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TMI Blog1981 (6) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... his death all the heirs of vishnu became interested in the estate and in ascertainment of what property goes to whom on his death. The suit, therefore, could not have been filed without all the heirs being on record inasmuch as the suit really involves a question of title to the property of the deceased. The suit, therefore, ought to have been dismissed on that gound alone. However, other points hereinafter decided have been argned exhaustivey on both sides and it is but fair that I should decide them also. 3. The plaintiff's contention is that by virtue of S. 30 of the Maharashtra Co-operative Societies Act, 1980 r./w. Rule 26 framed under the said Act and Bye-law 16 (1) of the society a nominee acquires title to the shares and the property to the exclusion of all the heirs of the deceased and that with the resuit the plaintiff has become owner of the property and the defendant has not title or interest in the property and is liable to be evicted. It is contended that in any event the nomination paper having been witnessed by two witnesses and all the other formal requirements of a will having been complied with it should be treated as a will and in that circumstance also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the society, invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice. (Ii) After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as the committee considers proper in the circumstances prevailing, the committee shall decide as to the person who in its opinion is the helf of the legal representative of the deceased member and proceed to take action under S. 30. Bye-law 16 of the Housing Society reads as follows:- 16. Transmission of Interest: (1) How nomination is to be made:- A member may, by a writing under his hand deposited with the Society during this life time or by statement made in any book kept thereat nominate any person to whom under Sec. 22 of the Act his share or interest in the Society or so much thereor as is specified in such nomination shall be transferred at his decease, of the moneys referred to in S. 22(2) of the Act or so much there of as is specified in such nomination shall be paid. (2) How it is to be revoked or varied :- A nomination so made may be revoked or varied by any similar writi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided by the society is only meant to provide for interregnum between the death and the full administration of the estate and not for the purpose of conterring any permanent right on such a person to a peoperty forming part of the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. The idea of having this section is to provide for a proper discharge to the society without involving the society into unnecessary litigation which may take place as a result of dispute between the heirs or uncertainlty as to who are the legal heirs or representatives. This being the position, the contention of Mr. Naik cannot be accepted. Even when a person in nominated or even when a persons is recognised as an heir or a legal representative of the persons who are entitled to the estate of the interest of the deceased member by virtue law governing succession are not lost and the nominee or the heir or the legal representative recognised by the society, as the case may be holde the share and interest of the deceased for disposal of the same in accordance with law. It is only as between the society and the nominee or heir or legal repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er brother Ramchandra was not a party to these proceedings. Ramchandra filed a suit from which the said appeal arose in the Court of Civil Judge, Junior Division, Poona, challenging the award mainly on the ground that he was not made a party to the proceedings before the arbitrator even though he was entitled to the plot as a legatee under the will. Decree was passed against the society which was society it was contended that (1) disposition of the plot made by Vishnu was not binding on the society (2) the executors of the will themselves made an application to substitute the name of jaywant in place of Vishnu and the society had acted on the basis thereof (3) that in accordance with the bye-laws of the society as well as provisions of Sec. 27 of the Bombay Co-operative Societies Act, the transfer in favour of Jaywant made by the society was valid and effective against the plaintiff who was not a member of the society. Other pleas were also raised. It was further contended un behalf of the appellant that (I) of passing of the resolution by the society it was only laywant who had a right to the property and that Ramchandra had no right in respect of the property, (ii) without being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the society. (C) The judgment then proceeds to say that in view of the fact only a member can claim interest in the property, the plaintiff had no cause of action against the society. 8. The ratio of the judgment therefore is that it is only a person who is a member of the society that can claim a right against and in respect of the property of the society. However, the right of a society to admit a person of its choice as a member cannot be exercised arbitrarily and so as to deprive a person of his right to the shares or property of a deceased member. The law does not give a right to the society to continue as member or to refuse membership to a person who is entitled to become a member. To put it differently, a society cannot arbitrarily refuse to make person a member. It is for this very reason that the provision is made in the Co-operative Societies Act for an appeal to the Registrar in case society refuses to accept any person as a member. Therefore in my view, this judgment does not take any view which is contrary to the view that I am taking. To repeat a society has a right to admit a nomince of a deceased member or an heir or legal representative of a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the requirements of a valid Will and should be construed to be a Will. He contends that even though it may be described as a nomination paper i.e., 'Varas Patra' looking to the tenor thereof, it is really a will. This contention of Mr. Naik is without any substance. It is well settled that a document can be said to be a Will only when it is executed with an intention to regulate succession after death. There must be animus testandi. It is true that in construing a document. The nomenclature given to the document is not to be given too much importance and what is of importance is that intention as disclosed by contents and surrounding circumstances. However, in the present case the nomenclature completely corresponds to the contents and the intention and by no stretch of imagination this nomination from can be said to be a will. The only similarity between a will and this nomination form is that a Will has to be witnessed by two persons and the nomination paper is witnessed by two persons. The law permits the nomination of such number of persons as a member may desire and requires witnessing only be one perons. The nomination from in thepresent case is a cycloslyled from w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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