applying for membership shall be recorded free of charge but for the recording of every nomination subsequently made or of a revocation or variation a fee of Rs. 10/-shall be paid.
9. (1) When any member of the Society dies, his share and interest in the Society shall, subject to the provisions of Sections 50 and 68 of the Act, be transferred-(a) to the person or persons, if any, nominated in accordance with bye-law No. 8(1), or
(b) if their is no such nominee or, if the existence and residence of such nominee cannot be ascertained by the Managing Committee, or if for any other cause such transfer cannot be made without unreasonable delay, to the person who appears to the Committee to be entitled in accordance with the rule to possession of such share or interest as part of the estate of the deceased member, or
(c) on the application of the person referred to in Clause (b) above within 3 months of the death of the deceased member, to any person specified in the application."
20. Section 79 of Act, 1983 is the Section about the nomination of transferee whereas Section 80 speaks of disposal of deceased members share or interest. Those two Sections being relevant are quoted in extenso:
"Section 79. Nomination of transferee, Subject to the by-laws of a co-operative society, any member of such cooperative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share or interest of such member on his death.
Section 80. Disposal of deceased member's share or interest, (I) On the death of a member of a co-operative society his share or interest in the co-operative society shall, subject to the provisions of Section 57 and 78 and to the further provisions of this Section, be transferred-
(a) to the person, if any, nominated under Section 79; or
(b) if there is no nominee of if the existence or residence of the nominee cannot be ascertained by the board of if, for any other cause, the transfer cannot be made without unreasonable delay, to the person who (subject to the production by such person of probate, latter of administration or succession certificate) appears to the board to be entitled in accordance with the rules to the possession of such share or interest as part of the estate of the deceased member; or
(c) on the application of the person referred to in Clause (b) within three months from the date of death of the member, to such person as may be specified in the application.
(2) if the share or interest of a deceased member cannot be transferred in accordance with the provision of Sub-section (1) or if the person to whom such share or interest is payable under that Sub-section claims payment of the value of such share or interest or if the cooperative society in accordance with the rules and Its by-laws decides to proceed under this sub-section.
(a) the share shall be transferred to a person qualified to be a transferee of the share under Section 78 on receipt of the value of the share from such person, and
(b) the value of the share or the interest of the deceased member determined in accordance with the rules shall be paid to the person nominated under Section 79 or to the person referred to in Clause (b) of Sub-section (1) of this section after deducting the amount payable under this Act to the co-operative society from the estate of the deceased member."
21. From the aforesaid two sections of Act, 1983 It appears that subject to the By-laws and in accordance with the rules of Co-operative Society, a member or joint members may nominate a person or persons to whom Co-operative Society shall dispose of the share or interest of the deceased member by applying section 80 Sub-section l(a) which has already referred to a By-law which provides nomination of a person or persons by allowing nomination in favour of more than one persons.
22. Rule about the nomination by different rules now to be considered under the Act, 1973 and Act, 1983. West Bengal Co-operative Society Rules, 1974 is the guiding rule as framed and constituted as per West Bengal Act, 1973. Rule 112 of rule 1974 provides about the rule for nomination, which reads as follows:
"Rule 112. Nomination of transferee.-(1) A member of a Co-operative Society may, in accordance with Section 69, nominate in writing any person to whom or to whose credit the share of interest or the value of such share or interest shall, on his death be paid or transferred under the provisions of the Act:
Provided that such member may, from time to time, revoke or vary such nomination in writing. (2) Every Co-operative Society shall keep a register of all persons so nominated. (3) in case the nominee of a member dies, the member shall report the death to the society."
23. On comparison of both the two rules, the following points emerged:
(a) Under Section 69 of Act, 1973 read with Rule 112 of said rule, 1974 a member of a Co-operative Society got the right to nominate any person or persons to whom or to whose credit share of interest or the, value of Such share or interest shall, on his death be paid or transfer. Under Section 69, there is only an embargo about the nomination to this effect that the same should be in accordance with the By-laws. In the instant case By-laws provides joint nomination. Under Section 69 of said Act, 1973 there is no bar for joint nomination and under rule 112 there is also no bar for joint nomination under the said rule of 1974.
(b) It is an admitted position by both the parties that initially predecessor in interest of petitioner and respondent No. 2 got the joint membership under the said Act of 1973 and accordingly rule 74 was the guiding principle about such nomination and others.
(c) It is not disputed that predecessor in interest while were the members jointly nominated the present petitioner and respondent No. 2 in respect of the concerned flat under Section 69 of Act, 1973 read with Rule 112 of said Rules 1974 and such nomination was accepted by the Housing Society as It was permissible under the Bylaws of Society,
(d) Under Section 79 of Act, 1983 read with Rule 127 of said Rule of 1987 however, a change was made in respect of nomination though Section 79 of the said Act, 1983 provides subject to By-laws and in accordance with the rule and the By-laws of the Society was remaining the same as there was no amendment of such By-laws. Under Rule 127 a provision has been made that such nomination to be restriction to the family members and in the event of absence of any family member, such nomination to be allowed to any person.
24. From the relevant provision now It is clear that under West Bengal Co-operative Society Act, 1973 read with West Bengal Co-operative Society Rules, 1974 and the By-laws there was no embargo about nomination of a person who were not family members. But for the first time under Rule 1987 such embargo was made. Now question is whether such embargo under Rule 127 of the said rule, 1987 restricting nomination to family members only was a mandatory provision or a directory provision. It is an admitted fact in this case that the sole member in respect of the said flat, the husband of the respondent No. 2, nominated two persons, one is wife and other the petitioner in a prescribed format by signing the same on 17th August, 1992. Under Rule 127, nomination to any person outside of the family as defined under Sub-section (2) of Section 13 is not a total bar but such can be done in the event of absence of any family member in terms of the definition of family as mentioned therein. The word 'may' as appearing in the 'Rule 127 is a guiding Rule to ascertain whether the provision is mandatory or directory. The right to nomination is nothing but a will and/ or desire of a person when such nominees are getting a right to have the transfer of the share or interest of the member concerned after his death. The entire Issue accordingly now hlnches for determination of the following legal questions:
(a) Whether a nomination which was valid and legal under Act, 1973 read with Rule 74 and the By-laws of Society nominating a member not belonging to the family, in terms of Rule 127 of Act, 1983 whether can be revoked or can be changed or modified even on Introduction of the new Act and Rule without giving any hearing to the person concerned who was earlier nominated not belonging to the family and whether such nomination would be non est automatically.
(b) Whether subsequent nomination after coming into effect of the Act, 1983 and Rule 1987 on exercise of the power of nomination by the predecessor in interest of respondent No. 2 by nominating the petitioner outside of his family had infringed the provision as is mandatory in nature and thereby has made such nomination a nullity.
(c) Whether even if Rule 127 is considered as mandatory in nature whereby no member outside of the family could be nominated and thereby such type of nomination would be void ab-initio can be decided without any hearing to the person who would suffer in the event of cancellation of such nomination as made by the deceased member by expressing his will and/or desire.
(d) if the By-laws is not amended or changed by resolution of all members in a meeting, whether the Clause 8 and 9 of the By-laws of the Society would have any effective force which supports the case of joint nomination and transfer of share of deceased member to such joint nominee.
(e) in view of the conflict with Section 2(28) of Act 1983 where there is no restriction for joint membership relating to the parties who are not the family members, whether the nomination would be restricted only to the family members in terms of Rule 127 of Rule 1987 and in the event of any conflict, which will prevail.
25. Aforesaid questions is not being answered by this Court at this moment when a Dispute Case is pending for determination of the right of the respondent No. 2 namely her exclusive right to have the nomination in her favour excluding the nomination as made in favour of the petitioner and thereby transfer of share and interest in her favour and a writ proceeding filed by the petitioner agitating his claim over the property in question after death of the deceased member on the strength of the joint nomination. If those questions are answered by this Court now the same would prejudice the effective adjudication of the matter. From the impugned order it appears that in adjudicating the application for addition of party filed by the petitioner only the relevant provisions of statutes has been quoted without any valid interpretation to that effect and more particularly without even considering those points in the angle as already formulated by this Court. For adjudicating an application of addition of party the factor to be considered whether a person in a case is a necessary or proper party in view of different cause of actions and different factors stated in the pleading. It is now a settled legal proposition by the judgment of the apex Court that a party against whom no relief claimed or is not a necessary party also can be added as a party applying the test where he is a proper party. Reliance is placed to the judgment in the case Anil Kumar Singh v. Shivnath Mishra, . Hence on applying such test, petitioner is a proper party in the matter.
26. Hence, for effective and complete adjudication and to settle all the points as raised in the Dispute Case by Banalata, the presence of the present petitioner in terms of Order 1 Rule 10 of the Civil Procedure Code is maintainable as the petitioner is a necessary party on reflection of judgments of apex Court Sabitri Devi (supra). In absence of the present petitioner those points as raised by the Banalata in the Dispute Case namely after resignation of co-member, her husband became the absolute owner of the property, her husband spent the entire money for this flat and further the nature and character of the nomination with the riders and the legal effect thereto, cannot be adjudicated, settled and decided in absence of the present petitioner and accordingly the present petitioner is a necessary party in the matter. Furthermore, the present petitioner since has applied in the Society praying joint membership along with the Banalata relating to the flat in question and taking all those points when he has a right to file another Dispute Case on that Issue against the Co-operative Society even by adding Banalata as a party therein and since it is an admitted position that challenging the decision of Assistant Registrar, Co-operative Societies dismissing the contention as raised by the present petitioner about joint membership in the Society when writ application is already pending in the High Court at Calcutta, it is clear that present petitioner is proceeding with the legal steps and accordingly to avoid the multiplicity of the proceeding also the presence of the petitioner in the Dispute Case is necessary.
27. In that view of the matter this Court is of the view that application under Order I Rule 10 was maintainable and the arbitrator was required to pass such an order without pre-Judging the issue before finality of the trial namely Issue of joint nomination etc. as considered by him. As the petitioner has submitted the application which satisfy all Ingredients for his addition as a party in the proceeding in terms of the Judgment of the apex Court as well as the provision of the Order I Rule 10 as discussed earlier, the Impugned order cannot sustain and same is accordingly set aside and quashed. The application of the petitioner praying to be added as a party in the said dispute case is allowed. It is clarified that this Court has not gone into the merits and demerits of the respective parties relating to the right, title, interest and possession of the flat in question as well as question of vesting of the interest in terms of Section 82 of the Co-operative Act, 1983 is favour of petitioner and the position of the law regarding joint nomination and other points as discussed. The arbitrator is at liberty to decide all questions and the parties are at liberty to raise all those questions and any observation as made herein will not be attracted by the doctrine of res Judicata and/or principle analogous to such doctrine as well as doctrine of constructive res Judicata. The revision application is accordingly allowed and no order as to costs.