ASHOK CHAND AGGARWALA Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) Mr. C.B. Aggarwala was a member of Supreme Court bar Co-operative House Building Society Ltd. He was allotted by the society a plot bearing No. A-25, Niti Bagh, New Delhi. The perpetual lease deed was registered in the name of Mr. C.B. Aggarwala in 1972. The appellant was appointed by Mr. C.B. Aggarwala a nominee on the record of the society in accordance with Delhi Co-operative Societies Rules, 1973 (for short The Rules'). Mr. C.B. Aggarwala died on 13th June, 1973. It seems that the society passed a resolution dated 16th May, 1975 substituting the appellant as member of society in place of his father Mr. C. B. Aggarwala. The appellant had approached the Delhi Administration for substitution of his name in the sub-lease and for this purpose he moved the Assistant Housing Commissioner, L & B Department, Delhi Administration vide his application dated 21st February, 1975. The appellant was, however, informed by the Delhi Administration by letter dated 5th March, 1975 to produce the succession certificate from a Civil Court of competent jurisdiction so that further action could be taken in the matter. The plea of the appellant before the authorities was that as a nominee he was entitled to inherit the plot of which his father was the lessee. In short, the case of the appellant was that in view of nomination made by his father he was entitled to the ownership of the plot in question to the exclusion of all other heirs.

(2.) Aggrieved by the action of the authorities, the writ petition out of which this appeal has arisen was filed by the appellant and reliance was placed upon Section 26 of the Delhi Co-operative Societies Act, 1972 in support of the contention that on the basis of nomination be was entitled to inherit the plot in question to the exclusion of other heirs of Mr. C.B. Aggarwala. The writ petition was dismissed by learned Single Judge inter alia holding that Section 26 of the Act does not create a succession.

(3.) In support of the appeal reliance has been placed on Section 26 of the Act and Rule 35ufthe Delhi Co-operative Societies Rules, 1973. It would be useful to reproduce the said provisions as under :- "26. (1) On the death of a member a co-operative society may transfer the share of interest of the deceased member, to the person nominated in accordance with the rules made in this behalf, or, if there is no per on so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member, or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member's share or interest as ascertained in accordance with the rules or bye-laws: Provided that- (i) in the case of a co-operative society with unlimited liability, such nominee, heir or legal representative, as the case may be, may require payment by the society of the value of the share or interest of the deceased member ascertained as aforesaid; (ii) in the case of a co-operative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and bye-laws for membership of the society, or on his application within on month of the death of the deceased member to any person specified in the application who is so qualified; (iii) no such transfer or payment shall be made except with the consent of the nominee, heir or legal representative, as the case may be. (2) A co-operative society shall, subject to the provisions of section 36 and unless within six months of the death of member prevented by an order of a competent court, pay to such nominee, heir or legal representative, as the case may be, all other moneys due to the deceased member from the society. (3) All transfers and payments made by a co-operative society in accordance with the provisions of the section shall be valid and effectual against any demand made upon the society by any other person." Rule35 (1) For the purpose of transfer of his share or interest under sub-section (1) of section 26, a member of a co-operative society may, by a document signed by him or by making a statement in any book kept for the purpose by the society, nominate any person or persons. Where the nomination is made by a document, such document shall be deposited with the society during the member's life time and where the nomination is made by a statement, such statement shall be signed by the member and attested by one witness. (2) The nomination made under sub-rule (1) may be revoked or varied by any other nomination made in accordance with that sub-rule. (3) The,record of nomination shall be kept by a co-operative society in such manner as may be laid down in the bye-laws. (4) When a member of a co-operative society nominates more than one person he shall, as far as practicable, specify the amount to be paid or transferred to each nominee in terms of whole share and the interest accrued in the society. (5) The value of the share or interest transferred or paid to a nominee or nominees shall be determined on the basis of the sum actually paid by the member to acquire such share or interest unless the bye-laws provided for calculation on a different basis. (6) (i) Where the member of a co-operative society has not made any nomination, the society shall, on the member's death, by a public notice exhibited at the office of the society invite claims of objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice. (ii) After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as the committee considers proper in the circumstances prevailing, the committee shall decide as to the person who in its opinion is the heir or the legal representative of the deceased member and proceed to take action under section 26, subject to any appear which may be filed to the Registrar by any person claiming the share or interest of deceased member within 30 days of the decision of the committee. The orders of the Registrar on such appeal shall be final and binding upon all concerned. (7) If the committee refuses to transfer the share or interest of the deceased member to his nominee or his successor-in-interest, or fails to take a decision on the application of such nominee or the successor-in-interest as the case may be, within 30 days of the date of such refusal orthe date of such application, a nominee or any person claiming to be a successor-in-interest application, a nominee or any person claiming to be a successor-in-interest of the deceased member shall file an appeal to the Registrar, who after hearing the society and the applicant or any other person interested, shall pass such order as he may deem fit and on such condition as he may impose and order made by the Registrar shall be final and binding on all concerned."