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Bai Fuli Vs. Tatarpura No. 2 Taluka Vadodarani Vividh Karyakari Sahakari Mandali Ltd. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 108 of 1967
Judge
Reported inAIR1971Guj236; (1971)0GLR761
ActsBombay Co-operative Societies Rules, 1927 - Rule 21; Bombay Co-operative Societies Act, 1925 - Sections 9
AppellantBai Fuli
RespondentTatarpura No. 2 Taluka Vadodarani Vividh Karyakari Sahakari Mandali Ltd.
Appellant Advocate C.K. Patel, Adv.
Respondent Advocate S.B. Mazmudar, Adv.
Cases ReferredPuran Chand v. Monmotho Nath
Excerpt:
.....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 legal position in this connection is well settled. if the legislature in this case had intended that an illiterate mortgagor in this country should not enjoy the privilege of employing an amanuensis to sign his name, it seems to me that it would have expressed its intention by the introduction of some such words, in the section after the word 'signed' as 'personally' or 'with his own hand'.5. in the present case, the contrary intention was in terms expressed both by the rule-making authority in rule 21 as well as in the relevant by-law 20. rulemaking authority has enacted in rule 21 that the member must..........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 payments which are in dispute are of rupees 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.....
Judgment:
ORDER

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 Registrar's nominee's 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 payments which are in dispute are of Rupees 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 Rupees 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 Registrar's nominee that there was no authority as per writing Ex. 69 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 as this finding is concerned that these two payments of Rs. 600 and Rs. 400 on 5-2-1961 and on March 3, 1961 had been made to Mangal Ishwar on the authority Ex. 89 during the lifetime of deceased. Mr. Patel in this connection only argued as regards the second payment of Rs. 400/-. 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/- on 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 Section 27 (1) that subject to provision of Section 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 Section 27 (2) the society shall subject to Section 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 Section 27 (3) such payments in accordance with Section 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 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 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, provide as under:

'A member may, by writing under his hand deposit with the society during his lifetime, or by a statement signed by the member made in any book kept by the society, nominate any person to whom under Section 27, his share or interest in the society, or so much thereof as may be specified in such nomination, shall be paid or transferred on his death.'

3. Therefore, relevant Rule 21, contemplated nomination by the member by writing under his hand which has to be deposited during his lifetime 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 Section 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 register 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 of 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 by-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.

4. In the present case, Ex. 75, which is said to be nomination by the deceased Mathur Jibhai is neither signed nor bears the thumb impression of the deceased Ex. 75 only states 'Mathur Jibhai signed by Zaverbhai Lalubhai.' Therefore, there is no signature or the thumb mark of Mathur Jibhai at all. Signature is of Javerbhai Lallubhai who has signed for Mathur Jibhai. The material question which, therefore, arises is whether the signature of an agent would be a sufficient compliance with this mandatory Rule 21 or by-law 20 which requires signature or the writing under the hand of the deceased member. The legal position in this connection is well settled. In Deo Narain Rai v. Kukur Bind, (1902) ILR 24 All 319 (FB) the Full Bench of five Judges of Allahabad High Court had elaborately considered this question. Stanley C.J. considered this question and summarised the entire legal position at P-330 as under: -

'It appears to me upon these authorities to be indisputable that if there is no clear indication that the legislature intended that the signature shall be an autograph signature, the common law rule qui facit per alium facit per se should be applied. If the Legislature in this case had intended that an illiterate mortgagor in this country should not enjoy the privilege of employing an amanuensis to sign his name, it seems to me that it would have expressed its intention by the introduction of some such words, in the section after the word 'signed' as 'personally' or 'with his own hand'.

5. In the present case, the contrary intention was in terms expressed both by the rule-making authority in Rule 21 as well as in the relevant by-law 20. Rulemaking authority has enacted in Rule 21 that the member must himself by writing in his hand nominate a person or by a statement signed by such member, the nomination must be done. Similarly, in by-law 20 the nomination paper has to be signed by the member in the presence of two witnesses who shall also sign the same. In this context, expression 'sign' would clearly mean that signature should be made personally by the member or under his own hand. Rule 21 must be strictly construed. The expression writing under his own hand must mean what it says, and it cannot be interpreted as written by some other person as contended by Mr. Mazmudar relying on the aforesaid common law maxim. Mr. Mazmudar relied upon from the judgment of the Privy Council in Puran Chand v. Monmotho Nath, AIR 1928 PC 38 where their Lordships construed Section 35 of the Registration Act. The relevant expression to be interpreted was 'the persons executing the document.' The term was interpreted to mean that personal signature was not required and another person, duly authorised, may be writing the name of the party executing, bring about his valid execution, and put him under the obligations involved. Hence, the words 'persons signing'. This decision can hardly help us in this case. We are interpreting the other expression 'signing', and the signature in the context in which it is used must be a person's autograph by the person concerned himself or by a writing under his own hand. In that view of the matter the Co-operative Tribunal was obviously wrong in holding that Ex. 75 operated as valid nomination in favour of Mangal Ishwar, so as to support the subsequent payments which have been made after the death of deceased.

6. Mr. Mazmudar next argued that like the first two payments the other payments were also valid under the authority of writing Ex. 89 in favour of Mangal Ishwar. There is no substance in this contention. The payments made by the society to Mangal Ishwar after the death of the deceased could not operate as a valid discharge unless Mangal Ishwar was a duly appointed nominee or heir. That is why the plaintiff had to file proceeding in the Civil Court which was decided in September 1963 in favour of the plaintiff holding her to be heir as against the nephews including Mangal Ishwar. Thereafter, the plaintiff even gave notice to the society but it was not replied. This contention that the payments were promised to be made after the issue of heirship was decided is specifically mentioned in the plaint and had not been met by any categorical denial. The society merely relied upon the payments made to Mangal Ishwar as an agent. It therefore hardly lies in the mouth of society to say that the payments were made without any knowledge.

7. In the result, the finding regarding first two payments made in the lifetime of the deceased is a finding of fact by the Co-operative Tribunal. This Court cannot go behind the same, unless it has been found to be perverse. The plaintiff's claim can therefore be decreed only in respect of the payment made after the death of deceased. Therefore, the order of the Co-operative Tribunal must be quashed and the award of nominee will be substituted by the award of only Rs. 954-77 at 6 per cent interest from the date of death of the deceased till realisation. The respondent society shall also pay the costs of this petition and shall pay proportionate costs which are quantified at only Rs. 75/- for the two proceedings before the nominee and the Tribunal.

8. Order accordingly.


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