Case: Pratima Chowdhury Vs. Kalpana Mukherjee

ve House Society Limited (hereinafter referred to as ‘theraised flats at 48/IE, Gariahat Road, Calcutta – 700019. Indirani Bhattarcharya became a member of the Society on 12.1.1987. She was issued share certificates bearing nos. 0047 and 0048. Based on the above membership she was allotted flat no. 5D for a consideration of Rs. 4 lakhs. The above flat measuring 900 sq. ft. comprised of three bed rooms, two bath rooms, oneroom, a kitchen and verandah on the fourth floor. In addition to the above, she was allotted one covered garage space on the ground floor. The transfer of the flat no. 5D by the Society to Indirani Bhattacharya was approved by the Deputy Registrar,Societies.2. On 27.3.1991, Indirani Bhattacharya submitted her resignation from the Society in favour of Pratima Chowdhury (i.e., the petitioner herein). On 15.4.1991, Indirani Bhattacharya executed an agreement for transfer of flat no. 5D to Pratima Chowdhury subject to the consent of the Society and the approval of the Deputy Registrar,Societies, for a consideration of Rs. 4 lakhs. The Society having consented to the request of Indirani Bhattacharya sought the approval of the Deputy Registrar,Societies through a letter dated 29.4.1991. In this behalf it would also be relevant to mention that Board of Directors of the Society had resolved in its meeting held on 16.2.1992, to accept the resignation of Indirani Bhattacharya, as also, the consequential transfer of the membership of the Society and the ownership of the flat to the name of Pratima Chowdhury. In the above resolution, the name of Pratima Chowdhury as a member of the Society was approved with effect from 9.1.1992. The Secretary of the Society informed Pratima Chowdhury on 17.2.1992, that her membership to the Society, as also, the transfer of flat no. 5D to her name, had been approved by the Deputy Registrar,Societies.3. The facts available on the records reveal that Partha Mukherjeesister, and son of the respondent) occupied theflat. Partha Mukherjee was employed as Regional Sales Manager with Colgate Palmolive (India) Limited. On 9.3.1992, Colgate Palmolive (India) Limited, confirmed having taken flat no. 5D on lease and license, for a period of three years (with effect from 1.4.1992), for the residence of Partha Mukherjee. The pleadings also reveal, that with effect from1.4.1992, Colgate Palmolive (India) Limited, took the aforesaid flat on a monthly rent of Rs.The above said monthly rent, was deposited in the joint account of the petitioner Pratima Chowdhury and Partha Mukherjee.4. On 29.6.1992, the petitioner Pratima Chowdhury addressed a letter to the Secretary of the Society, requesting the Society to transfer flat no. 5D to the name of her nominee Kalpana Mukherjee. The letter dated29.6.1992 of Pratima Chowdhury, made some express factual disclosures. Firstly, that she was not in good health. Secondly, that she was not in a position to move to Calcutta from Bombay in the near future. Thirdly, that Kalpana Mukherjee was already residing in the flat in question along with Partha Mukherjee. Fourthly, that above nominee Kalpana Mukherjee was her close relative. In addition to the request of transfer of flat no. 5D in favour of her nominee Kalpana Mukherjee, Pratima Chowdhury also informed the Society through her letter dated 29.6.1992, that all municipal taxes and service charges in connection with the above flat should be collected from Kalpana Mukherjee.5. Pratima Chowdhury then addressed another letter dated 11.11.1992, to the Secretary of the Society, reiterating her request made in the previous letter dated 29.6.1992 wherein she again expressed clearly that the transfer being sought by her, was without any monetary consideration.6. It was pointed out in letter dated 11.11.1992, that the formal request for the transfer was only being made, in order to comply with the rules regulating such transfer, and also, to avoid future complications. Consequent upon the aforesaid deliberations, Pratima Chowdhury executed an agreement dated 13.11.1992, transferring her right, title and interest in the flat no. 5D. On the same day as the aforesaid agreement was executed, Kalpana Mukherjee moved an application (on 13.11.1992).7. The Board of Directors of the Society in their meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury, and to accept the membership of Kalpana Mukherjee (in place of Pratima Chowdhury), and to seek the approval of the Deputy Registrar,Societies for the transfer of flat no. 5D to the name of Kalpana Mukherjee, on the basis of letters of Pratima Chowdhury dated 11.11.1992 and 13.11.1992. Accordingly, the Secretary of the Society addressed a letter dated 10.3.1993 to the Deputy Registrar,Societies, for the approval of the decision of the Board of Directors (of the Society, dated 14.2.1993).8. On 23.4.1993, Pratima Chowdhury wrote a letter to the Senior Commercial Executive, of the Calcutta Electric Supply Corporation (South Region Office) requesting him to transfer themeter of flat no. 5D to the name of Kalpana Mukherjee. The instant letter dated 23.4.1993, is also disputed by Pratima Chowdhury. She has even disputed her signature on the said letter. She also filed a first information report at the Gariahat Police Station, Kolkata, complaining that her signature on the above letter was forged.9. The Assistant Registrar,Societies raised certain objections on the request of the Society for transfer of flat no. 5D from the name of Pratima Chowdhury to the name of Kalpana Mukherjee. In this behalf the Assistant Registrar,Societies informed the Secretary of the Society, that the application of Kalpana Mukherjee for membership had not been submitted in the proper format. It was also pointed out, that the original affidavit had not been appended to the application. Lastly, it was brought out, that the Salary Certificate, Income Tax Clearance Certificate and Professional Tax Certificates had not been appended to the application of Kalpana Mukherjee, for the transfer of the flat in her name. On 22.9.1993, the Secretary of the Society provided all the required documents sought by the Department of theSocieties.10. Partha Mukherjee was transferred by his employer Colgate Palmolive (India) Limited, from Calcutta to Bombay. Consequently, Colgate Palmolive (India) Limited terminated the agreement executed by it with Pratima Chowdhury on 19.10.1993, with immediate effect. In the letter dated 19.10.1993, Colgate Palmolive (India) Limited required Partha Mukherjee to hand over vacant possession of flat no. 5D to Pratima Chowdhury, after refund of security. On 21.10.1993, Kalpana Mukherjee, from her own account, deposited rent in the Bank account of Pratima Chowdhury. On 28.10.1993, Partha Mukherjee addressed a letter to P.R. Keswani, Company Secretary of Colgate Palmolive (India) Limited, along with a receipt bearing no. 9893, depicting refund of the security deposit (of Rs.The aforesaid refund was shown to have been made by Pratima Chowdhury.11. On 16.12.1994, 500 shares of Tata Chemicals Limited, 50 shares of Siemens, 500 shares of Indian Aluminium and 100 shares of I.T.C. Hotels, standing in the joint names of Partha Mukherjee and Sova Mukherjee (wife of Partha Mukherjee) were transferred to the name of Pratima Chowdhury. According to the petitioner Pratima Chowdhury, the above transfer of shares was in lieu of loans extended by her to Partha Mukherjee. However, according to Kalpana Mukherjee, the transfer of the above shares, constituted consideration paid on her behalf (by her son Partha Mukherjee) to Pratima Chowdhury in lieu of the transfer of flat no. 5D.12. Pratima Chowdhury wrote a letter dated 28.2.1995 to the Secretary of the Society, that she had not received any reply to her letter dated 11.11.1992. She also informed the Secretary of the Society, that she had decided to return to Calcutta permanently. Accordingly, she informed the Secretary of the Society, that her request for transfer of her membership to the name of Kalpana Mukherjee, be treated as withdrawn. It is the case of Pratima Chowdhury, that the Society never responded to her letter dated 28.2.1995. It is also her case, that her letter dated 28.2.1995 was never forwarded by the Society, to the Department ofSocieties.13. On 8.3.1995, the Society approached the Deputy Registrar,Societies, seeking approval for the admission of Kalpana Mukherjee as a member of the Society (in place of Pratima Chowdhury). On 13.3.1995, the Deputy Registrar,Societies conditionally approved the membership of Kalpana Mukherjee. Accordingly, on 13.3.1995 itself the shares of Pratima Chowdhury were transferred to the name of Kalpana Mukherjee. On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar,Societies, with a copy to the Chairman of the Society. In the above letter, the Deputy Registrar,Societies was requested to direct the Society to withdraw the offer of transfer of her membership to Kalpana Mukherjee. It was also requested, that the application made by Kalpana Mukherjee for transfer of share certificates in her name, be not approved. The instant letter dated 22.3.1995, depicts the fact that Pratima Chowdhury was unaware of the deliberations of the Society, as also, the approval (of the deliberations of the Society), by the Deputy Registrar,Societies, on 13.3.1995. In pursuit of the same objective, Pratima Chowdhury wrote another letter dated 28.3.1995, to the Secretary of the Society. She enclosed therewith, the letter which she had addressed to the Deputy Registrar,Societies dated 22.3.1995. Therein, she again reiterated, that her request for transfer of membership in favour of Kalpana Mukherjee be treated as withdrawn. In order to consider the request made by Pratima Chowdhury in her letter dated 22.3.1995 (to the Deputy Registrar,Societies) and the letter dated 28.3.1995 (to the Secretary of the Society); the Society convened a meeting of the Board of Directors on 2.4.1995. Rather than considering the issue on merits, the Board of Directors resolved, that it had no legal competence to restore the membership of the Society, as also, the retransfer of the ownership of the flat no. 5D, to Pratima Chowdhury. Having so resolved, the Secretary of the Society forwarded a copy of the resolution dated 2.4.1995, to the petitioner on 10.4.1995.14. At this juncture, it would be relevant to mention, that the Board of Directors of the Society approved the transfer of flat no. 5D (comprising of three bed rooms, two bath rooms, oneroom, one verandah and one kitchen on the fourth floor, located at no. 48/IE, Gariahat Road, Calcutta700019 to the name of Kalpana Mukherjee. In addition to the aforesaid flat, the ownership of Pratima Chowdhury also comprised of a covered garage space, on the ground floor. The same were not mentioned in the clearances dated 14.2.1993 (by the Board of Directors of the Society) and 13.3.1995 (by the Deputy Registrar,Societies). Consequently based on the agreement dated 25.4.1995 between Kalpana Mukherjee and the Society, the said garage space was also subsequently transferred to the name of Kalpana Mukherjee.15. On 16.4.1995 within two weeks, from the date decision taken by the Board of Directors (on 2.4.1995) and within one week from the date of communication thereof to the petitioner (through letter dated 10.4.1995), Pratima Chowdhury addressed a notice dated 16.4.1995, contesting the validity of the Board ofResolution dated 2.4.1995. The petitioner also assailed the approval of the said transfer dated 13.3.1995. The Deputy Registrar,Societies referring to theletter dated 28.2.1995 (wherein Pratima Chowdhury had withdrawn her request for transfer of membership in favour of Kalpana Mukherjee), wrote a letter dated 31.5.1995 to the Secretary of the Society. In the letter dated 31.5.1995, the Deputy Registrar,Societies also highlighted the fact that, the Society had not brought the letter dated 28.2.1995 to the notice of Deputy Registrar,Societies, at the time of seeking approval of theDepartment. The Secretary of the Society was accordingly directed, to take a decision on the matter, and to forward the same to the Deputy Registrar,Societies. Being alive of the letter dated 31.5.1995, which was addressed by the Deputy Registrar,Societies to the Secretary of the Society, the petitioner through her letter dated 13.6.1995 informed the Secretary of the Society, that the withdrawal letter dated 28.2.1995 addressed by her was received by the Secretary of the Society, and further that the same had been duly acknowledged on 6.3.1995. The petitioner highlighted the fact, that the approval of the Deputy Registrar,Societies should not have been sought (by the Secretary of the Society), after the receipt of thecommunication dated 28.2.1995.16. Since, the petitioner was not communicated any determination, by the concerned authorities. She addressed a notice on 9.9.1995, calling upon the Secretary of the Society, to deliver the possession of the flat no. 5D, along with the share certificates, to her within seven days of the receipt of the said notice. On 21.11.1995, the Society denied all the allegations made by the petitioner against the Society (contained in the notice). On the claim of retransfer of the shares and flat made by the petitioner, the Society responded by asserting, that the shares had been transferred to the name of Kalpana Mukherjee, and on the basis thereof flat no. 5D also had been transferred in her name, thereupon, the Society did not have any legal authority to restore/retransfer the same to the name of the petitioner. On 19.12.1995, the Deputy Registrar,Societies also informed Pratima Chowdhury, that the transfer of her shares and flat in favour of Kalpana Mukherjee had been completed, and since the Society had resolved on 2.4.1995 that it had no legal competence to cancel the same, nothing could be done in the matter.17. Dissatisfied with the determination of theSocieties, as also, the denial of the consideration at the hands of the Deputy Registrar,Societies, the petitioner filed Dispute Case No. 29/RCS ofThe aforesaid dispute case was adjudicated upon by D.K. Ghosh in his capacity asDuring the course of the above determination, Kalpana Mukherjee (who was impleaded as respondent no. 1) filed a reply on 22.2.1996 which deserves a special mention. Firstly, according to the reply filed by Kalpana Mukherjee flat no. 5D was purchased by Partha Mukherjee in the name of Kalpana Mukherjee (mother of Partha Mukherjee). The above flat was purchased for a total consideration of Rs.The said consideration was paid by way of transfer of shares, in the name of Partha Mukherjee to the name of Pratima Chowdhury. Highlighting the above factual position is important because the entire paper work pertaining to the transfer of flat no. 5D, from the name of Pratima Chowdhury to the name of Kalpana Mukherjee indicates, that the above transfer was without any monetary consideration, whereas stands adopted by Kalpana Mukherjee was that as a matter of fact the said transfer was on a consideration of Rs.Secondly, according to Kalpana Mukherjee (respondent no. 1), Pratimaletter dated 28.2.1995 was afterthought. It is therefore, that Kalpana Mukherjee in her reply emphasized that the letter dated 28.2.1995, was only a scheme devised by Pratima Chowdhury to wriggle out of the transaction.17(ii) The Secretary of the Society filed separate written reply to the case filed by Pratima Chowdhury. In its reply the Society supported the transfer of shares, as also, the transfer of flat no. 5D to the name of Kalpana Mukherjee. The Society clearly brought out in their reply, that Pratima Chowdhury through her letter dated 29.6.1992 had informed the Society, that Kalpana Mukherjee was in occupation of the flat, and as such, maintenance charges for the flat should be recovered from her. Furthermore, according to the Society, the transfer of the shares, as also, of flat no. 5D to the name of Kalpana Mukherjee was approved at the request of Pratima Chowdhury, made through her letter dated 11.11.1992. It was submitted, that the aforesaid request was considered by the Department ofSocieties, which approved the resignation of Pratima Chowdhury and the consequential transfer of membership vide Resolution of the Board of Directors of the Society dated 14.2.1993. The above resolution had been forwarded by the Secretary of the Society, to the Deputy Registrar,Societies (by letter dated 10.3.1993), for approval. It was pointed out that the Deputy Registrar,Societies had approved the Resolution of Board of Directors of theSocieties on 13.3.1995. Additionally, it was pointed out, that after the approval of the change of membership to the name of Kalpana Mukherjee, the petitioner Pratima Chowdhury had required the Senior Commercial Executive of Calcutta Electric Supply Corporation, to transfer themeter of flat no. 5D to the name of Kalpana Mukherjee. According to the Society, the above facts clearly evidenced the unequivocal intention of Pratima Chowdhury to transfer her shares and flat no. 5D to the name of Kalpana Mukherjee, which was given due effect to by the Society after seeking the approval of the Deputy Registrar,Societies. In view of the aforestated factual position, the Society denied the claim raised by Pratima Chowdhury in Dispute Case No. 29/RCS ofIt is also imperative to record herein, that Pratima Chowdhury had filed rejoinder, to the written statements filed on behalf of Kalpana Mukherjee and the Society before the Arbitrator. It was pointed out in the rejoinder, that Partha Mukherjee was married to Sova Mukherjee. Sova Mukherjee was the daughter of H.P. Roy and Bani Roy (sister of the petitioner, Pratima Chowdhury). On account of the above relationship she had treated Sova Mukherjee as her daughter and Partha Mukherjee as heron the transfer of Partha Mukherjee to Calcutta (from Bombay), she allowed him to reside in flat no. 5D. At the behest of Partha Mukherjee, his employer Colgate Palmolive (India) Limited entered into a lease agreement with Pratima Chowdhury on 9.3.1992. Under the lease agreement Pratima Chowdhury was entitled to rent at the rate of Rs. 5,000/per month. The lease agreement was executed for a period of three years, with overriding condition, that the tenure of lease would coincide with the tenure of Partha Mukherjee at Calcutta, while in the employment of Colgate Palmolive (India) Limited. It was also pointed out, that Partha Mukherjee had opened a joint account along with petitioner Pratima Chowdhury, for the deposit of rent payable by Colgate Palmolive (India) Limited. It was also pointed out, that Partha Mukherjee singularly operated the aforesaid joint account. In his above capacity he encashed the rent deposited by Colgate Palmolive (India) Limited, without the knowledge and notice of the petitioner Pratima Chowdhury. She also asserted in the rejoinder, that she could obtain the details of the agreement executed with Colgate Palmolive (India) Limited, as also, the deposits of rent in her joint account with Partha Mukherjee, only after she had issued a letter to Colgate Palmolive (India) Limited, that she would not make any claim from the employer of Partha Mukherjee, on the basis of information supplied. In her rejoinder Pratima Chowdhury also asserted, that Partha Mukherjee had forced her to sign the letter dated 11.11.1992, without disclosing the contents thereof. The categoric stance adopted by Pratima Chowdhury in her rejoinder was, that she was not aware of the contents of letter dated 11.11.1992, and furthermore, Partha Mukherjee had obtain her signature on other blank papers as well, by falsely informing her that the papers would be used to explain his stay in flat no. 5D. She also denied having executed the document dated 13.11.1992, which was allegedly notarized at Calcutta. In fact she denied her presence at Calcutta on 13.11.1992. She further stated, that Partha Mukherjee did not remain in employment of Colgate Palmolive (India) Limited after his transfer to Bombay. It was also pointed out by her, that on his return to Bombay, Partha Mukherjee started his independent business in aluminium products. For the said business Pratima Chowdhury claims to have advanced a loan of Rs.2 lakhs to Partha Mukherjee. The loan stated to have been extended to Partha Mukherjee was by way of a cheque drawn in favour of Bharat Aluminium Company, for the supply of raw material for the business of Partha Mukherjee. She further contended, that Partha Mukherjee also took loan of Rs. 1,50,000/from Bani Roy (sister of the petitioner, Pratima Chowdhury). It was pointed out, that the share certificates held by Partha Mukherjee jointly with his wife Sova Mukherjee, were transferred to the petitioner Pratima Chowdhury and her sister Bani Roy during the year 1994, toward repayment of loans taken from them by Partha Mukherjee. The position accordingly adopted was, that the transfer of share certificates did not constitute consideration in lieu of the transfer of flat no. 5D to Kalpana Mukherjee. A categoric assertion was made by the petitioner Pratima Chowdhury in her rejoinder, that on 30.11.1992 Partha Mukherjee had no company shares either in his own name or in the name of his wife Sova Mukherjee (nor in the joint names of the husband and wife). Accordingly, the plea raised by Kalpana Mukherjee in her reply (to the dispute case filed by the petitioner Pratima Chowdhury) was that the transfer transaction was for consideration, and that, the payment of consideration made by transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, was false. Pratima Chowdhury also denied, that she had addressed a letter dated 23.4.1993 to the Senior Commercial Executive of the Calcutta Electric Supply Corporation (South Region Office). She disputed even her signatures on the above letter, and further asserted, that she had filed a first information report at the Gariahat Police Station, Kolkata. On the basis of the factual position noticed hereinabove, the petitioner Pratima Chowdhury reiterated, that she had neither surrendered, nor resigned from the membership of the Society, nor had she sought the transfer of flat no. 5D from her name to the name of Kalpana Mukherjee.Before the Arbitrator, the petitioner examined three witnesses. She examined herself as PW1, she examined Vani Ganapati as PW2 and H.P. Roy as PW3. H.P. Roy PW3 (is married to Bani Roy, the sister of the petitioner Pratima Chowdhury) is theof Partha Mukherjee. Kalpana Mukherjee examined four witnesses in her defence. She examined herself as DW1, Partha Mukherjee her son was examined as DW2, the Secretary of the Society was examined as DW3 and S.N. Chatterjee, Advocate, who had notarized the documents referred to above, was examined as DW4.19. In the process of adjudicating upon the matter, the Arbitrator framed six issues of fact, and seven issues of law. The same are being extractedOF FACT INVOLVEDi) Whether the Plaintiff tendered resignation on 11.11.92 from the membership of the Society or not.ii) Was the document executed on 13.11.92 a deed of transfer of flat or an agreement for transfer of flat.iii) Whether consideration money was paid by the Defendant no. 1 to the plaintiff or not.iv) Whether the payment of consideration money by way of transfer of shares of companies can be treated as valid payment of consideration money or not.v) Whether the Defendant no. 2 accepted the admission of the membership of the Defendant no. 1 on 14.2.93 orvi) Whether the flat in question was encumbered due to existence of lease and license agreement at the material point of time i.e. on 11.11.92 or onOF LAW INVOLVEDi) Whether the instant dispute is barred by law of limitation.ii) Whether9 of section 85 of West BengalSocieties Act, 1983 was followed in case of transfer of flat in question of the plaintiff.iii) Whether section 69 and 70 of the West BengalSocieties Act 1983 were followed in respect of admission of membership of the Defendant no. 1.iv) Whether Rules 135(3) (a) and 142(1) of West BengalSocieties Rules 1987 were obeyed or not.v) Whether Rule 127(1) of West BengalSocieties Rules 1987 was obeyed in case of nomination or not.vi) Whether the disputed transfer of flat contradicted the relevant provisions of theof the Defendant Society or not.vii) The Doctrine of estoppel as per sections 115 & 116 of the Evidence Act 1872 whether attracted or not.It is necessary for us to briefly record the factual as also the legal conclusions drawn by the Arbitrator in his order dated 5.2.1999, while disposing of the disputes raised by Pratima Chowdhury. Accordingly we are summarizing the sameIn respect of the letter dated 11.11.1992, the Arbitrator observed that the same was drafted by Partha Mukherjee. This inference came to be drawn from the manuscript of the original. The Arbitrator pointed out that the letter dated 11.11.1992, disclosed that the transaction was not based on passing of monetary consideration, whereas, Kalpana Mukherjee had expressly asserted in her defence, that the transaction was executed on an agreed consideration of Rs.Kalpana Mukherjee had also affirmed, that the aforesaid consideration had passed from the transferee to the transferor by transfer of shares of Partha Mukherjee, to the name of Pratima Chowdhury. The Arbitrator relying on the contents of the letter dated 11.11.1992, recorded that the letter itself mentioned that the details disclosed therein, were meant purely to comply with the rules and to avoid future complications. The Arbitrator felt, that if Pratima Chowdhury had the intention to sell the flat, she would have mentioned the same in her letter dated 11.11.1992. It was also observed by the Arbitrator, that there was no justification for not mentioning the monetary consideration in the said letter. On the instant aspect of the matter the Arbitrator was of the view, that the disclosure of the above consideration would have clearly avoided future complications (which seem to be the intention for writing the letter dated 11.11.1992). The Arbitrator also pointed out, that the letter dated 11.11.1992 could not be treated as a letter of resignation of the petitioner Pratima Chowdhury from the Society.In this behalf it was noticed, that the wordwas completely absent from the text of the letter dated 11.11.1992.(ii) In respect of letter dated 13.11.1992 the Arbitrator pointed out, that the same was notarized by S.N. Chatterjee, Advocate, who was theof the sister of Kalpana Mukherjee (defendant No. 1, before the Arbitrator). Although, the above notary stated that the letter dated 13.11.1992 was signed by all the parties concerned before him at Calcutta, he acknowledged, that he did not issue any notarian certificate in terms of Section 8 of the Notary Act. According to the Arbitrator, Pratima Chowdhury and all the witnesses appearing for her, had unequivocally and categorically affirmed, that she (Pratima Chowdhury) was in Bombay on 11.11.1992, as also, on 13.11.1992. Therefore, according to the Arbitrator, the question of her appearing before the notary at Calcutta on 13.11.1992, did not arise at all. According to the Arbitrator, the registration number of the Society had not been mentioned in the document dated 13.11.1992, this according to the Arbitrator, made the document suspicious because Anil Kumar Sil, the Secretary of the Society, had mentioned that the above document dated 13.11.1992 was executed at his residence. If the above factual position was correct, according to the Arbitrator, the registration number would have been supplied by the Secretary of the Society, and would have been mentioned in the document itself. Furthermore, according to the Arbitrator, the document dated 13.11.1992 was in the nature of deed of transfer, but such transfer would materialize after (and not before) the consent of the Board of Directors of the Society, and the approval of the Deputy Registrar,Societies. As per the Arbitrator, even the first step towards transfer of flat no. 5D had not commenced on 13.11.1992, and therefore, the question of allotment and handing over the possession of the flat to the nominee Kalpana Mukherjee, in accordance with the terms and conditions of the allotment andof the Society did not arise either in law or in fact, as has been wrongly stated in the said document dated 13.11.1992. As per the Arbitrator even the document dated 13.11.1992 was silent on the consideration for such transfer, despite Kalpana Mukherjee expressing that the above transfer was for a sale consideration of Rs.According to the Arbitrator, the possession of Kalpana Mukherjee, was through Partha Mukherjee, because of the lease and license agreement between Pratima Chowdhury and Colgate Palmolive (India) Limited (which commenced on 1.4.1992 and was terminated on 19.10.1993), and not on the basis of the document dated 13.11.1992. The Arbitrator also pointed out, that Kalpana Mukherjee had deposited rent in the account of Pratima Chowdhury on 21.10.1993, describing it as rent payable to Pratima Chowdhury. The Arbitrator further observed that Pratha Mukherjee in his letter dated 28.10.1993 mentioned Pratima Chowdhury as the landlady of flat no. 5D. Based on the above two instances of 21.10.1993 and 28.10.1993, the Arbitrator was of the view, that the assertion of transfer of flat no. 5D by Pratima Chowdhury to Kalpana Mukherjee stood clearly annihilated.(iii) On the issue of the consideration money, the Arbitrator noted, that Kalpana Mukherjee had stated in her defence, that the parties had orally settled the passing of consideration in lieu of flat no. 5D, at Rs.It was also her contention, that the parties had settled that the above agreed consideration would be paid by Partha Mukherjee to Pratima Chowdhury by transferring his shares in different companies to the name of Pratima Chowdhury. But Pratima Chowdhury categorically denied the passing of any consideration, as she had no intention to sell the property.She also asserted, that the shares shown to have been transferred from the name of Partha Mukherjee to the name of Pratima Chowdhury, were acquired by Partha Mukherjee long after November, 1992 (when the letters dated 11.11.1992 and 13.11.1992 were issued) i.e. from August, 1993 to April, 1994. The details of the transfer of shares was disclosed in the award passed by the Arbitrator asNAME NO. OF SHARES ACQUIREDTata Chemicals Ltd. 50 nos. 8.9.93Tata Chemicals Ltd. 450 nos. 27.10.93Siemens 50 nos. 2.8.93Indian Aluminium 500 nos. 4.3.94I.T.C. Hotels 100 nos. acquired withMr. H.P.above shares were acquired by Partha Mukherjee jointly, either with his wife or with hislong after the material point of time. Pratimaassertion before the Arbitrator, questioning truthfulness of the assertion of Kalpana Mukherjee, was also based on the fact that, Kalpana Mukherjee (or Partha Mukherjee) could not have agreed to transfer to Pratima Chowdhury, what they did not themselves hold when the transaction was allegedly executed. In order to falsify the contention of Kalpana Mukherjee (and Partha Mukherjee) that consideration was paid to Pratima Chowdhury by transfer of shares as noticed above, it was stated that after Partha Mukherjee was transferred from Calcutta to Bombay in the year 1993, he did not continue with his employment with Colgate Palmolive (India) Limited, as he wanted to start a business of aluminium products with one R.K. Sen in Bombay. Keeping in view the above objective, Partha Mukherjee took a loan of Rs. 2 lakhs from Pratima Chowdhury. The above loan was extended by Pratima Chowdhury by way of cheques drawn in favour of Bharat Aluminium Company Limited for supply of raw materials for Parthabusiness. It was further contended that Partha Mukherjee similarly took a loan of Rs. 2 lakhs from his own wife Sova Mukherjee which was repaid by Partha Mukherjee through cheques (bearing nos. 021865, 021866 and 021867) drawn on the Bank of Baroda. It was further pointed that Partha Mukherjee had similarly taken a loan for a sum of Rs.1.5 lakhs for the same purpose from Bani Roy (hiswhich he had still not repaid. It was pointed out, that at the asking of H.P. Roy (his own fatherfather of Sova Mukherjee) Partha Mukherjee had transferred share certificates standing in his name, and in the name of his wife Sova Mukherjee, to the name of Pratima Chowdhury, towards repayment of the abovementioned loans. Accordingly, the case of Pratima Chowdhury was, that transfer of shares by Partha Mukherjee to the name of Pratima Chowdhury, was for a completely different transaction, and had nothing to do with the allowing of the usage and occupation of the flat, by Kalpana Mukherjee and Partha Mukherjee.(iv) On the lease and license agreement the Arbitrator noticed, that Partha Mukherjee (son of Kalpana Mukherjee), andsister Bani Roy, was allowed to reside in flat no. 5D, consequent upon his transfer from Bombay to Calcutta (while in the employment of Colgate Palmolive (India) Limited). It was also noticed, that the lease and license agreement, was executed by Colgate Palmolive (India) Limited, at the instance of Partha Mukherjee, for a monetary consideration of Rs. 5,000/per month, as rent payable to Pratima Chowdhury. To deposit the above consideration Partha Mukherjee opened a joint account in the names of Pratima Chowdhury and himself. The Arbitrator noted, that when Partha Mukherjee drafted the letter dated 11.11.1992, he utterly neglected to mention the subsisting lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhury. The Arbitrator also noticed, that Kalpana Mukherjee did not inform Colgate Palmolive (India) Limited that flat no. 5D had been transferred from the name of Pratima Chowdhury to her name. On the contrary the Arbitrator pointed out, that Kalpana Mukherjee on 21.10.1993, deposited rent in the account of Pratima Chowdhury, by filing the bank deposit slips. Furthermore, the Arbitrator noticed, that Partha Mukherjee in his letter dated 28.10.1993 mentioned, that Pratima Chowdhury as the landlady of flat no. 5D. According to the Arbitrator, the above factual position clearly indicates, that Kalpana Mukherjee along with her son Partha Mukherjee were aware, that flat no. 5D belonged to the petitioner, even on 21/28.10.1993. Whereas, they wrongly depicted the transfer thereof from the name of Pratima Chowdhury to the name of Kalpana Mukherjee through letter dated 11.11.1992 and 13.11.1992. Since the lease and license agreement between Colgate Palmolive (India) Limited and Pratima Chowdhury continued from 1.4.1992 to 19.10.1993, there was no question of handing over of possession thereof by Pratima Chowdhury to Kalpana Mukherjee.(v) On the submissions advanced on behalf of Pratima Chowdhury in respect of one covered garage space on the premises of the Society is concerned, the Arbitrator concluded from the documents submitted by Kalpana Mukherjee, that Pratima Chowdhury had one covered garage space also. The said covered garage space was not mentioned in the document dated 13.11.1992. Thereafter, based on an agreement executed between Kalpana Mukherjee on the one hand and the Society on the other, the said garage space was also transferred to the name of Kalpana Mukherjee on 25.4.1995. According to the Arbitrator, the instant agreement dated 25.4.1995, had no validity as the same was neither mentioned in the letter dated 11.11.1992, nor in the document dated 13.11.1992. And therefore cannot be considered as having the approval of Pratima Chowdhury. Accordingly, the Arbitrator expressed the view that the covered garage space must be deemed to have never been transferred by Pratima Chowdhury to Kalpana Mukherjee. The Arbitrator also concluded, that the agreement dated 25.4.1995 could not have been executed in the absence of Pratima Chowdhury. Based on the above factual position Pratima Chowdhury had also alleged connivance between Kalpana Mukherjee and the Society, so as to deprive Pratima Chowdhury of her property.(vi) Besides the above factual conclusions drawn by the Arbitrator, the Arbitrator had also concluded that the Society violated various provisions ofthe West BengalSocieties Act, 1983, and the rules framed thereunder, as also theof the Society. The Arbitrator summarized the conclusions drawn on the legal issues asin view of the all above, I am of the opinion that the transfer of the flat no. 5D of the Defendant No. 2 Society was not done in accordance with laws including West Bengal CoOperative Socities Act, Rules, Indian Contract Act, Transfer of Property Act due to reason at a glance.1) Section 85(9), Section 70, Section 69 of West BengalSocities Act 1983 have been flouted.2) Rule 127(1), Rule 135(3)(a), Rule 142(1) have been flouted.3)have been contradicted.4) No consideration money was paid by the Defendant no. 1 to the Plaintiff.5) Societies accepted the resignation of the Plaintiff on 14.2.93 which she had not tendered, if that be so, the society did not act as per Rule 143 also.6) The flat in dispute was under the lease and license agreement at the material time since bank account in this respect was operated by the son of the Defendant no. 1 who also deposited cheque onbehalf.7) The instant dispute case is not barred by limitation.8) The transaction of 13.11.92 does not attract the doctrine of estoppel.Based on the abovementioned conclusions drawn by the Arbitrator on the factual and legal issues canvassed by the rival parties. The Arbitrator passed the followingin view of the above, based on documents, assessing all the pros and cons, on the basis of equity, justice and good conscience, I pass the followingThe agreement dt. 13.11.92 between the Plaintiff and Defendant no. 1 is invalid, void and incomplete andb) The relevant resolution dt. 14.2.93 (Agenda no. 1) of the Managing Committee of the Defendant no. 2 is quashed and;c) The Defendant no. 2 is directed to ensure and conform that the plaintiff gets the possession of flat no. 5D with garage space with immediate effect and issue share certificate in her name immediately andd) Any other action if any taken by any authority on and after 13.11.92 affecting the membership of the Plaintiff in any manner whatever is also quashed.The above Judgment and Award have been given on Pronouncement before the parties present.Dissatisfied with the award rendered by the Tribunal on 5.2.1999, Kalpana Mukherjee preferred an appeal bearing no. 14 of 1999 beforethe West BengalTribunal (hereinafter referred to as theTribunal). The Society (defendant no. 2, before the Arbitrator) preferred a separate appeal bearing no. 29 of 1999, to assail the award of the Arbitrator dated 5.2.1999. While dwelling upon the controversy between the parties, the

Reasoning: 26. First and foremost, it surprises us thatTribunal, as also, the High Court excluded from consideration, the factual position expressed in the rejoinder filed by the appellant (before the Arbitrator). In excluding the aforesaid factual position, theTribunal and the High Court did not rely on any provision of law nor was any reliance placed on any principle accepted and recognized in legal jurisprudence. It is not a matter of dispute, that after Kalpana Mukherjee and the Society were permitted to file written replies before the Arbitrator, the rejoinder filed thereto on behalf of Pratima Chowdhury, was permitted to be taken on record. It is not in contention, that in the written replies filed before the Arbitrator, Kalpana Mukherjee had adopted inter alia the stance, that consideration was paid to Pratima Chowdhury in lieu of the transfer of flat no. 5D to her name, even though the documents relied upon by the rival parties, expressed otherwise. A number of documents not mentioned in the Dispute Case filed by Pratima Chowdhury were also relied upon by Kalpana Mukherjee. Pleadings between the parties could be considered as complete, only after Pratima Chowdhury was permitted to file a rejoinder (in case she desired to do so). She actually filed a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual position emerging from the complaint filed by Pratima Chowdhury and the written replies filed in response thereto (by Kalpana Mukherjee, and the Society), but also, the factual position highlighted by Pratima Chowdhury in her rejoinder affidavit. It is, therefore, not on the basis of the pleadings of the parties, but also on the basis of the evidence led in support of the aforesaid pleadings, that the Arbitrator had recorded his findings in his award dated 5.2.1999. We are therefore of the view, that the Arbitrator had acted in accordance with law, and therefore the exclusion from consideration, of the factual position asserted by Pratima Chowdhury in her rejoinder, by theTribunal and the High Court was wholly unjustified. The factual narration by Pratima Chowdhury, could not be excluded from consideration, while adjudicating upon the rival claims between Pratima Chowdhury and Kalpana Mukherjee. The instant aspect of the decision of the High Court, is therefore liable to be set aside, and is accordingly set aside. Just the instant determination, would result in a whole lot of facts which were not taken into consideration by the adjudicating authorities, becoming relevant. Despite that, we feel, that remanding the matter for a denovo consideration, would place a further burden on the parties. Having heard learned counsel at great length, we shall settle the issues finally, here and now.27. TheTribunal in its order dated 16.5.2002 had invoked the principle of estoppel, postulated in Section 115 of the Indian Evidence Act. The High Court affirmed the conclusions drawn by theTribunal. In addition to the above principle, the High Court invoked the principles of equity and fairness. Insofar as the latter principles are concerned, we shall delve upon them after examining the contentions of the rival parties, as equity and fairness would depend upon the entirety and totality of the facts. The above aspect can therefore only be determined after dealing with the intricacies of the factual circumstances involved. We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule contained in Section 115 of the Indian Evidence Act could have been invoked, in the facts and circumstances of the presentthe question whether the restoration of the original position would be iniquitous or unfair does not arise at all. Even if consideration had passed from Kalpana Mukherjee to Pratima Chowdhury, on the basis of the representation made by Pratima Chowdhury, we could have accepted that Kalpana Mukherjee had altered her position. In the facts as they have been presented by the rival parties, especially in the background of the order passed by the Arbitrator, that no consideration had passed in lieu of the transfer of the flat, and especially in the background of the factual finding recorded by theTribunal and the High Court, that passing of consideration in the present controversy was inconsequential, we have no hesitation whatsoever in concluding, that the principle of estoppel relied upon by theTribunal and the High Court, could not have been invoked, to the detriment of Pratima Chowdhury, in the facts and circumstances of the present case. Insofar as the instant aspect of the matter is concerned, the legal position declared by this Court fully supports the conclusion drawn by usalready noticed hereinabove, none of the ingredients of estoppel can be culled out from the facts and circumstances of the present case. In view of above, we hereby set aside the determination by theTribunal, as also the High Court, in having relied on the principle of estoppel, and thereby, excluding the pleas/defences raised by Pratima Chowdhury to support her claim.28. The admitted factual position in the present controversy, in our considered view, is absolutely clear and unambiguous. Had the different adjudicating authorities taken into consideration the undisputed factual position, there ought not to have been much difficulty in resolving the difficulty. We shall highlight a few relevant admitted facts which crossed our mind while hearing the matter and whilst recording theThe reason for transferring flat no. 5D indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between Pratima Chowdhury and Kalpana Mukherjee, which was expressed by observingnominee Kalpana, a close relative ofAs a matter of fact, there was no close relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury, is indicated to have been living in Bombay and never visiting Calcutta. Kalpana Mukherjee is a resident of Calcutta, who was in employment at Calcutta, and had started to reside with her son Partha Mukherjee, after he moved to Calcutta alongwith his wife Sova Mukherjee. There was no direct relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratimaniece Sova Mukhrjee was married to Partha Mukherjee, son of Kalpana Mukherjee. The only relationship that can be assumed, is of aunty and niece, between Pratima Chodhury and Sova Mukherjee. If on account of love and affection, for her niece, Pratima Chowdhury desired to transfer flat no. 5D which she had purchased for a consideration of Rs.4 lakhs, she would have done so by transferring it to the name of her niece Sova Mukherjee. Affinity to Sova Mukherjee, and the love, affection and welfare of Sova Mukherjee, would not extend to a gesture of the nature under reference, i.e., by way of transfer of immovable property, of substantial value, without consideration, to the mother in law of Sova Mukherjee. Therefore, factually the expression of close relationship between Pratima Chwodhury and Kalpana Mukherjee depicted in letters dated 11.11.1992 and 13.11.1992 are on the face of it, false and incorrect. It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relationship of the parties, in so far as, the transfer of flat no. 5D, is concerned.(ii) There is hardly any justification for having accepted another important factual position depicted in the letters dated 11.11.1992 and 13.11.1992. In this behalf, our reference is to the fact that flat no. 5D was sought to be transferred by Pratima Chowdhury to Kalpana Mukherjee, without consideration. First and foremost, the aforesaid factual position is not acceptable on account of the statement of Kalpana Mukherjee herself.In the written reply filed before the Arbitrator, Kalpana Mukherjee took the express stance, that Pratima Chwodhury had transferred flat no. 5D to her name, by accepting a consideration of Rs.She further asserted, that the aforesaid consideration had passed from Kalpana Mukherjee to Pratima Chowdhury through Partha Mukherjee. According to Kalpana Mukherjee, Partha Mukherjee transferred shares in his name valued atto the name of Pratima Chowdhury. Per se therefore, even Kalpana Mukherjee denied the factual position indicated in the above letters, whereby flat no. 5D was transferred from the name of Pratima Chowdhury, to that of Kalpana Mukherjee.(iii) The letters dated 11.11.1992 and 13.11.1992 expressly recorded, that the factual position narrated in the above letters was on account ofwith the rules regulating such transfer, and also, for avoiding futureIn view of the factual position noticed in the foregoing paragraphs, it is apparent, that false facts were being recorded for compliance with the rules and regulations, as also, for avoiding future complications. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of Pratima Chowdhury to that of Kalpana Mukherjee, to avoid future complications, rather than withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the above factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters dated 11.11.1992 and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from Kalpana Mukherjee to the transferee Pratima Chowdhury. If consideration was to pass, and had actually passed, it is difficult to understand why the parties would say, that the transaction did not involve passing of consideration. It is therefore clear, that all the ingredients of letter dated 11.11.1992 and 13.11.1992 are shrouded in suspicious circumstances. One is prompted to record herein, that it was not legitimately open to the parties to record in the letters under reference, that flat no. 5D was being gifted by Pratima Chowdhury to Kalpana Mukherjee, on account of lack of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was therefore, that Kalpana Mukherjee hastened to adopt a different factual position in her written reply before the Arbitrator.(iv) It is relevant to mention, that in the written statement filed by Kalpana Mukherjee (before the Arbitrator) the stand adopted by her was, that a consideration of Rs.4,29,000/had passed from her to Pratima Chowdhury, by way of transfer of shares (standing in the name of her son, Partha Mukherjee) to the name of Pratima Chowdhury. In this behalf it would be relevant to notice, that the documents of transfer executed between Pratima Chowdhury and Kalpana Mukherjee were dated 11.11.1992 and 13.11.1992. Based thereon, the Board of Directors of the Society, in its meeting held on 14.2.1993, resolved to accept the resignation of Pratima Chowdhury. It was further resolved, to accept the membership of Kalpana Mukherjee in her place. On the date of execution of the documents under reference, as also on the date of passing of the resolution by the Board of Directors of the Society, Partha Mukherjee did not have any shares in his name. The shares which Partha Mukherjee acquired, and which Kalpana Mukherjee claims to have been transferred in lieu of consideration (to the name of Pratima Chowdhury), were shown to have been acquired on or after 8.9.1993. The dates of acquisition of the said shares, as were recorded in the order passed by the Arbitrator, which position has not been disputed before us, are asNAME NO. OF SHARES ACQUIREDTata Chemicals Ltd. 50 nos. 8.9.93Tata Chemicals Ltd. 450 nos. 27.10.93Siemens 50 nos. 2.8.93Indian Aluminium 500 nos. 4.3.94I.T.C. Hotels 100 nos. acquired withMr.H.P.is therefore apparent, that Partha Mukherjee did not even have the shares referred to by the transferee Kalpana Mukherjee, in his name, when the transfer documents were executed on 11.11.1992 and 13.11.1992, or even on 14.2.1993 when the Board of Directors of the Society, passed the transfer resolution. The above shares are shown to have been transferred to the name of Pratima Chowdhury on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by Kalpana Mukherjee, Pratima Chowdhury had executed all the transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by Kalpana Mukherjee (through Partha Mukherjee) on the date of transfer of flat no. 5D from Pratima Chowdhury to Kalpana Mukherjee. In sum and substance therefore, on undisputed facts, the stance adopted by Kalpana Mukherjee in the written statement filed by her before the Arbitrator, is shown to be false. This aspect of the matter would bring out a legitimate query, namely, why should Kalpana Mukherjee have adopted a false stance, contrary to the expressed position in the letters dated 11.11.1992 and 13.11.1992. This further exposes, the suspicious nature of the transfer transaction.(v) On the subject of transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury, which, according to Kalpana Mukherjee constituted passing of consideration to Pratima Chowdhury (in lieu of the transfer of flat no. 5D). Pratima Chowdhury had adopted the stance, that the transfer of the above shares was on account of return of loans extended by Pratima Chowdhury to Partha Mukherjee. Insofar as the instant aspect of the matter is concerned Pratima Chowdhury had asserted, that after the transfer of Partha Mukherjee from Calcutta to Bombay in the year 1993, he gave up his employment with Colgate Palmolive (India) Limited, and started a business of aluminium products with one R.K. Sen, at Bombay. To help Partha Mukherjee with his above business venture, Pratima Chowdhury had (on the asking of Partha Mukherjee) paid a sum of Rs. 2 lakhs by way of cheque, to Bharat Aluminium Company Limited, for supply of raw materials to Parthabusiness venture. It was also pointed out, that Partha Mukherjee had also taken a loan for a sum of Rs. 1,50,000/for the same purpose from Bani Roy (sister of Pratima Chowdhury). It was also asserted, that Sova Mukherjee had similarly extended loans, by making payments through cheque to Partha Mukherjee. The Arbitrator had accepted the above assertion of Pratima Chowdhury. For the above determination, the Arbitrator had placed reliance, on documentary and oral evidence, produced by Pratima Chowdhury. The instant factual aspect of the matter was totally overlooked by theTribunal, as well as, by the High Court. Keeping in view the factual position depicting in paragraph (iv) above, we have no doubt in our mind, that there was substance in the determination of the Arbitrator, specially on account of the fact that transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury came to be effected, well after the transfer of flat no. 5D to the name of Kalpana Mukherjee. For the above reason as well, the findings of fact recorded by theTribunal as well as by the High Court, are bound to be considered as having been recorded without taking into consideration all the material and relevant facts.(vi) The fact that Pratima Chowdhury had addressed a letter to the Secretary of the Society, dated 28.2.1995, for withdrawal of her earlier letter dated 11.11.1992, is not in dispute. It is also not a matter of dispute, that at the time when Pratima Chowdhury addressed the above letter, neither the transfer of membership, nor the transfer of the flat, had assumed finality. The transfer of membership, as also the transfer of the flat, would assume finality only upon the approval of the same by the Deputy Registrar,Societies. The factual position emerging from the record of the case reveals, that the Society sought the approval of the Deputy Registrar,Societies for the transfer of membership, as also, flat no. 5D to the name of Kalpana Mukherjee on 13.3.1995. Undoubtedly, Pratima Chowdhury had sought revocation, before the transfers under reference had assumed finality. It is in the above background, that one needs to evaluate the reply of the Society dated 10.4.1995. Through the letter dated 10.4.1995, Pratima Chowdhury was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. We find the above explanation, untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, the matter certainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated 16.4.1995 had intimated its members, about the resolution dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. Thus viewed, it was not justified for the Society to deny consideration of the withdrawal letter dated 28.2.1995. Acceptance or rejection on merits is another matter, butis not understandable. The instantclearly invalidates the resolution passed by the Society.(vii) On 22.3.1995, Pratima Chowdhury addressed a letter to the Deputy Registrar,Societies, imploring him to take appropriate action, by considering the withdrawal letter dated 28.2.1995. We are surprised, that the Deputy Registrar,Societies adopted the same stance, as was adopted by the Society. When the letter dated 22.3.1995 was addressed to the Deputy Registrar,Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by the Deputy Registrar,Societies) is not in dispute. It is imperative for us therefore to conclude, that the decision taken by the Deputy Registrar,Societies was, without reference to the withdrawal letter dated 28.2.1995 (which was enclosed with the letter dated 22.3.1995 addressed to the Deputy Registrar,Societies). The determination by the Deputy Registrar, Cooperative Societies, cannot therefore be treated as a valid and legitimate consideration. Acceptance or rejection on merits is another matter, butis just not understandable. The instantclearly invalidates the approval granted by the Deputy Registrar,Societies.(viii) The veracity of the execution of the documents dated 11.11.1992 and 13.11.1992 by Pratima Chowdhury, was also examined by the Arbitrator. In the above examination, the Arbitrator arrived at the conclusion, that Pratima Chowdhury was in Bombay and not in Calcutta when the above documents were executed. The above finding was recorded on the basis of three witnesses produced on behalf of the complainant (before the Arbitrator). While rejecting the conclusion drawn by the Arbitrator, theTribunal overlooked the statements of the witnesses produced by Pratima Chowdhury, merely because the notary was an Advocate. TheTribunal reasoned, that the statement of S.N. Chatterjee, an Advocate, had to be given more weightage, than the witnesses produced by Pratima Chowdhury. The above determination at the hands of theTribunal, besides being perverse, is also totally unacceptable in law. In the facts and circumstances of the present case, the statement of the notary should have been rejected and discarded, simply because the notary in his deposition had acknowledged, that he did not issue any notarial certificate in terms of Section 8 of the Notary Act. In the absence of issuance of any such certificate, notarization of the document dated 13.11.1992 was clearly subject to suspicion. The conclusion drawn by theTribunal as also the High Court, to the effect that the document dated 13.11.1992 was executed at Calcutta, is therefore, based on no evidence whatsoever. The fact that the document dated 13.11.1992 had not been executed in Calcutta, was also sought to be substantiated by showing, that the registration number of the Society was not depicted in the said letter, even though the said letter was shown to have been executed at the residence of the Secretary of the Society. It was reasoned, that the Secretary of the Society would have supplied the aforesaid number, if the above document had been executed at his residence. Having rejected the credibility of the statement of S.N. Chatterjee (the notary), and having not accepted the fact that the above document was executed at the residence of Anil Kumar Sil, the Secretary of the Society, we find no reason for not accepting the statements of the three witnesses produced by Pratima Chowdhury, to show that she (Pratima Chowdhury) was at Bombay on 11.11.1992, as well as, on 13.11.1992. Herein again,l and the High Court,erred on the face of the record, by not taking into consideration material facts, available on the file of the case.(ix) In the background of the factual position emerging from the deliberations recorded hereinabove, it is also necessary to notice, that the Arbitrator had placed heavy reliance on the fact, that Kalpana Mukherjee had deposited rent on 21.10.1993 (payable to Pratima Chowdhury), into the account of Pratima Chowdhury, by herself, filling up the bank deposit voucher. Accordingly, the Arbitrator inferred, that the property in question, even to the knowledge of Kalpana Mukherjee, had not actually been transferred to her name by Pratima Chowdhury (at least upto 21.10.1993). That was the reason, why Kalpana Mukherjee had continued to deposit rent for flat no. 5D, into the account of Pratima Chowdhury upto 21.10.1993. Coupled with the aforesaid factual aspect, the Arbitrator placed great reliance on the letter dated 28.10.1993 addressed by Partha Mukherjee to Colgate Palmolive (India) Limited, wherein, he described Pratima Chowdhury as theUndoubtedly, if the documents relied upon by Kalpana Mukherjee were genuine, Partha Mukherjee would not have acknowledged the ownership of Pratima Chowdhury over flat no. 5D (on 28.10.1993). These aspects of the matter were totally overlooked by theTribunal, as well as, by the High Court. These were vital facts, and needed to be examined, if the order passed by the Arbitrator was to be interfered with. In the absence of such consideration, the findings of fact recorded by theTribunal and by the High Court, are bound to be considered as perverse. Since the factual position attributed to the actions of 21.10.1993 and 28.10.1993, which emanated and emerged from Kalpana Mukherjee and Partha Mukherjee respectively, we are of the view that entire sequence of transfer, is rendered doubtful and suspicious.(x) The determination of the Arbitrator, on the subject of the transfer of the covered garage, to the name of Kalpana Mukherjee was also overlooked by theTribunal, as well as, by the High Court. From the facts already narrated above, it is clear that Pratima Chowdhury, had one covered garage space also. Whilst reference was made about the details of the flat sought to be transferred, in the transfer documents, no reference was made to the covered garage space. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 5D was transferred to the name of Kalpana Mukherjee. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between Kalpana Mukherjee (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of Kalpana Mukherjee, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of Pratima Chowdhury. Therefore, according to the view expressed by the Arbitrator, the covered garage space, must be deemed to have never been transferred to Kalpana Mukherje by its erstwhile owner. The Arbitrator also expressed the view, that the agreement dated 25.4.1995 could not have been executed without the participation of Pratima Chowdhury. The above factual position has not been disputed at the hands of Kalpana Mukherjee, before this Court. The above reasoning, in our considered view, was fully justified. The instant aspect of the matter was also totally overlooked by theTribunal, as well as, by the High Court. For the above reason also, the findings of the fact, recorded by theTribunal and by the High Court, are bound to be treated as perverse.For all the reasons recorded by us in foregoingwe are of the view that theTribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position.30. TheTribunal as well as the High Court, had invoked the principle of justice and equity, and the doctrine of fairness, while recording their eventual findings in favour of Kalpana Mukherjee. It is, therefore, necessary for us, to delve upon the above aspect of the matter.In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even de hors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court.14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it.While deciding the proposition in hand, we must keep in mind the law declared by this Court on the subject of fiduciary relationship. We will also proceed by keeping in mind, what we have already concluded in the preceding paragraph, i.e., that relationship between Partha Mukherjee and Pratima Chowdhury was a relationship of faith, trust and confidence. Partha Mukherjee was in a domineering position. He was married to Sova Mukherjee. Sova Mukherjee is the daughter of H.P. Roy. Pratima Chowdhury has lived for a very long time in the house of H.P. Roy. During that period (after his marriage) Partha Mukherjee also shared the residential accommodation in the same house with Pratima Chowdhury, for over a decade. In Indian society the relationship between Partha Mukherjee and Pratima Chowdhury, is a very delicate and sensitive one. It is therefore, that Pratima Chowdhury extended all help and support to him, at all times. She gave him her flat when he was transferred to Calcutta. She also extended loans to him, when he wanted to set up an independent business at Bombay. These are illustrative instances of his authority, command and influence. Instances of his enjoying the trust and confidence of Pratima Chowdhury include, amongst others, the joint account of Pratima Chowdhury with Partha Mukherjee, which the latter operated exclusively, and the drafting of the letters on behalf of Pratima Chowdhury. In such fact situation, we are of the view, that the onus of substantiating the validity and genuineness of the transfer of flat no. 5D, by Pratima Chowdhury, through the letter dated 11.11.1992 and the document dated 13.11.1992, rested squarely on the shoulders of Kalpana Mukherjee. Because it was only the relationship between Partha Mukherjee and Pratima Chowdhury, which came to be extended to Kalpana Mukherjee. The document dated 13.11.1992 clearly expressed, that the above transfer was without consideration. Kalpana Mukherjee in her written reply before the Arbitrator asserted, that the above transfer was on a consideration of Rs.The Arbitrator in his order dated 5.2.1999 concluded, that Kalpana Mukherjee could not establish the passing of the above consideration to Pratima Chowdhury.e Tribunal, aswell as, the High Court, despite the factual assertion of Kalpana Mukherjee were of the view, that passing of consideration was not essential in determination of the genuineness of the transaction. We are of the view, thate Tribunal, aswell as, the High Court seriously erred in their approach, to the determination of the controversy. Even though the onus of proof rested on Kalpana Mukherjee, the matter was examined by requiring Pratima Chowdhury to establish all the alleged facts.We are of the view, that Kalpana Mukherjee miserably failed to discharge the burden of proof, which essentially rested on her. Pratima Chowdhury led evidence to show, that she was at Bombay on 11.11.1992 and 13.11.1992. In view of the above, the letter dated 11.11.1992 and the document dated 13.11.1992, shown to have been executed at Calcutta could not be readily accepted as genuine, for the said documents fell in the zone of suspicion, more so, because the manuscript of the letter dated 11.11.1992 was in thehandwriting of Partha Mukherjee.Leading to the inference, that Partha Mukherjee was the author of the above letter. It is therefore not incorrect to infer, that there seems to be a ring of truth, in the assertion made by Pratima Chowdhury, that Partha Mukherjee had obtained her signatures for executing the letter and document referred to above. We find no justification whatsoever for Pratima Chowdhury, to have transferred flat no. 5D to Kalpana Mukherjee, free of cost, even though she had purchased the same for a consideration of Rs. 4 lakhs in the year 1987. Specially so, when she had no direct intimate relationship with Kalpana Mukherjee. By the time the flat was transferred, more than a decade had passed by, during which period, the price of above flat, must have escalated manifold. Numerous other factual aspects have been examined by us above, which also clearly negate the assertions made by Kalpana Mukherjee. The same need not be repeated here, for reasons of brevity. Keeping in mind the above noted aspects, we are of the considered view, that invocation of the principle of justice and equity, and the doctrine of fairness, would in fact result in returning a finding in favour of Pratima Chowdhury, and not Kalpana Mukherjee.