TaxTMI 
TaxTMI 
2004 (4) TMI 625
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....er of the appellant/writ petitioner Sati Prasanna Bhowmick has died intestate in August, 1985 leaving being him the following legal heirs : a)Smt. Gayatri De - Married daughter b)Smt. Atri Das - -do- c)Smt.Maitry Roy - -do- d)Smt. Anita Sarkar - -do- d)Sri Subrata Bhowmick - son e) Smt.Mita Das - Married daughter The said legal heirs, namely, the four daughters and the son have separately, by letters, given their consent thereby authorising the appellant to take possession of the flat being No.A-2 from the respondent-Society. The appel....
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....ork continued and also to give liberty to him to consider the question of allotment of applications etc, The father of the appellant, since deceased, who was an aged ailing octogenarian became ill and could not take any further steps regarding his own flat namely, A-2/5 which had been allotted to him as already mentioned hereinabove. It is worth mentioning, in this connection, that since after the early part of 1983, there was neither any demand for money nor of any communication regarding his liability in respect of the said flat from the end of the said Society during the life time of Sati Prasanna Bhowmick. By letter dated 6.12.1986, Dr. Subrata Bhowmick, son of Sati Prasanna Bhowmick, since deceased, the erstwhile allotee in respect of flat No. A-2/5 wrote a letter to the Special Officer of the Society intimating him about the demise of his father and mentioning therein that they had since found that their father did not leave any nominee for the flat mentioned above. It was also mentioned therein that they were taking such action under the West Bengal Cooperative Societies Act, 1983 (hereinafter referred to as "the Act") and the laws to get their father's interest trans....
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....nch. The Division Bench allowed the appeal filed by the Society and dismissed the writ petition filed by the appellant. It reads thus: "(a) Since the entire amount has not been paid, no right, title and interest had passed in favour of the father of the appellant Sati Prasanna Bhowmick ; (b) The provisions of the Act and the Rules made thereunder leave no manner of doubt that the appellant does not have any right to allotment of a flat nor the heirs of the deceased could claim title in relation to the flat in question in violation of the provisions of Chapter IX of the said Act ; (c) The heirs nominated after the expiry of the stipulated period could not derive any right contrary to or inconsistent with the provisions of the Act. The writ petition was not maintainable for non-impleading the necessary party and no writ will lie against the respondent-Society. Being aggrieved by and dissatisfied with the judgment of the Division Bench, the appellant filed this appeal by way of special leave petition. We heard Shri V.R. Reddy & Shri Tapas Ray, learned senior counsel, appearing for the appellant and Shri S.B. Sanyal, learned senior counsel assisted by Shri Somnath ....
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.... the name of the nominee in whose favour of the property was to be transferred had taken some time for selecting such nominee by all the legal heirs. Countering the arguments, Shri S.B. Sanyal, learned senior counsel appearing for the respondents, submitted as under: (a) the judgment and order impugned in this appeal is unexceptionable; (b) the father of the appellant paid only Rs.one lakh against the title cost of the flat of Rs. 2.60 lakhs despite several reminders during his life time and as such, acquired no right, title or interest in his allotted flat No. A-2/5 under Section 87 of the Act and under Rule 153 of the Rules framed thereunder; (c) The present appellant cannot claim any such title or interest over the same by way of inheritance. The modality for such devolution by inheritances are stipulated under Section 80(1)(a),(b) & (c) of the Act. The appellant having failed to comply with such formalities of the claim, automatic entitlement to the right, title and interest in the flat was no longer available to the appellant. As per the directions of this Court dated 13.4.1998, the nomination register along with the zerox copy thereof was submitted. The said re....
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....rfeited her right to succession to the subject flat under Section 72 and Section 87(2) of the Act and Rule 153 of the Rules. Shri S.B. Sanyal further submitted that even though the appellant is not entitled to any right, shares and interest of late Sati Prasanna Bhowmick, the respondent-Society is ready and willing to refund the amount to the appellant. We have given our thoughtful consideration to the arguments advanced by the learned senior counsel appearing on either side with reference to the pleadings, records, annexures and the case laws. Before we proceed to deal with the issues in question, it is beneficial to consider the relevant provisions of the Act and the Rules made thereunder. Sections 2(28), 2(32), 79, ..(pages 6-11) We shall now deal with the question whether the right of ownership of a flat in multi-storied building under the Act is ineritable and transferable. The other question as to whether in the event of the deceased member dies leaving no more nominee any person to inherit the apartment interest of the deceased member for such apartment should be inherited by all the legal heirs or by one of the legal heirs in the event other legal heirs gi....
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....r is willing to be admitted as a member of the Society. Section 80(c) of the Act makes it clear that on the death of the member of the Society, his share or interest in the Society shall be transferred on the application of the person referred to in clause (b) within three months from the date of the death of the member of such person as may be specified in the application. Therefore, transfer of shares or interest can be made only by a Society and not by the legal heirs because if it is read by a Cooperative Society after the word "transfer" then the meaning and application becomes clear which means it is an obligation of the Society to transfer the share or interest of the deceased member within the stipulated period referred to in Section 80 of the Act. While disposing of the appeal, the learned Judges of the Division Bench of the High Court gave much stress on sub-Section (3) if Section 85 of the Act as also Rule 135 of the Rules taking the present case to be a case for admission of membership which is not in the instant case. In the present case, the question of admission of membership becomes absolutely immaterial, the real question, however, is of transfer of devolutio....
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.... interest in the Society of the member will be governed by the provisions of the Act, the Rules made thereunder and the bye-laws of the Society and that the members will also be liable to be discharged his obligations as the member of the Society in accordance with the abovementioned Act, Rules and the bye- laws. It was then argued by Shri S.B. Sanyal that the appellant being allottee of Flat No. 4-A/2 in the same building is not entitled to a second flat being No. 5-A/2 under Section 85(3) of the Act and Rule 135 of the Rules. This argument cannot be countered with reference to the letter dated 6.12.1986, the letter written by Dr. Subrata Bhowmick to the Special Officer of the Society. The said letter reads thus: Page 57 The letter is self explanatory. Dr. Subrata Bhowmick, son of late Sati Prasanna Bhowmick brought to the notice of the Society about the death of his father in August, 1985 and also by intimating the Society that since their did not leave any nominee, they are taking such action under the Act and laws to get their father's interest transferred to one of us-brothers or sisters. This letter has not been noticed by the Division Division Bench. Therefore, the....