R.S.A. No. 1900 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1900 of 2009 (O&M) Date of decision: 07.05.2009 Kura Ram ....appellant versus Bachna Ram ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. D.S. Gurna, Advocate, for the appellant. Mr. D.K. Malhotra, Advocate, for the respondent-caveator. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 5561-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 16 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 16 days in refiling the appeal is ordered to be condoned. C.M. No. 5562-C of 2009 This is an application under Section 149 of the Code of Civil Procedure for making good the deficiency in court fee. It has been averred in the application, that due to inadvertance, less court fee was affixed, which has been made good with a delay of 16 R.S.A. No. 1900 of 2009 (O&M) -2- days. For the reasons stated in the application, C.M. is allowed and the delay in making good the deficiency in court fee is condoned. C.M. No. 5563-C of 2009 This is an application under Section 5 of the Limitation Act for condoning the delay of 7 days in filing the appeal. It has been averred in the application, that delay has occurred on the part of the counsel in wrongly calculating the period of limitation. For the reasons stated in the application, C.M. is allowed and the delay of 7 days in filing the appeal is ordered to be condoned. R.S.A. No. 1900 of 2009 This regular second appeal is directed against the judgment and decree dated 10.11.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent, to claim half share of the amount received by the defendant/appellant by sale of share in the property of the society, stands decreed. The admitted position is, that the plaintiff/respondent and the defendant/appellant are real brothers. The father of the parties was member of the society. He had share in the land owned by society. Prior to filing of the present suit, a suit was filed by the plaintiff/respondent, which was got compromised, wherein the defendant/appellant admitted the claim of the plaintiff/respondent. The society, after sale of land, gave amount to the defendant/appellant, as he was registered as member in pursuance to the nomination made by his father. The plaintiff/respondent sought 50% share claiming himself also to be the legal heir having half share in the R.S.A. No. 1900 of 2009 (O&M) -3- property left by their father. Though, the learned trial Court dismissed the suit. The learned lower appellate Court decreed the suit by accepting the appeal by placing reliance on the judgments of the Hon'ble Supreme Court, holding that the nominee holds the property on behalf of all the legal heirs. Therefore, the plaintiff/respondent was held entitled to 50% share in the amount received, as also in view of the compromise entered into between the parties, in earlier suit. The learned counsel for the appellant contends that the appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the learned Courts below is outcome of mis-reading of Section 21 of the Punjab Co-operative Societies Act, and Rule 19 of the Punjab Co-operative Societies Rules? 2. Whether in view of the specific provisions of the Punjab Co-operative Societies Act, general Act i.e. Succession Act could have precedence?" In support of the substantial questions of law, the learned counsel for the appellant contends, that under Section 21 of the Punjab Co-operative Societies Act, a person is entitled to nominate a person to be his nominee, who is to inherit his share in the event of his death. Furthermore, under Rule 19 of the Punjab Co-operative Societies Rules an obligation is cast on every member to nominate a family member who is to be transferred the shares of deceased member. The contention of the learned counsel for the appellant is, that once the defendant/appellant was nominated, the plaintiff/respondent was left with no right to claim any share. It is also the contention of the R.S.A. No. 1900 of 2009 (O&M) -4- learned counsel for the appellant, that previous litigation between the parties ended in compromise on account of mis-representation made by the plaintiff/respondent. The compromise was said to be outcome of fraud played with the defendant/appellant. The plea of the learned counsel for the appellant cannot be accepted. The society can discharge its liability by making the payment of dues to the person nominated or considering him as member in lieu of deceased member. However, in view of the authoritative pronouncements by the Hon'ble Supreme Court, the nominee so appointed cannot claim benefits of the property left by deceased in exclusion to other legal heirs, as he holds the inherited property in trust on behalf of all the legal heirs. It is next contended by the learned counsel for the appellant, that it is settled law that special statute would over-ride the general law, therefore, once under the Co-operative Societies Act, authority has been given to member to nominate a person to inherit his rights, provisions of Section 8 of the Succession Act cannot over-ride, the benefit accrued under the special Act. This plea is also mis-conceived. There is no contradiction between the two Acts. The Punjab Co-operative Societies Act talks of the person who is to be nominated, whereas Section 8 of the Succession Act talks about the inheritence by legal heirs. The Hon'ble Supreme Court has authoritatively laid down that the nominee holds the property on behalf of all the legal heirs. If both the provisions are read together, no fault can be found with the judgment and decree passed by the learned lower appellate R.S.A. No. 1900 of 2009 (O&M) -5- Court. The liability of society stood discharged on payment to nominee. The legal heirs thereafter could claim their share from the nominee who held the benefit as trustee on behalf of all heirs. The substantial questions of law in the facts and circumstances of the case, are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 07, 2009 R.S.