USHA RANJAN BHATTACHARJEE Vs. ABINASH CHANDRA CHAKRABORTY

JUDGEMENT

(1.) Leave granted.

(2.) Heard learned counsel for the parties. This appeal is directed against the judgment dated 14/2/1996 passed by a division bench of the Calcutta High court in FMAT No. 3326 of 1991. One Ranendra Kumar Acharya, since deceased, was a member of Manicktala Cooperative Housing Society Ltd. situated at 108/b, Manicktala Main Road, Calcutta-54. He was allotted Flat No. K/82 and after payment of the agreed value, the possession of the flat was delivered to Shri Ranendra Kumar Acharya. There is no dispute that Shri Acharya died as a bachelor. It also appears that he made a nomination in favour of the respondent, Avinash Chandra Chakraborty in respect of the said flat.

(3.) The dispute arose when the Cooperative Society wanted to hand over the possession of the said flat to Shri Chakraborty because the appellants , were found in physical possession of the said flat. The case of the appellants was that since Shri Ranendra Kumar Acharya died intestate, they had inherited the said property of Rajendra Kumar Acharya according to the rules of intestate succession under the Hindu Succession Act. The respondent, however, contended that as nomination was made in his favour, the Cooperative Society was under a duty to hand over the possession of the said flat in favour of the respondent. Such dispute ultimately was raised before the Cooperative tribunal. The Cooperative tribunal held that there had been a valid nomination in favour of the respondent by the deceased Shri Rajendra Kumar Acharya but the tribunal held that the question of title to the property was to be adjudicated by an appropriate forum if the parties would approach such forum. Since no direction for handing over thepossession of the flat in favour of Shri Avinash 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 Avinash Chandra Chakraborty 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 nomination had been made under Section 69 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.