Bhaskar Bhattacharya, J.@mdashThis first appeal is at the instance of a plaintiff in a suit for partition and is directed against the judgment and decree dated 16th July, 2005 passed by the learned Civil Judge (Senior Division), Third Court, Alipore, in Title Suit No. 189 of 2004 thereby decreeing the suit in part in preliminary form; the parties were directed to partition by meets and bounds the property described in Schedule ''A'' of the plaint. The learned Trial Judge, however, dismissed the prayer of partition in respect of the property described in Schedule ''B'' property which is a flat belonged to the father of the parties as a member of a Co-operative Housing Society who nominated the said flat in favour of the defendant.
2. The learned Trial Judge was of the view that by virtue of such nomination, the defendant has attained absolute title over the said property and therefore, no decree for partition could be passed in respect of that flat.
3. Being dissatisfied, the plaintiff has come up with the present first appeal.
4. Therefore, the only question that arises for determination in this appeal is whether the right of a person by virtue of membership of a Co-operative Housing Society devolves upon all his heirs, even if, a nomination was made in favour of one of them during his life-time.
5. Mr. Probal Kumar Mukherjee, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that by virtue of the provisions contained in the West Bengal Co-operative Societies Act, 1983 the property should be allotted in favour of nominee if there is any such nomination but that does not mean that the right of the other heirs of the deceased member in that property is altogether lost in view of such nomination. According to Mr. Mukherjee, the West Bengal Co-operative Societies Act, 1983 makes a flat allotted to a member of the Society impartible but the properties involved therein are all transferable and heritable like other property. In support of such contention, Mr. Mukherjee relies upon the following decisions:
a)
b)
6. Mr K. D. Mukherjee, the learned advocate appearing on behalf of the defendant-respondent, on the other hand, submits that once the father of the parties made nomination in favour of his client in respect of the flat under the provision of the West Bengal Co-operative Societies Act, the Society is bound to register his name after the death of the original member and accordingly, the membership will be transferred In his favour. Therefore, by virtue of such transfer, Mr. Mukherjee proceeds, the defendant will be the absolute owner of the property and the learned Trial Judge rightly dismissed the prayer for partition in respect of that flat.
7. In order to appreciate the question involved herein, it will be necessary to refer to the following provisions of the Act:
Section 2. (28) "member" means a person joining in an application for registration of a co-operative society or a person admitted to the membership of a co-operative society after registration in accordance with the provisions of this Act and the rules and the by-laws made thereunder, and includes a joint member and, subject to the provisions of Sub-section (3) of Section 69, a nominal member.
Section 78. Restriction on transfer of share or interest-(1) The transfer or charge of the share or interest of a member of a co-operative society in the capital of the co-operative society shall be subject to the provisions of this Act and to such conditions as to the maximum holding as may be prescribed and shall require the approval of the board:
Provided that in the case of a member of a co-operative society with unlimited liability, such transfer or charge shall not require the approval of the board.
(2) No transfer or charge of his share or interest by a member of a cooperative society with unlimited liability shall be valid unless
(a) he has held such share or interest (save in the case of transfer under Sections 80, 81, 83 or 84) for not less than one year; and
(b) the transferee or the mortgagee is either a member of such co-operative society or a person whose application for membership has been accepted by any other co-operative society.
(3) Where the State Government is a member of a co-operative society, the restrictions under this section shall not apply to any transfer made by it of its share or interest in the capital of the co-operative society.
Section 79. Nomination of transferee.-Subject to the by-laws of a co-operative society, and 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.
Section 80. Disposal of deceased member''s share of interest.-(l) 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 of this section, be transferred
(a) to the person, if any, nominated u/s 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 be entitled in accordance with the rules to the possession of such share or interest as part of the estate of the deceased member; or
(c) on the application of the person referred to in Clause (b) within three months from the date of death of the member, to such person as may be specified in the application.
(2) If the share or interest of a deceased member cannot be transferred in accordance with the provisions cf 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 u/s 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 u/s 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 cooperative society from the estate of deceased member.
Section 82. Restriction on transfer of possession of, and interest in, land held under co-operative society.-Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force
(a) a member of a co-operative society, the object of which is the reclamation and colonization of land or the acquisition of land and the leasing thereof to its members, shall not be entitled to transfer his possession of, or interest in, any land held by him under the co-operative society except to the cooperative society or with its previous approval in accordance with its by-laws, to a member thereof;
(b) when the membership of a member of a co-operative society referred to in Clause (a) terminates by reason of death, expulsion, resignation or insanity or any other cause, his possession of, or interest in, any land
held by him under the co-operative society shall vest in his heir, executor or administrator or in the person, if any, nominated by him u/s 79, if such heir, executor, administrator or person is willing to be admitted as a member of the co-operative society and is eligible for membership u/s 69;
(c) if the heir, executor, administrator or person referred to in Clause (b) does not become a member of the co-operative society, the possession of, and interest in, the land including the structure thereof, if any, of the deceased, expelled, resigned or insane member shall vest in the cooperative society, and the co-operative society shall pay to such heir, executor, administrator or person, as the case may be, a sum equivalent to the value of the land including the structure, if any, as determined in accordance with the rules or the by-laws of the co-operative society;
(d) no land held by a member under a co-operative society referred to in Clause (a) or vested in his heir, executor or administrator or in the person under Clause (b) shall be attachable in any suit or proceeding for the recovery of any debt other than a debt due to the co-operative society or to a member thereof.
Section 84. Disposal of moneys to a deceased, expelled, resigned or insane member.-(1) All sums calculated in accordance with the rules to be due from a co-operative society to a member, other than payments to be made in respect of share or interest of such member to the co-operative society, shall, subject to the provisions of Section 57, be paid within one year,-
(a) in the case of a deceased member, to the person to whom the share and interest are transferred or their value is paid in accordance with the provisions of Section 80;
(b) in the case of a member who has been expelled by, or has resigned '' front a co-operative society, to him; and
(c) in the case of a member who has become insane, to the person appointed to manage his properties under the Indian Lunacy Act, 1912 (4 of 1912).
(2) All payments and transfers made by a co-operative society in accordance with the provisions of Sections 80 to 83 and Sub-section (1) of this section shall be valid and effectual against any demand made upon the cooperative society by any other person.
Section 87. Member''s right of ownership.-(1) Any allotment (including re-allotment) of a plot of land or a house or an apartment in a building made by a co-operative housing society to its member in accordance with its by-laws shall entitle such member to hold such plot of land, house or apartment, as the case may be, with such title or interest as may be granted under the prescribed conditions, and, subject to the provisions of Sub-section (2) of Section 60, an instrument of transfer in accordance with the provisions of the Transfer of Property Act, 1882 (4 of 1882) and the Registration Act, 1908 (16 of 1908), shall be the conclusive evidence of such title or interest in favour of such member.
(2) A member of a co-operative housing society shall not be entitled to any title or interest in any plot of land or house or apartment in a building until he has made such payment as may be prescribed towards the cost of such plot of land or construction of such house or apartment or both, as the case may be, to the co-operative housing society.
(3) A plot of land or a house or an apartment in a building (including the undivided interest in the common areas and facilities) shall constitute a heritable and transferable immovable property within the meaning of any law for the time being in force:
Provided that notwithstanding anything contained in any other law for the time being in force, such heritable and transferable immovable property shall not be partitioned or sub-divided for any purpose whatsoever.
(4) Every member of a co-operative housing society shall be entitled to an undivided interests in the common areas and facilities pertaining to the plot of land or house or apartment allotted to him.
(5) Every member of a co-operative housing society in whose favour a plot of land or a house or an apartment in a building has been allotted shall have the right to use the common areas and facilities as aforesaid for the purpose for which they are intended without interfering with or encroaching upon the lawful rights of other members in whose favour similar allotment has been made.
(6) The work relating to the maintenance, repair and replacement of the common areas and facilities (including additions or improvements thereto) shall be carried out in accordance with the by-laws of the co-operative housing society and the building rules of the concerned municipality, notified area authority or competent authority, as the case may be and the costs thereof shall be apportioned amongst the members of the cooperative housing society in such manner as may be prescribed.
8. After hearing the learned Counsel for the parties and after going through the provisions contained in the Act and the decisions of the Apex Court in the cases of Gayatri Dev. Mousumi Housing Co-operative Society Ltd. and Ors. and Usha Ranjan Bhattacharya v. Abinash Chandra Chakraborty (supra) we find that the interest of a member of a Co-operative Society governed by the Act is heritable like any other property of the deceased. However, such property is not subject to partition among the heirs and legal representatives like other immovable property. Therefore, if there is no agreement among the heirs about the allotment of the membership in favour of a particular heir and at the same time, even if there is any such agreement but such heir is ineligible to become a member under the provision of the Act, the society would distribute the value of the share of the deceased among the heirs and legal representatives of the deceased member and will transfer the membership to any other person having the requisite qualification to become the member.
9. The next question is what will be the position if the deceased nominated a person as provided in the Act.
10. Once it is held that the membership is heritable like any other property, the nomination by the deceased cannot confer any title in favour of the nominee depriving the right of the heirs and legal representatives. In this country, the interest of a deceased devolves upon his heirs and legal representatives in two ways, either by natural succession according to the law of succession to which the deceased belongs or by way of testamentary succession as provided in the Indian Succession Act, 1925. There is no third way of succession. (See :
11. The fact that the nomination is not absolute and may not be binding upon the Society will appear from the fact that the Society will not be bound to transfer the membership even to a nominee if he is otherwise ineligible under the law to become a member. Similarly, as indicated earlier, if all the heirs and the legal representatives and the nominee agree, the membership can also be transferred to any particular heir or the legal representative notwithstanding the existence of such nomination provided such particular person is eligible to become a member.
12. In the case before us, the deceased member made nomination in favour of one of his heirs, the defendant in the suit. He being otherwise eligible to become a member, the society did not commit any illegality in allotting the membership in his favour; but the said nominee is bound to pay the value of the share of the other co-sharer of his father for exclusive allotment in his favour as the title to the property devolved upon both of them.
13. The learned Trial Judge, therefore, erred in law in dismissing the suit for partition as regards the Schedule B'' property on the ground that the nominee, the other heir, got absolute title to the said flat by virtue of nomination made by his father in exclusion of the plaintiff.
14. We, therefore, modify the preliminary decree passed by the learned Trial Judge to this extent that the plaintiff had eight annas share also in the Schedule ''B'' property but having regard to the fact that such property is not partible and the defendant having been allotted the said flat by virtue of the nomination, he should pay the remaining eight annas share of the value of such property to the plaintiff. We affirm the decree in respect of the Schedule ''A'' property.
15. The appeal is, thus, allowed to the extent indicated above. In the facts and circumstances, there will be no order as to costs.
Rudrendra Nath Banerjee, J.
I agree.
