[Cites 3, Cited by 0]
Bombay High Court
Shri. Milind Janardhan Juker (Since ... vs Divisional Joint Registrar Co-Op. ... on 2 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:5172
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12071 OF 2017
SHABNOOR
AYUB Milind Janardhan Jukar
PATHAN
Digitally signed by
SHABNOOR AYUB
(Since Deceased Through LRs.) ... Petitioners
PATHAN
Date: 2026.02.02
V/s.
15:49:25 +0530
Divisional Joint Registrar,
Cooperative Societies & Ors. ... Respondents
Mr. Sushil Chaurasia a/w Satyendra Mishra i/b SKC
Legal, for the Petitioner.
Mr. M. S. Srivastava, AGP, for the State - Respondent
Nos.1 & 2.
Mr. N. N. Bhadrashete, for Respondent No.4.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 2, 2026
P.C.:
1. The present writ petition calls in question the legality and
correctness of the proceedings initiated and concluded under
Section 22(2) of the Maharashtra Cooperative Societies Act, 1960.
The dispute essentially concerns the entitlement to membership in
a cooperative housing society consequent upon the death of the
original member.
2. The material facts are largely undisputed. One Malti
Janardan Jookar was the original member of Respondent No.3, a
cooperative housing society, and was allotted Flat No.8 together
with Share Certificate Nos.36 to 40. During her lifetime, she
executed a nomination in accordance with Rule 25 of the
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Maharashtra Cooperative Societies Rules, 1961 on 3 May 1993.
The said nomination was submitted to the society on 15 May 1993
and was duly entered in the records maintained by the society. It is
further borne out from the record that Malti executed a registered
Will bequeathing her interest in favour of Respondent No.4 and
her brother Vilas.
3. Upon the demise of Malti, Respondent No.4 submitted an
application dated 25 November 2009 seeking membership of the
society in her capacity as nominee and beneficiary. The record
indicates that the application was complete in all material
particulars. However, the society did not take any decision thereon
within a reasonable time. This inaction constrained Respondent
No.4 to prefer an appeal under Section 22(2) of the MCS Act. The
Appellate Authority, by judgment and order dated 6 December
2014, allowed the appeal and directed appropriate action. The said
order was carried in revision and came to be affirmed by the
Revisional Authority by order dated 30 June 2017. Being aggrieved
by the concurrent findings of the authorities below, the petitioner,
another son of the deceased Malti, has invoked the writ
jurisdiction of this Court.
4. The learned Advocate for the petitioner urged that
nomination, by itself, does not create or confer proprietary rights
in favour of the nominee. According to the petitioner, the nominee
holds the subject property only as a trustee for and on behalf of
the legal heirs of the deceased member. It was contended that
upon the death of Malti, her estate would devolve in accordance
with the law of succession, and all legal representatives, including
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the petitioner, would be entitled to their respective shares. On this
premise, it was argued that the petitioner, being one of the sons of
the deceased, is entitled to be admitted as an associate member of
the society along with other heirs. It was further submitted that
the Will relied upon by Respondent No.4 cannot be acted upon
unless probate is obtained. In the absence of probate, it was
argued, no enforceable rights can be claimed on the basis of such
Will.
5. In response, the learned Advocate for Respondent No.4
submitted that it is an admitted position that Respondent No.4 is
one of the legal representatives of the deceased and that her
nomination was duly recorded during the lifetime of Malti. It was
contended that the society was bound to take note of the
nomination while considering her application for membership. The
learned Advocate further submitted that in view of the recent
amendment to the Indian Succession Act, the requirement of
compulsory probate in respect of certain properties falling within
the jurisdiction of this Court no longer operates as an absolute bar.
The registered Will executed in favour of Respondent No.4,
therefore, furnishes a lawful basis for her claim to membership. It
was submitted that if the petitioner seeks to dispute the
genuineness or validity of the Will, it is open to him to institute
appropriate civil proceedings. On these submissions, dismissal of
the writ petition was sought.
6. I have given anxious consideration to the rival submissions
advanced by the learned advocates appearing for the parties. I
have also carefully examined the pleadings, the orders passed by
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the authorities below, and the documents placed on record. There
is no dispute that the petitioner, Respondent No.4, and certain
others are the legal representatives of late Malti Jookar. The
controversy does not pertain to the status of the parties as heirs,
but to the entitlement to membership in the cooperative society
consequent upon her demise. It is evident that the initial claim of
Respondent No.4 before the society was founded upon the
nomination executed by the deceased in accordance with the
statutory rules. However, a perusal of the order passed by the
Registrar indicates that the existence of a registered Will was also
taken into consideration while adjudicating the appeal under
Section 22(2) of the MCS Act. The reasoning of the Registrar
reflects that both the nomination and a reference to the
testamentary document.
7. At the time when the impugned order came to be passed, the
legal position required probate of a Will in respect of properties
situated within the original side jurisdiction of this Court before
rights thereunder could be effectively enforced. That position has
since undergone a statutory change during the pendency of the
present writ petition. The requirement of compulsory probate in
such cases has been dispensed with by legislative amendment. The
change is not merely procedural. It bears directly upon the
enforceability of rights claimed under a Will and, therefore, has
substantive consequences for the parties. When the matter is
examined in the light of the amended legal position, the reliance
placed upon the registered Will by Respondent No.4 cannot be said
to be legally untenable. Even otherwise, the authorities were
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exercising appellate and revisional jurisdiction confined to the
question of membership. Their inquiry was limited in scope and
did not extend to adjudication of complex issues of title. In these
circumstances, it cannot be held that the authorities acted without
jurisdiction or committed any manifest error warranting
interference under Article 226 of the Constitution.
8. In my considered view, the real grievance of the petitioner is
directed against the validity and effect of the registered Will
allegedly executed in favour of Respondent No.4 and others. Such
a dispute raises questions of testamentary capacity, due execution,
and the genuineness of the document. These are matters which
require evidence and adjudication in appropriate substantive
proceedings before a competent court. The writ court, while
exercising supervisory jurisdiction, cannot undertake such an
enquiry. It is therefore open to the petitioner to institute proper
proceedings to challenge the Will in accordance with law. It is
clarified that the admission of Respondent No.4 as a member of
the society shall abide by the outcome of such proceedings, if and
when instituted, and shall not create any equity in her favour
beyond what is permissible in law.
9. In view of the foregoing discussion, no case for interference
with the impugned orders is made out in exercise of writ
jurisdiction. The petition is accordingly disposed of, reserving
liberty to the petitioner in terms indicated above.
10. No order as to costs.
(AMIT BORKAR, J.)
