GAYATRI DE versus MOUSUMI CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS.

Citation: [2004] SUPP. 1 S.C.R. 356 · Decided: 16-04-2004 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
GAYATRIDE 
v. 
MOUSUMI CO-OPERATIVE HOUSING SOCIETY LTD. AND ORS. 
APRIL 16, 2004 
[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND 
G.P. MATHUR, JJ.] 
West Bengal Cooperative Societies Act, 1983 : 
Ss.80(J)(b) and (c) and 87(3)-Co-operative Housing Society-Death 
of a member-Transfer of interest of deceased member in absence of any 
nominee-Held, a plot of land, a house or an apartment in a multi-storied 
building shall constitute a heritable and transferable immovable property 
provided it is not partitioned or sub-divided-It is an obligation of the Society 
D to transfer the share or interest of deceased member within the stipulated 
period-While disposing of deceased member's share or interest, preferential 
claim always goes to his heirs and legal representatives in absence of any 
nominee-On facts, appellant being one of tl:e heirs of the deceased member 
is entitled to succeed to the estate of the deceased . 
E 
Constitution of India, 1950: 
Article 226-Co-operative Housing Society-Special Officer of Society 
appointed by High Court-Cancelling allotment of deceased member-Writ 
petition by heir challenging cancellation-Held, Special Officer is a statutory 
functionary-Society being under control of Special Officer, writ petition is 
F maintainable in law. 
Respondent Society purchased some land from appellant's father the 
vendor, to construct a multi storied building thereon. The vendor was 
admitted as a member and was allotted a Oat in the Society. After making 
part payment towards the cost of the flat, the vendor died without 
G nominating any person to inherit the flat. Meanwhile in a litigation 
involving the Society, the High Court appointed a Special Officer to 
monitor progress of the Society. The son of the vendor, the deceased 
allottee, wrote a letter to the Special Officer about the death of his father 
and steps being taken to transfer his interest to one of his heirs, but the 
H 
356 
GA YA TRI DE v.MOUSUMI CO-OPERATIVE HOUSING SOCIETY LTD. 
3 57 
Society did not reply. About two years later, the Special Officer informed A 
him that since claim for transfer was not made within the stipulated period, 
the flat had already been reallotted. 
The appellant, one of the daughters of the deceased allottee, filed a 
writ petition in the High Court for a direction to the respondents to 
withdraw or cancel the letter issued by the Special Officer • The Single B 
Judge allowed the writ petition and directed the respondents to take steps 
to transfer the flat in favour of the petitioner. However, in appeal the 
Division Bench of the High Court dismissed the writ petition holding that 
the entire amount having not been paid, no right, title or interest had 
passed in favour of the deceased allottee; that under the provisions of the C 
Act, and the Rules framed thereunder, the writ petitioner or the heirs of 
the deceased allottee had no right to allotment of flat; that the heirs 
nominated after expiry of the stipulated period could not derive any right; 
and that no writ petition would lie against the respondent Society. 
Aggrieved, the writ petitioner filed the present appeal. 
On the questions: whether the right of the ownership of a flat in the 
multi-storied building under the West Bengal Co-operative Societies 
Act,1983 is inheritable and transferable; whether, in the event of death 
of the member leaving no more nominee any person to inherit the interest 
D, 
of the deceased member, his interest should be inherited by all the legal 
heirs or can it be inherited by any one of the legal heirs if 6ther legal heirs E 
have given their rights in favour of such single legal heir; and whether 
the writ petition against the Society was maintainable, 
Allowing the appeal, the Court 
HELD: 1. Sub-section (3) of Section 87 of the West Bengal Co-
F 
operative Societies Act,1983 makes it abundantly clear that a plot of land 
or a house or an apartment in a multi-storied building shall constitute a 
heritable and transferable immovable property within the meaning of any 
law for the time being in force provided that notwithstanding anything 
contained in any other law for the time being in force such heritable and G 
transferable immovable property shall not be partitioned or sub-divided 
for any purpose whatsoever. In terms of the Act and the Rules, the heirs 
of a deceased person are, therefore, entitled to inherit the flat allotted to 
the deceased. In the instant case, admittedly, the flat in question was 
a

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