Gujarat High Court
Arunaben Chandulal Dave vs Parthiv Vijaykumar Dave on 19 June, 2023
Author: Gita Gopi
Bench: Gita Gopi
C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3908 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/FIRST APPEAL NO. 3908 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ARUNABEN CHANDULAL DAVE
Versus
PARTHIV VIJAYKUMAR DAVE
==========================================================
Appearance:
MR BHARAT S PATEL, SENIOR ADVOCATE for MR CHIRAG B
PATEL(3679) for the Appellant(s) No. 1,2
MR D K TRIVEDI(5283) for the Defendant(s) No. 1,2,3,5,6,7,9
MR BHUSHAN OZA for the Defendant(s) No. 4,8
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 19/06/2023
CAV JUDGMENT
Page 1 of 117
Downloaded on : Mon Jun 19 20:47:24 IST 2023
C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
1. The appellants - defendant Nos.1 and 2 of Civil Suit no.2408 of 2012, have challenged the judgment and preliminary decree passed by the City Civil Court, Ahmedabad on 27.9.2021.
2. The Suit was filed by heirs of Vijaykumar Chandulal Dave, for partition and possession of the property being bungalow No.E/23 in Aayojannagar Cooperative Housing Society Ltd., on land bearing city survey No. 1273, admeasuring about 333.97.50 sq. mtrs. of Final Plot No. 35/P of Town Planning Scheme No. 26, Ahmedabad City, as well as property at Lunavada survey No. 4749, admeasuring 132.7 sq. yards, situated behind Old Post Office, Luhar Road, against eight defendants, with defendants No. 5, 6 and 8 as heirs of Harishkumar Chandulal Dave and others being the son and daughter of the deceased Chandulal Harilal Dave. Page 2 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
3. The parties had no dispute about the property at Lunavada, and defendant No. 1, present appellant No. 1, who had examined herself at Exh.75, had admitted about the same being the ancestral property and heirs of Chandulal Dave having received the share in the said property.
4. The challenge is only about bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd.
5. The appellants have contested the judgment mainly on the ground that it is against law, equity, justice and good conscience. The learned Judge has erred in not properly framing the Issues, which had led in serious miscarriage of justice. It is contended that the learned Judge has not considered the status of the father and mother of the appellants in connection with the suit Page 3 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 property being bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., which has resulted into serious error.
6. The appellants have contended that the bungalow in dispute had been purchased by the parents of the appellants jointly and thus, it cannot be considered as self- acquired property only of the father, and the learned Judge has seriously erred in not considering the fact that after the death of father - Chandulal Harilal Dave, mother of the appellants - Sulochanaben Chandulal Dave had paid the installments of the property to the Cooperative Housing Society and had clearly acted as owner of the property and her ownership was never under challenge. It is also contended by the appellants that the original plaintiffs, have no right to ask for partition, as their brother - Vijaykumar Chandulal Dave had never objected to the Page 4 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 ownership of the mother, and the appellants have further contended, that the learned Judge has seriously erred in not considering the Will executed by the deceased- Sulochanaben Chandulal Dave on 3.2.2002, and, that after a period of 10 years, the Suit had been filed.
7. The appellants have also contended that even assuming the fact that Sulochanaben Chandulal Dave had got 50% share, then also, the respondents are not entitled for the share which has been given to them, and, that the learned Judge has erred in not accepting the Will, treating it to be a nullity, without there being any challenge to the Will. It is also stated that the learned Judge has erred in not considering the fact that the bungalow in dispute was purchased by the parents of the appellants and society is the owner of the land on Page 5 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 which the bungalow is situated, which is not the subject of partition.
8. The plaintiffs, as heirs of Vijaykumar Chandulal Dave before the City Civil Court, Ahmedabad in Civil Suit No. 2408 of 2012 had pleaded that Chandulal Dave was the owner of the property bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., the said property was running in the name of Chandulal Dave in the registers of Cooperative Society as well as in the city survey record. Chandulal Dave died on 29.4.1992.
9. The Suit was filed for partition in metes and bounds, pleading it to be Hindu undivided family property. As per the pedigree of Chandulal Harilal Dave, he left behind him widow-Sulochanaben and six children, consisting of four sons and two daughters. After the death of Sulochanaben, Page 6 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 the plaintiffs pleading as the lineal descendants of Chandulal Dave and Sulochanaben, prayed for one-sixth share in the property.
10. Averment of the plaintiffs, was to the effect that deceased Chandulal Dave was the member of Aayojannagar Cooperative Housing Society Ltd., and bungalow No. E/23 was running in his name, while the appellants are occupying the same. It had been stated that Chandulal Dave died intestate, after his death, the plaintiffs had made an application with city survey office for mutation of the succession entry, which came to be granted on 30.9.2006. Aggrieved by the same, the defendants Nos. 1 to 3 had preferred Revision Application No. 5 of 2007 before the Ahmedabad City Deputy Collector, who vide his order dated 3.9.2009, confirmed the order passed by the City Survey Officer Page 7 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 on 30.9.2006, plaintiffs contend that the said order has attained finality, since the defendant Nos. 1 to 3 have not carried the matter further. It is contended that they have repeatedly asked for their share and for partition of the suit property. Since the defendant Nos. 1 to 3 had not acceded to the same, the plaintiffs had filed the Suit.
11. Notice of motion Exh.7 for interim relief was allowed and the injunction was granted till final disposal of the Suit vide order dated 13.9.2013. The defendant Nos. 1 and 2 filed their reply to the Suit as well as notice of motion at Exh.29, defendant Nos. 3 and 7 did not prefer to file any written statement, while defendant Nos. 4, 5, 6 and 8, heirs of Harishkumar Chandulal Dave, supported the case of the plaintiffs. Page 8 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
12. The defendant No. 1 and 2 countering the case of plaintiffs, vide their reply, stated that the deceased - Sulochanaben Chandulal Dave became the absolute owner of the property bearing bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., and she had made her last Will and testament on 3.2.2002, whereby she has given the property bearing bungalow No. E/23 to defendant No. 1 exclusively, even excluding late Vijaybhai Dave, while the property at Lunavada had been bequeathed to the children, having share in equal proportion, and it has been contended that the plaintiffs were knowing the said fact and therefore, had not challenged the same. It is further pleaded that, defendant No. 1- present appellant No. 1-Arunaben Dave has become absolute owner of the property being Page 9 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd. by way of will of Sulochanaben and the plaintiffs have no right, title or interest in the property, where defendant No. 1 had been residing since 1976 and none of the other parties to the Suit have objected to the same. The defendant Nos. 1 and 2 have stated that other children of the deceased are staying separately and they had never taken any care of late Sulochanaben. Defendant Nos. 1 and 2 have further alternatively put up their claim of ownership on the property by way of adverse possession. It had been contended by defendant Nos. 1 and 2 that the plaintiffs were never in possession of the suit property and after death of Chandulal Dave, Sulochanaben was in possession all throughout her life and thereafter, defendant Nos. 1 and 2 have been in Page 10 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 possession of the suit property. They have contended that they have renovated/ constructed two rooms and a kitchen and incurred expense of Rs.3 to Rs.5 lacs. The name of Sulochanaben was mutated in the record of society on 25.2.1993 to which neither the plaintiffs nor the other defendants have ever objected and thus, they had made a prayer to dismiss the Suit with costs.
13. On rival contentions of the parties, learned Trial Court Judge was pleased to frame the Issues vide Exh.38 on 6.2.2014, raising the Issue 1 and 3, as to whether the suit property was self-acquired of deceased Chandulal Dave; whether the suit property is undivided ancestral property. Issue No.4 to be proved by the defendant No. 1 and 2, whether late Sulochanaben Dave was entitled to execute the Will; and whether the Will Page 11 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 dated 3.2.2002 was legal and executable. Further, for the defendants to prove issue No. 5 and 6 that Sulochanaben Dave had become independent owner of bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., and, whether defendants are in legal and independent ownership and possession of the said bungalow.
14. The learned Trial Court Judge has observed that defendant No. 7 - Bharatkumar Chandulal Dave had neither supported nor contested the case of the plaintiffs. The learned Trial Court Judge has accepted that the Will produced by the defendant No. 1 to 3 at Exh.84 clearly mentions that for the property at Lunavada, all the heirs have equal right in the same, and the said fact has been admitted in the written statement of defendant Nos. 1 and 2 at Exh.29. That the property at Lunavada was in favour of Page 12 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 all the children of late Sulochanaben having share in equal proportion. Thus, accordingly no dispute remained for the property at Lunavada.
15. During the course of trial, on behalf of the plaintiffs, the evidence was led by the plaintiff No.1 - Parthiv Vijaykumar Dave at Exh.50, while defendant No.1 examined herself at Exh.75, and one Kanubhai J. Mehta was examined at Exh.181 from the side of defendant No. 1 and 2. Defendant No. 1 affirms that Vijaykumar left behind him Kumudben (widow), Parthiv (son), Chaitali (daughter)-the plaintiffs, and similarly had admitted that her brother Harishkumar left behind him Urmilaben (widow), Maulik (son), Vicky (son) and Nisha (daughter) who are defendant Nos. 4, 5, 6 and 8. The defendant No. 1 - present appellant No. 1 in her cross-examination has admitted that the Page 13 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 property being bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd. was constructed by her father who had spent his entire money, father had worked as a Clerk in High Court of Gujarat. She also admitted that her father had died on 29.4.1992 intestate, and upon application of the plaintiffs, their names were mutated in the property record and the revenue proceedings initiated by them, was rejected by the District Collector, Ahmedabad.
16. The learned Trial Court has referred to admission of defendant No. 1 that mother- Sulochanaben Chandulal Dave had never purchased any property. The learned Trial Court Judge, thus, relying on the said admission of defendant No. 1, concluded that suit property at Ahmedabad was purchased from the self-earned income of the deceased Chandulal Dave, and that defendant No.1 has Page 14 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 produced Share Certificate issued by Aayojannagar Cooperative Housing Society Ltd. in the name of deceased mother - Sulochanaben at Exhs. 80 and 81 dated 13.6.1994 and 30.5.1995, while the plaintiffs had produced Certificate at Exh.71 dated 12.7.1969 to show that the deceased Chandulal Dave had become the member of Aayojannagar Cooperative Housing Society Ltd.
17. Defendant No. 1 produced letter issued by Aayojannagar Cooperative Housing Society Ltd. dated 25.2.1993 at Exh.82, the learned Trial Court Judge to that has observed that the said letter states that bungalow No. E/23 i.e. the suit property, was running in the joint name of Chandulal Dave and Sulochanaben Chandulal Dave and on demise of Chandulal Dave, his name came to be deleted. Thus, the learned Trial Court Judge came to Page 15 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 the conclusion, observing that initially Chandulal Dave was the original owner of bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., and after his demise, bungalow came in the hands of Sulochanaben and therefore, the learned Trial Court Judge answered Issue Nos. 1 and 3 in affirmative, believing it to be self- acquired property of Shri Chandulal Dave and thus, undivided ancestral property.
18. While considering the issue regarding the Will executed by the deceased - Sulochanaben Chandulal Dave, the learned Trial Court Judge observed that it is the case of the defendants that after death of Chandulal Dave, Sulochanaben became absolute owner of the suit property and defendant No. 1 and 2 were taking care of her and that the plaintiffs and other defendants failed to take care of Sulochanaben and therefore, Page 16 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Sulochanaben had not given any share in the said property to them and bequeathed the entire property in the name of defendant No. 1 by Will dated 3.2.2002. While appreciating the said Issue which was raised as to whether Sulochanaben is entitled to bequeath the entire suit property in the name of defendant No. 1, the learned Trial Court Judge observed the evidence of Kanubhai J. Mehta at Exh.181 who stated that he knew late Sulochanaben for about 40 years, and she had made her Will and testament on 3.2.2002, she later on called him on 5.2.2002, showed him the Will, who acknowledged that it was made and signed by her. The witness further stated that she requested him to sign the said Will as witness and further deposed identifying the signature of Mr. Indravadan Mehta who was another witness known to him. The witness Page 17 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 further deposed that he had filed an affidavit-cum-declaration at Exh.109, in cross-examination, he admitted that he had put his signature only on 5.2.2002, while the Will was already signed by Sulochanaben and other witness and admitted that the Will was not prepared in his presence, and Sulochanaben had not gone anywhere to get the Will registered and the said Will is an unregistered Will. So the learned Judge observed from the cross-examination of the witness, that the Will was neither signed by Sulochanaben in presence of witness, nor the witness has put his signature in presence of each other.
19. The learned Trial Court Judge thereafter referred to the provision under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, placing reliance on the case of Dhanpat v. Sheo Ram (deceased) Page 18 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 through Legal Representatives and others, reported in (2020) 16 SCC 209 and Mahesh Kumar (Dead) by LRs v. Vinod Kumar & Ors., reported in (2012) 4 SCC 387 to conclude that the Will dated 3.2.2002 made by the deceased - Sulochanaben appears to have been proved. The learned Trial Court did believe the execution of will.
20. The learned Trial Court Judge deemed fit to consider the question whether Sulochanaben Chandulal Dave had become the absolute owner of the suit property and whether she was entitled to bequeath the entire suit property in the name of appellant No. 1, leaving other legal heirs. Advocate for defendant No. 1 had relied upon the judgment in the case of Smt. Sunita Shankar Salvi v. Shankar Laxman Salvi, reported in AIR 2003 Bom 431, to contend that the deceased - Sulochanaben had 50% right, title and Page 19 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 interest in the suit property along with her deceased husband. The defendants had contended that Sulochanaben had become the absolute owner of the suit property and therefore, she had executed the Will bequeathing the entire property in favour of the defendant No. 1. The learned Judge had found the reliance placed on the judgment of Smt. Sunita Shankar Salvi (supra) as not appropriate, to the facts of the case, observing the admitted position that the property was purchased from self-earned funds of the deceased Chandulal Dave which has been admitted by defendant No. 1 in her cross-examination and it was observed by the learned Trial Court Judge, on the basis of the evidence of the plaintiffs and the defendants, that the name of Chandulal Dave came to be deleted after his demise and therefore, defendant No. 1 has pleaded that Page 20 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Sulochanaben had become the absolute owner of the property. While observing the facts, the learned Trial Court Judge came to the conclusion that the case in Sunita Salvi (supra) was not of succession right, while the present matter pertains to the succession rights.
21. The learned Trial Court Judge, thus, on elaborating on the succession rights, observed that the distribution of property shall be in accordance to the provision of the Hindu Succession Act, and with the amendment in the law in the year 2005, the learned Judge observed that Chandulal Dave passed away on 29.4.1992, and, before the amendment in Hindu Succession Act, females were not given share in the ancestral property. The learned Judge, thus, explaining the concept has laid down as under:-
Page 21 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023
C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 "1. All the heirs will have equal rights irrespective of gender and they will be considered coparceners by birth.
2. The daughter of a deceased person has the same entitlement on coparcenary property as the right of a son.
3. There is no difference when it comes to the liabilities, just as rights are equal, so also, the liabilities. In Mitakshara if there is any coparcenary's liability then it will be applicable to both son and daughter equally.
4. Similarly, female's three-
generation such as daughters, granddaughters, and great-
granddaughters are also entitled as in the case of male heirs.
5. The responsibility of debt repayment by the male heirs and female heirs for their fathers, grandfathers, and great-
grandfathers. Debt repayment does not transfer to the descendants and it ends when the debtor dies.
6. These Amendments are only applicable to a Hindu whose property interest lies to a joint Hindu family under Mitakshara law and who dies either testamentary or intestate after the commencement of the Amendment Act.
Page 22 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
7. The female heirs who are eligible to inherit are classified as follows:
1.The daughter(s),
2.The daughter's-daughter's son(s),
3.The daughter's-daughter's daughter(s),
4.The daughter's son's daughter(s), and
5.The son's daughter's son(s) (the predeceased great-granddaughter which is only applicable if the male heir or the grand is predeceased)."
22. Observing the position of law, Ld. Judge has laid down that on death of Chandulal Dave, intestate, the suit property therefore would be divided equally amongst the legal heirs of the deceased Chandulal Dave. Each legal heir being entitled to one-seventh share in the suit property of the deceased and thus, concluded that on demise of Chandulal Dave, his widow would be entitled to one-seventh share in the suit property, further on the Page 23 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 admitted facts of all legal heirs, Chandulal Dave and Sulochanaben had given their right in the property situated at Lunavada to the legal heirs. The learned Trial Court Judge in that position of law referred to the suit property of Aayojannagar Cooperative Housing Society Ltd., to observe that since Sulochanaben had one-seventh share in the said property, she could not have executed the Will dated 3.2.2002 bequeathing the entire suit property in favour of defendant No. 1 leaving aside the remaining heirs.
Therefore, the learned Trial Court Judge, in his opinion, concluded that the Will dated 3.2.2002 of the deceased Sulochanaben was wrong to that extent and such Will, since inception, could be challenged at any time and therefore, discarded the contentions raised by the defendants that as the plaintiffs have not challenged the Will Page 24 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 earlier, they are not entitled to any share in the property situated in Ahmedabad. Under such observation, the learned Trial Court Judge observed that the deceased Sulochanaben could have executed the Will only to an extent of one-seventh share in the property.
23. In view of the discussion and the referred principles of law, the learned Trial Court Judge, thus, ordered the suit property being bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., to be partitioned to daughters and sons of Chandulal Dave as under:-
1 Indiraben Chandulal Dave one-seventh (daughter) 2 Harishkumar Chandulal Dave one-seventh (son) 3 Vijaykumar Chandulal Dave one-seventh (son) 4 Arunaben Chandulal Dave one-seventh (daughter) Page 25 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 5 Bharatkumar Chandulal Dave one-seventh (son) 6 Anilkumar Chandulal Dave one-seventh (son)
24. The learned Trial Court Judge considered the share of the deceased Sulochanaben to be in favour of defendant No. 1, thus made Arunaben Chandulal Dave as defendant No. 1, entitled to two-seventh share in bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., and the respective shares of the deceased sons - Harishkumar Chandulal Dave and Vijaykumar Chandulal Dave to be partitioned equally amongst their legal heirs and thus, concluded that the plaintiffs shall be entitled to one-twenty- first (1/21st) share.
25. Senior Advocate Mr. B.S. Patel for the appellants submitted that a family dispute has been raised by a grandson. The property in dispute was purchased by Chandulal Page 26 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Hiralal Dave who was a Clerk to a High Court advocate, after purchasing the plot in Aayojannagar Cooperative Housing Society Ltd., Sr. Advocate Mr. Patel submitted that Shri Chandulal Dave took loan and constructed a bungalow and gradually started repaying the loan. Except a son and a daughter, all started living separately. Mr. Patel submitted that Chandulal Dave had nominated his wife Sulochanaben in the Cooperative Housing Society. He died on 29.4.1992 and after his death, Share of the Cooperative Society got transferred in the name of Sulochanaben, who thereafter paid due installments of the loan. Mr. Patel also stated that during the lifetime of Chandulal Dave, Sulochanaben had also purchased Shares in the Cooperative Society. She was the owner of the property and had executed a Will dated 3.2.2002 by bequeathing the Page 27 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 property to the daughter. She had made the daughter and son - defendant Nos. 1 and 2 her nominees in the Cooperative Society. Vijaykumar Chandulal Dave, the predecessor of the plaintiff died on 3.4.2006 and another son - Harilal Dave died on 12.10.2009. The ownership of the property in the name of mother had never been challenged by any of the sons of Chandulal Dave and on death of Vijaykumar after a period of six years and six months, the Suit came to be filed. Mr. Patel submitted that when the Suit was filed, the daughter had produced the Will, which was within the knowledge of the plaintiff, but was never challenged by any of the heirs of Sulochanaben Dave.
26. Senior Advocate Mr. Patel submitted that the bungalow at Aayojannagar Cooperative Housing Society Ltd. is self-acquired property and parties have no right to claim partition. He Page 28 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 further submitted that the land is of the ownership of the Cooperative Society. Mr. Patel submitted that in case of tenant- ownership society, the super structure's ownership would be with the tenant, while in tenant partnership society, the right would be decided in terms of the partnership, and in both the cases, the land would always belong to the society and thus, stated that the land cannot be made subject matter of partition.
27. Referring to Section 31 of the Gujarat Cooperative Societies Act, 1961, Mr. Patel submitted that transfer of interest on the death of the member would be in favour of the nominated person according to the rules, and in absence of any nomination, the transfer of share or the interest in the society would be made by the Committee to the heirs or legal representatives of such Page 29 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 member. In the present case, Mr. Patel submitted that Sulochanaben, wife of Chandulal Dave, was the nominee as well as owner, by purchase of Shares of the society. The Share Certificates are in the name of Sulochanaben Dave and the society had also passed a Resolution making her co-owner along with Chandulal Dave.
28. Mr. Patel, Sr. Advocate, submitted that during her lifetime, Sulochanaben had nominated Aruna Chandulal Dave and Anil Chandulal Dave as her nominees. The nomination was accepted by the society, and, none of the sons or other daughter had objected to the nomination. Mr. Patel submitted that none of the children had paid installments of the loan, nor had paid any tax and thus, there was a waiver by conduct. Mr. Patel stated that it was because of the attitude of the other family members, the Page 30 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 mother executed a Will, Mr. Patel thus submitted that the grandson would be estopped to challenge the same. Mr. Patel further submitted that sons already knew that the father was the owner of the property and none of the sons had claimed the right, on the death of the father and had not asked the Committee to put their names as heirs and legal representatives. Mr. Patel submitted that the plaint is based on the cause of action shown from the date of the death of the father, while from 1992 to 2012, no challenge was given to any of the proceedings before the society or City Survey Office. The Will of the mother is not challenged alleging any concoction or undue influence. None of the sons had contributed for the purchase of the property, nor had they challenged the right of the mother during her lifetime. Neither the nomination Page 31 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 is challenged, nor the Resolution passed by the society was under challenge. Mr. Patel submitted that the learned Trial Court Judge has not dealt with the nomination and even the father's right of appointing nominee, deciding the heir.
29. Mr. Patel further submitted that respondent No. 8 is a practicing advocate, he has not filed any reply. Further relying on Section 14 of the Hindu Succession Act, stated that the mother has absolute right to dispose of the property. In support of the arguments regarding the provision under the Gujarat Cooperative Societies Act, 1961, he has relied on the decision reported in 1979 GLR 878 of Mulshanker Kunverji Gor Vs. Juvansinhji Shivubha Jadeja, rendered in Criminal Revision Application No. 526 of 1976.
Page 32 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
30. Advocate Mr. D.K. Trivedi for the respondents, countering the argument submitted that Sulochanaben had no right to decide about the ownership of the property, nor the Cooperative Society could decide the interest, share and title of the heirs of Chandulal Dave. Mr. Trivedi stated that the grandsons have the right by birth in the co- parcenery property, as the property of Chandulal Dave on his death, is deemed to have received by all the heirs and thus, grandsons as co-parceners become entitle for the share in the property and can thus file a Suit for partition. Advocate Mr. Trivedi submitted that heirs are claiming the right in the super structure and further stated that during the lifetime of father, the mother cannot become the owner, and being a nominee, she had no power to dispose of the Page 33 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 property by way of Will to any of the legal heirs. Mr. Trivedi further stated that Sulochanaben, becoming the member of the society prior to the death of Chandulal Dave, is not proved on record, and the present appellant failed to prove the property being acquired by the deceased Sulochanaben, to be considered as exclusive under Section 14 of the Hindu Succession Act. Mr. Trivedi further stated that Section 135D notice was given to all the heirs, and succession entry has been allowed by the Collector, which has attained finality and further stated that the right of nominee under the Gujarat Cooperative Societies Act, 1961 has a persuasive value, while actual rights of the parties are to be decided by the Civil Court. To support his argument, Advocate Mr. Trivedi relied on the judgment in the cases of (1) Indrani Wahi v. Page 34 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Registrar of Cooperative Societies, reported in (2016) 6 SCC 440, (2) Gopal Vishnu Ghatnekar v. Madhukar Vishnu Ghatnekar declared by Bombay High Court reported in 1982 MHLJ 650, AIR 1982 Bombay 482, (3) Ramdas Shivram Sattur v. Rameshchandra @ Ramchandra Popatlal Shah, reported in 2009 (4) MHLJ 551, (4) Jignesh Chhotalal Dave v. Bank of India Manager rendered in First Appeal no.1220 of 2012 dated 7.5.2012.
31. Advocate Mr. Bhushan Oza for respondent No. 8 submitted that at the relevant point of time on 27.2.2002, a notice was given by Harishkumar Chandulal Dave, Vijaykumar Chandulal Dave and Bharatbhai Chandulal Dave to the Chairman/Secretary of Aayojannagar Cooperative Housing Society Ltd., claiming their right in bungalow No. E/23 in Aayojannagar Cooperative Housing Society Ltd., addressing to the Cooperative Society Page 35 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 that after the death of Chandulal Dave, the bungalow was transferred in the name of Sulochanaben as a widow by the society, ignoring the rights of the heirs and legal representatives and the said transfer was in illegal manner and further had stated that the transfer in the name of Aruna Chandulal Dave and Anil Chandulal Dave as a nominee is absolutely in an illegal manner and therefore, by notice had called upon the society to add their names as legal heirs and nominees on the record, on demise of Chandulal Dave claiming equal rights as heirs, advocate Mr. Bhushan Oza stated that the said notice was replied by the Cooperative Society, however, the said communication could not be placed on record, to prove the said fact.
32. Having heard the rival contentions, as per the documents on record, admitted position Page 36 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 which emerge on record is that the deceased Chandulal Dave was a member of Aayojannagar Cooperative Housing Society Ltd. He held the Shares, and plot of Aayojannagar Cooperative Housing Society Ltd., and constructed bungalow No. E/23. During his lifetime, he nominated his wife-Sulochanaben as his nominee. The nomination was recorded in the books of the society and after the death of Chandulal Dave on 29.4.1992, nominee Sulochanaben asked the society to transfer the shares, which stood transferred in the name of Sulochanaben in the record of the society. Thereafter, Sulochanaben nominated Aruna Chandulal Dave and Anil Chandulal Dave as nominees and vide Resolution No. 4 in the meeting of Managing Committee held on 27.12.1995, appellants names were recorded in the books of the society.
33. In the judgment relied upon by learned Page 37 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Senior Advocate Mr. Patel in case of Mulshanker Kunverji Gor (supra), the case was raised, where the society constructed houses on the plot, and a house was allotted by the society to Girish Morarji Mehta. The said person applied to the society for transfer of his share to one Juvansinh Shivubha Jadeja, the plaintiff. The society accepted the transfer of share and admitted Juvansinh Jadeja as its member. When Girish Mehta was occupying the house in question, he let it out to the defendants. Upon transfer of share by Girish Mehta to Juvansinh, the plaintiff, latter claimed to recover from the defendants rent in respect of suit premises. The defendants did not accept Juvansinh's title, as a result of which, the rent remained unpaid. The notice of demand was served upon the defendants. The plaintiff filed the Suit against the Page 38 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 defendants for the recovery of the possession of the suit premises on the ground of arrears of rent. The learned Trial Court Judge upheld the defence raised by the defendants and dismissed the Suit, thereafter, the challenge was raised before the District Court. The Appellate Judge reversed the findings recorded by the learned Trial Court and allowed the appeal and set aside the decree of dismissal, and passed in favour of the plaintiff, decree for possession. The said decree was challenged by the defendants before this Court in Civil Revision Application. The validity of transfer of suit premises from Girish Mehta to the plaintiff was an important question which was raised, and therefore, the matter was referred to the Division Bench with the question "whether any registered document is necessary in Page 39 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 favour of any transferee for transferring the super structure standing on the land allotted by any Cooperative Society in favour of any of its member."
34. The undisputed facts of the case was that Girish Mehta was the original allottee from Santosh Cooperative Housing Society Ltd., of the super structure standing on the plot, Girish Mehta in turn had transferred his share in the society along with the suit premises to the plaintiff Juvansinh Jadeja with the approval of the society. The transaction was not effected by a registered instrument as contemplated under Section 54 of the Transfer of Property Act and the provision of Section 17 of the Registration Act, 1908 were not satisfied. Therefore, the Division Bench proposed to answer the question whether the immovable property allotted by the cooperative housing society Page 40 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 to its member can be transferred by the member with the approval of the society to another person without a registered instrument of transfer. Section 30 of the Gujarat Cooperative Societies Act, 1961 was referred, which lays down restrictions on transfer of shares or interest. Section 30 of the Act is reproduced herein below:-
"30. Restrictions on transfer of share or interest.-
(1) Subject to the provisions of Section 29 and sub-section (2) a transfer of, or charge on, the share or interest of a member in the capital of a society shall be subject to such conditions as may be prescribed.
(2) A member shall not transfer any share held by him, or his interest in the capital or property of any society, or any part thereof, unless,-
(a) he has held such share or
interest for not less than one
year;
(b) the transfer or charge is made to the society, or to a member of Page 41 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 the society, or to a person whose application for membership has been accepted by the society; and
(c) the committee has approved such transfer."
35. It was observed in the case that, though Section 30 makes it clear that a member of Cooperative Housing Society to whom the society had allotted the house is not absolutely free agent to transfer the property allotted to him, in order to enable him to transfer to another person, the house allotted to him, it is, inter-alia, necessary that he must have held the share or interest in the capital or property of the society for not less than one year, and that, with the approval of the Committee of the society such transfer is sought to be made to a member of the society or to a person - if he is initially an outsider - whose application for membership has been accepted by the society. Referring to Page 42 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Section 37 of the Act, it was observed with a clarity, that the Cooperative Housing Society, upon its registration, becomes a legal person which is distinct from its members.
36. Section 42 of the Act is regarding the provisions of exemption from compulsory registration of instrument relating to shares and debentures of the society. Having noted the provision of Section 17 of the Registration Act, 1908, it was held as under:-
"(2) Nothing in clause (b) and (c) of sub-sec. (1)) applies to"
(i) any composition-deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property:". Page 43 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Clause (ii) of sub-section (2) of Section 17 therefore exempts from compulsory registration instruments relating to shares in a joint stock company notwithstanding that the shares of a joint, stock company consist in whole or in, part of immovable property. This exemption is limited to transfer of shares in a joint stock company and does not extend to transfer of shares in a cooperative society. It is by clause (a) of Section 42 of Gujarat Co-operative Societies Act, 1961 that the exemption -from compulsory registration has been extended to transfer of shares in a co-operative society notwithstanding that the assets of the society consist wholly or in part of immovable property. When we read clause (ii) of sub-section (2) of Section 17 with clause (a) of Section 42 of Gujarat Cooperative Societies Act, 1961, we find that the language, used in both is in pari materia. It is clear therefore that the intention of the Legislature in enacting clause (a) of Section 42 of Gujarat Co-operative Societies Act, 1961, is to extend to co-
operative societies the exemption from compulsory registration extended by clause (ii) of sub- section (2) of Section 17 of the Registration Act, 1908 to joint stock companies."
Page 44 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Thus, was held that the intention of legislature in enacting clause (a) of Section 42 of the Gujarat Cooperative Societies Act, 1961 is to extend the Cooperative Societies the exemption from compulsory registration.
37. Section 49 of the Gujarat Cooperative Societies Act, 1961 is about the charge on immovable property of members borrowing from the society. The provision is made with regard to person who makes an application to the society of which he is a member, for loan and if he owns land or interest in any such land as a tenant, is required to make a declaration in the prescribed form. The declaration shall, thus, states that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of loan which the society may make to the Page 45 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 member in pursuance of the application and for all further advances. The judgment in the case of Mulshanker Kunverji Gor (supra) makes a reference of Section 49 of the Act in context of charge on immovable property of the members borrowings from the society and thus, observes that the said section, inter-alia, provides that no member shall alienate the whole or any part of the land or interest therein specified in the declaration made under clause (a) or clause
(b) until the whole amount borrowed by the member together with interest thereon is repaid in full. It also provides that alienation made in contravention of the provision of Clause (d) shall be void.
38. Rule 18 of the Gujarat Cooperative Societies Rules, 1965 provides as under:-
"18. Procedure for transfer of share:-Page 46 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023
C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 (1) No transfer of shares shall be effective, unless-
(a) it is made in accordance with the provisions of the bye-laws;
(b) a clear fifteen days' notice in writing is given to the society indicating therein the name of the proposed transferee, his consent, his application for membership, where necessary, and the value proposed to be paid by the transferee;
(c) all liabilities of the transferor due to the society are discharged- and
(d) the transfer is registered in the books of the society.
(2) Any charge in favour of the society on the share so transferred will continue unless discharged otherwise."
39. While dealing with Section 42 in Mulshanker Gor (supra), it was noted that the provision exempts from compulsory registration of the instrument relating to shares in the society despite that the assets of such society consist of wholly or any part of immovable Page 47 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 property. The shares in the Cooperative Housing Society have a necessary relation to immovable properties, which the society constructs and which are allotted by the society to its members and, therefore, a question was raised, as to what an instrument of transfer relating to share in the society conveys to the transferee. It has been observed in Paragraph 5 as under:-
"5. ...It has been argued that there are two types of co-
operative housing societies. One.
type is called 'tenant co- partnership society". Another is called "tenant ownership society"
A "tenant co-partnership, society"
is a society where the land is owned by the society and upon which houses are constructed by the society for the benefit of its members. It is the co-operative venture of all the members of a co-operative housing society which brings into being the houses which the members in their turn may occupy. They are constructed out of its own assets and out of the moneys borrowed by it. The debt is discharged by the society by collecting periodical Page 48 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 contributions from them in specified amounts. In such a society, it is the society in which the land and the buildings in the eye of law vest. The learned District Judge has on facts found in the instant case that the society in question is a tenant co-partnership society. Therefore, when a member of such a co-operative housing society transfers his shares to another with the approval of the society, he not only transfers the shares but also, as a necessary incident thereof, transfers his interest in the immovable property which has been allotted to him. What Section 42, clause (a), therefore, exempt"
from the rule of compulsory
registration is an instrument
relating to "shares in a society"
which carry with them, as a
necessary incident, member's
interest in the immovable property occupied by him. We say so because both the land on which the house has been constructed by the society and the house itself vest in the society in the eye of law.
It is therefore difficult to uphold the argument raised by Miss Shah that with the transfer of "shares in such a society", what are transferred are merely the shares in the society and not the right to occupy the house which necessarily flows from the allotment of the houses by the society to its members. In case of Page 49 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 a "tenant co-partnership society", "shares in a society" which a member holds appear to us to be inseverable from his interest in the immovable property which has been allotted to him for his occupation and enjoyment. Now, it is necessary for us to make it clear that the expression "shares in a society" used in clause (a) of Section 42 connotes shares in the assets of the society which include the immovable properties of the society which the society has allotted to its members for enjoyment and occupation. Looking at it from another angle, we find that since the immovable property
- the land and the house - vest in the society, no title is transferred to the purchaser with the transfer of shares. Title continues to remain with the society. Right to occupy and enjoy it is transferred by the transfer of his shares by one member to another. This expression does and cannot therefore embrace within its sweep any personal interest, independent of the society, which a member may have in the immovable property which he occupies. Such a situation arises in case of "a. tenant ownership society". It has been argued that in tenant ownership society". the land belongs to the society and the superstructure thereupon is constructed, not by the society out of its funds but, by the Page 50 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 member out of his personal funds. In such a case, when by an instrument a member transfers his "shares in the society" to another person, he not only transfers his shares but also his right to occupy and enjoy the land belonging to the society and the super-structure which he has constructed out of his personal funds and which belongs to him personally. The transfer of such a superstructure cannot be effected except under a registered conveyance because clause (a) of Section 42 does not exempt from compulsory registration the transfer of a member's personal immovable property - not belonging to the society - to another. It is therefore clear that in case of "a tenant co-partnership society", the transfer of shares necessarily carries with it the transfer of member's interest in the immovable property allotted to him and that such transfer can be brought about without registered instrument because clause (a) of Section 42 carves out an exception to the rule enunciated in sub-section (1) of Section 17 of the Registration Act, 1908, in case of "a tenant ownership society", shares carrying with it, as necessary incident, the member's interest in the land which belongs to the society can be transferred without a registered instrument but the super-structure cannot be Page 51 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 transferred except under a registered instrument contemplated by sub-s. (1) of Section 17 of the Registration Act, 1908 read with See. 54 of the Transfer of Property Act because the expression "shares in a society"
used in Section 42(a) of the Gujarat Co-operative Societies Act, 1961 casts its net upon land which belongs to the society but does not reach the super-structure which exclusively belongs to the member and which has nothing to do with the member's. "shares in a society."
40. While referring to the judgment of Sakarchand Chaganlal Vs. Controller of Estate Duty, Gujarat, (1969) 73 ITR 555 (Guj), where a case was of deceased, being a shareholder in 'tenant-ownership society'. The Court examined the scheme of bye-laws of the society and held that unlike the English law, the law in India recognizes dual ownership, the land belonging to one person and structure upon it belonging to another and therefore, the Court held that the land Page 52 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 of the plot was owned by the society and the super structure upon it, belonged to the deceased and it was held that the deceased could not have gifted the super structure except under registered instrument and it could not have been done only by transferring the shares.
41. The case of Ramesh Himmatlal Shah Vs. Harsukh Jadhavji Joshi, reported in AIR 1975 SC 1470 was referred, which was of "tenant co-partnership society", where the question arose whether a flat allotted to a member in such society could be attached in sale, in execution of the decree against the member to whom it was allotted. The Hon'ble Supreme Court held that the members interest in the flat allotted to him in such a society could be sold and attached. Thus, to the facts of the case in Mulshanker Gor (supra), it was held that Santosh Cooperative Housing Page 53 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Society Ltd., was a tenant co-partnership society and since the land and the super structure constructed thereon in the eyes of law belonged to the society, in the matter of transfer of shares relating to them compulsory registration was not necessary on account of the exemption enacted by the State Legislature in clause (a) of Section 42 and therefore, the Court came to the opinion that transfer of property in question from Girish Mehta to the plaintiff Juvansinh Jadeja was a valid transfer.
42. Section 42 of the Gujarat Cooperative Societies Act inter alia exempts from compulsory registration of instrument relating to shares in a society notwithstanding that the assets of such society consists wholly or in part of immovable property. In case of a "tenant co- partnership society" "shares in a Society" Page 54 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023
C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 which a member holds appears to be inseverable from the interest in the immovable property which has been allotted to him for his occupation and enjoyment. As can be viewed from different angle, since the immovable property, the land and the house-vests in the society, no title is transferred to the purchaser with the transfer of shares, title continues to remain with the society. Right to occupy and enjoy, is transferred by the transfer of his shares by one member to another. In case of a "tenant ownership society", when a member transfers his shares in the society to another person, he not only transfers his shares but also his right to occupy and enjoy the land belonging to the society, while for the super-structure which he has constructed out of his personal funds and which belonged to him personally, the Page 55 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 transfer of such a super-structure cannot be effected except under a registered conveyance because Sec.42(a) does not exempt from compulsory registration the transfer of a member's personal immovable property not belonging to the society to another. It is, therefore, clear that in case of a "tenant co-partnership society", the transfer of shares necessarily carries with it the transfer of members interests in the immovable property allotted to him and that such a transfer can be brought about without a registered instrument because clause (a) of Section 42 carves out an exception to the rule enunciated in sub-section (1) of Section 17 of the Registration Act, 1908.
While transfer of superstructure in tenant-
ownership society would be under registered conveyance.
43. It would herein also be apt to mention that Page 56 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 clause (a) of Section 42 vide effect 10.4.2015, as inserted by Guj. Act No.23 of 1982, has found an amendment for housing society, the relevant portion reads as under:-
"42. Exemption from compulsory registration of instrument relating to shares and debentures of society.- Nothing in clauses (b) and (c) of sub-section (1) of Section 17 of the Indian Registration Act, 1908 (XVI of 1908), shall, apply-
(a) to any instrument relating to shares in a society [not being a housing society] notwithstanding that the assets of the society consist in whole or in part of immovable property;"
The amendment now does not even exempt any transfer of shares in a housing society without a registered conveyance.
44. The reply of defendant Nos. 1 and 2, the present appellant, in the civil suit No. 2408/2012 at Exh. 29 was to the effect that Page 57 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Late Sulochana Chandulal Dave became the absolute owner of the property situated at E/23, Ayojannagar, Near Shreyas Crossing, Ahmedabad. The Share Certificate issued by Ayojannagar Cooperative Housing Society Ltd. had been relied, which was put in evidence at Exh. 80. The five Share Nos. 1141 to 1145 were allotted to Sulochanaben Chandulal Dave by Certificate No. 231 on 13.6.1994. Exh.81 is about 50 Shares, numbering from 4681 to 4730 allotted to Sulochanaben Chandulal Dave with Certificate No.373 on 30.5.1995 by Aayojannagar Cooperative Housing Society Ltd.
45. Exh. 82 is the certified copy of the resolution No. 7/5 dated 18.10.92 of the cooperative housing society which notes that E/23 of the society was running in the name of Shri Chandulal H. Dave and Sulochanaben Chandulal Dave and on death of Shri Page 58 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Chandulal H. Dave, his name was deleted and E/23 was resolved to be in the name of Sulochanaben. Shri Chandulal Dave died on 29.4.1992 so that shares allotted to Sulochanaben was only after the death of Shri Chandulal. The shares transferred in the name of Sulochanaben gave her the right to occupy and enjoy the land belonging to the society.
46. On behalf of the plaintiffs, Parthiv Vijay Dave examined himself at Exh. 50, he is the grandson of Shri Chandulal Dave. He, in his examination-in-chief, states that Chandulal Harilal Dave's name was running in the city survey record and during his lifetime, he had not executed any Will and on his death on 29.4.1992, the property is of Hindu Undivided Family and plaintiffs and defendants have undivided share. According to this witness, his grandfather being a Page 59 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 member in Aayojannagar Cooperative Society Ltd., had built Bungalow No. E/23 at his own expense. The witness said that after the death of Shri Chandulal Dave, they had given an application in the City Survey for mutation as successors in the property, this application was allowed on 30.9.2006 by the City Survey Officer. Aggrieved by the order, defendant Nos. 1, 2 and 3 had filed Appeal No. 5/2007 before the City Deputy Collector, the appeal came to be dismissed. The City Survey Officer, confirmed the names of plaintiffs and defendants by way of succession. There was no further order of Deputy Collector, and nor there was any civil suit, so the witness affirms by way of Affidavit-in-chief that plaintiffs have proved to have the share as member of Hindu Undivided Family. The mother, Sulochanaben died on 1.8.2005. It transpires that the Page 60 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 proceeding before the city survey officer was initiated only after her death.
47. Order of the City Survey Superintendent - 1, Ahmedabad is at Exh. 60, in CTS 3/06 dated 30.11.2006 confirms the names of heirs as successors of deceased Chandulal Dave. Order dated 3.9.2009, CTS Appeal 5/2007 at Exh. 61 by City Deputy Collector, Ahmedabad rejects the dispute application of the present appellants. Revision application 328/2009 against that order, was rejected on 18.8.2010 by the District Collector, Ahmedabad, the order is at Exh.62.
48. Exh.70, the Property Card of the disputed property bears the endorsement of the Gujarat State Cooperative Credit Society Ltd. of Rs.25,000/- related to member Shri Chandulal Dave.
49. Exh.73 is the affirmation by Chandulal Dave Page 61 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 as member of Ayojan Nagar Cooperative Housing Society Ltd., stating that his HUF had no other property to construct a house on the land, the application was to submit to the Housing Society. Mark 40/8 is the Nomination Form filled by Chandulal Dave making Sulochanaben Dave as his nominee, after his death.
50. Rojnama of the Trial Court file, shows that Mark 40/4 to 40/7 were put in evidence as Exh. 70 to 73. Exh. 72 is the document which reflects that Chandulal Harilal Dave had applied for Membership on 12.7.1969. According to the evidence of Parthiv Vijaykumar Dave, defendant Nos. 1 and 2 had been residing in the disputed Bungalow from 1968, since was constructed. The witness has no knowledge of the rooms in the bungalow nor has any information of any renovation of Rs.5 lakhs expended by the defendant Nos.1 Page 62 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 and 2. He has admitted that his father Vijaykumar had not made any contribution in the renovation of the house. He has denied the suggestion that the bungalow in Ayojannagar Cooperative Housing Society Ltd., was running in the joint name of Chandulal Harilal Dave and Sulochanaben Dave.
51. Exh. 82 is the certified copy of resolution dated 25.2.1993 of Aayojannagar Co-op. Housing Society Ltd. The resolution No. 7/5 of 18.10.92 says that the bungalow No. E/23 was running in the name of Shri Chandulal H. Dave and Sulochanaben Chandulal Dave. The defendants have claimed absolute ownership after Sulochanaben Dave. It is their case that by way of Will Exh. 84 dated 3.2.2002, Sulochanaben has given the whole property in the favour of her daughter Arunaben Chandulal Dave, defendant No. 1. Page 63 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Sulochanaben's will notes that the house was built approximately in 1973 and she, her husband and children had come to stay in it. She states that defendant Nos. 1 and 2 were staying with her. In the Will, the reference of Rs.25,000/- loan by the society is also made.
52. Defendant No. 1 - Arunaben Chandulal Dave examined herself at Exh. 75. She denied of the property for which, partition is sought, is of Hindu Undivided Family Property. Before the death of Shri Chandulal Dave, Vijaybhai Dave - along with others, had started to reside separately.
53. Defendant No. 1, in her evidence stated that bungalow No. E/23 of Aayojannagar was built by her father and her father had not executed any Will.
54. For another property of Lunavada, defendant Page 64 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 No.1 affirms that names of all the successors are mutated in the property.
55. The admitted fact is that deceased Chandulal Dave had got the house constructed on the land of the Aayojannagar Cooperative Housing Society. Thus, in view of the same, the Cooperative Society is tenant-ownership society.
56. As laid down in the judgment of Mulshanker Kunverji Gor (supra), in case where the land belongs to the society and the super- structure thereupon is constructed, not by the society but by the member out of his personal funds, and when by an instrument a member transfers his "Shares in the society"
to another persons, he not only transfers his Shares, but also his right to occupy the land belonging to the society. The super-
structure which he has constructed out of Page 65 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 his personal funds which belongs to him personally, cannot get transferred by being a nominee. Transfer of the constructed property can be effected either by a registered conveyance deed or by a will to be the last testamentary disposition of the deceased. Here, in the present case, Shri Chandulal Dave had made his wife Sulochanaben Dave his nominee, the nomination Form makes the nominee successor of share after death and gives right to occupy and enjoy the land belonging to the society.
57. Section 31 of the Gujarat Cooperative Societies Act, 1961 makes provision for transfer of interest on death of member. Section 31 reads as under:-
"31. Transfer of interest on death of member.-
(1) On the death of a member of a Page 66 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 society, the society shall subject to the provisions of sub-section (2) transfer his share or interest in the society to a person or persons nominated by such member in accordance with the rules or, in the absence of such nomination to such person as may appear to the Committee to be the heir or legal representative of such member.
(2) No such transfer shall be made unless such nominee, heir or legal representative, as the case may be, is duly admitted as a member of the society.
(3) Notwithstanding anything contained in sub-section(2), any such nominee, heir or legal representative, as the case may be, may require the society to pay to him the value of the share or interest of the deceased member, ascertained as prescribed.
(4) A society may pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be.
(5) All transfer and payments duly made by a society in accordance with the provision of this section, shall be valid and effectual against any demand made upon the society by any other person.
(6) (a) Nothing in the foregoing Page 67 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 provisions of this section or section 22 shall be construed to prevent a minor or a person of unsound mind from acquiring by inheritance or otherwise, any share or interest of a deceased member of a society, but his liability in consequence of such acquisition shall be limited to his interest in the share of the society, but his liability in consequence of such acquisition shall be limited to his interest in the shares of the society and the unpaid dividends as also the loan, stock, bounds, if any, and the interest earned on them which is unpaid and he shall not have the right of voting.
(b) A person under any such disability as is referred to in clause (a) shall, on his disability ceasing, furnish to the society a declaration of his willingness to become a member. On receipt of such declaration the society, notwithstanding anything contained in this section may, and if it is a co-operative housing society such society shall admit him as a member if he is not otherwise disqualified, A person so admitted shall become subject to liabilities like any other member of the society."
58. The provision, thus made, explains that on the death of the member of the society, the Page 68 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 society shall transfer the shares or interest in the society of the deceased to the person or persons nominated by such member in accordance to the rules. Sub- section (2) further clarifies that no such transfer shall be made unless such nominee heir or legal representatives, as the case may be, is duly admitted as a member of the society. Sub-section (3) provides that such nominee, heir or legal representative may require the society to pay to him the value of the share or interest of the deceased member, and the society, may pay, other moneys due to the deceased member of the society to such nominee, heir or legal representative as the case may be. The procedure to transfer interest on death of member is adopted in the rules.
59. Rule 19 of the Gujarat Cooperative Rules, 1965 lays down the procedure;
Page 69 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 "19. Transfer of interest on death of member:-
(1) Every member of the society who is permitted by or under this Act to transfer his share or interest on death to any person shall, by a statement signed by him in the register of members kept under section 39, nominate any person to whom under section 31 , the value of his share or interest in the society or so much thereof as may be specified in the nomination, shall be paid or transferred on his death.
(2) A nomination so made may be revoked or varied by a subsequent nomination similarly made.
(3) In case the nominee of the member dies, the member shall report the death to the society.
(4) The value of the share or interest for the purpose of sub-
section (3) of section 31 shall be the amount as ascertained under sub- rule (2) of rule 17."
Any transfer of share during the lifetime of the member would be in accordance to Rule 18 of the Gujarat Cooperative Societies Rules, 1965 while transfer of share or interest on death of a member requires following Rule 19. Page 70 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
60. Learned senior advocate Shri Bharat Patel raised an argument, that the nomination in favour of wife of Shri Chandulal Dave, on his death being in possession of the property, makes her absolute property, and thus, can dispose the property by Will, and, the nomination letter of Shri Chandubhai by paying the Fee of 0.25 paisa is a "devise" in terms of Section 14 of the Hindu Succession Act, 1956 making Sulochanaben absolute owner being the female Hindu.
61. To appreciate the argument by senior advocate Mr. Patel, it would be relevant to consider Section 14 of the Hindu Succession Act, 1956, which reads as under:
"14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her Page 71 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 as full owner thereof and not as a limited owner.
Explanation.-- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-
section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
62. In Punithavalli V. Ramalingam, reported in AIR 1970 SC 1730, Hon'ble Supreme Court observed that the estate taken by a female Hindu under sub-section (1) is an absolute Page 72 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 one, and is not defeasible and its ambit cannot be cut down by any text or rule of Hindu law or by any presumption or any fiction under that law.
63. Sub-section (1) employs the expression "Any property possessed by a Female Hindu" and the expression "acquired" is also relevant to be understood, in the facts of this case. Sulochanaben Dave was residing in the bungalow No.E/23 with her husband since constructed. Shri Chandulal Dave had made Sulochanaben nominee to his shares. The nominee of the member of the Cooperative Society would be governed by Section 31 of Gujarat Cooperative Societies Act, 1961 on the death of member. The transfer of Share or interest of the deceased, shall be in favour of the nominee on being duly admitted as a member of the society.
Page 73 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
64. In Eramma v. Verrupanna, reported in AIR 1966 SC 1879, the Supreme Court examined the ambit and object of Section 14 of the Hindu Succession Act, 1956 and observed as under:
"The property possessed by a female Hindu, as contemplated in the section, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act.
It may be noticed that the Explanation to section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub-s. (1) of section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of this section. The object of the section is to Page 74 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 extinguish the estate called 'limited estate' or 'widow's estate' in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder.... It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title."
65. In Eramma v. Verrupappa (supra), the concept of 'possession by' as used in Section 14 of Hindu Succession Act is clarified as under:-
"This case also, thus, clarifies that the expression "possessed by"
is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case, also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of Page 75 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 ownership and, while the Hindu female possesses the right of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer."
66. The Section to attract the provision of Section 14(1) clarifies that 'possession by' the female Hindu should be under the right of ownership to make her a full owner if other conditions mentioned in the section are fulfilled.
67. The expression 'acquired' is explained in Badri Pershad v. Smt. Kanso Devi, (1969) 2 SCC 586 as under:-
"The word "acquired" in sub- section (1) has also to be given the widest possible meaning. This would be so because of the language of the Explanation which Page 76 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 makes sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement."
68. Sulochanaben was in the possession of the property of E/23 as a widow. Exh.82 of Ayojannagar Cooperative Housing Society reflects that the name of Sulochanaben was running in their record during the lifetime of Chandubhai, along with the name of Chandubhai. The appellants could not explain during the course of their evidence as to how and in what status and authority her Page 77 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 name was in the society record. Admittedly Shri Chandubhai had been the member in the society, land was allotted to him, whereupon he constructed a bungalow, he had also taken loan from the credit society. His relation with society would be of 'tenant-ownership society'. The name of Sulochanaben in society record, as an owner, had not been proved. At the most the name of Sulochanaben in the society record along with Chandubhai can be approved as being in possession as wife and continued in possession after Chandubhai's death as a widow. Shri Chandubhai had never executed any will, while had made Sulochanaben his nominee to the disputed bungalow property. Whether nomination can be construed as acquisition to hold her as full owner of the property would be in question.
69. V. Tulasamma & Ors. v. Sesha Reddy (Dead) by Page 78 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 LRs, reported in (1977) 3 SCC 99 has resolved any uncertainty under Sections 14(1) and 14(2) of the Hindu Succession Act, wherein it is held as under:-
"26. Again, while referring to an earlier case, namely, Eramma Verrupanna (supra), the Court clarified the position thus:
"This case also, thus, clarifies that the expression "possessed by"
is not intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of 'the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this section. This case, also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership and, while the Hindu female possesses the right of ownership, she would become full owner if the other conditions mentioned in the section are fulfilled. The section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where Page 79 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 she could, in no manner, exercise her rights of ownership in that property any longer."
62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the (1) 1976] 1 s.c.c. 574 interpretation of s.14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu.
Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even Page 80 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 without a charge the claim for maintenance is doubtless a pre- existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-
economic ends, sought to be
achieved by this long needed
legislation.
(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s.14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of s.14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned Page 81 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 merely seeks to confirm, endorse, declare or recognise preexisting rights. In such cases a restricted estate in favour of a female is legally permissible and s.14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of s.14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s.14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s.14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).
Page 82 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 (6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s.14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words "restricted estate" used in s.14(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also. any other kind of limitation that may be placed on the transferee." Section 14(1) and the explanation thereto recognises full ownership of the widow in possession of property, under vestige of a Page 83 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 claim, right or title.
70. Senior advocate Mr. Patel submitted that the 'nomination form' filled by Shri Chandubhai is a 'devise' to transfer rights and thus, the limited ownership gets converted into absolute ownership. Section 31 of the Gujarat Cooperative Societies Act, 1961 mandates that the Cooperative Society shall transfer all shares or interest in the society of the member on his death to the nominated person. In absence of nominated person, the transfer would be in favour of heir or legal representative of the deceased member.
71. The Hon'ble Supreme Court had an occasion to deal with an issue where the transfer of a flat was declined on the ground that the married daughter did not fall within the definition of term 'family' as contemplated Page 84 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 under Section 79 of the West Bengal Cooperative Societies Act, 1983 read with Rule 127 of the West Bengal Cooperative Societies Rules, 1987. That issue fell for consideration in the case of Indrani Wahi v. Registrar of Cooperative Societies, reported in (2016) 6 SCC 440, the case referred by learned advocate Mr. Trivedi, it was observed:
"Having perused the aforesaid provisions, there can be no doubt, that where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. The above interpretation of Section 79, at our hands, also emerges from Section 80(1)
(a) which postulates, that the share or interest of a member of the society, "on his death" shall be transferred to a person "nominated under Section 79". It is also essential to notice, that the rights of others on account of an inheritance or succession is a Page 85 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 subservient right. Only if a member had not exercised the right of nomination under Section 79, then and then alone, the existing share or interest of the member would devolve by way of succession or inheritance.
17. In the same manner as is postulated under Section 79 of the 1983 Act, Rule 127 of the 1987 Rules provides, that if a nomination has been made by a member under Section 79, the share or interest or the value of such share or interest standing in the name of the deceased member, would be transferred to the nominee. It is however, necessary to notice that Rule 127 postulates nomination only in favour of a person "belonging to his family". It is not necessary for us to deal with the issue whether the appellant - Indrani Wahi, being a married daughter of the original member - Biswa Ranjan Sengupta, could be treated as a member of the family, of the deceased member (Biswa Ranjan Sengupta), because the learned Single Judge, as also, the Division Bench of the High Court concluded, that the appellant - Indrani Wahi was a member of the family, of the original member - Biswa Ranjan Sengupta. This conclusion has not been assailed by the respondents, before this Court.
Page 86 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023
18. Rule 128 of the 1987 Rules also leads to the same inference.
Inasmuch as Rule 128 aforementioned provides, that only in the absence of a nominee, the transfer of the share or interest of the erstwhile member, would be made on the basis of a claim supported by an order of probate, a letter of administration or a succession certificate (issued by a Court of competent jurisdiction).
19. Insofar as the instant aspect of the matter is concerned, there is no doubt in our mind, that even Rules 127 and 128 of the 1987 Rules, lead to the inference, that in case of a valid nomination, under Section 79 of the 1983 Act, `the Cooperative Society' is liable to transfer the share or interest of a member in the name of the nominee. We hold accordingly.
20. Having recorded the above conclusion, it is imperative for us to deal with the conclusion recorded in paragraph 6 (already extracted above) of the judgment of this Court in the Usha Ranjan Bhattacharjee case (supra). In this behalf, it is necessary to clarify that transfer of share or interest, based on a nomination under Section 79 in favour of the Page 87 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 nominee, is with reference to the concerned Cooperative Society, and is binding on the said society. The Cooperative Society has no option whatsoever, except to transfer the membership in the name of the nominee, in consonance with Sections 79 and 80 of the 1983 Act (read with Rules 127 and 128 of the 1987 Rules). That, would have no relevance to the issue of title between the inheritors or successors to the property of the deceased. Insofar as the present controversy is concerned, we therefore hereby direct `the Cooperative Society' to transfer the share or interest of the society in favour of the appellant - Indrani Wahi. It shall however, be open to the other members of the family (presently only the son of Biswa Ranjan Sengupta - Dhruba Jyoti Sengupta; we are informed that his mother -
Parul Sengupta has died), to pursue his case of succession or inheritance, if he is so advised, in consonance with law."
72. It has been laid down in the case of Indrani Wahi (supra) that the share or interest standing in the name of deceased member would be transferred to the nominee, that only in absence of a nominee, the transfer Page 88 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 of the share or interest of the erstwhile member would be made on the basis of the claim supported by an order of probate, a letter of administration or a succession certificate issued by a Court of competent jurisdiction. In case of valid nomination, the Cooperative Society is liable to transfer the share or interest of a member in the name of the nominee, the Cooperative Society shall have no other option. Issue of title between the inheritors or successors to the property of the deceased would have no relevance to the valid nomination and rights regarding succession and inheritance would be decided by the competent Court.
73. Reliance was placed by Advocate Mr. Trivedi on the case of Gopal Vishnu Ghatnekar v. Madhukar Vishnu Ghatnekar declared by Bombay High Court reported in 1982 MHLJ 650, AIR 1982 Bombay 482. The facts of the case Page 89 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 suggest that father Vishnu Narayan Ghatnekar was holding shares in a Cooperative Society and was an allottee of a place of land under a lease from the society, on which he had put up a building. Vishnu filed a nomination with the society, nominating one of his son- the plaintiff of the Suit, to whom the shares, the land and the building was to be transferred after his death. Plaintiff claimed possession from the defendants, his brother by virtue of the said ownership on the ground that the defendant was in occupation of the property by virtue of license granted by the father and that the same had been terminated.
74. All the heirs of deceased father interested in the estate were not made party to the suit.
75. The plaintiff's contention was that by Page 90 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 virtue of Section 30 of the Maharashtra Cooperative Societies Act, 1960 read with Rule 25 framed under the said Act and bye- law 16(1) of the society, a nominee acquires titles to the shares and the property, to the exclusion of all the heirs of the deceased and that in the result, the plaintiff has become owner of the property and the defendant has no title or interest in the property and is liable to be evicted.
76. It was also contended that a nomination paper was witnessed by two and all the other formal requirements of a will having been complied with, it should be treated as a will and in that circumstance too plaintiff becomes the exclusive owner of the property and became entitled to evict the defendant. The first contention raised with regard to rules was answered in Paragraph 6. Page 91 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 "6. However, what is important is the section and not the rules and bye-laws inasmuch as the rules and bye-laws cannot provide any thing contrary to the section. It is very clear on the plain reading of the section that the intention of the section is to provide for who has to deal with the society on the death of a member and not to create a new rule of succession. The purpose of the nomination is to make certain the person with whom the society has to deal, and not to create interest in the nominee to the exclusion of those who in law will be entitled to the estate. The purpose is to avoid confusion in case there are disputes between the heirs and legal representatives and to obviate the necessity of obtaining legal representation and to avoid uncertainties as to with whom the society should deal to get proper discharge. Though, in law, the society has no power to determine as to who are the heirs or legal representatives, with a view to obviate similar difficulty and confusion, the section confers on the society to determine who is the heir or legal representative of a deceased member and provides for transfer of the shares and interest of the deceased member's property in such heir or legal representative. Nevertheless, the persons entitled to the estate of the deceased do not lose their Page 92 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 right to the same. Mr. Naik contends that once a person is nominated and the society transfers the share or interest of the deceased to him, he becomes the owner. If that is to be accepted it will follow that if a society accepts a person as the heir or legal representative and transfers the share or interest to him, that person will become the owner. That, obviously, cannot be the intention of the legislature. Society has no power, except provisionally and for a limited purpose to determine the disputes about who is the heir or legal representative. It, therefore, follows that the provision for transferring a share and interest to a nominee or to the heir or legal representative as will be decided by the society is only meant to provide for interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. The idea of having this section is to provide for a proper discharge to the society without involving the society into unnecessary litigation which may take place as a result of dispute between the heirs or uncertainly as to who are the legal heirs or representatives. This being the position, the contention of Mr. Page 93 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Naik cannot be accepted. Even when a person in nominated or even when a person is recognised as an heir or a legal representative of the persons who are entitled to the estate of the interest of the deceased member by virtue law governing succession are not lost and the nominee or the heir or the legal representative recognised by the society, as the case may be hold the share and interest of the deceased for disposal of the same in accordance with law. It is only as between the society and the nominee or heir or legal representative that the relationship of the society and its member are created and this relationship continues and subsists only till the estate is administered either by the person entitled to administer the same or by the Court or the rights of the heirs or persons entitled in the estate are decided in a Court of law. Thereafter the society will be bound to follow such decision. The plaintiff, therefore, cannot be said to have become the owner of the property qua the other heirs merely by virtue of the nomination."
77. In view of the observation, nominee cannot become the owner of the property vis-a-vis other heirs, only because of the nomination. Page 94 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 The nomination by virtue of Section 31 of the Gujarat Cooperative Societies Act is an interim arrangement for the society to deal with. The society therefore would permit the person, nominated by choice of the member to deal with the share or interest of the deceased in the society.
78. Whether the nomination could extend to the structure put up by the deceased member is also an important aspect in the present case on hand. In the case of Gopal Vishnu Ghatnekar (supra), the Hon'ble High Court of Bombay dealt with the issue with observation as was found in Paragraph 10.
"10. Mr. Lalit for the appellant contends that in any event there could not have been any nomination in respect of the structure put up by the deceased. The society interest is confined only to the shares and the land i.e., the deceased had a share or interest, qua the society, only in the shares and the land and, therefore Page 95 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Sec 30 providing for nomination can apply only to the shares and the land and the title, if any conferred on the plaintiff will be in respect of the shares and the land and not the structure. The structure will continue to belong to the estate and devolve in accordance with law. He points out that it was a mistake on the part of the society to include in the form, the structure also. The contention of Mr. Lalit has to be accepted. It is well settled that in India ownership of land and the building can be separate unlike in England. The relationship of the society and members subsist only in respect of shares in and the property of the society.
Therefore, a nomination is permitted only in respect of the share in and the property of the society. The society is concerned only with the shares held by a member and the land given by it to a member and not with the structure that a member may put up. The members interest in the structure cannot be a share or interest in the Society. The nomination in respect of this structure is, therefore invalid and of no effect. Even if I had held that the plaintiff became entitled in his own right to the shares and the land by virtue of nomination he can in no circumstances become entitled to the structure which must continue Page 96 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 with the estate of the deceased and in that view of the matter the defendant can never be a mere licensee and cannot be evicted. The defendant will be equally entitled to the structure as the plaintiff along with other heirs."
Hence, defendant brother was made entitled to claim right in the structure, being the estate of deceased father.
79. In Ramdas Shivram Sattur v. Rameshchandra @ Ramchandra Popatlal Shah, reported in 2009 (4) MHLJ 551, a case decided by Bombay High Court, wherein the judgment of Gopal Vishnu Ghatnekar (supra) was referred, to answer the question as to whether Tarabai became absolute owner of the suit property on account of her nomination by her deceased husband Shivram in his place under Section 30 of the Maharashtra Cooperative Societies Act read with Rule 24 of the Rules framed thereunder, and that, in view of Tarabai's nomination whether in the suit property, her Page 97 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 sons and daughter would have no right, title and interest therein. In view of facts raised, the Court addressed the only question of what would be the status of a nominee who has been validly nominated as a member of the Cooperative Society under Section 30 of the Maharashtra Cooperative Societies Act and whether one became the owner of the property or does one represent the legal heirs of deceased member while dealing with the Cooperative Society and is only empowered to act for and on behalf of the true owners.
80. It was held in Paragraph 10 of the judgment as under:-
"10. It is, thus, clear that the view taken by the learned Single Judge in case of Gopal Vishnu Ghatnekar (supra) laying down the correct position of law has been approved by the Division Bench of this Court while delivering the judgment in First Page 98 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Appeal No.116/1989. After the judgment delivered by the Division Bench in the said first appeal, L.P.A. filed by the aggrieved party came up for hearing before yet another Division Bench and while dismissing the L.P.A., the Division Bench confirmed the view taken by the learned Single Judge in case of Gopal Vishnu Ghatnekar (supra). Independently appreciating the question, the Division Bench has confirmed the view after recording its approval by laying down that in the nomination there is no disposition of the property held by a person making it. Thus, two Division Bench judgments referred herein above approve the view taken by the learned Single Judge, extensively referred to herein above and thus, the position stands concluded in favour of the present appellant that by virtue of nomination of Tarabai by her deceased husband under Section 30 of the Maharashtra Co-operative Societies Act, 1960, she does not become absolute owner of the property, however, was only empowered to hold the property in trust for the real owners that too for the purpose of dealings with the society. Tarabai, as such, had no power, authority and title to alienate the property to the exclusion of the other legal heirs of Shivram. Tarabai, as such, was not competent to enter into an Page 99 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 agreement for sale of the suit plot as Tarabai along with her four children were Class-I heirs of Shivram."
81. Section 30 of the Maharashtra Cooperative Societies Act, 1960 reads as follows:-
"30. (1) On the death of a member of a society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules, or, if no person has been so nominated to such person as may appear to the committee to be the heir of legal representative of the deceased member?
Provided that, such nominee, heir or legal representative, as the case may be, is duly admitted as a member of the society;
Provided further that, nothing in this sub-section or in Sec. 25 shall prevent a minor or a person of unsound mind from acquiring by inheritance or otherwise, any share or interest of a deceased member in a society.
(2) Notwithstanding anything contained in sub-section (1) any such nominee, heir or legal Page 100 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 representative, as the case may be, may require the society to pay to him the value of the share or interest of the deceased member, ascertained in accordance with the rules.
(3) A society may pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be.
(4) All transfers and payments duly made by a society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person."
82. Interpreting Section 30 of the Maharashtra Cooperative Societies Act, it was held that Section 30 does not lay down any special rule of succession of properties of a deceased member overriding the general rules of inheritance prescribed by the personal law of the member of a Cooperative Society. The Division Bench approved the view of the Single Judge in the judgment of Gopal Page 101 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Ghatnekar (supra), where it was concluded that the intention, is to provide for who has to deal with the society on the death of a member and not to create a new rule of succession. The purpose of nomination is to make certain the person with whom the society has to deal. The society has no power, except provisionally, and for a limited purpose to determine the disputes about who is the heir or legal representative. The society is meant to provide for in the interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. The idea of having this section is to provide for a proper discharge to the society without involving the society into unnecessary litigation which may take place Page 102 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 as a result of dispute between the heirs or representative.
83. Rule 19 of the Gujarat Cooperative Societies Rules, 1965 provides that on death of the member, the value of member share or interest in the society or so much as specified in the nomination shall be paid or transferred on his death. Such nomination can be revoked or varied by subsequent nomination.
84. Here in this case on hand, on death of Shri Chandubhai, the interest in the society was transferred to Sulochanaben. It would not be the case of the appellants that the value of Chandubhai's share was paid to Sulochanaben. Share transferred is in the housing society.
85. The examination-in-chief of Arunaben Chandulal Dave, unmarried daughter, at Exh.75, does not refer to the property as of Page 103 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Shri Chandulal Dave. Her evidence starts as late Sulochanaben Chandulal Dave, her mother being absolute owner of the property, but how she acquired absolute right is not pleaded. The evidence had been led that they were staying together with father Chandulal Dave and that rest of the brothers except defendant no.2 had left the house during the lifetime of father and further she and defendant no.2 had incurred huge expenses towards renovation of the bungalow. She has given the estimated figure of Rs.3 to 5 lacs spent during the 1998-2014.
86. Reliance has been placed on share certificate no.231 Exh.80 dated 13.6.1994 and share certificate no.373 dated 30.5.1995 Exh.81, which are in the name of Sulochanaben Chandulal Dave and she states that name of Sulochanaben was mutated in the record of society on 25.2.1993 while Shri Page 104 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Chandulal Dave died on 29.4.1992.
87. The nominee is required to be admitted as member of the society in terms of sub- section (2) of Section 31 of the Gujarat Cooperative Societies Act, 1961. The nomination is to be made in accordance to the rules. Though the society is mandated to accept the nomination, however, the nominee can become member of the society only on being duly admitted.
88. Section 14 of the Hindu Succession Act under sub-section (1) makes a female Hindu in possession of property, acquired by her as full owner. Explanation to sub-section (1) clarifies that "property" includes both movable and immovable acquired by a female Hindu. Acquisition of the property may be by different modes as laid down in the explanation, one of the mode is by a Page 105 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 'devise'. The meaning of 'devise' is not clarified in the explanation.
89. The word 'devise' has been defined in Lexis Nexis 4th Edition as under:-
"The word "devise" is properly applicable to a disposition of real estate, which is prima facie its meaning. If a testator says, "I give, devise and bequeath," the words "give and bequeath" apply to the personal estate, and "devise"
to the real estate. Here he "devises" everything he may die possessed of", which is sufficient to cover real estate.' Philips v Beal (1858) 25 Beav 25 at 27, per Romilly MR.
The word "devise" in this Act [Wills Act 1837] ... does include, unless a contrary intention appears by the will, a devise by way of appointment under a special or a general power conferred on the testator as to property not his own: consequently, it is so to be read in s 25.' Freme v Clement (1881) 18 Ch D 499 at 515, per Jessel MR 'The words "devise" or "bequest", when used in the Wills Act [1837] without any indication of an intention that they should apply Page 106 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 to appointments under powers, ought, prima facie, to be understood in their ordinary sense, viz., as referring to a gift by will of the testator's own property, and nothing else.' Holyland v Lewin (1884) 26 Ch D 266 at 272, CA, per Lord Selbourne LC"
90. Black's Law Dictionary 9th Edition Page 517 to 518, "devise (di-VIZ), n. (15c) 1. The act of giving property by will. * Although this term traditionally referred to gifts of real property - and in British usage the term is still confined to real property - in American usage the term has been considerably broadened. In both the Restatement of Property and the Uniform Probate Code, a disposition of any property by will is a devise. In the United States today, it is pedantry to insist that the noun devise be restricted to real property.
[Cases: Wills 1.] 2. The provision in a will containing such a gift. 3. Property dispose Page 107 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 of in a will. 4. A will disposing of property. Cf. TESTAMENT (1); BEQUEST;
LEGACY.- devise, vb."
91. Drawing the meaning from the interpretation given as referred above, it is the act of giving property by will. The word 'devise' is properly applicable to a disposition of real estate. It is explained that if a testator says "I give, devise and bequeath", the words 'give and bequeath' apply to the personal estate and 'devise' to the real estate. Devise or bequeath refers to a gift by will of testator's own property and nothing else.
92. In Devil's Advocate dictionary, 'devise' is explained as under:-
"Devise. (Primarily, a dividing or division) In the law of wills as a noun a gift of real property by will; a disposition by will; an instrument by which lands are conveyed by will, the direction of Page 108 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 a testator of sound mind as to the disposition of his property after his death. As a verb to give or dispose of land or hereditaments by will; sometimes as a verb, to draw an instrument. A 'devise' is where a man in his testament giveth or bequeatheth his goods or his lands to another after his decease. (Termes de la Ley). The word was formerly particularly applied to bequests of land; but is now generally used for the gift of any legacies whatever. (Tomlin) DEVISE, in S.6 of the Statute of Frauds (29 Chas. 2 c. 3), means "that group or collection of words reduced into writing which operates as a disposition, of the testator's land" [Swinton v. Bailey, (1878) 4 App. Cas. 70, 79, Lord PENZANCE]. In the Wills Act (7 Will. 4 & 1 Vict. c. 26), "includes unless a contrary intention appears by the will, a devise by way of appointment under a special or general power conferred on the testator as to property not his own." [Preme v. Clement, (1881) 18 Ch D 515, JESSEL, M.R] To give by a will; a will or clause of a will disposing of property. [S.345(1), Companies Act (1 of 1956)].
To DEVISE, BEQUEATH. In the technical sense, to devise is to give lands by a will duly attested Page 109 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 according to law; to bequeath is to give personality after one's death by a less formal instrument.
DEVISE, BEQUEATH, POWER OF APPOINTMENT. "The words 'devise' and 'bequeath' are terms of known use in our law. In their ordinary sense they signify the declaration of a man's will concerning the succession to his own property after his death. Such a 'devise' or 'bequest' operates by virtue of the will, and of that alone. On the other hand, an appointment under a limited power operates by virtue of the instrument creating the power; the execution, when valid, is read into, and derives its force from, that instrument."
(1 Sug. Pow. 6 Ed. 385)"
93. In Gopal Vishnu Ghatnekar's case (supra), it was contended that the nomination paper was witnessed by two and all the other formal requirements of a will having being complied with, it should be treated as a will and in that circumstances too, plaintiff becomes the exclusive owner of the property. It would be appropriate to extract the Page 110 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Paragraph which deals with this aspect.
"9. Mr. Naik contends, in the alternative, that the nomination which is described as 'Varas Patra' is singed by the deceased and witnessed by two persons. It, therefore, complies with all the requirements of a valid Will and should be construed to be a Will. He contends that even though it may be described as a nomination paper i.e., 'Varas Patra' looking to the tenor thereof, it is really a will. This contention of Mr. Naik is without any substance. It is well settled that a document can be said to be a Will only when it is executed with an intention to regulate succession after death. There must be animus testandi. It is true that in construing a document, the nomenclature given to the document is not to be given too much importance and what is of importance is that intention as disclosed by contents and surrounding circumstances. However, in the present case the nomenclature completely corresponds to the contents and the intention and by no stretch of imagination this nomination from can be said to be a will. The only similarity between a will and this nomination form is that a Will has to be witnessed by two persons and the nomination paper is witnessed Page 111 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 by two persons. The law permits the nomination of such number of persons as a member may desire and requires witnessing only be one persons. The nomination form in the present case is a cyclostyled form which is issued by the society. This form has been drafted by the society obviously prior to the Act of 1960. The form refers to various provisions of law and bye-laws which clearly are meant for nomination and it is stated that this document was being executed in accordance with these provisions. It is, therefore, clear that the intention of the deceased in signing this nomination form was not to make a will or to provide for succession after his death but only to nominate in accordance with the law prevailing. The form, by mistake or otherwise in the footnote says that the nomination can be in favour of one person only, though this is clearly contrary to law, The form has column for two witnesses. It is obvious that it is because of this column that the signatures of two witnesses have been taken though only one witness required in law. The intention was not to take signatures of the two witnesses to make this document a Will. It is also possible that because of this foot notes that the deceased nominated only one person and not more. In this view of the matter Page 112 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 it is not possible to hold that the document is a Will of the deceased and in any event looking to the possibility that the deceased was misled by the footnote it cannot be said to be a true Will."
94. Here in the present case, the nomination form bears the signature of only Chandulal Dave as a member nominating Sulochanaben as his nominee, it had not been signed by any other person as a witness to the nomination. Fee of 0.25 paisa is referred to have been sent. This nomination form cannot be considered as a will. The form is cyclostyled with details filled therein. The nomination form signed by Chandubhai was not with an intention to make a will, to consider Sulochanaben as devisee to whom immovable property would be given by way of will. The intention of Chandubhai was to transfer the shares in the society and the right to occupy and enjoy the land, which Page 113 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 would necessarily follow from the allotment of the land by the society to its members. The land in the eyes of law belong to the society while the structure was constructed out of the personal funds which belonged to Shri Chandubhai.
95. The learned Trial Court Judge has not dealt with this issue of share certificate, the transfer and the rights, in view of the nomination, while learned Trial Court had raised the issue to consider whether Sulochanaben Chandulal Dave had become absolute owner of the suit property, and, whether she was entitled to bequeath the entire property in the name of her daughter leaving aside all other heirs. As laid down in the earlier referred judgment, Section 31 of the Gujarat Cooperative Societies Act, 1961 does not create any new line of succession or any special rule of succession Page 114 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 of properties of a deceased member overriding the general rules of inheritance prescribed by the personal law of the member of a Cooperative Society. The nomination form cannot be considered as devise which means 'will' in context of the meaning given in the referred legal dictionary to be construed as such in the explanation to Section 14(1) of the Hindu Succession Act. The constructed property was not given to Sulochanaben under 'will' by her husband. Her possession of the property cannot therefore make her full owner to claim benefit under Section 14(1) of the Hindu Succession Act, 1956. Any repayment of loan dues, could be appropriated from the other heirs and further any expenses on renovation too, can be recovered from the other heirs as was done after the death of Shri Chandulal. The loan taken creates a charge Page 115 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 on interest on land as a tenant, since no alienation can take place unless charge created on the property is removed. On death of Shri Chandulal Dave, the widow and children would have equal share in his estate by virtue of Section 8 of the Hindu Succession Act, 1956. Sulochanaben had her 1/7 share in the property which she had given to her daughter by will, which is believed by the Trial Court.
96. In view of the reasons given hereinabove, the challenge to the preliminary decree is not sustainable. The plaintiffs have their right to claim partition of the structured property in accordance to the share decided by the learned Judge, City Civil Court, Ahmedabad in Civil Suit no.2408 of 2012.
97. In the result, the appeal is dismissed. The judgment and preliminary decree in Civil Page 116 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023 C/FA/3908/2021 CAV JUDGMENT DATED: 19/06/2023 Suit no.2408 of 2012 stands confirmed. Consequently, Civil Application also stands disposed of.
Further order On pronouncement of the order, Senior Advocate Mr. Bharat S. Patel made a prayer to stay the further proceedings of the trial. This Court does not find any reason to entertain the said request, since the further proceedings after the preliminary decree will take its own time, and the appellants would have sufficient time to challenge the present order.
(GITA GOPI,J) Maulik Page 117 of 117 Downloaded on : Mon Jun 19 20:47:24 IST 2023