ASHOK CHANDRA AGGARWALA v. DELHI ADMINSTRATION — 1984 DIGILAW 357 (DEL)

CHARANJIT TALWAR, J ( 1 ) THE petitioner, Shri Ashokchandra Aggarwala, seeks issuance of a writ of mandamus tothe Delhi Administration to substitute his name in place of thename of his late father in the sub-lease executed between hisfather, the President of India and the Supreme Court Bar Cooperative House Building Society Ltd. (hereinafter called thesociety ). ( 2 ) ADMITTED facts are that the petitioner s father Shri C. B. Aggarwala, a Senior Advocate of the Supreme Court, was amember of the Society. The Society is covered by the Delhico-operative Societies Act, 1972, (hereinafter called the Act )and the Delhi Co-operative Societies Rules, 1973 (hereinaftercalled the Rules ) as well as by the bye-laws framed by thesociety. Shri C. B. Aggarwala was allotted plot bearing No. A-25, Niti Bagh, New Delhi, by the Society. For the purpose oftransfer of his share he had nominated the petitioner herein inaccordance with Rule 35 of the Rules. Shri C. B. Aggarwaladied on 13/06/1973. ( 3 ) BY a resolution dated 16/05/1975, the Socie. ty passed a resolution substituting the petitioner as a member of thesociety in place of his late father and resolved "that the nameof Shri Ashok Chandra Aggarwala, nominee of late Shri C. B. Aggarwala be substituted in place of Shri C. B. Aggarwala asa member of the Society and as a sub-lessee of plot No. A-25,ni ti Bagh, New Delhi. A copy of the resolution be sent toshri A. C. Aggarwala, to the lessors and to other heirs whowrote letters to the Society". ( 4 ) IT appears that the petitioner had in tlie meanwhile moved the Delhi Administration, respondent No. 1, the substitution in his name in the said sub-lease. He had also moved theassistant Housing Commissioner, Landb, Delhi Administration,vide his application dated 21/02/1975, for this purpose. However, he was informed by letter dated 5/03/1975, to produce the succession certificate from a Civil Courtadministration and Othersof competent jurisdiction so that further action could be takenin the matter. A copy of the said letter is Annexure e to thewrit petition. His plea before the authorities was that as anominee he was entitled not only to the share which his fatherhad but also to the interest of the deceased. Petitioner s effortsto have the transfer of plot in question made in his name havingfailed, he has moved the present petition. ( 5 ) MR. His plea before the authorities was that as anominee he was entitled not only to the share which his fatherhad but also to the interest of the deceased. Petitioner s effortsto have the transfer of plot in question made in his name havingfailed, he has moved the present petition. ( 5 ) MR. Harjinder Singh, learned counsel for the petitioner,submits that in accordance with the provisions of section 26of the Act read with Rule 35 of the Rules petitioner s nameis to be mandatorily substituted in place of his father s name. It is useful to quote the provisions of section 26. Section 26reads: "26. (1) On the death of a member a co-operativesociety may transfer the share or interest of thedeceased member to the person nominated in accordance with the rules made in this behalf, or,if there is no person so nominated to such personas may appear to be the heir or legal representative of the deceased member, or pay to such nominee. heir, or legal representative, as the casemay be, a sum representing the value of suchmember s share or interest as ascertained in accordance with the rules or bye-laws;provided that IN the case of a co-operative society with unlimitedliability, such nominee, heir or legal representative,as the case may be, may require payment by thesociety of the value of the share or interest of thedeceased member ascertained as aforesaid; IN the case of a co-operative society with limitedliability, the society transfer the share or interestof the deceased member to such nominee, heir orlegal representative as the case may be, being qualified in accordance with the rules and byelaws formembership of the society, or on his applicationwithin one month of the deceased member So anyperson specified in the application who is so qualified; NO such transfer or payment shall be made exceptwith the consent of the nominee, heir or legal representative, as the case may be. ( 6 ) ANOTHER plea of Mr. Harjinder Singh is that under theguidelines laid down by the Delhi Administration the said plothas to be inherited by the petitioner by virtue of the nomination made by his father and in such a case no fresh lease-deedis required to be executed but only mutation is to be sanctioned in favour of the petitioner. Harjinder Singh is that under theguidelines laid down by the Delhi Administration the said plothas to be inherited by the petitioner by virtue of the nomination made by his father and in such a case no fresh lease-deedis required to be executed but only mutation is to be sanctioned in favour of the petitioner. The respondent 1 and 2 intheir counter-affidavit have submitted that it is because of theobjection raised by the other legal heirs of late Shri C. B. Aggarwala that the substitution in favour of the petitioner hasnot been made by them. In a further affidavit sworn by Shnd. R. Chopra, OSD, Litigation-cum-ex-officio Under Secretary,land and Building Department, on 19/09/1984, it hasbeen explained that the father of the petitioner had initiallynominated two persons when he made the application to (hesociety for membership. After becoming a member of theadministration and Otherssociety he made a fresh nomination in the name of the petitioner, which has been recorded in the register of the society. It is further pleaded that clause III of the Perpetual sub-leasedeed, which had been executed, provided that "the expression sub-lessee included" his heirs, executors, administrators orlegal representatives and the person or persons in whom thesub-leased interest created by a sub-lease shall for the timebeing be vested by assignment or otherwise. . ", and, therefore,as the other legal heirs of the deceased had claimed that theyalso be substituted in place of the deceased, the legal adviserof the department opined that in a case like this it was advisable to ask the contestants to obtain succession certificate froma Civil Court. As such, respondents are unable to substitutethe petitioner s name in the sub-lease or sanction mutation in hisname. ( 7 ) I may note here that on an application made two ofthe legal heirs of late Shri C. B. Aggarwala (being his son anddaughter) under Order 1 Rule 10 (2) of the Code of Civilprocedure, those were brought on the record by an order dated 21/09/1977. They are respondents 4 and 5. Thesevery respondents had raised objection before the Administration that the petitioner was not entitled to be substituted in thesub-lease deed. ( 8 ) THE submission, of the petitioner s counsel. is that thesub-lease qua the plot in question being interest of the deceasedis liable to be transferred in favour of the petitioner, as noticedabove, in terms of section 26 (1) of the Act. ( 8 ) THE submission, of the petitioner s counsel. is that thesub-lease qua the plot in question being interest of the deceasedis liable to be transferred in favour of the petitioner, as noticedabove, in terms of section 26 (1) of the Act. ( 9 ) I have already quoted the relevant section. It openswith the words "on the death of a member of a co-operativesociety may transfer the share or interest of the deceased member to the person nominated. . . . ". The argument that it wasmandatory to transfer the share is not borne out from a reading of the above provision as the use of the word "may" therein is suggestive of this being a discretionary power which hasbeen vested in the Society. The Society in its bye-laws hasvested itself with the power to transfer the share only of thedeceased and not his interest. Bye-law No. 16 provides "everymember may nominate a person or persons to whom on deathhis shares shall be transferred but no member may nominatemore than one person, unless he holds more than one shareand in case unless the amount to be paid to such nominees,whether by way of whole shares or by fixed proportion of theamount available for transfer, as the case may be, is duly specified when the nominee is appointed and he shall attest thenomination by putting his signature or thumb impression in theregister Of members. If not admitted to membership the nominee or nominees shall be paid the shares of the deceased,and if there is more than one nominee, the amount to be deducted shall be set off against the amount due to each nomineein proportion to their interest". ( 10 ) THE petitioner had undoubtedly been admitted tothe membership of the Society vide resolution dated 16/05/1975, but that entitles him only to the automatic transfer ofshare as per the bye-laws. A reading of the guidelines issuedby the Delhi Administration, relied upon by Mr. Harjindersingh, in support of his contention, does not show the authority of law under which the same were issued. Learned counselfor the parties were unable to point out to any provisionin the Act and the Rules whereunder such guidelines can beissued. A reading of the guidelines issuedby the Delhi Administration, relied upon by Mr. Harjindersingh, in support of his contention, does not show the authority of law under which the same were issued. Learned counselfor the parties were unable to point out to any provisionin the Act and the Rules whereunder such guidelines can beissued. It is not necessary fee me in this case to go into thevalidity of the guidelines as the guidelines themselves showthat in spite of the nomination a plot could be inherited undera will or on devolution under law. Three eventualities seemto have been kept in view for sanctioning a mutation in therecord, in case a sub-lease deed had been executed during thelifetime of the deceased. Those are, by virtue of nominationform or a will or by devolution under law. The nominationby itself has not been made the sole criterion for the sanctionof mutation in the name of a nominee. In the present case asthe other legal heirs have objected to the mutation or substitution in favour of the petitioner, it is open to the respondentsto ask the petitioner to get a succession certificate. Rule 35referred to by Mr. Harjinder Singh only lays down the methodof nomination by a member for the purpose of transferring hisshare and interest under sub-section (1) of section 26. Asnoticed earlier that section does not lay down that a society isobliged to transfer the interest of the deceased member to anominee. ( 11 ) RELIANCE by Mr. Harjinder Singh on Gopal Vishnughatnekar v. Madhukar Vishnu Ghatnekar, AIR 1982 Bombay 482 (1), in support of his contention is mis-conceived. Section 30 of the Maharashtra Co-operative Societies Act,1961, which was being considered by the Bombay High Courtopens with the words, "on the death of a member of a society,the society shall transfer the share or interest of the deceasedmember to a person or persons nominated in accordance withthe rules,.- ". On the face of it, therefore, there is differencebetween section 26 (1) of the Delhi Act and section 30 of themaharashtra Act, as in the latter provision the word "shall"has been used whereas in the Delhi Act the word "may" hasbeen used. In the context of the present Act it is not obligatory on the Society in view of the bye-laws to transfer the interest of the deceased share-holder in favour of the nominee. In the context of the present Act it is not obligatory on the Society in view of the bye-laws to transfer the interest of the deceased share-holder in favour of the nominee. The Society, it appears, has recommended to the Administration and the Delhi Dovelopment Authority, to transfer the interest in favour of the petitioner; but that recommendation isnot binding on the lessor, particularly in view ofclause 12 ofthe sub-lease deed which lays down that the expression "sublease" includes all the legal heirs. ( 12 ) THERE is another aspect which has been pointed out bymr. Jitendar Sharma, learned counsel for respondent? 4 and 5. According to him. there is no warrant for assuming that section26 of the Act creates a kind of succession which could be styledas a "statutory testament". The precise submission is thaton the death of a member of a society, his estate, which obviously includes an interest in the sub-lease executed during hislife-time, is governed by the law of succession applicable to him. Such a succession can be testamentary or intestate. In supportof his proposition he has relied upon Smt. Sarbati Devi andanother v. Smt. Usha Devi, AIR 1984 Supreme Court-346 (2 ). In the said case, section 39 of the Insurance Act was being construed. The question was whether a nominee of alife insurance policy under section 39 of that Act on the assured dyingintestate would become entitled to the beneficial interest in theamount received under the policy to the exclusion of the heirsof the assured. While over-ruling the two recent decisions ofthis. Court, it was held that that a mere nomination made undersection 39 did not have the effect of conferring on the nomineeany beneficial interest in the amount payable under the lifeinsurance policy on the death of the assured. It was observed"the nomination only indicates the hand which is authorised toreceive the amount, on the payment of which the insurer getsa valid discharge of its liability under the policy. The amount,however, can be claimed by the heirs of the assured in accordance with the law of succession governing them". ( 13 ) I agree with Mr. Sharma that the above principle cansafely be applied in the present case as a third kind of succession cannot be created under section 26 of the Act. The amount,however, can be claimed by the heirs of the assured in accordance with the law of succession governing them". ( 13 ) I agree with Mr. Sharma that the above principle cansafely be applied in the present case as a third kind of succession cannot be created under section 26 of the Act. ( 14 ) IN view of my discussion above I hold that the Delhiadministration is well within its rights to decline the request ofthe petitioner. ( 15 ) THE result is that the writ petition is dismissed but with no order as to costs.