TaxTMI 
TaxTMI 
2016 (3) TMI 1255
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....mandate contained in Section 79 of the West Bengal Cooperative Societies Act, 1983 (hereinafter referred to as `the 1983 Act'). Under Section 79, a member of `the Cooperative Society' is required to nominate a person in whose favour `the Cooperative Society' would dispose of the share or interest of the member "on his death". 2. It is the case of the appellant before this Court, that her father - Biswa Ranjan Sengupta, lived under her exclusive care eversince March 2002, whereafter he died on 22.07.2003. It is also the case of the appellant, that neither the appellant's mother nor her brother participated in the last rites of her father - Biswa Ranjan Sengupta. In our considered view, these facts are irrelevant for the adjudication of the present controversy. They are, however, being recorded herein, on account of the significance assigned to them, in the pleadings, and also during the course of hearing. 3. After the death of her father - Biswa Ranjan Sengupta, Indrani Wahi addressed a communication dated 05.08.2003 to the Secretary of `the Cooperative Society', for entering her name in place of the name of her father, with reference to Flat No.4-RB 2/3, Purba....
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....eiterate our views that his daughter in the "legal nominee". (2) Salary Certificate dated 22.9.03 of Mrs. Indrani Wahi is attached. (3) In the State of U.P., there is no law regarding profession tax which has been certified in the Salary Certificate itself. (4) The provision of Registration Act, 1908 will not apply in this case, since the property was already registered under the Act in the name of Late Sengupta, copies of which are enclosed for your perusal. Kindly arrange for necessary approval." (Emphasis is ours) 7. Yet again, Dhruba Jyoti Sengupta sent a letter on behalf of his mother, to the Secretary of the Society dated 29.09.2003 again with reference to the flat in question. He reiterated his previous assertion, that the flat be transferred to the name of Parul Sengupta. In response to the above communication, the Secretary of `the Cooperative Society' again informed Parul Sengupta, through a letter dated 16.10.2003, that the name of Indrani Wahi was recorded by Biswa Ranjan Sengupta as his nominee, with reference to the flat in question. 8. A further twist was added to the sequence of events, when Dhruba Jyoti Sengupta addressed another letter dated 20.10.....
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....ed to as `the High Court'). The aforesaid writ petition came to be allowed by a learned Single Judge of the High Court, vide an order dated 24.03.2004. In recording its conclusion, the High Court, inter alia, held that the Deputy Registrar of the Cooperative Societies was not justified to exclude the appellant being a daughter of the original member - Biswa Ranjan Sengupta from the purview of the provisions of the 1983 Act, and the 1987 Rules framed thereunder. In fact, the High Court, in its conclusions, expressly recorded, that Rule 127 of the 1987 Rules include major sons and daughters as members of the family, in addition to minor sons and daughters, without any clarification as to their marital status. The High Court accordingly held, that the married daughters were not excluded from the purview of Rule 127 of the 1987 Rules. Having so concluded, the learned Single Judge of the High Court, directed the Registrar of the Cooperative Societies to grant the necessary approval for transfer of the membership in the name of Indrani Wahi, as nominee of Biswa Ranjan Sengupta. 11. The mother of the appellant - Parul Sengupta, and her brother - Dhruba Jytoi Sengupta, being aggrieved of ....
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....of the share or interest of such member on his death. 70. (1) When any member of a co-operative society dies, his share and interest in the society shall, subject to the provisions of sections 50 and 68 and to the further provisions of this section, be transferred - (a) to the person, if any, nominated in accordance with the provisions of section 69; or (b) if there be no such nominee or, if the existence and residence of such nominee cannot be ascertained by the managing committee, or if for any other cause such transfer cannot be made without unreasonable delay, to the person who (subject to the production by him of probate, letters of administration or succession certificate) appears to the managing committee to be entitled, in accordance with the rules, to possession of such share or interest as part of the estate of the deceased member; or (c) on the application of the person referred to in clause (b) within three months of the death of the deceased member, to any person specified in the application. (2) If the share or interest of the deceased cannot be legally transferred in accordance with the provisions of sub-section (1), or if the person, to whom the share or i....
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.... 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 contended that within the limited scope of Section 69 and 70 of the West Bengal Cooperative Societies Act, 1973, the Cooperative Tribunal was not required to determine the disputed question of title be....
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....rther, 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 in all other decisions cited before us the view taken is that the nominee unde r S ection 3 9 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to ....
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....y 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 to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy....
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....ing 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 judgment is not of much significance, insofar as the adjudication of the present controversy is concerned. 14. Insofar as the judgment in the Gayatri De case (supra) is concerned, the same expressly dealt with the provisions of the 1983 Act. Despite the ab....
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....tion claims payment of the value of such share or interest or if the co-operative society in accordance with the rules and its by-laws decides to proceed under this sub-section - (a) the share shall be transferred to a person qualified to be a transferee of the share, under section 78 on receipt of the value of the share from such person; and (b) the value of the share or the interest of the deceased member determined in accordance with the rules shall be paid to the person nominated under section 79 or to the person referred to in clause (b) of sub-section (1) of this section after deducting the amount payable under this Act to the co-operative society from the estate of deceased member." Having perused the aforesaid provisions, there can be no doubt, that where a member of a cooperative society nominates a person in consonance with the provisions of the Rules, on the death of such member, the cooperative society is mandated to transfer all the share or interest of such member in the name of the nominee. The above interpretation of Section 79, at our hands, also emerges from Section 80(1)(a) which postulates, that the share or interest of a member of the society, "on his deat....
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....ut unreasonable delay, the board may transfer the share or pay interest of such deceased member in favour of or to any person who presents in writing his or her claim for the said share or interest and produces, in support of such claims, probate, letter of administration or succession certificate issued by a competent court having jurisdiction, and makes a written declaration in an affidavit before a Magistrate that he or she is the rightful claimant, being the legal heir or representative of the deceased. (2) (a) Where a co-operative society has to make a refund of the value of a share, the value of the share shall be deemed to be equal to the amount paid upon the share: Provided that where a portion of the assets is estimated to be bad or doubtful in the latest audited balance sheet, and is not covered by funds created out of profits, the board may, for the purposes of such payment, reduce the value of the share in the same proportions as the aggregate amount of assets which are not bad or doubtful, less the amount of outside liabilities, bears to the paid-up share capital. (b) Where a transfer of share or interest is made, the value of the share or interest shall be deeme....