Civil Writ Petition No. 17565 of 1991 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.17565 of 1991 DATE OF DECISION: September 22, 2011 Inder Singh .....Petitioner VERSUS The Assistant Registrar, Cooperative Societies, Jind and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Ashok Verma, Advocate, for the petitioner. Mr. G.S. Sandhu, Advocate, for the respondents. **** RANJIT SINGH, J. Through the present writ petition, the petitioner seeks direction for quashing order dated 14.5.1990 (Annexure P-2) and order dated 23.4.1991 (Annexure P-3), whereby the claim of the petitioner for becoming member of respondent No.8-Cooperative Society being the nominee of late Chandgi Ram, stands declined and the appeal against the same has also been dismissed. Late Chandgi Ram was member of the Karela Scheduled Caste Land Owning Cooperative Society Ltd., Karela, District Jind. Stating that he is a resident of Village Karela, Tehsil and District Jind, the petitioner has filed this writ petition describing himself to be an Civil Writ Petition No. 17565 of 1991 -2- adopted son of Chandgi Ram. The dispute arose between the petitioner and respondent Nos.4 to 7, who concededly are the daughters of late Chandgi Ram regarding the entitlement to transfer of the share and other interests of the deceased Chandgi Ram in the Cooperative Society(respondent No.8). When the parties could not resolve the dispute, the matter was referred for arbitration to the Assistant Registrar, Cooperative Societies, Jind (respondent No.1). Initially, the Assistant Registrar Cooperative Societies decided the arbitration reference on 30.9.1988, in favour of the daughters. The petitioner pleads that this decision was taken at his back. The petitioner challenged this order on the ground that he did not get any opportunity of hearing and filed an appeal before the Deputy Registrar Cooperative Societies, who vide his order dated 31.3.1989 set aside the order dated 30.9.1988 and remanded the case to the Assistant Registrar Cooperative Societies for deciding the case afresh. Thereafter, the Assistant Registrar afforded adequate opportunity of hearing to the parties and and also afforded opportunity to adduce evidence. The Assistant Registrar then held that the petitioner was the real legal representative of late Chandgi Ram and was entitled to the transfer of all rights and interests of late Chandgi Ram in Cooperative Society. Respondent Nos.4 to 7 had then preferred an appeal against this order under Section 114 of the Haryana Cooperative Societies Act, 1984 (for short 'the Act'). The said appeal was accepted by the Deputy Registrar Cooperative Societies, Rohtak, on Civil Writ Petition No. 17565 of 1991 -3- 14.5.1990 and the order passed by the Assistant Registrar was set aside. The petitioner then filed a revision against the same before the Joint Secretary to Government, Haryana, who had upheld the order passed by the Deputy Registrar vide his order dated 23.4.1991. The petitioner, accordingly, has impugned orders Annexures P-2 and P-3 passed by the Deputy Registrar as well as the Join Secretary to Government, Haryana. The writ petition was admitted and the prayer for stay was declined specifically by observing that respondent Nos.4 to 7 are daughters of late Chandgi Ram and were in possession of the properties in dispute since 1974 and that the petitioner had put up his claim only in the year 1988 being adopted son. The order dated 13.5.1992 is as under:- “Admitted. Stay is specifically declined after hearing learned counsel for the parties taking into consideration the fact that respondent Nos.4 to 7 are daughters of Chandgi Ram deceased and are in possession of the properties in dispute since 1974 and the petitioner has only put forth his claim in the year 1988 being an adopted son.” Respondent Nos. 4 to 7 have filed written statement contesting the claim of the petitioner. It is pointed out that in the year 1956, respondent No.8-Cooperative society consisting of about 20 members was registered with 80 acres of nazoor land situated at Village Karela, which was allotted to the said society. This land was further allotted to the members of the society for the purpose of cultivation. The land is still in cultivating possession of the allottees Civil Writ Petition No. 17565 of 1991 -4- or their legal heirs in the event of death of any original allottee. Late Chandgi Ram was also allotted 4 acres of the land. He died in the year 1974. Respondent Nos.4 to 7 approached the respondent- Society for transfer of share and interest in the society on their name being legal heirs of late Chandgi Ram. Petitioner- Inder Singh disputed their claim on the ground that he has been mentioned as son of Chandgi Ram deceased in the column meant for nominees of the members in the register kept by the Society. The petitioner, accordingly, had claimed entitlement to the share and interest in the society on death of Chandgi Ram. Respondent Nos.4 to 7 had disputed the claim of the petitioner that he is son of Chandgi Ram. This dispute was referred to the Assistant Registrar. Respondent Nos.4 to 7, accordingly, pleaded before the Assistant Registrar that Chandgi Ram had no son and the petitioner was not the son of late Chandgi Ram. It was also pointed out that the petitioner was resident of Village Kharkari, Tehsil Tosham, District Bhiwani. Reference was made to the revenue record of the said village where he had holding and his name was also found in the voters list of the said village. It is pointed out that when the petitioner failed to establish himself to be son of late Chandgi Ram, he started claiming to be adopted son of late Chandgi Ram. The Assistant Registrar had given opportunity to the petitioner to produce evidence. When he could not produce any evidence, the Assistant Registrar gave the award on 30.9.1988 in favour of the respondent Nos.4 to 7. The claim of the petitioner was, accordingly, rejected. Civil Writ Petition No. 17565 of 1991 -5- As per the stand in the reply, the petitioner had challenged this order by filing an appeal on the ground that he had not been impleaded as a party before the Assistant Registrar. As per the answering respondents, he however was very much present before the Assistant Registrar and his statement had also been recorded on 20.9.1988. The Deputy Registrar still accepted the appeal and remanded the case to the Assistant Registrar, who then had upheld the claim of the petitioner. The said order was challenged by the answering respondents in an appeal before the Deputy Registrar, who had accepted the appeal on 14.5.1990. The petitioner challenged this order by filing a revision, which was dismissed. On this premise, it is submitted that the petitioner has no cause to agitate. Reference is made to the provisions of Section 23 of the Act, which regulates the interest on death of a member. It is stated that this Section also contains certain provisos, which have also been reproduced in the reply. Reference is made to manner in which the nomination is required to be made by member of a Cooperative Society. It is stated that this type of a provisions are incorporated in all the Cooperative Societies as well. In this context, it is submitted that the question whether the nominees acquire full right of ownership over the properties moveable or immovable transferred in their names by the Cooperative Societies after the death of the members concerned to the exclusion of rightfully heirs of the deceased had seldom been raised because amount involved was usually too small. This matter, however, came up before the Bombay High Court in the case of Gopal Vishnu Ghatnekar Vs. Madhukar Civil Writ Petition No. 17565 of 1991 -6- Vishnu Ghatnekar, which according to the counsel is reported as Cooperative Law Journal 1986 (145) 22. It is averred that the facts in the above case were that one Vishnu Narain died leaving behind two sons. At the time of his death, the deceased held two shares in a Cooperative Society and was allotted a piece of land from the society on which he had set up a building. Vishnu had filed a nomination with the society nominating the plaintiff to whom, shares in the land and building was transferred after his death. The plaintiff claimed to be the owner of the said property. On this basis, his claim was contested by his brother, who was defendant. The contention was that in the event of the nomination having been witnessed by two witnesses, the formalities of a 'Will' were complete and therefore, he was a testamentary successor to his father's share, land and house. The High Court while rejecting this contention held as under:- “That even though the society might, by virtue of the nomination, transfer the shares and interest of the deceased member in the name of his nominee, nevertheless the persons entitled to the estate of the deceased do not loose their right to the same.... The provision for transferring a share and interest to a nominee is meant only to provide for interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. The idea of having this section is to provide for a proper discharge to the society without involving the Civil Writ Petition No. 17565 of 1991 -7- society into unnecessary litigation. The High Court further held that the nomination even though described as 'Varas Patra' could not be said to be a will. A document can be said to be a will only when it is executed with an intention to regulate succession after death. There must be animus festandi... The nomenclature given to the document is not to be given too much importance and what is important is the intention as disclosed by contents and surrounding circumstances... By no stretch form can be said to be a Will.” It is also pointed out that the claim of the petitioner was disputed on the ground that the entry in the nomination register was not genuine and a fictitious one. The second ground of challenge is that the nominee was not entitled to the share and interest in the society. In support, reference is made to number of judgments including that of the Hon'ble Supreme Court. In Smt. Sarbati Devi and another Vs. Smt. Usha Devi, AIR 1984 Supreme Court 346, the rights of the nominee in the Life Insurance Policy has been considered. The prayer, accordingly, is made to dismiss the writ petition. I have heard counsel for the parties. Counsel for the petitioner has mainly relied on the provision of Section 23 of the Act. As per the counsel, it would primarily be the nominee, which would govern the transfer of interest in a society and only in case, there is no nomination then the right in society would go to heir or legal representative of the deceased member. The counsel submits that the petitioner was the Civil Writ Petition No. 17565 of 1991 -8- nominee of late Chandgi Ram and irrespective of the fact he(late Chandgi Ram) had four daughters, the petitioner would be entitled to get the membership of the societies in place of late Chandgi Ram. As per the counsel, whether the petitioner is an adopted son of late Chandgi Ram or not would be immaterial. Section 23 reads as under:- “On the death of a Member, a Cooperative Society may transfer the share or interest of the deceased Member to the person nominated in accordance with the rules made in this behalf and if there is no person so nominate, to such person as may appear to the Committee to be the heir or legal representative of the deceased member or pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such Member's share or interest as ascertained in accordance with the rules or bye-laws.” The factual position has been noticed above in detail. The petitioner claims his rights only on the basis of a nomination. The rights of a nominee were considered under similar circumstances in the case of Gopal Vishnu Ghatnekar (supra). The High Court has expressed a very clear view that the society may transfer the shares of the deceased member by virtue of nomination, but the persons entitled to the estate of the deceased do not loose their right to the same. It is noted that provision for transferring a share and interest to a nominee is meant only to provide for interregnum between the death and the full administration of the Civil Writ Petition No. 17565 of 1991 -9- estate and not for the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. Noticing the idea behind, it is held that this Section is to provide for a proper discharge to the society without involving the society into unnecessary litigation. The submission that such nomination would amount to Will was also rejected. The rights of the nominee under insurance policy was also considered by the Hon'ble Supreme Court in the case of Smt. Sarbati Devi (supra). It is held by the Hon'ble Court that Section 39 of the Insurance Act, 1938, would not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. It is noted that the nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. As per the Hon'ble Supreme Court, the amount can be claimed by the heirs of the assured in accordance with the law of succession governing them. While taking this view, the Hon'ble Supreme Court reversed the decision of Allahabad High Court reported as Kesari Devi Vs. Dharma Devi, AIR 1962 Allahabad 355, S. Fauja Singh Vs. Kuldip Singh & others, AIR 1978 Delhi 276 and Mrs. Uma Sehgal & another Vs. Dwarka Dass Sehgal & others, AIR 1982 Delhi 36. On the basis of this law and the factual position emerging in this case, a clear view is possible that the nominee does not get any right to inherit the right of the deceased member. In fact, the Civil Writ Petition No. 17565 of 1991 -10- membership in the present case was concerning the rights over four acres of land of late Chandgi Ram, which had been allotted to the deceased member of the society. In a way the contest is for inheritance of this proprietary or possessory or some other rights over the property. Observation made by the Hon'ble Supreme Court that nominee has a limited right would acquire added significance. Section 23 of the Act, in my view, is not meant to have overreaching effect over the general law of inheritance and would not confer any right over the property of the deceased member merely on the ground of being a nominee. Nominee may be entitled to ask for transfer of share on his name but this would not make respondents No.4 to 7 to loose their right of inheritance. Transferring of share, if done, would be only an interim arrangement. The inheritance has to be governed by the law of inheritance and this cannot be allowed to be circumvented in a manner as is sought to be pleaded. I do not find any merit in the plea raised in the writ petition. There is no cause to interfere in the impugned orders passed by the authorities. The writ petition is, accordingly, dismissed. September 22, 2011 ( RANJIT SINGH ) monika JUDGE