*1* wp.9881.10.925.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9881 OF 2010 John D’Souza. ..Petitioner -Versus- Joint Registrar, Co-operative Societies and others. ..Respondents .......... Ms.Kalpana R. Trivedi, for the Petitioner. Mr.S.M.Kazi, for the Respondent No.3. Mr.R.M.Patne, AGP, for the Respondent Nos.1 and 2. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 29th June, 2011. P.C.: 1 This Writ Petition is filed challenging the orders passed by the Divisional Joint Registrar, so also, the Deputy Registrar. 2 The facts are very few and simple. The Petitioner has son by name Francis D’Souza and daughter by name Leena Sara Hussain @ Leena D’Souza. The Petitioner resides in flat No.113 in the co-operative housing society which is known as Versova Anjali Co-operative Housing Society. That is a society registered at Mumbai and has a building which is occupied by flat purchasers like the Petitioner. The Petitioner states that on 10.06.2008 his daughter-Leena, who is Respondent No.3 before me, made an application for membership of the society. That application was not accepted. Therefore, she approached the Deputy Registrar through her Advocate who pointed out that the application is made under Section 23(1A) of the Maharashtra Co-operative Societies Act, 1960 and the Society has not taken any cognizance. The Deputy Registrar, therefore, forwarded this letter to the Society and the Society replied on 22.03.2009 *2* wp.9881.10.925.sxw that the application cannot be accepted. 3 The Respondent No.3-Leena approached the Deputy Registrar by filing an application bearing Application No.12/2008. She stated that she has purchased the flat D-113 along with her father, Petitioner before me, by an agreement dated 05.07.1984. The Respondent No.3 pointed out that the name of her father has been entered into the share certificate and the society’s record. However, behind back of the Respondent No.3 and without her consent, in the year 2007, the father made attempt to dispose of the flat. At that time, the Society called for proper application from the father and informed that there are two names in the share certificate and the Society’s record, namely, that of the father and son-Francis. It was pointed out that merely because the Respondent No.3 has been residing, after her marriage, at Hyderabad and has no knowledge of the acts of her father, that does not mean that she has lost her right, title and interest in the subject flat. That application of the Respondent No.3 has been granted by the Deputy Registrar and also confirmed by the Divisional Joint Registrar and that is how the father has approached by this Writ Petition. 4 I have heard the learned counsel appearing for the parties. I have perused the orders under challenge with their assistance. A limited request that was before the Deputy Registrar was to direct the Society to include the name of the Respondent No.3 in the share certificate, as also, Society record and enroll her as a member. That was based upon the agreement of sale dated 05.07.1984. On her own showing, she has stated that she got married in 1989 and her name was changed as Leena Sara Hussain. She is residing at Hyderabad with her husband. However, she discovered that the suit flat belongs to her and she is joint owner thereof. She stated that for last 25 years she is away from Mumbai and the father and brother are residing in the said flat. If this was the case of the *3* wp.9881.10.925.sxw Respondent No.3 herself, then, she could have got declaration in her favour from the competent court and thereafter, the Society would have abided by the same. She straightaway approached the Society and requested her name be included in the share certificate and enrolled as a member. That request was based on the agreement of sale and alleged claim of joint ownership. Admittedly, the daughter has no order or decree of the competent court in her favour. She is merely relying upon the agreement of sale dated 05.07.1984. Now her father and brother are not admitting her claim. In such circumstances, there was no reason as to why the authorities under the Maharashtra Co-operative Societies Act, 1960 should take upon themselves a task of finding out as to who has rights in the property. The authorities are not deciding the issue of right, title and interest of the parties, in their limited jurisdiction, precisely they have done in this case. The request should have been refused by relegating the daughter to the appropriate remedy. Instead, both authorities without assigning any reason, proceeded on the basis that the Petitioner before me and the Respondent No.3-daughter are joint owners of the flat and therefore, directed the Society to include her name in the share certificate. This is clear case of the authorities exceeding their power and jurisdiction and issuing direction which is clearly impermissible in law. They have no authority to adjudicate the title dispute. In such circumstances, the argument of the learned counsel appearing for the Respondent No.3 that she has admitted share in the property as joint owner, cannot be accepted straightway. It was for her to have asserted that claim and if the father is not admitting the same, it was open for her to approach the civil court, rather than doing this, she approached the Society and when the Society refused to take cognizance of her request, the authorities under the Maharashtra Co-operative Societies Act, 1960 issued misconceived and *4* wp.9881.10.925.sxw untenable directions. They should have informed the Respondent No.3 that she must go to the competent court and obtain such orders and declarations in her favour as are permissible in law. The Society as well as the authorities would then abide by the said orders. However, not adopting this course, but entering in arena and virtually adjudicating the dispute of title, the impugned orders are passed. They being unsustainable in law, are required to be quashed and set aside. 5 In such circumstances, the Writ Petition is allowed. Both impugned orders are set aside. It is clarified that it is open for the Respondent No.3 to approach the competent civil court and seek declaration of title in her favour and establish her claim of joint ownership and if she succeeds in doing so, all parties to abide by the same subject to their legal rights. It is clarified that this Court has no expressed any opinion on the merits of controversy, but has emphasized the fact that the authorities under the Maharashtra Co-operative Societies Act, 1960 should not have undertaken the exercise of determining and deciding the title to the property, that rival contentions are referred for this limited purpose. The Civil Court shall determine the issue without being influenced by the observations made by the authorities. All contentions of both sides in that behalf are kept open. 6 The Writ Petition is, accordingly, allowed. No costs. (S.C. Dharmadhikari, J)