Calcutta High Court (Appellete Side)
Mahendra Kumar Surana & Anr vs State Of West Bengal & Ors on 4 September, 2023
20
04.09.2023
Court No. 35
I.T (p.a)
WPA 851 of 2020
Mahendra Kumar Surana & Anr.
Vs.
State of West Bengal & Ors.
Mr. Ashit Kr. Chakraborty,
Mr. Sunanda Mohan Ghosh.
... for the Petitioners
Mr. Pradip Kumar Roy,
Mr. Joydeep Roy,
Mr. Tirthajit Roy Chowdhury.
... for the State
Petitioners are the purchasers of a
property of the Co-operative Housing Society,
i.e, respondent no.3. They have purchased the
same from the legal heirs of an erstwhile member of the Society, who died earlier on 08.02.2014. The petitioners are aggrieved with the order of the West Bengal Co-operative Tribunal dated 02.01.2020 in Appeal No. 33 of 2016.
The Tribunal, by dint of the said order has dismissed, the petitioner's challenged as to the award of the Arbitrator, disallowing petitioners rights with respect to the said property of the Co-operative Society/respondent no.3, which the present petitioner had purchased in lieu of a consideration money of Rs. 60 lacks.
Mr. Chakraborty appearing for the petitioner has emphatically submitted that his clients are only the bona fide purchasers of the said property. They have purchased the property from the legal heirs of the deceased 2 member of the respondent no.3/Co-operative Society. Mr. Chakraborty has referred to the relevant provision of the West Bengal Co- operative Societies Act, 2006, to submit that the legal heirs of the deceased member of the Co- operative Society can succeed the property owned by his predecessor and that the property of the Co-operative Society where the deceased was a member, would automatically vest upon the legal heir, after his death.
By referring to Rule 131 (3) (a) and also 138 (2) (v) of the West Bengal Co-operative Society Rules, it has been submitted that only members of the Society are required to obtain permission before handing over property of the Co-operative Society. He has developed an argument that as the vendors of the present petitioners were not members of the said Co- operative Society, though were legal heirs of the erstwhile member of the Co-operative Society, could transfer the right title interest, lawfully and validly, with respect to the said property, to a third person, in this case, the present petitioners (purchasers of the property).
To fortify his argument Mr. Chakraborty has further relied on Section 92 (3) of the said Act, which may be extracted as follows:-
"92. Rights of members.
(1) ************* (2) **************** (3) A plot of land or a house or an apartment in a building (including the undivided interest in the common areas and facilities) shall constitute a heritable and transferable immovable property within the meaning of any law for the time being in force :
Provided that, **********"
Further he has submitted that vendors of his client were eligible for membership in the 3 respondent no.3/Co-operative Society and had inherited the right there of, by operation of law only. Therefore, according to him, the Arbitrator as well as Tribunal went wrong and passed erroneous orders that the sale in favour of the present petitioners by the legal heirs of the deceased member of respondent no.3 is in violation of West Bengal Co-operative Societies and Rules there under. He has controverted the decision of the Arbitrator as well as the Tribunal that the sale deed in favour of his clients have been declared as bad in law inoperative and has been revoked in affect, addressing that to be liable to be set aside. He has further pleaded about grave prejudice suffered by his client having remitted good amount of consideration money in lieu of the said property and also suffering the order, as impugned in this case.
No one is appearing for the respondent/Co-operative Society in this case, in spite of service, though State is represented.
Pursuant to the provision under Section 92 of the West Bengal Co-operative Societies Act, the right to the immovable property of a Co- operative Society is heritable and transferable. It is imperative that to hold a property under the Co-operative Society, a person becomes a member thereof. There are eligibility criterion for membership of a Co-operative Society, as provided under the said Act. Law has also provided that a member of a Co-operative Society may record name of his nominee under Section 76 to be a member and hold the property in the said Co-operative Society, after his demise.
In the case of Indrani Wahi vs Registrar of Co-operative Societies & Ors., reported in (2016) 6 SCC 440, the Hon'ble Supreme Court has been please to hold that the rights of others on account of inheritence or succession is a sub-4
servient right and only exercisable in absence of any nomination made under Section 76 of the said Act. While deciding the issue involved, the Court held that a Co-operative Society is mandated to transfer the share and interest of a deceased member to a recorded nominee of him.
It is beneficial in this case to notice, that according to law, there are two prescribed processes, by which one is inducted to the Co- operative Society hierarchically. As it has been provided under Section 70 of the said Act, a person may be inducted by nomination or if there is no nomination made, by production of probate, letter of administration or succession certificate issued by a competent Court.
The provision under Section 70 Act of 2006 may be extracted hereinbelow:-
"70. Disposal of deceased member's share or interest.- (1) On the death of a person who is a member of Co-operative society, his share or interest in the Co-operative society shall, subject to the provisions of section 58 and 72 and to the further provisions of this section, be transferred-
(a) to the nominee, if any; made under section 76; or
(b) if there is no nominee or if the existence or residence of the nominee cannot be ascertained by the board or if the nominee does not claim possession of such share or interest or if for any other reason, the transfer cannot be made within one year from the date of death, to the person who (subject to the production by such person of probate, letter of administration or succession certificate issued by a competent court having jurisdiction) appears to the board to be entitled to the possession of such share and interest as per of the estate of the deceased member; or
(c) ********"
The moot question involved in this writ petition is that whether the Tribunal is erroneous in finding that the present petitioners could not have been transferred with any valid right, title, interest to the said property, by the legal heirs of the deceased member of the respondent Society, being lawfully devoid of the same, by themselves; whether the legal heirs of the deceased member of respondent no.3/Co- operative Society were entitled to pass on the 5 right title interest over the concerned property to the third person without being a member of the said Co-operative Society. Also that whether vesting of the same, upon them, after death of their predecessor is only automatic to bestow them the freehold right to the said property.
The Act has made provisions for nomination of the successor of a member or in absence of any nomination for providing succession certificate etc. The provision of law that the immovable property of Co-operative Society is heritable and transferable is subject to the provisions of nomination under Section 76 and the provision of due proof of his heir ship as per Section 70 thereof.
The proposition argued on behalf of the petitioner that the legal heir, by operation of law, automatically becomes owner of the right title interest of the property and thus being eligible, transfer the same in favour of the third person, without knowledge of the respondent Co-operative Society, is not maintainable under the scheme of the said Act of 2006.
On the contrary it can be well said that even if being eligible for membership the legal heirs of the erstwhile member of respondent no.3, i.e, the vendors of the present petitioners, did not obtain membership of the Society after demise their predecessor. Admittedly, none of them were nominated by the erstwhile member. Nor any of them produced with the Co-operative Society a succession certificate with a prayer for becoming member thereof. To presume that the property devolves automatically upon them, as legal heirs, by virtue of the provision Act of 2006, is only farfetched and erroneous. Section 92 (3) definitely makes the property of the Co- operative Society as heritable and transferable also, but at the same time Section 72 of the said Act has provided that the Society's property is transferable by only a member thereof. The 6 provisions of Sections 92, 72 and 70 of the said Act are not mutually exclusive, but have to be read jointly and only then the scheme under the said Act would be sub-served. Any provision of the Act read in isolation would lead to erroneous application of law.
In considered opinion of this Court, the vendors of the present petitioners not being members of the respondent Society, by producing either nomination or succession certificate in terms of the provisions of the said Act, could not have a valid right to makeover the right, title or interest of the property in favour of any third party.
So far as the present petitioners are concerned, they were duty bound to be aware about the property, before purchase.
This Court finds no cogent reason to interfere in the impugned order dated 02.01.2020 of the Tribunal, to revoke the deed of convenience in favour of the present petitioners, on the ground of that being overtly illegal and not sustainable. Hence, the same is upheld by this Court. Petitioners may recover the consideration money, paid, in accordance with law, if so adviced. The writ petition is liable to be dismissed.
On the discussion as above and finding no merits this writ petition being WPA 851 of 2020, the same is dismissed. The order of the Tribunal dated 02.01.2020 in Appeal No. 33 of 2016 is upheld.
There shall be no order as to cost.
(Rai Chattopadhyay, J.)