IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 WA.No. 649 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.625/2007 Dated 05/02/2010 .................... APPELLANT: 2ND RESPONDENT. ----------------------------- COCHIN CO-OPERATIVE HOSPITAL SOCIETY LTD., E.288, REPRESENTED BY ITS SECRETARY, ERNAKULAM, KOCHI - 16. BY ADV. SRI.BABU KARUKAPADATH RESPONDENTS: PETITIONER & 1ST RESPONDENT. ------------------------------------------- 1. THILOTHAMMA SUBRAN, PLOT NO.G.232, HOUSE NO.28/1216, PANAMPILLY NAGAR, COCHIN. 2. THE ASSISTANT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETY, OFFICE OF THE ASSISTANT REGISTRAR, ERNAKULAM. R1 BY ADV. SRI. T. RAJASEKHARAN NAIR. R2 BY SR. GOVT. PLEADER SRI. R. LAKSHMINARAYAN. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = == = = = = W. A. NO. 649 OF 2010 = = = = = = = = = = = = DATED THIS, THE 7TH DAY OF APRIL, 2010. J U D G M E N T Raman, J. The first respondent herein filed the writ petition seeking to quash Ext.P5 passed by the Assistant Registrar (General), the first respondent in the writ petition. The first respondent's husband was a member in the second respondent Society. An application was filed for seeking transfer of his shares in her favour which was declined by Ext.P3 passed by the Secretary of the second respondent Society, informing the applicant that shares cannot be transfered since her husband did not furnish any nomination as per the provisions of the bye-law of the Society and the Act at the time of allotment of shares. The first respondent canvassed the correctness of the said order before the Assistant Registrar, who, by Ext.P5, took the stand that though there is a discretion in the governing body to transfer the shares as per Section 25 of the Kerala Co-operative Societies Act, such transfer can be made only to an existing member. 2. The learned Single Judge, before whom, the mater came up for WA 649/2010 2 consideration, thought it fit, in the background of the case, to issue a direction to the appellant herein to show the magnanimity of admitting the first respondent as a member of the society and transfer the shares of her late husband to her name within a period of two months. Aggrieved by the said order, the Society has come up in appeal. 3. We have heard both sides. Learned counsel Sri. Babu Karukapadath, appearing on behalf of the appellant, submitted that admission of a person as a member of the Co-operative Society is a matter of discretion by the Society and no direction as such could have been issued by the learned Single Judge, and according to him, though it was pointed out by the learned counsel for the first respondent that in the application itself the first respondent has been nominated by her husband as per necessary endorsement made in the column earmarked for such purpose, such nomination was not in accordance with the provisions of the bye-law in the absence of attestation by two witnesses. 4. It is the duty of the Society to get the application duly filled up in the prescribed form at the time of admission of a member. Admittedly, the application form provided for a column for nomination and if the nomination ought to have been attested, they could have pointed it out then and there. After admitting the husband of the first respondent as a WA 649/2010 3 member without duly filling up the column provided for nomination, it is not open for the Society at a belated stage, that too, after his death, to point out that the nomination is defective. If during the lifetime of the member, the nomination was to be duly attested the same could have been pointed out in which case the right to nominate a person would have been rightly exercised in the manner as required. The inaction of the Society cannot take away the right of a member to get his share transferred in favour of a person nominated by him. Further, the attestation, if at all, is only for the purpose of proving the identity of the person. In so far as the first respondent is the wife of the deceased member, nominated in the application form, this cannot invalidate the nomination in the above background. Hence it ought not have been rejected. Therefore, we find that the reason for rejection of the application for transfer of the shares in Ext.P3 is wrong. 5. Though it is pointed out that only to an existing member the shares can be transferred, it must be seen that Section 25 provides a right to a member for having his shares transferred after his death. The proviso only stipulates the procedure to get it done. The proviso has to be understood in the light of the main provision and for that purpose, if the nominee has to be admitted as a member, it enables the Society to WA 649/2010 4 admit him as a member and substitute him in the place of the deceased member. Learned Single Judge, in such circumstances, issued appropriate direction with which we do not find any good ground to interfere. The writ appeal is dismissed. P.R. RAMAN, JUDGE. P.S. GOPINATHAN, JUDGE. KNC/-