TaxTMI 
TaxTMI 
2016 (3) TMI 1255
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....pellant - Indrani Wahi, in terms of the mandate contained in Section 79 of the West Bengal Cooperative Societies Act, 1983 (hereinafter referred to as `the 1983 Act'). Under Section 79, a member of `the Cooperative Society' is required to nominate a person in whose favour `the Cooperative Society' would dispose of the share or interest of the member "on his death". 2. It is the case of the appellant before this Court, that her father - Biswa Ranjan Sengupta, lived under her exclusive care eversince March 2002, whereafter he died on 22.07.2003. It is also the case of the appellant, that neither the appellant's mother nor her brother participated in the last rites of her father - Biswa Ranjan Sengupta. In our considered view, these facts are irrelevant for the adjudication of the present controversy. They are, however, being recorded herein, on account of the significance assigned to them, in the pleadings, and also during the course of hearing. 3. After the death of her father - Biswa Ranjan Sengupta, Indrani Wahi addressed a communication dated 05.08.2003 to the Secretary of `the Cooperative Society', for entering her name in place of the name of her fathe....
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....' is enclosed 'which will speak itself'. We reiterate our views that his daughter in the "legal nominee". (2) Salary Certificate dated 22.9.03 of Mrs. Indrani Wahi is attached. (3) In the State of U.P., there is no law regarding profession tax which has been certified in the Salary Certificate itself. (4) The provision of Registration Act, 1908 will not apply in this case, since the property was already registered under the Act in the name of Late Sengupta, copies of which are enclosed for your perusal. Kindly arrange for necessary approval." (Emphasis is ours) 7. Yet again, Dhruba Jyoti Sengupta sent a letter on behalf of his mother, to the Secretary of the Society dated 29.09.2003 again with reference to the flat in question. He reiterated his previous assertion, that the flat be transferred to the name of Parul Sengupta. In response to the above communication, the Secretary of `the Cooperative Society' again informed Parul Sengupta, through a letter dated 16.10.2003, that the name of Indrani Wahi was recorded by Biswa Ranjan Sengupta as his nominee, with reference to the flat in question. 8. A further twist was a....
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.... preferring Writ Petition No.33(W) of 2004, before the High Court of Judicature at Calcutta (hereinafter referred to as `the High Court'). The aforesaid writ petition came to be allowed by a learned Single Judge of the High Court, vide an order dated 24.03.2004. In recording its conclusion, the High Court, inter alia, held that the Deputy Registrar of the Cooperative Societies was not justified to exclude the appellant being a daughter of the original member - Biswa Ranjan Sengupta from the purview of the provisions of the 1983 Act, and the 1987 Rules framed thereunder. In fact, the High Court, in its conclusions, expressly recorded, that Rule 127 of the 1987 Rules include major sons and daughters as members of the family, in addition to minor sons and daughters, without any clarification as to their marital status. The High Court accordingly held, that the married daughters were not excluded from the purview of Rule 127 of the 1987 Rules. Having so concluded, the learned Single Judge of the High Court, directed the Registrar of the Cooperative Societies to grant the necessary approval for transfer of the membership in the name of Indrani Wahi, as nominee of Biswa Ranjan Sengupta. ....
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.... permit, any, member of the society may, in accordance with the rules, nominate a person in whose favour the society shall dispose of the share or interest of such member on his death. 70. (1) When any member of a co-operative society dies, his share and interest in the society shall, subject to the provisions of sections 50 and 68 and to the further provisions of this section, be transferred - (a) to the person, if any, nominated in accordance with the provisions of section 69; or (b) if there be no such nominee or, if the existence and residence of such nominee cannot be ascertained by the managing committee, or if for any other cause such transfer cannot be made without unreasonable delay, to the person who (subject to the production by him of probate, letters of administration or succession certificate) appears to the managing committee to be entitled, in accordance with the rules, to possession of such share or interest as part of the estate of the deceased member; or (c) on the application of the person referred to in clause (b) within three months of the death of the deceased member, to any person specified in the application. (2)....
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....e forum if the parties would approach such forum. Since no direction for handing over the possession of the flat in favour of Shri Abinash Chandra Chakraborty was given, a writ petition was filed before the High Court against the decision of the Cooperative Tribunal. The learned Single Judge disposed of such Writ Petition being CO No. 766 of 1987. The learned Single Judge directed the Cooperative Society to hand over the possession of the said flat in favour of the said Abinash Chandra Chaktraborty under Section 70 of the Cooperative Societies Act, 1973. The learned Judge also made observation about the effect of such nomination under the said Act by indicating that in view of such nomination, the party in whose favour valid nomi nation had been made under Section 6 9 of the said Act must be held to have acquired title to the property. Such decision of the learned Single Judge was challenged before the Division Bench of the High Court in appeal. By the impugned judgment, the Division Bench has dismissed the appeal and has upheld the decision of the learned Single Judge. 4. In our view, Mr. Amal Ganguli, learned Senior Counsel appearing for the appellants, has rightly conte....
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....our of the nominee. Despite recording the above conclusion, this Court ultimately held, that consequent upon a valid nomination having been made under Section 69, the nominee would be entitled to possession, and further, that the issue of title had to be left to be adjudicated upon between the contesting parties. 13. We shall now deal with the judgment in the Smt. Sarbati Devi case (supra). The issue which came up for adjudication in the above judgment related to the interpretation of Section 39 of the Life Insurance Act, 1938. The rights of a nominee of a policy holder, were adjudicated upon in the above judgment. Paragraphs 4, 5 and 12 of the judgment record the conclusions of this Court, with reference to the rights of a nominee of a policy holder. The aforesaid paragraphs are extracted herein below: "4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Dev i AIR 1962 All 355 on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip Singh AIR 1978 Del 276 and Uma Sehgal v. Dwarka Dass Sehgal AIR 1982 Del 36....
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.... his death during the minority of the nominee. That means that if the policy holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy an d not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bon fide to the nominee already registered with him, the insurer gets a valid discharge. Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured. If the policy is transferred or assigned under Section 38 of the Act, the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate. It is not necessary to refer to sub-section (7) of Section 39 of the Act here. But the summary of the rele vant provisions o f S ection 39 given above establishes clearly that the policy holder continues....
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....dgments of the Delhi High Court in Fauja Singh's case (supra) and in Mrs. Uma Sehgal's case (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning o f S ection 3 9 of the Act and hold that a mere nomina tion made unde r S ection 3 9 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy, The amount; however, can be claimed by the heirs of the assured in accordance with the law of succession governing them." (Emphasis is ours) At this juncture, all that needs to be stated with reference to the judgment in the Smt. Sarbati Devi case (supra) is, that the provisions with reference to nomination under the Life Insurance Act, 1938 are at variance from the ones which are subject matter of consideration in the instant case, and as such, it would suffice to merely state, that the aforesaid ju....
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....m the date of death of the member, to such person as may be specified in the application. (2) If the share or interest of a deceased member cannot be transferred in accordance with the provisions of sub-section (1) or if the person to whom such share or interest is payable under that sub-section claims payment of the value of such share or interest or if the co-operative society in accordance with the rules and its by-laws decides to proceed under this sub-section - (a) the share shall be transferred to a person qualified to be a transferee of the share, under section 78 on receipt of the value of the share from such person; and (b) the value of the share or the interest of the deceased member determined in accordance with the rules shall be paid to the person nominated under section 79 or to the person referred to in clause (b) of sub-section (1) of this section after deducting the amount payable under this Act to the co-operative society from the estate of deceased member." Having perused the aforesaid provisions, there can be no doubt, that where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on ....
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....e, or paying interest of such deceased member arises, and the board of such society finds that the deceased member did not make any nomination in accordance with the provisions of section 79, or that the existence or residential address of the person nominated cannot be ascertained, or that for any other sufficient cause such transfer of payment cannot be made without unreasonable delay, the board may transfer the share or pay interest of such deceased member in favour of or to any person who presents in writing his or her claim for the said share or interest and produces, in support of such claims, probate, letter of administration or succession certificate issued by a competent court having jurisdiction, and makes a written declaration in an affidavit before a Magistrate that he or she is the rightful claimant, being the legal heir or representative of the deceased. (2) (a) Where a co-operative society has to make a refund of the value of a share, the value of the share shall be deemed to be equal to the amount paid upon the share: Provided that where a portion of the assets is estimated to be bad or doubtful in the latest audited balance sheet, and is not cover....