ISHWARIBAI TAHILRAM Vs. RAMCHAND VALLABHDAS KATARA

JUDGEMENT

(1.) This petition is directed against an award passed under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (Act of 1960) and the comfirmation thereof in appeal.

(2.) Respondent No. 2 (Society) is a Tenant Ownership Housing Society listed at clause (a) of item 5 vide Rule 10 of the Maharashtra Co-operative Societies Rules, 1961 (1961 Rules). It came into existence sometime in the year 1950. The petitioner and respondent No. 1 are the daughter and son respectively of Vallabhdas Kattar. Petitioner's husband Tahilram got himself enrolled as an ordinary member of the Society on payment of Rs. 250/- representing the fully paid up value of five shares. A plot of land bearing plot No. 1 was allotted unto him. On August 25, 1973, respondent No. 1 (disputant) through his Advocate addressed notices to Tahilram and the Society claiming that the former and he were joint members covered by the certificate for the purchase of five shares with all rights and privileges flowing therefrom in respect of the membership as also to plot No. 19. The letter spoke of disputant's desire to put up a construction on his half portion of the plot and Tahilram coming in the way of his carrying out the construction. There was no reply to this communication from the Society, but Tahilram gave a reply through his lawyer on September 24, 1973. The reply averred that the claim made by the disputant was not tree and that Tahilram was the exclusive owner of the shares and also the benefits flowing therefrom. Upon this denial, the disputant filed a dispute vide the petition at Ex. G. The petition averred that he and Tahilram (substituted by the present petitioner pursuant to Tahilram's death) were close relations who wanted to jointly acquire a plot in the property of the Society. They had jointly contributed to the acquisition of the said plot. The joint owners were to construct structures of equal size according to the permissible index. Disputant was enrolled along with Tahilram as a member. At the request of Tahilram, disputant had made over the greater portion of the record available with him to the said Tahilram so as to enable that person to apply for and obtain a loan Pursuant to the death of disputant's son in 1969, he and the members of his family were emotionally disturbed. It was only in July or August 1973, that disputant thought of putting up a construction upon the plot he owned jointly with Tahilram. When asked for the original documents.Tahilram came out with evasive answers and this led him to have the notice dated 25-8-1973 issued. The false reply given to the notice by Tahilram, left him with no alternative but to raise a dispute. Para 8 of the petition averred that the dispute raised therein was between members and the Society and related to the rights of the disputant as a member to hold a plot of land and erect a structure thereon. Certain declarations, injunction and damages etc. were claimed. As something turns upon two of the reliefs claimed ia the petition, it will be necessary to reproduce them. They are :

(3.) Opponent No. 1 first took exception to the jurisdiction of the Officer on Special Duty (at that time the Co-operative Court had not been established) to try the matter under Section 91 of the 1960 Act. It was contended that, in substance, the petition raised a dispute as between the disputant and the opponent No. 1. The joinder of the Society was a mere formality. Next, on merits it was not true to say that the disputant had any right whatsoever in the membership or the plot figuring in the dispute. Disputant had raked up a false claim more than 20 years after Tahilram enrolled himself as member of the Society and being allotted plot No. 19. The claim was barred by limitation.