Arunaben Chandulal Dave vs Parthiv Vijaykumar Dave
2023 Latest Caselaw 4615 Guj

    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

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

as heirs of Harishkumar Chandulal Dave and

others being the son and daughter of the

deceased Chandulal Harilal Dave.

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

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

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

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,

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

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

filed their reply to the Suit as well as

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.

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

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

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

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

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

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

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

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

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

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

were taking care of her and that the

plaintiffs and other defendants failed to

take care of Sulochanaben and therefore,

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

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)

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

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

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:-

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.

  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

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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

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)

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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

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

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property to the daughter. She had made the

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

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

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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

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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:".

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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."

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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

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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:-

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(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

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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

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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

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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

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

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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

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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

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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"

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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;

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"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.

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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).

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(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

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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

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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

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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.

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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

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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

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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

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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

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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.

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"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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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'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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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