HIRALAL BHAGWANDAS RAJPUT Vs. RATILAL BHAGWANDAS RAJPUT

JUDGEMENT

(1.) BEFORE we refer lo the details of the proceedings, it may be convenient to refer to the charonology of events which will facilitate understanding of the essential contrc versies between the parties. The appellant and respondent No. 1 are brothers. Both are married and are having wife and children. Admitted not only these two brothers and their family members but also their parents have been living together for the last several years. Even prior to 1963, admittedly, the parents and these two brothers alongwkh their families were staying together. In March, 1963, a flat in a building being flat No. 2, 1st floor, was taken on a monthly tenancy by the appellant who is the eider brother in the name of the appellant on a monthly rent of rs. 233/ -. Admittedly, the parents of the appellant and the younger brother respondent No. 1 and his family also shifted to the said promises for residence. Sometime on 7th May, 1971 the owner, of the building offered flats in the said building lo the tenants in occupation on ownership basis. On 15th May, 1971 the appellant paid Rs. 1. 784/- and Rs. 251/- by way of his contribution as also share and membership fee. On 22nd November, 1971 the appellant paid by cheque Rs. 16,056/- being the balance of the price of the said flat. The tenant-cum-flat owners formed a co-operative housing society by name Kismat Park House Co-op. Housing Society which came to be registered on 6th November, 1971. On 12th December, 1971 the appellant nominated his wife as the person who would succeed to his interest in the society. On 10th March, 1973 a joint application by the appellant and respondent No. 1 was made to the said society for being enrolled as joint members of the society. On 14th March, 1973 the Managing Committee of the Society considered the said application and recommended its acceptance. Qn 30th March, 1973 the special general body meeting approved the decision of the Managing Committee in that behalf. On 1st November, 1974 the share certificate was issued in the joint names of the appellant and respondent No. 1. Sometime in the year 1979 - 80 Kismat Park House Co-op. Housing Society was bifurcated and two societies "'ere created. On 30th July, 1980, the appellant made an application exclusively in his name for membership to which it appears that respondent No. 1 had objected and, ultimately, the society directed the appellant and respondent No. 1 to submit a joint application for membership.

(2.) THEREAFTER, the appcllant as disputant filed a dispute before the District deputy Registrar, Co-operative Societies, Bombay, being Arbitration Case No, 895/1538 of 1980. Respondent No. 2 in this appeal was the first opponent, viz. , Kisinat park House Co-op. Housing Society Ltd. and respondent No. 1 was opponent No. 2. in the application it was claimed that the society is a tenant co-partnership housing society; that the appellant and respondent No. 1 are shown to be joint members in respect of shares No. 266 to 270 in the capital of the society. Thereafter, the application gives the history to the effect that Irani brothers were owners of the building, viz, Kismat, situate at Colaba, Opp. Sassoon Docks and the appellant was a monthly tenant in respect of flat No, 2 on the 1st Floor consisting of two bed rooms, hail and a kitchen admeausring 1100 sq. ft. carpet area of fort of Rs. 221. 15 since about 1963. it is further mentioned that the landlord offered the said building to the tenants on ownership basts. The appellant paid Rs. 1,784/- on 15th May, 1971 apait from payment of Rs. 251/- tow ards membership fees and share amount. Sub-sequemly, the appellant paid o; 22nd November, 1971 a sum of Rs. 16,0567 -. The appeliant contended that thus he has paid the entire amount towards the price of the said flat and, thereafter, be made an application sometime on 19th May, 1971 to become member of the society in respect of the said flat. It is clearly mentioned in the application that at the materiai time, the appellant was living in the said flat along with his family members and parents and respondent No. 1 was also staying in the said fiat. It is mentioned that though the appellant had paid the entire consideration and was maintaining respondent No, 1. respondent No. 1 was not contributing any amount towards expenses of the house. The appellant alongwith his family members as also his parents ar. d respondent No. 1 with his family members including his three children were staying with the appellant in the aforesaid premises. Thereafter it is mentioned that sometime in the month of March, 1973 the father of the appellant prevailed upon him to allow respondent No. 1 to become joint member in respect of give shares held by the appellant in respect of the said flat in the aforesaid society and since there was no dispute between the appellant and respondent No. 1, the appellant readily agreed to make an application to the society somewhere on 10th March, 1973 requesting the society to admit respondent No. 1 as a joint member. However, the appellant distinctly remembers that the appellant had not made any payment for admission fee nor respondent No. 1 and as such no admission fee has been paid to the society in respect of the said admission. Nevertheless the society endorsed the share certificate in the joint names of the appellant and respondent No. 1. Thereafter it is mentioned that because of the subsequent events, the appellant now finds that the acceptance of respondent No. 2 to be a joint member of the aforesaid five shares is not in the interest of either the appellant or his parents, the appellant therefore, submitted that as no admission fee has been paid either by the appellant or by respond not No. 1 and in view of the fact that to his knowledge no resolution has been adopted by the society to admit respondent No, 1 as a joint member, the end or serment by respondent No. 1 is improper, unjust, invalid and without any legal effect. the appellant therefore, claimed to be eatitled to a decla-ratioa that the endorsement on the share certificatr is illegal, void and the society be directed to delete the name of respondent No. 1 from the share certificate. The appellant has further stared in the application that respondent No. 1. has not been behaving as a regular bro her of the appellant though respondent No, 1 had not been comributing to wards the house hold expenses and has been living with the appellant with him family members Respondent No, 1 has been behaving as if fee wa to be treated with greater favovrs and he does not brew any kind of equal treatment from any of the family member. On the contrary, respondent No. 1 has been behaving very cruelly. As a result of the cruel and difficult behaviour on the part of respondent No, 1, the relation between his family members on the hand and the appellant and his parents has been strained. Consequently, the appellant is continuously fooling whether it would have been proper for him not to have made respondent No. 1 a member. Thereafter it is mentioned that having taken inspection of the society, he finds that there is no propar resolution of the society to endorse the share certificate or to admit respondent , No. 1 as a joint member of the society. The appellant therefore, claimed to be entitled to a declaration that all the moneys payable for the flat have been paid by the appellant and hence, he also is entitled to claim ail the rights in upon or over the said five shares No. 266 to 270 in the capital of the society and also the ownership right over Sat No. 2 previously under his tenancy. The appellant also claimed that he is entitled to a declaration that respondent No. 1 does not have any right over the said flat No. 2 and the application made by the appellant to admit respondent No. 1 as joint member was only for the purpose of having certain stop-gap arrangement for voting right and nothing beyond. Respondent No, 1 has act contributed a single paise either for the shares or for the cost of the fiat and, therefore, he does not heav any right in upon or over the said shares or the said flat. The application also made reference to the suit between the brothers being suit No. 2778 of 1980 filed by the apnellant against respondent No, 1 pending in the City Civil court at Bombay. Ultimatey the appellant as disputant prayed that (i) it be declared that flat No. 2 which was in the exclusive tenancy of the disputant was acquired on ownership basis by the dispatant from out of his funds and respondent No. 1 has no contribution what soever made for acquisition of the ownership right over the said flat No. 2 (ii) it be declared that the cost of five shares No. 266 to 270 hold by the disputant in the capital of the society has also been contributed by the disputant alone; (iii) it be declared that the endorsement of the share certificate showing the name of respondent No. 1 as a joinr member is without any proper and valid sanction and hecace the society be directed to delete the name of respondent No. 1 from the share ceritificate; and (iv) it be declared that respondent No. 1 has not been validly admitted as a joint member.

(3.) RESPONDENT No, 1 filed his written statement. He specifically contended that the main prayer is for a declaration that the appellant is the exclusive owner of flat no. 2 which is purchased by him from his own funds and such type of declaration never touches the business of the society and therefore, the Court will have no jurisdiction under the provisions of the Maharashtra Co-operative Societies Act to adjudicate upon the said issue. Respondent No. 1 contended that the appellant and himself are real brothers, the appellant being the elder one. At all times, the appellant, respondent No. 1, their wives and children as also their parents resided together and formed one joint family. Prior to 1963, the appellant, respondent No. 1 their parents and other family members resided at 36, Marati Lane, Fort, Bombay-1 and the said premises were rented out sometime in the year 1945. The said flat was rented out in the name of their mother. As there was increase in the number of members of the family, the suit fiat was rented out in the year 1963 and the appellant being the elder brother, it was rented out in his name. Thereafter, there is reference io the business conducted by the family in the name of Ramji Jeevan and Company. It was run by partnership consisting of the appellant, respondent No. 1 and mother and sister of the appellant and respondent No. 1. It is stated that in the year 1963 when the suit flat was rented out, the premises where the family lived earlier were given to the sister Moramdakem and she is occupying these premises. He contended that at all times, all the members were staying together as one family and the flat in dispute was rented out in the name of the appellant for and on behalf of the benefit of the whole family. Respondent No. 1 has emphasised that right from 1945 all of them were staying together as one family. He denied that it was the appellant who was maintaining him. He stated that at the suggestion of elders, it was decided to separate the joint ration card in favour of the appellant and respondent No. 1 and for the purpose of protecting the right of respondent No. 1 in respect of the fiat to approach the society to show the holding of the snares and the said fiat as joint holding of the appellant and respondent No. 1. This was done to protect the interest of both the appellant and respondent No. t and that is how joint application was made to the society, Respon dent No. 1 contended that as he has made the joint application, the appellant is estopped by his own conduct to challenge the same, He mentioned that in pursuance of the application for joint membership made by the appellant and respondent No. 1, the society in its general body meeting held on 30th March, 1973 passed a resolution admitting the. appellant and respondent No. 1 as joint members and the present dispute filed in the month of February, 1981, i. e, nearly after eight years is barred by the law of limitation. Respondent No. 1 specifically contended that the issue whether the appellant was the exclusive tenant or whether the tenancy was for and on behalf of the family would be an issue within the exclusive jurisdiction of the Small Causes court at Bombay and the nature of the said dispute between the brothers cannot in any way be related to the business of the society and, therefore, the declaration sought for by the appellant cannot be given under Section 91 of the Co-operative Societies Act