BAI FULI Vs. TATARPURA NO 2 TALUKA VADODARANI VIVIDH KARYAKARI SAHAKARI MANDALI LIMITED

JUDGEMENT

(1.) The petitioner-plaintiff challenges in this petition the order of Gujarat State Co-Operative Tribunal dated May 10 1966 by which the Tribunal has set aside the Registrars nominees award in favour of plaintiff and has dismissed the entire suit claim. The Tribunal has held that the payments were made by the society to Mangal Ishwar both under the authority of deceased and as nominee of the deceased and therefore the society had discharged its liability to the deceased. Deceased member Mathur Jibhai expired on March 3 1961 There were amounts to his credit in respect of cotton sold to the society by this member. There is no dispute as regards the first payment of Rs. 1200/which the nominee had found to have been made to the deceased himself on January 9 1961 The other payment which are in dispute are of Rs. 600/on February 5 1961 and Rs. 400/on March 3 1961 These payments have been made to Mangal Ishwar on the authority in writing of the deceased dated January 9 1961 at Ex. 89. The said writing mentions that as Mathur Jibhai was not keeping good health and he was disabled he authorised his nephew Mangal Ishwar to transact all dealings in his account and to sign on his behalf. The writing further states that the deceased had authorised by that writing Mangal Ishwar to sign on behalf of the deceased in respect of his account and whatever transaction (***) he would be doing would be binding on the deceased. It is true on 9th January 1961 the deceased has passed the receipt Ex. 79 for Rs. 1200/paid to him. Merely because authority was given to Mangal Ishwar the deceased himself was not precluded from receiving payment in his own right. From that receipt Ex. 79 it could not be held as was done by the Registrars nominee that there was no authority as per writing Ex. 89 in favour of Mangal Ishwar. The Co-operative Tribunal has discussed the entire evidence on this question and has believed this authority to be genuine. It was also natural in the circumstances of the case for Mangal Ishwar the nephew was acting on behalf of deceased who was an old man of 85 years. Therefore this finding of Co-operative Tribunal cannot be challenged in this writ petition. This Court can only consider the question of perverseness if the finding is unsupported by any relevant evidence. Mr. Patel was unable to make out any case of perverseness so far was this finding is concerned that these two payments of Rs. 600/and Rs. 400/on February 5 1961 and on March 3 1961 had been made to Mangal Ishwar on the authority Ex. 89 during the life-time of deceased. Mr. Patel in this connection only argued as regards the second payment of Rs. 400.00. It was done on the very same day when the deceased expired. The Co-operative Tribunal has pointed out that there was evidence on the record to show that the deceased died in the evening while the payment was taken away by Mangal Ishwar in the earlier part of the day. Therefore the said finding in respect of these two payments cannot be challenged. The material question which however arises relates to the three payments of Rs. 800/or 12th March 1961 as per receipt Ex. 85 Rs. 80/on 19th September 1961 as per receipt Ex. 87 and Rs. 75.77 on 10th November 1961 as per receipt Ex. 77. These are payments made to Mangal Ishwar. After the death of deceased the alleged authority Ex. 89 came to an end. Therefore these payments to Mangal Ishwar could be supported only on the alternative finding of Co-operative Tribunal that there was a valid nomination in his favour.

(2.) The Bombay Co-operative Societies Act 1925 herein referred to as the Act provides in sec. 27(1) that subject to provision of sec. 17A on the death of a member of a society such society may within a period of one year from the date of death of such member transfer the share or interest of the deceased to a person nominated in accordance with by-laws of the society or if there is no such nominated person to such person as may appear to the committee to be the heir or legal representative of the deceased member. Under sec. 27(2) the society shall subject to sec. 25 and unless prevented by order of the Court pay to such nominee heir or legal representative all other money due to the deceased member. Under sec. 27(3) such payments in accordance with sec. 27 shall be valid and effective against demand made against the society by any other person. Under Bye-law 20 the nomination paper should be singed by the member in the presence of two witnesses and the witnesses should sign it and such nomination paper should be registered in the register maintained for this purpose and handed over to the society. The nominee shall derive his rights after he is entered as member. Rule 21 of the Bombay Co-operative Societies Rules 1927 which are also applicable to the present case provides as under:-

(3.) Therefore relevant rule 21 contemplates nomination by the member by writing under his hand which has to be deposited during his life time or by a signed statement made in the society's books. It is only in this prescribed manner that nomination could be made of a nominee as required under sec. 27. Requirement of by-law 20 is also in the same terms that the nominee paper should be signed by the member in the presence of two witnesses and the witnesses should sign it and such nomination paper should be registered in the registrar maintained for this purpose and handed over to the society. Now both under the relevant rule 21 or by-law 20 what is contemplated is a personal autograph of the member concerned who wants to nominate another person to receive his share or interest or his dues. This provision has to be strictly construed. The safeguard is enacted in order that members interests may be duly protected from any indiscriminate nomination which may be prejudicial to the interest of heirs. The society's by-laws have provided for such a personal autograph by laying down in bye-law 20 that the nomination paper must be signed by the member and such signature must be made in the presence of two witnesses who shall also sign it. There is further formality of nomination paper being registered in the register maintained for the purpose and handed over to the society.