Mere membership of a deceased member of a housing society can be inherited by nominee?: Delhi High Court

By Delhi Bureau

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : Delhi Cooperative Societies Act, 1972
Writ Petition (Civil) No. 4209 of 2001
Judgment reserved on: April 20, 2009
Judgment delivered on: May 08, 2009
Swayam Sidha Cooperative Group
Housing Society
6, Bhagwan Dass Road
New Delhi.
Through its Joint Administrator:
Ms. Vidya Prabhadayal
Col. B. Kumar (Retd.) Petitioner
Through Ms.Rachna Joshi Issar with
Mr.Shailendra Kumar, Advs.
Versus
1. The Financial Commissioner, Delhi
5, Shamnath Marg
Civil Lines
Delhi.
2. The Registrar, Cooperative Societies
Government of N.C.T. of Delhi
Old Court Building, Parliament Street
New Delhi-110001.
3. Sh. R.S. Bairva
S/o Late Shri Kana Ram
R/o Flat No. 92 (Type-II)
Gandhi Sadan, NDMC Flats
Mandir Marg, New Delhi.
4. Ministry of Employment, Social
Welfare, Labour and Scheduled Caste
& Scheduled Tribes
Government of N.C.T. Delhi
New Secretariat
I.P. Estate, New Delhi. Respondents
Through Ms. Sujatha Kashyap, Adv. for
Respondent No. 1.
Ms.Indrani Ghosh, Adv. for LRs of
Respondent No. 3.
Coram:
HON’BLE MR. JUSTICE MADAN B. LOKUR
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
MADAN B. LOKUR, J.
1. The question for our consideration is whether the mere membership of a deceased member
of a cooperative group housing society can be inherited by his nominee, who is otherwise ineligible
to be a member of that society. Our answer to this question is in the negative in view of the
decision of the Supreme Court in Gayatri De v. Mousumi Cooperative Group Housing Society &
Ors., AIR 2004 SC 2271.
2. The Petitioner is a cooperative group housing society and one of its objects is to acquire
land on lease for development from the slum wing of the Delhi Development Authority and
construction of residential houses or flats for allotment to its members. The membership of the
Petitioner-Society is restricted only to widows having an income which does not exceed Rs.1,500/-
per month from all sources.
3. The mother of Respondent No. 3, Smt. Ganesh Devi, was a widow who satisfied the
eligibility requirements for membership as per the Bye-Laws of the Petitioner-Society. As such,
she was made a member of the Petitioner-Society. However, before she could be allotted a flat, she
passed away leaving her son (Respondent No. 3) as her nominee.
4. Respondent No. 3 sought to take over the membership rights of his deceased mother but the
Petitioner-Society did not accept his membership since he was not eligible.
5. On these broad facts, Respondent No. 3 filed Complaint No. 2471/1992 before the
Consumer Dispute Redressal Forum (District Forum-II). By an order dated 13th July, 1994, the
District Consumer Dispute Redressal Forum came to the conclusion that Respondent No. 3 was not
eligible to be a member of the Petitioner-Society and, therefore, his complaint was devoid of any
merit. We are told that the order passed by the District Consumer Dispute Redressal Forum has
attained finality.
6. Not being satisfied with the above decision, Respondent No. 3 raised a dispute before the
Registrar, Cooperative Societies claiming membership of the Petitioner-Society. We are not
concerned with the first round of litigation that took place before the Registrar but eventually by an
order dated 30th November, 2000 (passed in the second round) the Registrar came to the
conclusion that Respondent No. 3 was entitled to step into the shoes of his deceased mother and
was, therefore, entitled to membership of the Petitioner-Society.
7. Feeling aggrieved, the Petitioner-Society filed a revision petition under Section 80 of the
Delhi Cooperative Societies Act, 1972 being Case No. 24/2001-CA. The revision petition came to
be dismissed by the Financial Commissioner by the impugned order dated 15th February, 2001.
8. The only contention urged before us by learned counsel for the Petitioner is that
membership of the Petitioner-Society was restricted to widows who have an income of less than
Rs.1,500/- per month from all sources. Respondent No. 3 is not a widow (being a male) and is also
earning well over Rs.1,500/- per month as a bank official. The purpose of setting up the Petitioner-
Society was to assist indigent and homeless widows and Respondent No. 3 does not fall in this
category by any stretch of imagination. On the other hand, the submission of learned counsel for
Respondent No. 3 was that her client was entitled to step into the shoes of his deceased mother
being her nominee, and he was merely seeking to enforce this entitlement that was available to him.
9. In our opinion, the dispute is really covered by the decision of the Supreme Court in Gayatri
De v. Mousumi Cooperative Housing Society Ltd.& Ors, AIR 2004 SC 2271. There are in fact two
situations that can arise in a case such as the present. The first is where the deceased member has
not been allotted any plot or flat and is merely a member of a society. The second situation is
where a deceased member has been allotted a plot or flat by virtue of his or her membership of a
society.
10. In the first situation as mentioned above, there is no interest of a deceased member that can
devolve on a nominee. It is merely a membership of a society and this cannot be termed as the
estate of the deceased which can be inherited by the legal heirs of the deceased. A somewhat
parallel situation would be a membership to a club or an association. The death of a member of a
club or an association does not confer any entitlement on any of his legal heirs to membership of
that club or association. In the second situation the allotment of a plot or flat is an interest that can
devolve upon the legal heirs of a deceased. This is what has been held in Gayatri De. We may
note that we have followed Gayatri De in a recent decision rendered by us in Manmohan Nath N.
Puri (Deceased) through L.Rs. v. Shri Madan Jha and Ors. (WP(C) No.182/1990 decided on 18th
March, 2009). In another Division Bench decision being Pran Nath Mallick v. Dr. Netar Prakash
Mallick & Ors., 2000 III AD (Delhi) 843, a Division Bench dealt with the second situation
mentioned above and concluded that after allotment is made, legal rights get vested in the member
and the society cannot stop inheritance of those rights on the legal heirs of the deceased on the plea
that such a person is not a member of the society. Of course, this decision would not be applicable
to the first situation that we are concerned with but is being mentioned only to indicate the two
distinct situations that can arise.
11. In view of the above, in our opinion Respondent No.3 could not succeed to the mere
membership of his deceased mother, more particularly on the facts of this case because Respondent
No.3 did not satisfy the eligibility conditions laid down in the Bye-Laws of the Petitioner-Society.
We may note for the record that learned counsel for the Petitioner contended before us that the
decision of the District Consumer Dispute Redressal Forum having attained finality, Respondent
No.3 is bound by that decision and cannot agitate the claim all over again in a different forum. We
are not going into this aspect of the matter because even otherwise on merits we are of the view that
the impugned orders passed by the Registrar, Cooperative Societies and the Financial
Commissioner are not sustainable in law.
12. The writ petition is allowed. No costs.
Sd./-
MADAN B. LOKUR, J
Sd./-
May 08, 2009 SIDDHARTH MRIDUL, J