Author: Debasis Guin, Advocate High Court, Calcutta.
Whether in the event a member of a co-operative Housing Society, died intestate leaving` behind surviving him his legal heirs and representatives and all the legal heirs and representatives of the deceased member, nominated one of the legal heirs, and requested the Society to transfer the share and interest of the deceased member in accordance with the provision of section 70 of the West Bengal Co-operative Societies Act. 2006 the Society is bound to transfer the share and interest in respect of the flat of the society of the deceased member to the nominated legal heirs and representatives of the deceased member, without obtaining Probate, letters of administration, succession etc.
In view of the statutory provision of the West Bengal Co- Operative Societies Act,2006 and in view of several decisions of the Hon’ble Apex Court, the Society is bound to transfer the share and interest of the deceased member in respect of the apartment of a co- operative Housing Society in West Bengal in view of the discussions made below:
Section 70 of the West Bengal Co-operative Societies Act, 2006 made provision for disposal of deceased member’s share or interest which is quoted below: –
“70. Disposal of deceased member’s share or interest – (1) One the death of a person who is a member of co-operative society, his share or interest in the co-operative society shall, subject to the provisions of Sections 58 and 72 and to the further provisions of this section, be transferred –
(a) to the nominee e, if any; made under section 76; or
(b) if there is no nominee or if the existence of residence of the nominee cannot be ascertained by the board or if for any other reason, the transfer cannot be made within one year from the date of death, to the person who(subject to the production by such person of probate, letter of administration or succession certificate issued by a competent court having jurisdiction) appears to the board to be entitled the possession of such share and interest as per the estate of the deceased member; or
(c) on the application of the person referred to in clause (b), within one year from the date of death of the member to such person as may be specified in the application.
(2) If the share or interest of a deceased member cannot be transferred in accordance with the provision of sub-section (1) or if the person to whom such share or interest is payable under that sub-section claims payment of the value of such share or interest if the co-operative society in accordance with its by-laws decided to proceed under this sub-section –
(a) the share shall be transferred to a person qualified to be a transferee of the share under section 72 on receipt of the value of the share from such person; and
(b) the value of the share or the interest of the deceased member determined in accordance with its by-laws shall be paid to the person nominated under section 76 or to the person referred to in clause(b) of sub-section (1) of this section after deducting the amount playable under this Act to the co-operative society from the estate of the deceased member.”
In section 70(1)(b) provides that if there is no nominee or if the existence or residence of the nominee cannot be ascertained by the board, or if the nominee does not claim possession of such share and interest and if for any other reason the transfer cannot be made within one year from the date of death, to the person who (subject to production of such person of probate, letter of administration, succession certificate issued by competent court having jurisdiction) appears to be board to be entitled to the possession of such share and interest as per of the estate of the deceased member, or
(c) on the application of the person referred to in clause (b), within one year from the date of death of the member to such person as may be specified in the application.
So, from the above provision of section70(1)(b) of the said Act it clearly postulates that if there is no nominee or existence of the residence of the nominee cannot be ascertained by the board or if the nominee does not claim of such share or interest or if for any other reason the transfer cannot be made within one year from the date of death. In such event in case a will of the deceased member a probate is required to be made and in case of any the absence of an executor of a will the beneficiary applied for probate, letter of administration is to be required or in case of any movable property, the succession certificate is required to be submitted and as such if no will is made by the deceased member or no movable property is required to be transferred, in such event, if one of the legal heirs nominated by other legal heirs of the deceased member, applied within one year from the date of death, it is mandatorily transfer the share and interest of the deceased member in favour of the nominated persons being legal heirs of deceased member, by the Society.
The question is whether probate, letter of administration or succession certificate as provided in clause (b) of sub section (1) of section 70 of the said Act is require .The answer is that if there is no will made by the deceased member question of probate does not arise at all or when there Is no will the question of any executor does not arise at all so letter of administration is not required as letters of administration only required while a will is made and in absence of executor the beneficiary applied for probate in such case letters of administration is required . Further when no moveable property has been transferred, question of succession does not arise at all, as succession is required in respect of movable properties.
Further In a Judgment reported in 2005(1) CHN 281 in the case of Parul Sengupta -vs The Registrar of Co-operative Societies. The Hon’ble High Court, Calcutta held:
“at this juncture it is our duty to point out that in section 80(of the said Act there is a requirement to produce, probate, letter of administration or succession certificate. In case a person died leaving a will, probate may be granted to the executor of the will provided he applied for the same. In absence of an executor applying for probate on the application of a beneficiary under the will letter of administration may be granted. A will may deal with moveable property as well as immovable properties or any of them. In relation to immovable properties no succession certificate can be had. That act only for had in relation to immoveable properties and not particular in relation to payments due to the estate of the deceased of their authorities. If a person died intestate, on his death his heir become by operation of law stands owner of the property of the deceased member, in such view of the matter it appears that while framing the section 80 of the 1983 Act the legislature so far as considering the interest of a member of other co-operative societies but of the Housing Society.”
That similarly the Hon’ble Supreme Court in the case of Gayatri Dey vs Mousumi Co-operative Housing Society Ltd. reported in 2004(5) SCC 90 while dealt in a similar case under the 1983 Act clearly held
“section 80 of the1983 Act dealt with that the disposal of the deceased member’s share or interest in clause (b) of sub section (1) of section 70 of the said Act speaks that if there is no nominee or if the existence or resident of the nominee cannot be ascertained by the board or if the nominee does not claim possession of such share or interest or if for any other reason, the transfer can be made without reasonable delay to the person who appears to the board to be entitled in accordance with rule possession of such share or interest as ,per of the estate of the deceased member; or on the application of the person referred to in clause (b),within Three months from the date of death of a member to the person as maybe specified in the application which clearly indicates that while disposing of the share or preferential claim to the heir and legal representative of the deceased member in absence of any nominee section 80(b) of the 1983 Act is very specific that notwithstanding anything contained elsewhere in this act or any other law for the time being in force when a membership of a member of a cooperative society referred to in clause (a) terminates by reason of death or any other cause his possession of or interest in and land held by him under cooperative society shall vest in his heir or any person, if any nominated by him under section 76 if such heirs is willing to be admitted as member of the society.
Section 80(c) of the 1983 Act makes it clear that on the death of a member of the Society his share or interest in the society shall be transferred on the application of the person referred to in clause (b) within 3 months from the date of death of the member of such persons as may specified in the application. Therefore, transfer of share or interest can be made only by the society and not by the legal heirs because if it is read by a Co-operative Society after the word “transfer” the meaning and application becomes clear which means that it is an obligation of the society to transfer the share or interest of the decease member.”
That the aforesaid case is similar to the present point at issue only the said case relates to the provision of the West Bengal Co-operative Societies Act 1983 and now the New West Bengal Co-operative Societies Act , 2006 come into force but the provision relating to the issue in question are same and identical .As in the 1983 Act provision for disposal of deceased member’ share or interest was provided in section 80 and now in the 2006 Act it has been provided in Section 70 and in the previous Act of 1983 in clause (b) of Section 80 the time limit was three mo0nths but in the New Act of 2006 in section 70(b) the time has been provided for one year otherwise the section 80 of the 1983 act and section 70 of 2006 act are parimateria, same and identical.
So from the aforesaid legal provision as well as the verdict of the Apex Court which is binding upon all ,in view of the Article 141 of the Constitution of India such decision makes it a law, accordingly, if all the legal heirs of the deceased member nominate the person by submitting “no objection” from other legal heirs of the deceased member, if there be any, applied to transfer share and interest in respect of the Apartment and /or flat and/or plot of land to the nominated persons, within one year from the date of death of the member, it is the obligation on the part of the co-operative society to transfer the share and interest of the deceased member in favour of one of the legal heirs of the deceased member as nominating by other legal heirs of the deceased member and in such case question of probate, letter of administration and succession does not arise at all. The question of probate, only arise in the event the deceased member made a will and such probate, is required to be obtained by the executor and in the event because of absence of executor, if the beneficiary, applied for probate in such case letter of administration is required and in the event there is moveable property in such event succession certificate is necessary and in respect of immoveable property no succession certificate is necessary.
So in view of the above discussions and in view of the provision of the West Bengal Co -operative societies Act,2006 and the Rules made thereunder and in view of several decisions of the Hon’ble High Court, Calcutta and Hon’ble Supreme Court according to me the Society is bound to transfer the share and interest of the deceased member upon the nominated legal heirs of the deceased member, if application is made within one year from the date of death of the member and upon compliance with all formalities as regards his membership of the society instead of the deceased member.
___________________________________________________________________
