Whether Bye-laws have Statutory Force in Gujarat

By Gujarat Bureau

The question came up for consideration before Hon’ble Gujarat High Court in the case of Lambha
Vividh Karyakari Seva Sahakari Mandli Ltd., Ahmedabad & Ors. v. District Registrar, Rural & Ors.,
reported in 1973 GLR 786. in which Hon’ble High Court has held by reading Sec. 28(9), 64 & 74 of
Bombay Co-operative Societies Act 1925 that the formation of managing committee and the voting
rights of the member to be regulated by the bye-law of the society, and therefore, bye-laws, which are
required to be registered and part of the status. It was further held in this judgment: -Therefore to the
extent that these bye-laws are in terms referred and cited in any provisions of the Act, they are rewritten in the Section and the Section could not be read without the language of the bye-laws: being rewritten therein. Therefore, it was held by Hon’ble Court that the bye-laws have statutory force and be
enforced by writ petition under arts. 226 and 227. This decision was also followed in the judgment
reported in 1975 GLR 1058, wherein the rejection of nominations was held to be illegal by Hon’ble
High Court by enforcing the bye-laws under writ Jurisdiction. However, the above view of the
judgment reported in 1973 GLR 786 was dissented in the case of Rajabhai Ranmal Meri & Ors. v.
Members of the Managing Committee of Shri Puna Taluka Sahakari Khan’d Vechan Sangh Ltd. & Ors.,
reported in 1976 GLR 583. Hon’ble High Court in this judgment held that the bye-laws made by cooperative societies have their origin in contract and such bye-laws could not be enforced by a writ
under Art. 22G or Art. 227. It was held that they do not have the force of a statute and law like Article;
of Association of a Company, they constitute a contract between the parties. Therefore, such bye-laws
of a co-operative society could not be enforced by a writ of the High Court under Art. 226 or Art. 227
of the Constitution. In this judgment in para 4, an extract from reported judgment of AIR 1970 SC 245
is incorporated and the relevant portion is reproduced herein below:
” we are unable to accept the submission that the bye – laws of co-operative society framed in
pursuance of the provision of the Act can be held to be law or to have the force of law. It has no doubt
been held that if a statute gives power to a Government or other authority to make rules, the rules so
framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That
principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered
by the Act to make the bye-laws that are contemplated by the Act can be merely those which govern the
internal management, business or administration of a society. They may be binding between the
persons affected by them, but they do not have the force of a statute.”
In the same judgment, para 7 refers a Division Bench judgment of Hon’ble Gujarat High Court tin
S.C.A. NO.1005 of 1965 and 1531 of 1965 decided on April 24-25, 1972 in the case of The Gujarat
State Co-operative Bank Ltd. v. Ahmedabad District Bank’s State Union & Ors. In AIR 1984 SC 192,
para 15, it was held that “they are neither statutory in character nor they have statutory flavour so as to
be raised to the status of law.” The importance by bye-laws diluted by the above decisions was raised to
its right level in case of Rajkot Nagrik Sahakari Bank Ltd. reported in 1977 GLR 692. In this judgment,
it was held that High Court has powers to issue writ of certiorari under Art. 227 and not a writ of
mandamus under Art. 226 enforce a bye-law. It was held that the erroneous Legal proposition, which is.
the basis of its decision by misreading the bye-laws can be interfered by a write of certiorari under Art.
227. The same view is again taken in Ranuj Nagrik Sahakari Bank Ltd. by Hon’ble Gujarat High Court
In decision reported in 1996(1) GHL 753. Therefore, the bye-laws when they are registered can’t be
misread while taking a decision. The erroneous decision of the Registrar or the Nominee based on
misreading of bye-law is an error of law and can be interfered with by Hon’ble High Court by a writ of
certiorari under Art. 227.”

Mere membership of a deceased member of a housing society can be inherited by nominee?: Delhi High Court

By Delhi Bureau

SUBJECT : Delhi Cooperative Societies Act, 1972
Writ Petition (Civil) No. 4209 of 2001
Judgment reserved on: April 20, 2009
Judgment delivered on: May 08, 2009
Swayam Sidha Cooperative Group
Housing Society
6, Bhagwan Dass Road
New Delhi.
Through its Joint Administrator:
Ms. Vidya Prabhadayal
Col. B. Kumar (Retd.) Petitioner
Through Ms.Rachna Joshi Issar with
Mr.Shailendra Kumar, Advs.
1. The Financial Commissioner, Delhi
5, Shamnath Marg
Civil Lines
2. The Registrar, Cooperative Societies
Government of N.C.T. of Delhi
Old Court Building, Parliament Street
New Delhi-110001.
3. Sh. R.S. Bairva
S/o Late Shri Kana Ram
R/o Flat No. 92 (Type-II)
Gandhi Sadan, NDMC Flats
Mandir Marg, New Delhi.
4. Ministry of Employment, Social
Welfare, Labour and Scheduled Caste
& Scheduled Tribes
Government of N.C.T. Delhi
New Secretariat
I.P. Estate, New Delhi. Respondents
Through Ms. Sujatha Kashyap, Adv. for
Respondent No. 1.
Ms.Indrani Ghosh, Adv. for LRs of
Respondent No. 3.
1. The question for our consideration is whether the mere membership of a deceased member
of a cooperative group housing society can be inherited by his nominee, who is otherwise ineligible
to be a member of that society. Our answer to this question is in the negative in view of the
decision of the Supreme Court in Gayatri De v. Mousumi Cooperative Group Housing Society &
Ors., AIR 2004 SC 2271.
2. The Petitioner is a cooperative group housing society and one of its objects is to acquire
land on lease for development from the slum wing of the Delhi Development Authority and
construction of residential houses or flats for allotment to its members. The membership of the
Petitioner-Society is restricted only to widows having an income which does not exceed Rs.1,500/-
per month from all sources.
3. The mother of Respondent No. 3, Smt. Ganesh Devi, was a widow who satisfied the
eligibility requirements for membership as per the Bye-Laws of the Petitioner-Society. As such,
she was made a member of the Petitioner-Society. However, before she could be allotted a flat, she
passed away leaving her son (Respondent No. 3) as her nominee.
4. Respondent No. 3 sought to take over the membership rights of his deceased mother but the
Petitioner-Society did not accept his membership since he was not eligible.
5. On these broad facts, Respondent No. 3 filed Complaint No. 2471/1992 before the
Consumer Dispute Redressal Forum (District Forum-II). By an order dated 13th July, 1994, the
District Consumer Dispute Redressal Forum came to the conclusion that Respondent No. 3 was not
eligible to be a member of the Petitioner-Society and, therefore, his complaint was devoid of any
merit. We are told that the order passed by the District Consumer Dispute Redressal Forum has
attained finality.
6. Not being satisfied with the above decision, Respondent No. 3 raised a dispute before the
Registrar, Cooperative Societies claiming membership of the Petitioner-Society. We are not
concerned with the first round of litigation that took place before the Registrar but eventually by an
order dated 30th November, 2000 (passed in the second round) the Registrar came to the
conclusion that Respondent No. 3 was entitled to step into the shoes of his deceased mother and
was, therefore, entitled to membership of the Petitioner-Society.
7. Feeling aggrieved, the Petitioner-Society filed a revision petition under Section 80 of the
Delhi Cooperative Societies Act, 1972 being Case No. 24/2001-CA. The revision petition came to
be dismissed by the Financial Commissioner by the impugned order dated 15th February, 2001.
8. The only contention urged before us by learned counsel for the Petitioner is that
membership of the Petitioner-Society was restricted to widows who have an income of less than
Rs.1,500/- per month from all sources. Respondent No. 3 is not a widow (being a male) and is also
earning well over Rs.1,500/- per month as a bank official. The purpose of setting up the Petitioner-
Society was to assist indigent and homeless widows and Respondent No. 3 does not fall in this
category by any stretch of imagination. On the other hand, the submission of learned counsel for
Respondent No. 3 was that her client was entitled to step into the shoes of his deceased mother
being her nominee, and he was merely seeking to enforce this entitlement that was available to him.
9. In our opinion, the dispute is really covered by the decision of the Supreme Court in Gayatri
De v. Mousumi Cooperative Housing Society Ltd.& Ors, AIR 2004 SC 2271. There are in fact two
situations that can arise in a case such as the present. The first is where the deceased member has
not been allotted any plot or flat and is merely a member of a society. The second situation is
where a deceased member has been allotted a plot or flat by virtue of his or her membership of a
10. In the first situation as mentioned above, there is no interest of a deceased member that can
devolve on a nominee. It is merely a membership of a society and this cannot be termed as the
estate of the deceased which can be inherited by the legal heirs of the deceased. A somewhat
parallel situation would be a membership to a club or an association. The death of a member of a
club or an association does not confer any entitlement on any of his legal heirs to membership of
that club or association. In the second situation the allotment of a plot or flat is an interest that can
devolve upon the legal heirs of a deceased. This is what has been held in Gayatri De. We may
note that we have followed Gayatri De in a recent decision rendered by us in Manmohan Nath N.
Puri (Deceased) through L.Rs. v. Shri Madan Jha and Ors. (WP(C) No.182/1990 decided on 18th
March, 2009). In another Division Bench decision being Pran Nath Mallick v. Dr. Netar Prakash
Mallick & Ors., 2000 III AD (Delhi) 843, a Division Bench dealt with the second situation
mentioned above and concluded that after allotment is made, legal rights get vested in the member
and the society cannot stop inheritance of those rights on the legal heirs of the deceased on the plea
that such a person is not a member of the society. Of course, this decision would not be applicable
to the first situation that we are concerned with but is being mentioned only to indicate the two
distinct situations that can arise.
11. In view of the above, in our opinion Respondent No.3 could not succeed to the mere
membership of his deceased mother, more particularly on the facts of this case because Respondent
No.3 did not satisfy the eligibility conditions laid down in the Bye-Laws of the Petitioner-Society.
We may note for the record that learned counsel for the Petitioner contended before us that the
decision of the District Consumer Dispute Redressal Forum having attained finality, Respondent
No.3 is bound by that decision and cannot agitate the claim all over again in a different forum. We
are not going into this aspect of the matter because even otherwise on merits we are of the view that
the impugned orders passed by the Registrar, Cooperative Societies and the Financial
Commissioner are not sustainable in law.
12. The writ petition is allowed. No costs.

Divorce will dissolve the WILL


Q.1 What is a Will and the benefits of making one?
Ans: A WILL is a written document in which you provide for:-
a. The administration of your estate/assets when you die; and
b. The distribution of your possessions in specific proportions to specific people whom you wish to have a share of your estate/assets;
c. Appoint a person or persons of your choice to administer your estate; and
d. Appoint a guardian or guardians for your infant children (if any).
In other words it a document where you direct, who is to receive your property upon your death. If you have any real property (land) or personal property (cars, jewelry, money) that you want to give to a specific person than you must have a will.

Q.2 Should everybody – working or non-working person, man or woman make a will? and What if you die without making a Will
Ans: “Where there’s a Will, there’s a way….Where there is no Will, there will probably be family bitterness/family disputes…” If people die without a WILL, then the law will decide to whom the property of the deceased person should go to.
Thus, every person whether working or non working , man or women should make a will.

Q.3 When should people make a will? At what age on an average?
Ans: Every adult, no matter what age, should have a Will. Most preferably a person above the age 50 should have a will. And while making a Will a person must be of sound mind.

Q4 How do they make this will? Is there a process to making a will? What kind of paper is to be used? What language do they write it in? Do they need other people to witness the will?
• No prescribed form for a Will; only needs to be signed and attested
• Can be in any language; no technical words need to be used
• Two witnesses must attest a Will; one preferably a doctor
• They should sign in the presence of each other and the person making the Will.
• In India, the registration of Wills is not compulsory
• The Will should provide for the appointment of executors, though not mandatory.
• No stamp duty is required to be paid for executing a Will.

Q.5 Where should they keep the will when they finish writing it? Should somebody in the family/or friends know where they have kept this paper/will?
Ans: Keep the original in a safe place where it may be found easily after your death. Leave a copy with the attorney who wrote it for you or with a copy with your family friend, CA or Advocate.

Q.6 Can a will be verbal like told to a person before death, or does it have to be written?
Ans: A Will has to be Written but a verbal will is permitted in Defence Personal. However, a verbal will is not valid if you have a valid, written will. If you have no written will, a verbal will can be valid with regard to any property you own, except land. Property that can be transferred under a verbal will includes stocks, bonds, cars, coin collections, jewelry and appliances. A verbal will is valid only if know you are dying and say what you want in your will to two competent, disinterested witnesses. The witnesses must put the will in writing and sign the transcription within ten days.

Q.7 We see lots of problems in families when the head of a family passes away without leaving a will. Is that true? Would things be easier if there was a will?
Ans: If you die without leaving a valid legal Will, you are said to have died ‘Intestate’. The law dictates who will inherit your Estate and in what proportions. The law also decides who will have responsibility for administering your Estate (your Personal Representatives). Such an decision may create a disputes and some family hurdles among the family members.

Q.8 Should you keep the contents of a will a secret? Or, can they be shared with people?
Ans: It is advisable to keep the contents of a will secret. However, it is not necessary to keep it secret, it depend upon person to person and case to case.

Q.9 A husband may leave a will should a wife also make a will? Or Can a Husband and Wife can make a Joint Wills?
Ans: No it is not possible to have a joint Will they must be individual Wills.
However “Mirror Wills” are quite common. A mirror Will is when a spouse or partner make almost identical Wills, or even identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary’s. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings!!!.

Q.10 Supposing a person makes a will leaving his/her assets and money not to family but to an outsider or perhaps to a charity – is this will to be honored?
Ans: Yes, basically a Will is a document that states or directs the will of the person, as to whom he/she wants his/her property to be handled after their death. So the person in whose name the assets are transferred can be any person a outsider or even an charitable trust etc.

Q.11 Wills are often contested by people. Can you enumerate three of the most common grounds on which they are contested?
Ans: Yes, Wills are often contested by peoples. Some common grounds on which wills are contested are as follows-
a) That the person was of not sound mind.
b) The Testator lacked testamentary capacity to sign a will.
c) The person was unduly influenced into signing a will/ a will is made under pressure.
d) The will was procured by fraud.
e) The Will is not signed before two witnesses.
f) The name of family members is not mentioned in will.

Q.12 Wills often result in bitterness in families and fragmentation – maybe somebody thinks they have not quite got what they wanted or lesser than the other person.
Ans: Yes, it might happen in various situations. In order to prevent such happening it is advisable to consult a lawyer which will help you to draft the will in the manner and giving the proper statements as to why only certain assets are given to a particular member instead of others.

Q.13 Have there been cases in which a will has been deliberately tampered with? Or, when maybe mentally unsound people have been fooled into making wills?
Ans: There are very few cases where the will has been deliberately tampered with or when the mentally unsound people have been fooled into making Wills.

Q.14 Can a person change a will he has already made?
Ans: You can change your will any time you want to. However, make sure that when you make a new will, you mention that this will is the latest and supersedes all earlier wills. If you don’t, it can complicate the situation, cause major confusion, make such matters go to the court of law and take several years before arriving at any final verdict
You can also make an additions to your will by signing a “codicil,” with all the formalities of a will. The codicil must be in writing, dated and signed by you and two witnesses. You cannot change a properly executed will by writing revisions into the will, even if you initial and date the changes. Such changes are valid only if they occur before the will is signed and witnessed. If major changes are needed, consider making a new will.

Q.15 What would you advise? Always make a will with a cool head, never in a rash or impulsive manner – what should be a person’s state of mind when they make a will?
Ans: A person should make a Will in a sound mind and should have the will Registered with the Registrar of Sub Assurances in presence of two witnesses registrar will also ask for Indentify proof, Doctor Certificate, Residential proof of person who makes Will, Identity proof of witness expenses are very nominal.

Q.16 Should they take the help of a lawyer when making a will or can they make it on their own?
Ans: The procedure of making a Will is very simple, if assets are few than the help of lawyer is not necessary but in case if the Assets are many and the family is big and if there is a possibility of disputes than it is advisable to take the help of the lawyer. As “Do-it-yourself” wills often do not contain all the necessary components as required by law and many times ruled as invalid by courts (for example no signatures from witness or no witness at all). Many a time, it can happen that while creating the will, you use such ambiguous language that it results in lengthy legal battles (“My House should go to Sunita.” Now if both mother and wife are called Sunita, which Sunita ought to get it?. Anyone who might benefit from the ambiguity of the will can jump in to claim a share! And if the courts decide in his/her favour, you won’t like that situation (not that, you’ll be around!).

Q.17 Does marriage / entering into a civil partnership affect my Will?
Ans: Yes, if you marry or enter into a civil partnership, your Will is revoked. This is because there is an assumption that you would wish to provide for your new spouse or civil partner. There is an exception to this rule if you have made your Will ‘in anticipation of’ marriage / entering a civil partnership. If you are in any doubt about this, consult your Solicitor for advice.

Q.18 Does divorce / dissolution of civil partnership affect my Will?
Ans: Yes, if you divorce or your civil partnership is dissolved, any Will you have made is revoked but only to the extent that your ex-spouse or ex-partner is referred to. For example, any appointment of your ex-spouse or ex-partner as an Executor or beneficiary is revoked. However, your Will may still be valid and, again, you should consult your Solicitor for advice.