PRATIMA CHOWDHURY versus KALPANA MUKHERJEE & ANR.

Citation: [2014] 2 S.C.R. 656 · Decided: 10-02-2014 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
[2014] 2 S.C.R. 656 
PRATIMA CHOWDHURY 
v. 
KALPANA MUKHERJEE & ANR. 
(Civil Appeal No. 1938 of 2014) 
FEBRUARY 10, 2014 
[P. SATHASIVAM, CJI. AND 
JAGDISH SINGH KHEHAR, JJ.] 
TRANSFER OF PROPERTY ACT, 1882: 
Housing Society - Transfer of membership/flat - Validity 
of - Flat given on rent to the son of the respondent - Letters 
written by appellant to Society for transferring the said flat in 
favour of respondent on account of close relationship between 
0 
them - Transfer was without consideration - Arbitrator held the 
letters of transfer invalid - Cooperative Tribunal and High 
Court held that approach of arbitrator was erroneous - Held: 
Respondent was mother-in-law of niece of appellant -
Therefore factually the expression of close relationship 
depicted in the letters was false - As regards transfer without 
E consideration, respondent herself gave statement to the effect 
that appellant had transferred the flat for consideration of 
Rs.4.29 lacs which was in form of shares belonging to the son 
of the respondent - However, on the date of execution of 
transfer or even when board resolution was passed, the son 
F of the respondent did not have any shares in his name said 
to have been transferred to appellant as consideration of the 
flat - Therefore, all the ingredients of the letters were shrouded 
in suspicious circumstances - The stance of appellant 
regarding transfer of shares was that same was return of loan 
G extended by her to son of the respondent for business venture 
- This factual position was overlooked by Cooperative Tribunal 
and High Court - Arbitrator held that the appellant was in 
Bombay and not in Calcutta when these letters were written -
Said finding was recorded on the basis of 3 witnesses 
H 
656 
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 657 
ANR. 
produced on behalf of appellant before the arbitrator -
A 
Cooperative Tribunal overlooked the statement of witnesses 
merely because notary was an Advocate - Conclusion of 
Cooperative Tribunal and High Court that the documents were 
executed in Calcutta was therefore basec pn no evidence -
Further, respondent continued to pay rent into the account of B 
appellant - Accordingly, arbitrator rightly inferred that even to 
the knowledge of respondent, flat was not actually transferred 
to her name. 
Housing Society - Transfer of membership/flat -
C 
Revocation of - Withdrawal letter revoking letters of transfer 
was sent by appellant before the transfer of membership/flat 
had attained finality - Still, Society did not consider the 
withdrawal letter - Acceptance or rejection on merits is another 
matter, but non-consideration clearly invalidated the 
resolution of transfer passed by society. 
D 
Transfer of membership/flat - Validity of - Fiduciary 
relation - Held: When parties are in fiduciary relationship, the 
manner of examining the validity of a transaction specifically 
when there is no reciprocal consideration has to be based on 
E 
parameters which are different from those applicable to an 
ordinary case. 
Transfer of membership/flat without consideration -
Relationship of faith, trust and confidence - Letters written by 
appellant to Housing Society for transferring her flat to the 
name of the respondent - Held: There was no justification for 
F 
the appellant to transfer her flat to respondent free of cost 
specially when she has no direct intimate relationship with 
respondent - Son of respondent was married to niece of 
appellant and so he was in domineering position - He enjoyed 
G 
trust and confidence of appellant which was apparent from the 
fact that thejoint account of appellant with the son of the 
respondent was operated by him exclusively and drafting of 
the letters of transfer of flat was done by him on behalf of 
appellant - In such fact situation, the onus of substantiating 
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658 
SUPREME COURT REPORTS 
[2014] 2 S.C.R. 
A the validity and genuineness of the transfer of flat by the 
appellant rested squarely on the shoulders of the respondent 
which she miserably failed to discharge. 
CODE OF CIVIL PROCEDURE, 1908: Pleadings -
8 
Rejoinder - Non consideration of facts stated in the rejoinder 
- Effect of - Respondent-defendant in written replies adopted 
stand contrary to documents relied upon by rival parties -
Number of documents not mentioned by appellant-plaintiff in 
the dispute case relied upon by respondent - Held: Arbitrator 
recorded his findings in the award not only on the pleadings 
C includ

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