Tuesday, 13 September 2016

rights of Nominee V rights of legal heirs

 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 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVILAPPEAL No.4646 OF 2006
INDRANI WAHI REGISTRAR OF COOP. SOCIETIES & ORS.

Citation:(2016) 6 SCC440

1. Biswa Ranjan Sengupta (hereinafter referred to as `the
appellant's father'), was admitted as a member of the Sarbar View
Cooperative Housing Society Limited (hereinafter referred to as
`the Cooperative Society'), against Flat No.4-RB 2/3, Purbachal
Housing Estate, Phase-II, Sector-III, Salt Lake City, Kolkatta. He
(Biswa Ranjan Sengupta) had married Parul Sengupta. Out of the
above wedlock, there were two children – a daughter (Indrani Wahi)
and a son (Dhruba Jyoti Sengupta). It is not a matter of dispute,
that his (Biswa Ranjan Sengupta's) membership of `the Cooperative
Society' had resulted in the allotment of the flat referred to
hereinabove. Biswa Ranjan Sengupta recorded the name of the
appellant – Indrani Wahi, in terms of the mandate contained in
Section 79 of the West Bengal Cooperative Societies Act, 1983
(hereinafter referred to as `the 1983 Act'). Under Section 79, a
member of `the Cooperative Society' is required to nominate a
person in whose favour `the Cooperative Society' would dispose of
the share or interest of the member “on his death”.
2. It is the case of the appellant before this Court, that
her father - Biswa Ranjan Sengupta, lived under her exclusive care
eversince March 2002, whereafter he died on 22.07.2003. It is also
the case of the appellant, that neither the appellant's mother nor
her brother participated in the last rites of her father - Biswa
Ranjan Sengupta. In our considered view, these facts are irrelevant
for the adjudication of the present controversy. They are, however,
being recorded herein, on account of the significance assigned to
them, in the pleadings, and also during the course of hearing.
3. After the death of her father - Biswa Ranjan Sengupta,
Indrani Wahi addressed a communication dated 05.08.2003 to the
Secretary of `the Cooperative Society', for entering her name in
place of the name of her father, with reference to Flat No.4-RB
2/3, Purbachal Housing Estate, Phase-II, Sector-III, Salt Lake
City, Kolkatta. The Managing Committee of the Housing Society
passed a unanimous resolution on 15.08.2003, for transferring the
membership of Biswa Ranjan Sengupta in `the Cooperative Society'
to the name of the appellant – Indrani Wahi.
4. It is the case of the appellant, that consequent upon the
passing of the above resolution, she (Indrani Wahi) has been paying
maintenance and other charges to the Society. It is also pointed
out, that the Secretary of `the Cooperative Society', through a
covering letter dated 16.08.2003, sent all papers with reference to
the transfer of the membership of `the Cooperative Society' from
the name of Biswa Ranjan Sengupta, to the name of Indrani Wahi, to
the Deputy Registrar, Cooperative Societies. The papers dispatched,
included the resolution of `the Cooperative Society' referred to
above.
5. On 01.09.2003, having got wind of the transfer of the
membership of `the Cooperative Society' from the name of his father
- Biswa Ranjan Sengupta, to the name of his sister – Indrani Wahi,
Dhruba Jyoti Sengupta addressed the letter to the Deputy Registrar,
Cooperative Societies on behalf of his mother – Parul Sengupta. In
the above letter, he (Dhruba Jyoti Sengupta) asserted, that the
membership to the flat should be transferred to the name of his
mother – Parul Sengupta. In response to the letter dated
01.09.2003, the Deputy Registrar, Cooperative Societies, by an
order dated 19.09.2003, required the parties to submit documents to
demonstrate, that the deceased had a family. The Secretary of `the
Cooperative Society' informed Parul Sengupta, that the name of
Indrani Wahi had been recorded as a nominee of Biswa Ranjan
Sengupta, in the records of `the Cooperative Society', and if Parul
Sengupta desired to verify the same, it was open to her to inspect
the records.
6. In response to the letter dated 19.09.2003, the Secretary
of `the Cooperative Society' submitted the following information to
the Deputy Registrar, Cooperative Societies through a communication
dated 26.09.2003:
“(1) Late B.R. Sengupta had a family consisting of
wife, son and daughter-in-law. They all dairded (sic
derided) him and he was living with his daughter
Mrs. Indrani Wahi, where he eventually died. A copy
of his 'Will' is enclosed 'which will speak itself'.
We reiterate our views that his daughter in the
“legal nominee”.
(2) Salary Certificate dated 22.9.03 of Mrs. Indrani
Wahi is attached.
(3) In the State of U.P., there is no law regarding
profession tax which has been certified in the Salary
Certificate itself.
(4) The provision of Registration Act, 1908 will not
apply in this case, since the property was already
registered under the Act in the name of Late
Sengupta, copies of which are enclosed for your
perusal.
Kindly arrange for necessary approval.”
 (Emphasis is ours)
7. Yet again, Dhruba Jyoti Sengupta sent a letter on behalf
of his mother, to the Secretary of the Society dated 29.09.2003
again with reference to the flat in question. He reiterated his
previous assertion, that the flat be transferred to the name of
Parul Sengupta. In response to the above communication, the
Secretary of `the Cooperative Society' again informed Parul
Sengupta, through a letter dated 16.10.2003, that the name of
Indrani Wahi was recorded by Biswa Ranjan Sengupta as his nominee,
with reference to the flat in question.
8. A further twist was added to the sequence of events, when
Dhruba Jyoti Sengupta addressed another letter dated 20.10.2003 to
the Deputy Registrar, Cooperative Societies, informing him, that
Biswa Ranjan Sengupta had not nominated Indrani Wahi, but had
actually nominated Parul Sengupta (in terms of the nomination
stipulated under Section 79 of the 1983 Act). It is in the
aforesaid view of the matter, that the Deputy Registrar,
Cooperative Societies declined to record the name of Indrani Wahi,
as the successor of the flat originally allotted to Biswa Ranjan
Sengupta. The instant determination was referred to in an order
dated 11.11.2003. A relevant extract of the same is reproduced
hereunder:
“With reference to his letter above, this is to
inform him that as Late Sengupta had family of
his own, the nomination made by late Sengupta in
favour of Smt. Wahi can't be accepted, as it was
not done in terms of section 79 of W.B.C.S. Act
read with Rule 127 of the W.B.C.S. Rules, 1987.
Hence letter of administration/ succession
certificate is required in favour of Smt. Wahi
in terms of Rules 128 of W.B.C.S. Rules, 1987.”
(Emphasis is ours)
It is apparent, that through the aforesaid communication, the
transfer of the flat in the name of the appellant was declined on
the ground, that the appellant being a married daughter did not
fall within the definition of term `family' as contemplated under
Section 79 of the 1983 Act [read with Rule 127 of the West Bengal
Co-operative Societies Rules, 1987 (hereinafter referred to as `the
1987 Rules’]. And that, being a married daughter, Indrani Wahi was
not a member of the family of Biswa Ranjan Sengupta.
9. It would also be relevant to mention, that the aforesaid
communication dated 11.11.2003, did not deal with the issue of
succession of interest of the above flat, after the death of Biswa
Ranjan Sengupta. A copy of the aforesaid communication dated
11.11.2003 was sent to the appellant – Indrani Wahi, by the
Secretary of `the Cooperative Society' through a forwarding letter
dated 13.11.2003.
10. Aggrieved with the decision taken by the authorities, in
rejecting the appellant's claim with reference to the transfer of
the flat under reference, the appellant assailed the order of the
Deputy Registrar, Cooperative Societies dated 11.11.2003, and that
of the Secretary of `the Cooperative Society' dated 13.11.2003, by
preferring Writ Petition No.33(W) of 2004, before the High Court of
Judicature at Calcutta (hereinafter referred to as `the High
Court’). The aforesaid writ petition came to be allowed by a
learned Single Judge of the High Court, vide an order dated
24.03.2004. In recording its conclusion, the High Court, inter
alia, held that the Deputy Registrar of the Cooperative Societies
was not justified to exclude the appellant being a daughter of the
original member – Biswa Ranjan Sengupta from the purview of the
provisions of the 1983 Act, and the 1987 Rules framed thereunder.
In fact, the High Court, in its conclusions, expressly recorded,
that Rule 127 of the 1987 Rules include major sons and daughters as
members of the family, in addition to minor sons and daughters,
without any clarification as to their marital status. The High
Court accordingly held, that the married daughters were not
excluded from the purview of Rule 127 of the 1987 Rules. Having so
concluded, the learned Single Judge of the High Court, directed the
Registrar of the Cooperative Societies to grant the necessary
approval for transfer of the membership in the name of Indrani
Wahi, as nominee of Biswa Ranjan Sengupta.
11. The mother of the appellant – Parul Sengupta, and her
brother – Dhruba Jytoi Sengupta, being aggrieved of the order
passed by the learned Single Judge dated 24.03.2004, assailed the
same, by preferring F.M.A.No.356 of 2004. Vide the impugned order
dated 07.10.2004, a Division Bench of the High Court, relying upon
the judgment rendered by this Court in Usha Ranjan Bhattacharjee
vs. Abinash Chandra Chakraborty, (1997) 10 SCC 344, Smt. Sarbati
Devi vs. Smt. Usha Devi, (1984) 1 SCC 424 and Gayatri De vs.
Mousumi Cooperative Housing Society Limited, (2004) 5 SCC 90, inter
alia, concluded :
“We do not propose to hold that the writ petitioner,
in whose favour nomination has been made, shall not
be made a member of the said society and having
regard to the legislature intent contained in
sub-section (4) of Section 69 it may not be possible
for us to direct the appellants to be joint members
along with the writ petitioner, but to protect the
interest of the appellants in the flat which they
have inherited, it is necessary for the said Society
to record their interest expressly in the share
Certificate as well as in its records pertaining to
members and, in particular in the register of members
so that one of the joint owners merely because of the
nomination in her favour cannot transfer either the
share, in which she has a part interest, or the
allotment, where also she has a part interest, for
the same is expressly declared to be transferable
and, accordingly, can only be transferred by
expressing consent of all the heirs.
With the above we dispose of the appeal without,
however, any order as to costs.”
Dissatisfied with the aforesaid determination of the High Court,
Indrani Wahi has approached this Court by filing the present
appeal.
12. Before dealing with the controversy in hand, it is
imperative for us to refer to the judgments relied upon by the
Division Bench in recording its conclusion. Reference may first be
made to the Usha Ranjan Bhattacharjee case (supra), wherein this
Court dealt with Sections 69 and 70 of the West Bengal Co-operative
Societies Act, 1973 (hereinafter referred to as `the 1973 Act’).
Sections 69 and 70 of the 1973 Act came up for interpretation at
the hands of this Court in the above-mentioned judgment. Sections
69 and 70 aforementioned are extracted hereunder:
“69. If the by-laws of a co-operative society so
permit, any, member of the society may, in accordance
with the rules, nominate a person in whose favour the
society shall dispose of the share or interest of such
member on his death.
70. (1) When any member of a co-operative society dies,
his share and interest in the society shall, subject
to the provisions of sections 50 and 68 and to the
further provisions of this section, be transferred -
(a) to the person, if any, nominated in
accordance with the provisions of section 69;
or
(b) if there be no such nominee or, if the
existence and residence of such nominee cannot
be ascertained by the managing committee, or if
for any other cause such transfer cannot be
made without unreasonable delay, to the person
who (subject to the production by him of
probate, letters of administration or
succession certificate) appears to the managing
committee to be entitled, in accordance with
the rules, to possession of such share or
interest as part of the estate of the deceased
member; or
(c) on the application of the person referred
to in clause (b) within three months of the
death of the deceased member, to any person
specified in the application.
(2) If the share or interest of the deceased cannot be
legally transferred in accordance with the provisions of
sub-section (1), or if the person, to whom the share or
interest is payable under that sub-section within one
year of the death of the deceased member, claims payment
of the value of such share or interest, or if the
society in accordance with the rules and by-laws
decides to proceed according to this sub-section -
(a) the share shall be transferred to some other
person qualified in accordance with the provisions
of section 68 to be the transferee of the share, on
receipt from such person of the value thereof; and
(b) the value of the share or interest of the
deceased member, determined in accordance with the
rules, shall be paid to the person nominated in
accordance with the provisions of section 69 or to
the person appearing to be entitled to possession
of such share or interest as aforesaid, after
deducting the amount of any sum payable under this
Act to the society from the estate of the deceased
member.”
The factual position that arose for consideration has been recorded
in paragraph 3 of the above judgment, and the reasons for not
accepting the determination rendered by the High Court, as also,
the proposition canvassed at the hands of the learned counsel
appearing for the appellant were dealt with in paragraphs 3 to 6 of
the Usha Ranjan Bhattacharjee case (supra). The same are being
extracted below:
“3. The dispute arose when the Cooperative Society
wanted to hand over the possession of the said flat to
Shri Chakraborty because the appellants were found in
physical possession of the said flat. The case of the
appellants was that since Shri Ranendra Kumar Acharya
died intestate, they had inherited the said property of
Ranendra Kumar Acharya according to the rules of intes-
 tate succession under the Hindu Succession Act. The respondent,
however, contended that as nomination was
made in his favour, the Cooperative Society was under a
duty to hand over the possession of the said flat in
favour of the respondent. Such dispute ultimately was
raised before the Cooperative Tribunal. The Cooperative
Tribunal held that there had been a valid nomination in
favour of the respondent by the deceased Shri Ranendra
Kumar Acharya but the Tribunal held that the question
of title to the property was to be adjudicated by an
appropriate forum if the parties would approach such
forum. Since no direction for handing over the possession
of the flat in favour of Shri Abinash Chandra
Chakraborty was given, a writ petition was filed before
the High Court against the decision of the Cooperative
Tribunal. The learned Single Judge disposed of such
Writ Petition being CO No. 766 of 1987. The learned
Single Judge directed the Cooperative Society to hand
over the possession of the said flat in favour of the
 said Abinash Chandra Chaktraborty under Section 70 of
the Cooperative Societies Act, 1973. The learned Judge
also made observation about the effect of such nomination
under the said Act by indicating that in view of
such nomination, the party in whose favour valid nomi-
 nation had been made under Section 69 of the said Act
must be held to have acquired title to the property.
Such decision of the learned Single Judge was challenged
before the Division Bench of the High Court in
appeal. By the impugned judgment, the Division Bench
has dismissed the appeal and has upheld the decision of
the learned Single Judge.
4. In our view, Mr. Amal Ganguli, learned Senior Counsel
appearing for the appellants, has rightly contended
that within the limited scope of Section 69 and 70 of
the West Bengal Cooperative Societies Act, 1973, the
Cooperative Tribunal was not required to determine the
disputed question of title between the parties in dispute
and the High Court had also gone wrong in holding
that when a valid nomination is made, the nominee acquires
title to the property in question.
5. Dr. Shanker Ghosh, learned Senior Counsel appearing
for the respondent has, however, submitted that the
West Bengal Cooperative Societies Act, 1973 is a complete
code by itself and since the said Act is applicable
notwithstanding anything contained in any other
Act, if a rival claim of title to the property is
raised, the Cooperative Tribunal is not incompetent to
decide such title.
6. We are, however, not inclined to accept such contention
of Dr. Ghosh. In our view, within the limited
scope of inquiry to be made for determining the ques-
 tion of valid nomination under Section 69, title to the
property cannot be determined. In terms of determination
of valid nomination the consequential direction
for delivery of possession can be given in favour of
the person having valid nomination under the provisions
 of Section 70 of the Cooperative Societies Act. The
dispute as to the question of title is not to be decided
within the limited scope and ambit of Sections
69 and 70 of the cooperative Societies Act. We, therefore,
dispose of this appeal by directing that in view
of the finding by the Tribunal that the respondent had
obtained a valid nomination from the deceased Ranendra
Kumar Acharya, the respondent is entitled to get the
possession of the said flat in accordance with the pro-
visions of Section 70 of the Cooperative Societies Act.
But the dispute as to the title of the said flat should
not be held to have been decided either by the Cooperative
Tribunal or by the High Court by the impugned
judgment. Such question is kept open to be decided by
an appropriate forum if such challenge is made before
the appropriate forum. This appeal is accordingly disposed
of without any order as to costs.”
 (Emphasis is ours)
There can be no doubt about the fact, that in the above cited case,
a Division Bench of this Court had arrived at the conclusion, that
the High Court erred while concluding, that the holding of a valid
nomination could ipso facto result in the transfer of title in
favour of the nominee. Despite recording the above conclusion, this
Court ultimately held, that consequent upon a valid nomination
having been made under Section 69, the nominee would be entitled to
possession, and further, that the issue of title had to be left to
be adjudicated upon between the contesting parties.
13. We shall now deal with the judgment in the Smt. Sarbati
Devi case (supra). The issue which came up for adjudication in the
above judgment related to the interpretation of Section 39 of the
Life Insurance Act, 1938. The rights of a nominee of a policy
holder, were adjudicated upon in the above judgment. Paragraphs 4,
5 and 12 of the judgment record the conclusions of this Court, with
reference to the rights of a nominee of a policy holder. The
aforesaid paragraphs are extracted herein below:
“4. At the outset it should be mentioned that except
 the decision of the Allahabad High Court in Kesari Devi
 v. Dharma Devi AIR 1962 All 355 on which reliance was
placed by the High Court in dismissing the appeal before
it and the two decisions of the Delhi High Court
 in S. Fauza Singh v. Kuldip Singh AIR 1978 Del 276 and
Uma Sehgal v. Dwarka Dass Sehgal AIR 1982 Del 36 in all
other decisions cited before us the view taken is that
 the nominee under S ection 39 of the Act is nothing more
than an agent to receive the money due under a life insurance
policy in the circumstances similar to those in
the present case and that the money remains the property
of the assured during his lifetime and on his
death forms part of his estate subject to the law of
succession applicable to him. The cases which have
 taken the above view are Ramballav Dhandhania v. Gan-
 gadhar Nathmall AIR 1956 Cal 275; Life Insurance Corporation
of India v. United Bank of India Ltd.AIR 1970
 Cal 513 , D. Mohanavelu Muldaliar v. Indian Insurance
and Banking Corporation Ltd. Salem AIR 1957 Mad 115,
Sarojini Amma v. Neelakanta Pillai AIR 1961 Ker 126;
Atmaram Mohanlal Panchal v. Gunvantiben AIR 1977 Guj
134, Malli Dei v. Kanchan Prava Dei AIR 1973 Ori 83 and
Lakshmi Amma v. Saguna Bhagath ILR 1973 Kant 827, Since
there is a conflict of judicial opinion on the question
involved in this case it is necessary to examine the
above cases at some length. The law in force in England
on the above question is summarised in Halsbury's Laws
of England (Fourth Edition), Vol. 25, Para 579 thus :
"579. Position of third party, The policy
money payable on the death of the assured may
be expressed to be payable to a third party
and the third party is then prima facie
merely the agent for the time being of the
legal owner and has his authority to receive
the policy money and to give a good discharge;
but he generally has no right to sue
the insurers in his own name. The question
has been raised whether the third party's authority
to receive the policy money is terminated
by the death of the assured; it seems,
however, that unless and until they are otherwise
directed by the assured's personal
representatives the insurers may pay the
money to the third party and get a good discharge
from him."
5. We shall now proceed to analyse the provisions
 of S ection 39 of the Act. The said section provides
that a holder of a policy of life insurance on his own
life may when effecting the policy or at any time before
the policy matures for payment nominate the person
or persons to whom the money secured by the policy
shall be paid in the event of his death. If the nominee
is a minor, the policy holder may appoint any person to
receive the money in the event of his death during the
minority of the nominee. That means that if the policy
holder is alive when the policy matures for payment he
alone will receive payment of the money due under the
 policy and not the nominee. Any such nomination may at
any time before the policy matures for payment be cancelled
or changed, but before such cancellation or
change is notified to the insurer if he makes the payment
bon fide to the nominee already registered with
him, the insurer gets a valid discharge. Such power of
cancellation of or effecting a change in the nomination
implies that the nominee has no right to the amount
during the lifetime of the assured. If the policy is
transferred or assigned under Section 38 of the Act,
the nomination automatically lapses. If the nominee or
where there are nominees more than one all the nominees
die before the policy matures for payment the money due
under the policy is payable to the heirs or legal representatives
or the holder of a succession certificate.
It is not necessary to refer to sub-section (7) of Section
39 of the Act here. But the summary of the rele-
 vant provisions of S ection 39 given above establishes
clearly that the policy holder continues to hold interest
in the policy during his lifetime and the nominee
acquires no sort of interest in the policy during the
lifetime of the policy holder. If that is so, on the
death of the policy holder the amount payable under the
policy becomes part of his estate which is governed by
the law of succession applicable to him. Such succession
may be testamentary or intestate. There is no war-
 rant for the position that S ection 39 of the Act operates
as a third kind of succession which is styled as a
'statutory testament' in paragraph 16 of the decision
of the Delhi High Court in Mrs. Uma Sehgal's case
(supra). If Section 39 of the Act is contrasted
with Section 38 of the Act which provides for transfer
or assignment of the rights under a policy, the tenous
character of the right of a nominee would become more
pronounced. It is difficult to hold that S ection 39 of
the Act was intended to act as a third mode of succession
provided by the statute. The provision in sub-sec-
 tion (6) of S ection 39 which says that the amount shall
be payable to the nominee or nominees does not mean
that the amount shall belong to the nominee or nominees.
We have to bear in mind here the special care
which law and judicial precedents take in the matter of
execution and proof of wills which have the effect of
diverting the estate from the ordinary course of intestate
succession and that the rigour of the rules governing
the testamentary succession is not relaxed even
where wills are registered.
12. Moreover there is one other strong circumstance in
this case which dissuades us from taking a view contrary
to the decisions of all other High Courts and accepting
the view expressed by the Delhi High Court in
the two recent judgments delivered in the year 1978 and
 in the year 1982. The Act has been in force from the
year 1938 and all along almost all the High Courts in
India have taken the view that a mere nomination ef-
 fected under S ection 39 does not deprive the heirs of
their rights in the amount payable under a life insurance
policy. Yet Parliament has not chosen to make
 any amendment to the Act. In such a situation unless
there are strong and compelling reasons to hold that
all these decisions are wholly erroneous, the Court
should be slow to take a different view. The reasons
given by the Delhi High Court are unconvincing. We,
therefore, hold that the judgments of the Delhi High
Court in Fauja Singh's case (supra) and in Mrs. Uma Sehgal's
case (supra) do not lay down the law correctly.
They are, therefore, overruled. We approve the views
expressed by the other High Courts on the meaning
 of S ection 39 of the Act and hold that a mere nomina-
 tion made under S ection 39 of the Act does not have the
effect of conferring on the nominee any beneficial interest
in the amount payable under the life insurance
policy on the death of the assured. The nomination only
indicates the hand which is authorised to receive the
amount, on the payment of which the insurer gets a
valid discharge of its liability under the policy, The
amount; however, can be claimed by the heirs of the assured
in accordance with the law of succession governing
them.”
 (Emphasis is ours)
At this juncture, all that needs to be stated with reference to the
judgment in the Smt. Sarbati Devi case (supra) is, that the
provisions with reference to nomination under the Life Insurance
Act, 1938 are at variance from the ones which are subject matter of
consideration in the instant case, and as such, it would suffice to
merely state, that the aforesaid judgment is not of much
significance, insofar as the adjudication of the present
controversy is concerned.
14. Insofar as the judgment in the Gayatri De case (supra) is
concerned, the same expressly dealt with the provisions of the 1983
Act. Despite the above, it would be pertinent to mention, that the
said judgment is also of no relevance for the present controversy,
because there was no nomination of the original member, in the said
controversy. And as such, Section 79 did not come up for
consideration and interpretation therein, in the manner of the
dispute and controversy which has arisen herein.
15. Herein, the original member – Biswa Ranjan Sengupta, in
whose name Flat No.4-RB 2/3, Purbachal Housing Estate, Phase-II,
Sector-III, Salt Lake City, Kolkatta, was entered, had recorded the
name of his daughter – Indrani Wahi (the appellant herein) as his
sole nominee. The aforesaid nomination was made in terms of
Section 79 of the 1983 Act. We are of the view, that Sections 79
and 80 of the 1983 Act are of pointed significance for the
determination of the controversy in hand. The same are accordingly
reproduced hereunder:
“79. Nomination of transferee.- Subject to the
by-laws of a co-operative society and (sic any)
member of such co-operative society may in accordance
 with the rules nominate a person in whose favour the
co-operative society shall dispose of the share or
interest of such member on his death.
80. Disposal of deceased member's share of
interest- (1) On the death of a member of a
co-operative society, other than a central society,
his share or interest in the co-operative society
shall, subject to the provisions of sections 57 and
 78 and to the further provisions under section 79;
or
(a) to the person, if any, nominated
under section 79; or
(b) if there is no nominee or if the
existence or residence of the nominee cannot
be ascertained by the board or if, for any
other cause, the transfer cannot be made
without unreasonable delay, to the person who
(subject to the production by such person
of probate, letter of administration or
succession certificate) appears to the board
to the entitled in accordance with the rules
to the possession of such share or interest
as part of the estate of the deceased member;
or
(c) on the application of the person
referred to in clause (b) within three months
from the date of death of the member, to such
person as may be specified in the
application.
(2) If the share or interest of a deceased member
cannot be transferred in accordance with the
provisions of sub-section (1) or if the person to
whom such share or interest is payable under that
sub-section claims payment of the value of such share
or interest or if the co-operative society in
accordance with the rules and its by-laws decides
to proceed under this sub-section -
(a) the share shall be transferred to a person
qualified to be a transferee of the share, under
section 78 on receipt of the value of the share from
such person; and
(b) the value of the share or the interest of the
deceased member determined in accordance with the
rules shall be paid to the person nominated under
section 79 or to the person referred to in
clause (b) of sub-section (1) of this section after
deducting the amount payable under this Act to the
co-operative society from the estate of deceased
member.”
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 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. The heading of Section 80 -
“Disposal of deceased member's share of interest” lends further
credence to the above interpretation.
16. In addition to the aforesaid statutory provisions, we
would like to make a reference to Rules 127 and 128 of the West
Bengal Co-operative Societies Rules, 1987 (hereinafter referred to
as `the 1987 Rules'). Rules 127 and 128 of the 1987 Rules are
extracted below:
“127.Nomination of transferee.- (1) A member of a
co-operative Society may in accordance with the
provision of Section 79, nominate in writing any
person belonging to his family to whom the share
or interest or the value of such share or interest
shall, on his death, be paid or transferred under
the provision of the Act:
Provided that if a member has no family he
may nominate any person to whom such share or
interest or the value of such share or interest
shall be paid or transferred:
Provided further that such member may, from
time to time, revoke such nomination and make a
fresh nomination.
(2) Every co-operative society shall keep a
register of all person (sic persons) so nominated.
(3) In case the nominee of a member dies,
the member shall report the death to the society,
and make a fresh nomination if he so desires.
Explanation.- For the purpose of this rule a
family shall have the same meaning as given in the
Explanation to sub-section (2) of Section 13 and
shall include major sons and daughters.
128. Disposal of deceased member's share or
interest and procedure for calculation of value of
shares.- (1) When upon the death of a member of a
co-operative society, the question of transferring
the share, or paying interest of such deceased
member arises, and the board of such society finds
that the deceased member did not make any
nomination in accordance with the provisions of
section 79, or that the existence or residential
address of the person nominated cannot be
ascertained, or that for any other sufficient cause
such transfer of payment cannot be made without
unreasonable delay, the board may transfer the
share or pay interest of such deceased member in
favour of or to any person who presents in writing
his or her claim for the said share or interest and
produces, in support of such claims, probate,
letter of administration or succession certificate
issued by a competent court having jurisdiction,
and makes a written declaration in an affidavit
before a Magistrate that he or she is the rightful
claimant, being the legal heir or representative of
the deceased.
(2) (a) Where a co-operative society has to
make a refund of the value of a share, the value of
the share shall be deemed to be equal to the amount
paid upon the share:
Provided that where a portion of the assets
is estimated to be bad or doubtful in the latest
audited balance sheet, and is not covered by funds
created out of profits, the board may, for the
purposes of such payment, reduce the value of the
share in the same proportions as the aggregate
amount of assets which are not bad or doubtful,
less the amount of outside liabilities, bears to
the paid-up share capital.
(b) Where a transfer of share or interest is
made, the value of the share or interest shall be
deemed to be the sum actually paid by the member
for the acquisition of such share or interest.”
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.
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 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.
21. The appeal stands allowed in the above terms.
CIVIL APPEAL No.4930 OF 2006
22. Learned counsel for the parties are agreed, that the
controversy raised in the instant appeal be disposed of in terms of
the order passed by this Court in Indrani Wahi vs. Registrar of
Co-operative Societies & Ors. (C.A.No.4646 of 2006) decided on
10.03.2016.
23. In view of the above, the instant appeal is disposed of
in terms of the judgment rendered by this Court in the Indrani Wahi
case (supra).

 ..........................J.
 (JAGDISH SINGH KHEHAR)



 ..........................J.
 (C.NAGAPPAN)
NEW DELHI;
MARCH 10, 2016.
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