9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (8) TMI 1111 - SC - Indian LawsOwnership of flat - Flat transferred in the name of Respondent with the consent of Appellant - Arbitrator gave decision in favour of Appellant - Co-operative Tribunal and High Court decided against her - Held that - The reason for transferring flat no. 5D indicated in the letters dated 11.11.1992 and 13.11.1992 was on account of the close relationship between Pratima Chowdhury and Kalpana Mukherjee - As a matter of fact, there was no close relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury, is indicated to have been living in Bombay and never visiting Calcutta. Kalpana Mukherjee is a resident of Calcutta, who was in employment at Calcutta, and had started to reside with her son Partha Mukherjee, after he moved to Calcutta alongwith his wife Sova Mukherjee. There was no direct relationship between Pratima Chowdhury and Kalpana Mukherjee. Pratima Chowdhury s niece Sova Mukhrjee was married to Partha Mukherjee, son of Kalpana Mukherjee. The only relationship that can be assumed, is of aunty and niece, between Pratima Chodhury and Sova Mukherjee. If on account of love and affection, for her niece, Pratima Chowdhury desired to transfer flat no. 5D which she had purchased for a consideration of ₹ 4 lakhs, she would have done so by transferring it to the name of her niece Sova Mukherjee. - It is, therefore, improper for the adjudicating authorities to have accepted the factum of close relationship of the parties, in so far as, the transfer of flat no. 5D, is concerned. There is hardly any justification for having accepted another important factual position depicted in the letters dated 11.11.1992 and 13.11.1992 - In the written reply filed before the Arbitrator, Kalpana Mukherjee took the express stance, that Pratima Chwodhury had transferred flat no. 5D to her name, by accepting a consideration of ₹ 4,29,000/-. She further asserted, that the aforesaid consideration had passed from Kalpana Mukherjee to Pratima Chowdhury through Partha Mukherjee. According to Kalpana Mukherjee, Partha Mukherjee transferred shares in his name valued at ₹ 4,29,000/-, to the name of Pratima Chowdhury. Per se therefore, even Kalpana Mukherjee denied the factual position indicated in the above letters, whereby flat no. 5D was transferred from the name of Pratima Chowdhury, to that of Kalpana Mukherjee. One would have appreciated the recording of consideration in lieu of the transfer of property from the name of Pratima Chowdhury to that of Kalpana Mukherjee, to avoid future complications, rather than withholding the same. It is clearly not understandable, what kind of complications were being avoided. Expressing the above factual position in the letters under reference, makes the whole transaction suspicious, mistrustful and possibly fraudulent too. In the absence of any relationship, the party benefiting from the letters dated 11.11.1992 and 13.11.1992, would have successfully avoided all complications merely by incorporating consideration, which was to pass from Kalpana Mukherjee to the transferee Pratima Chowdhury - One is prompted to record herein, that it was not legitimately open to the parties to record in the letters under reference, that flat no. 5D was being gifted by Pratima Chowdhury to Kalpana Mukherjee, on account of lack of proximity between the parties. The transfer of the said property by one to the other, by way of gift, would obviously have been subject to judicial interference, as the same would at least prima facie, give the impression of dubiety. It was therefore, that Kalpana Mukherjee hastened to adopt a different factual position in her written reply before the Arbitrator. Partha Mukherjee did not even have the shares referred to by the transferee Kalpana Mukherjee, in his name, when the transfer documents were executed on 11.11.1992 and 13.11.1992, or even on 14.2.1993 when the Board of Directors of the Society, passed the transfer resolution. The above shares are shown to have been transferred to the name of Pratima Chowdhury on 16.12.1994. Well before 16.12.1994, even according to the stance adopted by Kalpana Mukherjee, Pratima Chowdhury had executed all the transfer documents. It is therefore difficult to accept, that the parties had agreed to pass on consideration by transfer of shares, which were not even owned by Kalpana Mukherjee (through Partha Mukherjee) on the date of transfer of flat no. 5D from Pratima Chowdhury to Kalpana Mukherjee. In sum and substance therefore, on undisputed facts, the stance adopted by Kalpana Mukherjee in the written statement filed by her before the Arbitrator, is shown to be false. There was substance in the determination of the Arbitrator, specially on account of the fact that transfer of shares from the name of Partha Mukherjee to the name of Pratima Chowdhury came to be effected, well after the transfer of flat no. 5D to the name of Kalpana Mukherjee. For the above reason as well, the findings of fact recorded by the Co-operative Tribunal as well as by the High Court, are bound to be considered as having been recorded without taking into consideration all the material and relevant facts. Society sought the approval of the Deputy Registrar, Co-operative Societies for the transfer of membership, as also, flat no. 5D to the name of Kalpana Mukherjee on 13.3.1995. Undoubtedly, Pratima Chowdhury had sought revocation, before the transfers under reference had assumed finality. It is in the above background, that one needs to evaluate the reply of the Society dated 10.4.1995. Through the letter dated 10.4.1995, Pratima Chowdhury was informed, that the Society had no authority to look into the matter, after the resolution of the Board of Directors dated 2.4.1995. We find the above explanation, untenable. It was imperative for the Society to have examined the withdrawal letter dated 28.2.1995, the matter certainly had not been concluded. Well after the withdrawal letter, the Society by its notice dated 16.4.1995 had intimated its members, about the resolution dated 2.4.1995. The matter was, therefore, pending authoritative conclusion. When the letter dated 22.3.1995 was addressed to the Deputy Registrar, Co-operative Societies, it had not yet granted approval to the recommendations made by the Society. The receipt of the letter dated 28.2.1995, by the Society (as also the receipt of the letter dated 22.3.1995, by the Deputy Registrar, Co- operative Societies) is not in dispute. It is imperative for us therefore to conclude, that the decision taken by the Deputy Registrar, Co-operative Societies was, without reference to the withdrawal letter dated 28.2.1995 (which was enclosed with the letter dated 22.3.1995 addressed to the Deputy Registrar, Co-operative Societies). The determination by the Deputy Registrar, Cooperative Societies, cannot therefore be treated as a valid and legitimate consideration. Acceptance or rejection on merits is another matter, but non-consideration is just not understandable. Undoubtedly, if the documents relied upon by Kalpana Mukherjee were genuine, Partha Mukherjee would not have acknowledged the ownership of Pratima Chowdhury over flat no. 5D (on 28.10.1993). These aspects of the matter were totally overlooked by the Co- operative Tribunal, as well as, by the High Court. These were vital facts, and needed to be examined, if the order passed by the Arbitrator was to be interfered with. In the absence of such consideration, the findings of fact recorded by the Co-operative Tribunal and by the High Court, are bound to be considered as perverse. Since the factual position attributed to the actions of 21.10.1993 and 28.10.1993, which emanated and emerged from Kalpana Mukherjee and Partha Mukherjee respectively, we are of the view that entire sequence of transfer, is rendered doubtful and suspicious. Based on the letter dated 11.11.1992, and the document dated 13.11.1992, flat no. 5D was transferred to the name of Kalpana Mukherjee. The instant transfer however did not include the covered garage space. Thereafter, based on an agreement executed between Kalpana Mukherjee (on the one hand), and the Society (on the other), the said covered garage space was transferred to the name of Kalpana Mukherjee, on 25.4.1995. The said transfer was not at the behest of, or with the concurrence of Pratima Chowdhury. - Co-operative Tribunal as well as the High Court, seriously erred in recording their conclusions. We are satisfied in further recording, that the Arbitrator was wholly justified in allowing the Dispute Case filed by Pratima Chowdhury, by correctly appreciating the factual and legal position. Order dated 16.5.2002 passed by the Co-operative Tribunal, and the order dated 14.2.2006 passed by the High Court, are hereby set aside. The determination rendered by the Arbitrator in his award dated 5.2.1999, is hereby affirmed. Kalpana Mukherjee is directed to handover the possession of flat no. 5D to Pratima Chowdhury, within one month from today. The Society is also directed to retransfer the shares of the Society earlier held by Pratima Chowdhury, and the ownership rights of flat no. 5D to the name of Pratima Chowdhury, without any delay. - Decided in favour of Appellant.
Issues Involved:
1. Validity of the resignation and transfer documents dated 11.11.1992 and 13.11.1992. 2. Whether consideration was paid for the transfer of flat no. 5D. 3. Compliance with the West Bengal Co-operative Societies Act and Rules. 4. Whether the doctrine of estoppel applies. 5. Fiduciary relationship and undue influence. 6. Validity of the transfer of the covered garage space. Issue-Wise Detailed Analysis: 1. Validity of Resignation and Transfer Documents: The Arbitrator concluded that the letter dated 11.11.1992 and the document dated 13.11.1992 were suspicious. The letter was in Partha Mukherjee's handwriting, and Pratima Chowdhury was in Bombay on the dates the documents were allegedly executed in Calcutta. The Co-operative Tribunal and High Court did not adequately address these suspicious circumstances, leading to a conclusion of invalidity. 2. Consideration for Transfer: Kalpana Mukherjee claimed that the flat was transferred for Rs. 4,29,000, paid through shares transferred by Partha Mukherjee to Pratima Chowdhury. However, the Arbitrator found that the shares were acquired after the transfer documents were executed, undermining this claim. The Co-operative Tribunal and High Court's stance that consideration was inconsequential was incorrect, especially in light of the fiduciary relationship. 3. Compliance with West Bengal Co-operative Societies Act and Rules: The Arbitrator found multiple violations of the Act and Rules, including Sections 85(9), 69, 70, and Rules 127(1), 135(3)(a), and 142(1). The Co-operative Tribunal and High Court overlooked these violations, which were critical to the legality of the transfer. 4. Doctrine of Estoppel: The Co-operative Tribunal and High Court applied the doctrine of estoppel, preventing Pratima Chowdhury from retracting her transfer request. However, the Supreme Court found that the elements of estoppel were not met, as there was no representation by Pratima Chowdhury that Kalpana Mukherjee relied upon to her detriment. 5. Fiduciary Relationship and Undue Influence: The relationship between Pratima Chowdhury and Partha Mukherjee was fiduciary, with Partha in a domineering position. The burden of proving the fairness of the transaction lay with Kalpana Mukherjee, who failed to do so. The Arbitrator's findings of undue influence were supported by evidence, which the Co-operative Tribunal and High Court failed to consider adequately. 6. Transfer of Covered Garage Space: The covered garage space was not mentioned in the transfer documents but was later transferred to Kalpana Mukherjee without Pratima Chowdhury's approval. The Arbitrator found this transfer invalid, a conclusion overlooked by the Co-operative Tribunal and High Court. Conclusion: The Supreme Court found that the Co-operative Tribunal and High Court erred in their conclusions, failing to consider material facts and the fiduciary relationship. The Arbitrator's award was reinstated, directing Kalpana Mukherjee to hand over possession of flat no. 5D to Pratima Chowdhury and the Society to retransfer the shares and ownership rights to Pratima Chowdhury.
|
