Supreme Court of India
PRATIMA CHOWDHURYversusKALPANA MUKHERJEE & ANR.
- Citation
- 2014 INSC 87
- Decided
- 10 February 2014
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
The Supreme Court held that the transfer of the flat was invalid, the doctrine of estoppel did not apply, and the arbitrator’s award restoring possession to the appellant was affirmed.
Summary
Pratima Chowdhury, a member of a West Bengal cooperative housing society, sought to transfer her flat and membership to Kalpana Mukherjee, claiming the transfer was a gift without consideration. The arbitrator found the transfer invalid, noting that the letters effecting the transfer were likely drafted by Partha Mukherjee (Kalpana's son) and that no consideration had been paid, ordering the society to restore possession to Pratima. The Co‑operative Tribunal and the Calcutta High Court reversed the award, invoking estoppel, equity and fairness, and held the withdrawal letter ineffective. The Supreme Court set aside those decisions, held that the doctrine of estoppel under Evidence Act s.115 was inapplicable, that the withdrawal letter before finality invalidated the society's resolution, and affirmed the arbitrator’s award, directing the society to return the flat and shares to Pratima.
Issues considered
- The validity of a transfer of cooperative society flat and membership without consideration under the Transfer of Property Act, 1882 and West Bengal Co‑operative Societies Act, 1983.
- Whether a withdrawal letter sent before the transfer attained finality defeats the society’s resolution to transfer the flat.
- Whether the doctrine of estoppel (Evidence Act s.115) can be invoked against the appellant.
- The effect of a fiduciary relationship between the parties on the scrutiny of the transaction.
- The relevance of the place of execution and notarisation of the transfer documents.
- The existence and sufficiency of consideration via alleged share transfers.
- The propriety of excluding the appellant’s rejoinder evidence by the Co‑operative Tribunal and High Court.
Legislation cited
- Code of Civil Procedure, 1908
- Indian Evidence Act, 1872s. 115, s. 116
- Notary Act, 1952s. 8
- Transfer of Property Act, 1882
- West Bengal Co-operative Societies Act, 1983s. 69, s. 70, s. 85(9)
Subjects
transfer of propertycooperative societyfiduciary relationshipestoppelconsiderationwithdrawal of transferarbitration awardnotarisationequityfairness
Judgment
[2014] 2 S.C.R. 656
A PRATIMA CHOWDHURY
v.
KALPANA MUKHERJEE & ANR.
(Civil Appeal No. 1938 of 2014)
FEBRUARY 10, 2014
B
[P. SATHASIVAM, CJI. AND
JAGDISH SINGH KHEHAR, JJ.]
TRANSFER OF PROPERTY ACT, 1882:
c
Housing Society - Transfer of membership/flat - Validity
of - Flat given on rent to the son of the respondent - Letters
written by appellant to Society for transferring the said flat in
favour of respondent on account of close relationship between
them - Transfer was without consideration - Arbitrator held the
0
letters of transfer invalid - Cooperative Tribunal and High
Court held that approach of arbitrator was erroneous - Held:
Respondent was mother-in-law of niece of appellant -
Therefore factually the expression of close relationship
depicted in the letters was false - As regards transfer without
E consideration, respondent herself gave statement to the effect
that appellant had transferred the flat for consideration of
Rs.4.29 lacs which was in form of shares belonging to the son
of the respondent - However, on the date of execution of
transfer or even when board resolution was passed, the son
F of the respondent did not have any shares in his name said
to have been transferred to appellant as consideration of the
flat - Therefore, all the ingredients of the letters were shrouded
in suspicious circumstances - The stance of appellant
regarding transfer of shares was that same was return of loan
G extended by her to son of the respondent for business venture
- This factual position was overlooked by Cooperative Tribunal
and High Court - Arbitrator held that the appellant was in
Bombay and not in Calcutta when these letters were written -
Said finding was recorded on the basis of 3 witnesses
H 656
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 657
ANR.
produced on behalf of appellant before the arbitrator - A
Cooperative Tribunal overlooked the statement of witnesses
merely because notary was an Advocate - Conclusion of
Cooperative Tribunal and High Court that the documents were
executed in Calcutta was therefore basec pn no evidence -
Further, respondent continued to pay rent into the account of B
appellant - Accordingly, arbitrator rightly inferred that even to
the knowledge of respondent, flat was not actually transferred
to her name.
Housing Society - Transfer of membership/flat - C
Revocation of - Withdrawal letter revoking letters of transfer
was sent by appellant before the transfer of membership/flat
had attained finality - Still, Society did not consider the
withdrawal letter - Acceptance or rejection on merits is another
matter, but non-consideration clearly invalidated the
resolution of transfer passed by society. D
Transfer of membership/flat - Validity of - Fiduciary
relation - Held: When parties are in fiduciary relationship, the
manner of examining the validity of a transaction specifically
when there is no reciprocal consideration has to be based on E
parameters which are different from those applicable to an
ordinary case.
Transfer of membership/flat without consideration -
Relationship of faith, trust and confidence - Letters written by
F
appellant to Housing Society for transferring her flat to the
name of the respondent - Held: There was no justification for
the appellant to transfer her flat to respondent free of cost
specially when she has no direct intimate relationship with
respondent - Son of respondent was married to niece of
appellant and so he was in domineering position - He enjoyed G
trust and confidence of appellant which was apparent from the
fact that thejoint account of appellant with the son of the
respondent was operated by him exclusively and drafting of
the letters of transfer of flat was done by him on behalf of
appellant - In such fact situation, the onus of substantiating H
658 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the validity and genuineness of the transfer of flat by the
appellant rested squarely on the shoulders of the respondent
which she miserably failed to discharge.
CODE OF CIVIL PROCEDURE, 1908: Pleadings -
8 Rejoinder - Non consideration of facts stated in the rejoinder
- Effect of - Respondent-defendant in written replies adopted
stand contrary to documents relied upon by rival parties -
Number of documents not mentioned by appellant-plaintiff in
the dispute case relied upon by respondent - Held: Arbitrator
recorded his findings in the award not only on the pleadings
C including rejoinder but also on the basis of evidence led in
support of said pie ·dings - Thus, arbtirator acted in
accordance with law and therefore exclusion from
consideration of factual position asserted by appellant in her
rejoinder by the Cooperative Trwunal and High Court was
D wholly unjustified.
DOCTRINES/PRINCIPLES:
Principle of estoppel - Applicability of - Discussed.
E Principle of justice and equity and doctrine of fairness -
Applicability of.
Evidence Act, 1872: s. f 15 - Estoppel - Salient pre-
condition for invoking rule of estoppel - Discussed - In the
F instant case, the first party made no representation, the
second party did not accept any representation and did not
act in any manner nor second party altered its position -
Therefore, tire question whether the restoration of the original
position would be iniquitous or unfair did not arise.
G NOTARY ACT, s.8 - Notarization of document - Non
issuance of notarial certificate - Held: In the absence of
i~suance of certificate, notarization of document becomes
suspicious.
H ,The appellant owned a flat in a Cooperative Society.
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 659
&ANR.
One PM, the son of the responent and the son-in-law of A
the appellant's sister occupied flat 50 owned by the
appellant. PM was employed with CP Ltd. On 9.3.1992, CP
Ltd. confirmed having taken flat .in question on lease and
licence for 3 years for the residence of PM. The rent was
paid in the joint acount of the appellant and PM. B
On 29.6.1992, the appellant requested the Society to
transfer the said flat to the respondent and intimated that
all municipal taxes would be paid by the respondent. The
appellant then addressed letter dated 11.11.1992 to the C
Secretary of the Society reiterating her request made in
letter dated 29.6.1992 wherein she again expressed
dearly'that the transfer being sought by her, was without
any monetary consideration. It was pointed out in the
said letter that the formal request for the transfer was
made in order to comply with the rules regulating such D
transfer, and also, to avoid future complications.
Consequently, the appellant executed an agreement
dated 13.11.1992, transferring her right, title and interest
in the said flat to the respondent. The Secretary of the
Society wrote letter dated 10.3.1993 to the Deputy E
Registrar, Co-operative Societies for seeking the approval
for the transfer of flat to the name of the respondent.
Meanwhile PM was transferred to Bombay and on
19.10.1993, CP Ltd. terminated the agreement executed
by it with the appellant. On 21.10.1993, the respondent on F
her own account deposited rent in the bank account of
the appellant. On 16.12.1994, 500 shares standing in the
joint names of PM and his wife SM were transferred to the
name of the appellant.
G
The appellant wrote a letter dated 28.2.1995 to the
Secretary of the Society, that she had not received any
reply to her letter dated 11.11.1992. She also informed the
Secretary of the Society that she had decided to return
to Calcutta permanently and, therefore, her request for H
660 SUPREME COURT REPORTS [2014] 2 S.C.R.
A transfer of her membership to the name of the respondent
be treated as withdrawn. The appellant's case was that
the Society never responded to her letter dated 28.2.1995
and the said letter was never forwarded by the Society
to the Department of Co-operative Societies.
B
Still, the Society approached the Deputy Registrar,
Co-operative Societies, seeking approval for the
admission of the respondent as a member of the Society
which was conditionally approved on 13.3.1995. On
13.3.1995 itself the shares of the appellant were
C transferred to the name of the respondent. On 22.3.1995,
the appellant addressed a letter to the Deputy Registrar,
Co-operative Societies requesting to direct the Society to
withdraw the offer of transfer of her membership to the
respondent. It was also requested, that the application
D made by the respondent for transfer of share certificates
in her name, be not approved. The appellant wrote
another letter dated 28.3.1995 to the Secretary of the
Society requesting that transfer of membership in favour.
of the respondent be treated as withdrawn. The Society
E convened a meeting on 2.4.1995 wherein the Board of
Directors resolved, that it had no legal competence to
restore the membership of the Society, as also, the
retransfer of the ownership of the flat no. SD, to the
appellant. Having so resolved, the Secretary of the
F Society forwarded a copy of the resolution dated
2.4.1995, to the appellant. The Board of Directors of the
Society approved the transfer of flat to the name of the
respondent. In addition to the said flat, the ownership of
the appellant also comprised of a covered garage space,
G on the ground floor. The same were not mentioned in the
clearances dated 14.2.1993 {by the Board of Directors of
the ·Society) and 13.3.1995 (by the Deputy Registrar, Co-
o pe ra tive Societies). Consequently based on the
agreement dated 25.4.1995 between the respondent and
H the Society, the said garage space was also subsequently
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &661
ANR.
transferred to the name of the respondent. A
On 16.4.1995, the appellant challenged the validity of
the Board. of Directors' Resolution dated 2.4.1995. The
Deputy Registrar, Co-operative Societies referring to the
appellant's letter dated 28.2.1995 (wherein appellant had
8
withdrawn her request for transfer of membership in
favour of respondent), wrote a letter dated 31.5.1995 to
the Secretary of the Society highlighting the fact that, the
Society had not brought the letter dated 28.2.1995 to the
notice of Deputy Registrar, Co-operative Societies, at the C
time of seeking approval of the Co-operative Department
The Secretary of the Society was accordingly directed, to
take a decision on the matter, and to forward the same
to the Deputy Registrar, Co-operative Societies.
Since, the appellant was not communicated any D
determination, by the concerned authorities, she
addressed a notice on 9.9.1995, calling upon the
Secretary of the Society, to deliver the possession of the
flat along with the share certificates. The Society denied
all the allegations made by the appellant against the E
Society (contained in the notice). On the claim of
retransfer of the shares and flat made by the appellant,
the Society responded by asserting, that the shares had
been transferred to the name of the respondent, and on
the basis thereof flat no. 5D also had been transferred in F
her name, thereupon, the Society did not have any legal
authority to restore/retransfer the same to the name of the
petitioner. On 19.12.1995, the Deputy Registrar, Co-
operative Societies also informed the appellant, that the
transfer of her shares and flat in favour of the respondent G
had been completed, and since the Society had resolved
on 2.4.1995 that it had no legal competence to cancel the
same, nothing could be done in the matter.
The appellant filed Dispute Case which was
adjudicated upon by the Arbitrator. The Arbitrator held H
662 SUPREME COURT REPORTS [2014] 2 S.C.R.
A that agreement dt. 13.11.92 was invalid, void and
incomplete and directed the Society to ensure and
conform that the appellant gets the possession of the flat
with garage space with immediate effect and issue share
certificate in her name immediately. On· appeal, the Co-
B operative Tribunal held that the entire approach of the
Arbitrator was erroneous, as the Arbitrator had treated the
appellant as a pardanashin 1.ady. The High Court
dismissed the appeal. The instant appeal was filed
challenging the order of the High Court.
c Allowing the appeal, the Court
HELD: 1. The Co-operative Tribunal, as also, the High
Court excluded from consideration, the factual position
expressed in the rejoinder filed by the appellant (before
D the Arbitrator). In excluding the said factual position, the
Co-operative Tribunal and the High Court did not rely on
any provision of law nor was any reliance placed on any
principle accepted and recognized in legal jurisprudence.
It is not a matter of dispute that after the respondent and
E the Society were permitted to file written replies before
the Arbitrator, the rejoinder filed thereto on behalf of
appellant, was permitted to be taken on record. It is not
in contention, that in the written replies filed before the
Arbitrator, the respondent had adopted inter alia the
F stance that consideration was paid to appellant in lieu of
the transfer of flat to her name, even though the
documents relied upon by the rival parties, expressed
otherwise. A number of documents not mentioned in the
Dispute Case filed by appellant were also relied upon by
G the respondent. Pleadings between the parties could be
considered as complete, only after appellant was
permitted to file a rejoinder (in case she desired to do so).
She actually filed a rejoinder which was taken on record
by the Arbitrator. Both parties were permitted to lead
evidence, not only on the factual position emerging from
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 663
&ANR.
the complaint filed by appellant and the written replies A
filed in response thereto (by respondent and the Society),
but also, the factual position highlighted by appellant in
her rejoinder affidavit. It is, therefore, not on the basis of
the pleadings of the parties, but also on the basis of the
evidence led in support of the said pleadings, that the B
Arbitrator had recorded his findings in his award. The
Arbitrator had, therefore, acted in accordance with law,
and therefore the exclusion from consideration, of the
factual position asserted by appellant in her rejoinder, by
the Co-operative Tribunal and the High Court was wholly c
unjustified. The factual narration by appellant could not
be excluded from consideration, while adjudicating upon
the rival claims between appellant and the respondent.
[Para 26] [712-G-H; 713-A-F]
2. The Co-operative Tribunal in its order had invoked D
the principle of estoppel, postulated in Section 115 of the
Indian Evidence Act. The High Court affirmed the
conclusions drawn by the Co-operative Tribunal. In
addition to the said principle, the High Court invoked the
principles of equity and fairness. The rule of estoppel is E
a doctrine based on fairness. A perusal of the provision
reveals four salient pre conditions before invoking the
rule of estoppel. Firstly, one party should make a factual
representation to the other party. Secondly, the other
party should accept and rely upon the said factual F
representation. Thirdly, having relied on the said factual
representation, the second party should alter his
position. Fourthly, the instant altering of position, should
be such, that it would be iniquitous to require him to
revert back to the original position. Therefore, the G
doctrine of estoppel would apply only when, based on a
representation by the first party, the second party alters
his position, in such manner, that it would be unfair to
restore the initial position. None of the ingredients of
principle of estoppel contained in Section 115 of the H
664 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Indian Evidence Act, can be stated to have been
satisfied, in the facts and circumstances of this case.
Herein, the first party has made no representation. The
second party has therefore not accepted any
representation made to her. Furthermore, the second
B party has not acted in any manner, nor has the second
party altered its position. Therefore, the question whether
the restoration of the original position would be iniquitous
or unfair does not arise at all. In the facts presented by
the rival parties, especially in the background of the order
c passed by the Arbitrator, that no consideration had
passed in lieu of the transfer of the flat, and especially in
the background of the factual finding recorded by the Co-
operative Tribunal and the High Court, that passing of
consideration in the present controversy was
inconsequential, the principle of estoppel relied upon
0
could not have been invoked, to the detriment of the
appellant. In view of this, the determination by the Co-
operative Tribunal, as also the High Court, in having relied
on the principle of estoppel, and thereby, excluding the
pleas/defences raised by the appellant to support her
E claim is set aside. [para 27] [714-A, H; 715-A-G; 717-E]
Kasinka Trading vs. Union of India, (1995) 1 SCC 274;
Monnet /spat & Energy Ltd. vs. Union of India & Ors., (2012)
11 SCC 1; H.S. Basavaraj (D) by his LRs. & Anr. Vs. Canara
F Bank & Ors., (2010) 12 SCC 458 - relied on.
3.1. Admittedly, the reason for transferring the flat
indicated in the letters dated 11.11.1992 and 13.11.1992
was on account of the close relationship between the
G appellant and the respondent. As a matter of fact, there
was no close relationship between appellant and the
respondent. The appellant was indicated to have been
living in Bombay and never visiting Calcutta. The
respondent was a resident of Calcutta, who was in
employment at Calcutta, and had started to reside with
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 665
& ANR.
her son PM, after he moved to Calcutta alongwith his wife A
SM. There was no direct relationship between the
appellant and the respondent. Appellant's niece SM was
married to PM, son of the respondent. The only
relationship that can be assumed, is of aunt and niece,
between the appellant and SM. If on account of love and B
affection, for her niece, the appellant desired to transfer
flat which she had purchased for a consideration of Rs.4
lakhs, she would have done so by transferring it to the
name of her niece SM. Affinity to SM, and the love,
affection and welfare of SM would not extend to a gesture c
of the nature under reference, i.e., by way of transfer of
immovable property, of substantial value, without
consideration, to the mother-in-law of SM. Therefore,
factually the expression of close relationship between the
appellant and respondent depicted in letters dated 0
11.11.1992 and 13.11.1992 are on the face of it, false and
incorrect. 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. 50 was concerned. Further, as per letters dated
E
11.11.1992 and 13.11.1992, Flat no. 50 was sought to be
transferred by the appellant to the respondent, without
consideration. The said factual position cannot be
accepted on account of the statement of the respondent
herself. In the written reply filed before the Arbitrator, the
respondent took the express stance, that the appellant F
had transferred flat no. 50 to her name, by accepting a
consideration of Rs.4,29,000/-. She further asserted, that
the said consideration had passed from the respondent
to the appellant through PM who had transferred shares
in his name valued at Rs.4,29,000/-, to the name of the G
appellant. Per se therefore, even respondent denied the
factual position indicated in the letters. [para 28(i), (ii)]
[717-H; 718-A-H; 719-A-B]
3.2. The letters dated 11.11.1992 and 13.11.1992 H
666 SUPREME COURT REPORTS [2014] 2 S.C.R.
A expressly recorded, that the factual position narrated in
the letters was on account of "compliance with the rules
regulating such transfer, and also, for avoiding future
complications". In view of the factual position, it is
apparent, that false facts were being recorded for
B compliance with the rules and regulations, as also, for
avoiding future complications. One would have
appreciated the recording of consideration in lieu of the
transfer of property from the name of appellant to that of
the respondent, to avoid future complications, rather than
c withholding the same. It is clearly not understandable,
what kind of complications were being avoided.
Expressing the 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
0
dated 11.11.1992 and 13.11.1992, would have
successfully avoided all complications merely by
incorporating consideration, which was to pass from the
respondent to the transferee appellant. If consideration
E was to pass, and had actually passed, it is difficult to
understand why the parties would say, that the
transaction did not involve passing of consideration. It is,
therefore, clear that all the ingredients of letter dated
11.11.1992 and 13.11.1992 were shrouded in suspicious
circumstances. It was not legitimately open to the parties
F to record in the letters under reference, that flat no. 50
was being gifted by the appellant to the respondent, 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
G interference, as the same would at least prima facie, give
the impression of dubiety. It was, therefore, that the
respondent hastened to adopt a different factual position
in her written reply before the Arbitrator. In the written
statement filed by the respondent (before the Arbitrator)
H the stand adopted by her was, that a consideration of
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 667
ANR.
Rs.4,29,000/- had passed from her to the appellant, by A
way of transfer of shares (standing in the name of her
son, PM) to the name of the appellant. The Board of
Directors of the Society, in its meeting held on 14.2.1993,
resolved to accept the resignation of the appellant and
accept the membership of the respondent in her place. B
On the date of execution of the documents under
reference, as also on the date of passing of the resolution
by the Board of Directors of the Society, PM did not have
any shares in his name. The shares which PM acquired,
and which respondent claimed to have been transferred c
in lieu of consideration (to the name of the appellant),
were shown to have been acquired on or after 8.9.1993.
It is, therefore, apparent that PM did not even have the
shares referred to by the transferee the respondent, in his
name, when the transfer documents were executed on
0
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. These shares were shown to have been
transferred to the name of the appellant on 16.12.1994.
Well before 16.12.1994, even according to the stance
adopted by the respondent, the appellant had executed E
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 the respondent (through PM) on the date of
transfer of flat no. SD from the appellant to the F
respondent. Therefore, the stance adopted by the
respondent in the written statement filed by her before the
Arbitrator, is shown to be false. [Paras 28(iii), (iv)] [719-D-
H; 720-A-E; 721-D-F]
G
3.3. On the subject of transfer of shares from the
name of PM to the name of the appellant, the appellant
had adopted the stance, that the transfer of the above
shares was on account of return of loans extended by
the appellant to PM. The appellant had asserted, that after H
668 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the transfer of PM from Calcutta to Bombay in the year
1993, he gave up his employment with CP Ltd. and started
a business of aluminium products. To help PM with his
business venture, the appellant had (on the asking of PM)
paid a sum of Rs. 2 lakhs by way of cheque, for supply
B of raw materials to PM's business venture. PM had also
taken a loan for a sum of Rs. 1,50,000/- for the same
purpose from the sister of appellant). It was also ass~rted,
that SM had similarly extended loans, by making
payments through cheque to PM. The Arbitrator had
C accepted the said assertion of the appellant. The
Arbitrator had placed reliance, on documentary and oral
evidence, produced by the appellant. The instant factual
aspect of the matter was totally overlooked by the Co-
operative Tribunal, as well as, by the High Court. The fact
that appellant had addressed a letter to the Secretary of
D the Society, dated 28.2.1995, for withdrawal of her earlier
letter dated 11.11.1992 was not disputed. It is also not a
matter of dispute that at the time when the appellant
addressed the above letter, neither the transfer of
membership, nor the transfer of the flat, had assumed
E finality. The transfer of membership, as also the transfer
of the flat, would assume finality only upon the approval
of the same by the Deputy Registrar, Co-operative
Societies. The factual position emerging from the record
of the case revealed that the Society sought the approval
F of the Deputy Registrar, Co-operative Societies for the
transfer of membership, as also, flat no. 5D to the name
of Respondent on 13.3.1995. Through the letter dated
10.4.1~95, the appellant was informed, that the Society
had no authority to look into the matter, after the
G resolution of the Board of Directors dated 2.4.1995. This
explanation is 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
H 16.4.1995 had intimated its members, about the resolution
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 669
ANR.
dated 2.4.1995. The matter was, therefore, pending A
authoritative conclusion. Thus viewed, it was not justified
for the Society to deny consideration of the withdrawal
letter dated 28.2.1995. Acceptance or rejection on merits
is another matter, but non-consideration is not
understandable. The instant non-consideration clearly B
invalidated the resolution passed by the Society. [para 28
v, vi] [721-H; 722-A-E; 723-A-F]
~
3.4. 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 C
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 disputed. The decision taken by the
Deputy Registrar, Co-operative Societies was, without D
reference to the withdrawal letter dated 28.2.1995. ·The
determination by the Deputy Registrar, Cooperative
Societies, cannot therefore be treated as a valid and
legitimate consideration. The instant non-consideration
clearly invalidated the approval granted by the Deputy E
Registrar, Co-operative Societies. The veracity of the
execution of the documents dated 11.11.1992 and
13.11.1992 by the appellant, was also examined by the
Arbitrator. In the said examination, the Arbitrator arrived
at the conclusion, that the appellant was in Bombay and
not in Calcutta when these documents were executed. F
The said finding was recorded on the basis of three
witnesses produced on behalf of the appellant (before the
Arbitrator). While rejecting the conclusion drawn by the
Arbitrator, the Co-operative Tribunal overlooked the
statements of the witnesses produced by the appellant, G
merely because the notary was an Advocate. The Co-
operative Tribunal reasoned, that the statement of an
Advocate, had to be given more weightage, than the
witnesses produced by the appellant. The above
determination at the hands of the Co-operative Tribunal, H
670 SUPREME COURT REPORTS [2014] 2 S.C.R.
A besides being perverse was also totally unacceptable in
law. In the facts and circumstances of the instant case,
the statement of the notary should have been rejected
and discarded, simply because the notary in his
deposition had acknowledged, that he did not issue any
notarial certificate in terms of Section 8 of the Notary Act.
8
In the absence of issuance of any such certificate,
notarization of the document dated 13.11.1992 was
clearly subject to suspicion. The conclusion drawn by the
Co-operative Tribunal as also the High Court, to the effect
that the document dated 13.11.1992 was executed at
C Calcutta, was therefore, based on no evidence
whatsoever.
- The fact that the document dated .
13.11.1992
had not been executed in Calcutta, was also sought to
be substantiated by showing, that the registration
number of the Society was not depicted in the said letter,
D even though the said letter was shown to have been
executed at the residence of the Secretary of the Society.
It was reasoned, that the Secretary of the Society would
have supplied the aforesaid number, if the above
document had been executed at his residence. Having
E rejected the credibility of the statement of the notary and
having not accepted the fact that the above document
was executed at the residence of the Secretary of the
Society, there is no reason for not accepting the
statements of the three witnesses produced by the
F appellant, to show that she (appellant) was at Bombay on
11.11.1992, as well as, on 13.11.1992. The Cooperative
Tribunal and the High Court, erred on the face of the
record, by not taking into consideration material f;>.cts.
available on the file of the case. [Para 28 viii, viii] [723-H;
G- 724-A-H; 725-A-E]
3.5. The Arbitrator had placed heavy reliance on the
fact, that the respondent had deposited rent on
21.10.1993 (payable to the appellant), into the account of
the appellant, by herself, filling up the bank deposit
H vouch.er. Accordingly, the Arbitrator inferred, that the
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 671
ANR.
property in question, even to the knowledge of the A
respondent, had not actually been transferred to her
name by the appellant (at least upto 21.10.1993). That was
the reason, why the respondent had continued to deposit
rent for flat no. 50, into the account of the appellant upto
21.10.1993. Coupled with the said factual aspect, the B
Arbitrator placed great reliance on the letter dated
28.10.1993 addressed by PM to CP Limited, wherein, he
described the appellant as the "landlady". Undoubtedly,
if the documents relied upon by the respondent were
genuine, PM would not have acknowledged the C
ownership of the appellant over flat no. 50 (on
28.10.1993). The detern:tination of the Arbitrator, on the
subject of the transfer of the covered garage, to the name
of the respondent was also overlooked by the Co-
operative Tribunal, as well as, by the High Court. The
appellant, had one covered garage space also. Whilst D
reference was made about the details of the flat sought
to be transferred, in the transfer documents, no reference
was made to the CQVered garage space. Based on the
letter dated 11.11.1992, and the document dated
13.11.1992, flat no. 50 was transferred to the name of the E
respondent. The instant transfer however did not include
the covered garage space. Thereafter, based on an
agreement executed between respondent (on the one
hand), and the Society (on the other), the said covered
garage space was transferred to the name of the F
respondent, on 25.4.1995. The said transfer was not at the
behest of, or with the concurrence of the appellant.
Therefore, according to the view expressed by the
Arbitrator, the covered garage space, must be deemed to
have never been transferred to the respondent by its G
erstwhile owner. The Arbitrator also expressed the view,
that the agreement dated 25.4.1995 could not have been
executed without the participation of the appellant. The
instant aspect of the matter was also totally overlooked
by the Co-operative Tribunal, as well as, by the High H
672 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Court. The findings of the fact, recorded by the Co-
operative Tribunal and by the High Court, are bound to
be treated as perverse. [Para 28 ix, x] [725-G-H; 726-A, E-
H; 727-A-B]
4. The Co-operative Tribunal as well as the High Court,
8 had invoked the principle of justice and equity, and the
doctrine of fairness, while recording their eventual
findings in favour of the respondent. It is not a matter of
dispute, that for a long time appellant had been residing
at Bombay. She was residing at Bombay in the house of
C her sister. PM, son of the respondent was an engineering
graduate; He also possessed the qualification of MBA.
Originally PM was employed as Sales Manager/Regional
Manager with CP Ltd. at Bombay. PM married SM (the
daughter of appellant's sister), whilst he was posted at
o Bombay in 1987. Soon after his marriage, PM and SM also
started to live in the house of HPR (father-in-law of PM).
HPR was wealthy person. The evidence available on the
record of the case revealed that the appellant treated SM
as her daughter, and PM as her son. In 1992, PM was
E transferred from Bombay to Calcutta. Immediately on his
transfer, the appellant accommodated him in flat no. 50.
Subsequently, CP Ltd. entered into a lease and licence
agreement, in respect of flat no. 50 with the appellant, so
as to provide residential accommodation to PM (as per
F the terms and conditions of his employment). Obviously,
PM was instrumental in the execution of the above lease
and licence agreement. In order to deposit monthly rent
payable to the appellant (by CP Ltd.), PM opened a bank
account in the name of the appellant, jointly with himself.
He exclusively operated the above account, for deposits
G as well as for withdrawals. Not only that, the findings
recorded by the Arbitrator indicate that the letter dated
11.11.1992 written by the appellant was drafted by PM. The
said conclusion was drawn from the fact that the
manuscript of the original was in the handwriting of PM.
H All these facts demonstrated a relationship of absolute
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &673
ANR.
trust and faith between the appellant and PM. The said A
relationship emerged, not only on account of the fact that
PM was married to SM (the niece of the appellant), but also
on account of the fact, that PM and his wife SM soon after
their marriage lived in the house of HPR (husband of the
sister of the appellant). They resided together with the B
appellant till 1992, i.e., for a period of more than a decade,
before PM was transferred to Calcutta. The relationship
between PM and the appellant would constitute a fiduciary
relationship. Even though all these aspects of the
relationship between the parties were taken into c
consideration, none of the adjudicating authorities dealt
w.ith the controversy, by taking into account the fiduciary
relationship between the parties. When parties are in
fiduciary relationship, the manner of examining the validity
of a transaction, specifically when there is no reciprocal
consideration, has to be based on parameters which are D
different from the ones applicable to an ordinary case.
[Para 30] [727-E-H; 728-A-H; 729-A-B]
5. The relationship between PM and the appellant
was a relationship of faith, trust and confidence. PM was E
in a domineering position. He was married to SM. SM was
the daughter of HPR. The appellant has lived for a very
long time in the house of HPR. During that period (after
his marriage) PM also shared the residential
accommodation in the same house with the appellant, for F
over a decade. In Indian society the relationship between
PM and the appellant, is a very delicate and sensitive one.
It is therefore, that the appellant extended all help and
support to him, at all times. She gave him her flat when
he was transferred to Calcutta. She also extended loans G
to him, when he wanted to set up an independent
business at Bombay. These are illustrative instances of
his authority, command and influence. Instances of his
enjoying the trust and confidence of the appellant
included amongst others, the joint account of the
H
674 SUPREME COURT REPORTS [2014] 2 S.C.R.
A appellant with PM, which the latter operated exclusively,
and the drafting of the letters on behalf of the appellant.
In such fact situation, the onus of substantiating the
validity and genuineness of the transfer of flat no. 50, by
the appellant, through th·e letter dated 11.11.1992 and the
B document dated 13.11.1992, rested squarely on the
shoulders of the respondent. Because it was only the
relationship between PM and the appellant, which came
to be extended to the respondent. The document dated
13.11.1992 clearly expressed, that the said transfer was
c without consideration. The respondent in her written
reply before the Arbitrator asserted; that the above
transfer was on a consideration of Rs.4,29,000/-. The
Arbitrator in his order dated 5.2.1999 concluded, that the
respondent could not establish the passing of the
consideration to the appellant. The Cooperative Tribunal,
0
as well as, the High Court, despite the factual assertion
of the respondent were of the view, that passing of
cc:msideration was not essential in determination of the
gehuineness of the transaction. The respondent
miserably failed to discharge the burden of proof, which
E essentially rested on her. The appellant led evidence to
show, that she was at Bombay on 11.11.1992 and
13.11.1992. Letter dated 11.11.1992 and the document
dated 13.11.1992, shown to have been executed at
Calcutta could not be readily accepted as genuine, for the
F said documents fell in the zone of suspicion, more so,
b_ecause th.e manuscript of the letter dated 11.11.1992
was in the hand-writing of PM leading to the inference,
that.PM was the author of the above letter. It is, therefore,
not incorrect to infer, that there seems to be a ring of truth,
G in the assertion made by the appellant, that PM had
obtained her signatures for executing the letter and
document. The.re was no justification whatsoever for the
appellant, to have transferred flat no. 50 to the
respondent, free of cost, even though she had purchased
H the same for a consideration of Rs. 4 lakhs in the year
,
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 675
ANR.
1987. Specially so, when she had no direct intimate A
relationship with the respondent. By the time the flat was
transferred, more than a decade had passed by, during
which period, the price of above flat, must have escalated
manifold. The invocation of the principle of justice and
equity, and the doctrine of fairness, would in fact result B
in returning a finding in favour of the appellant, and not
the respondent. [Para 31) [733-D-H; 734-A-H; 735-A-C]
Subhas Chandra Das Mushib vs. Ganga Prosad Das
Mushib AIR 1967 SC 878: 1967 SCR 331; ; Krishna Mohan
Ku/ alias Nani Charan Ku/ vs. Pratima Maity (2004) 89 SCC C
468; Anil Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558 ~
relied on.
Case Law Reference:
(1995) 1 sec 214 relied on Para 27 D
(2012) 11 sec 1 relied on Para 27
(2010) 12 sec 458 relied on Para 27
1967 SCR 331 relied on Para 30 ·
E
(2004) 89 sec 468 relied on Para 30
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1938 of 2014.
From the Judgment and Order dated 14.02.2006 of the F
High Court of Calcutta in CO. Nos. 3039 & 3040 of 2002.
A.T.M. Sampath, P.N. Ramalingam, T.S. Shanthi, Rahul
Nagpal, Jitendra Mohan Sharma, Ajit Sharma, Nitin Singh,
Sameer Singh, Sandeep Singh, Mithilesh Kumar Pandey, G
Pahlad Sharma for the Appearing Parties.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. Orchestra Co-
operative House Society Limited (hereinafter referred to as 'the H
676 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Society') raised flats at 48/IE, Gariahat Road, Calcutta -
700019. lndirani Bhattarcharya became a member of the
Society on 12.1.1987. She was issued share certificates
bearing nos. 0047 and 0048. Based on the above membership
she was allotted flat no. 5D for a consideration of Rs. 4 lakhs.
B The above flat measuring 900 sq. ft. comprised of three bed
rooms, two bath rooms, one drawing-cum-dinning room, a
kitchen and verandah on the fourth floor. In addition to the
above, she was allotted one covered garage space on the
ground floor. The transfer of the flat no. 5D by the Society to
C lndirani Bhattacharya was approved by the Deputy Registrar,
Co-operative Societies.
2. On 27.3. 1991, lndirani Bhattacharya submitted her
resignation from the Society in favour of Pratima Chowdhury
(i.e., the petitioner herein). On 15.4.1991, lndirani Bhattacharya
D executed an agreement for transfer of flat no. 50 to Pratima
Chowdhury subject to the consent of the Society and the
approval of the Deputy Registrar, Co-operative Societies, for
a consideration of Rs. 4 lakhs. The Society having consented
to the request of lndirani Bhattacharya sought the approval of
E the Deputy Registrar, Co•operative Societies through a letter
dated 29.4.1991. In this behalf it would also be relevant to
mention that Board of Directors of the Society had resolved in
its meeting held on 16.2.1992, to accept the resignation of
lndirani Bhattacharya, as also, the consequential transfer of the
F membership of the Society and the ownership of the flat to the
name of Pratima Chowdhury. In the above resolution, the name
of Pratima Chowdhury as a member of the Society was
approved with effect from 9.1.1992. The Secretary of the
Society informed Prafima Chowdhury on 17.2.1992, that her
G membership to the Society, as also, the transfer of flat no. 5D
to her name, had been approved by the Deputy Registrar, Co-
operative Societies.
3. The facts available on the records reveal° that Partha
Mukherjee (son-in-law of the petitioner's sister, and son of the
H
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE &677
ANR. [JAGDISH SINGH KHEHAR, J.]
respondent) occupied the petitioner's flat. Partha Mukherjee A
was employed as Regional Sales Manager with Colgate
Palmolive (India) Limited. On 9.3.1992, Colgate Palmolive
(India) Limited, confirmed having taken flat no. 50 on lease and
license, for a period of three years (with effect from 1.4.1992),
for the residence of Partha Mukherjee. The pleadings also B
reveal, that with effect from 1.4.1992, Colgate Palmolive (India)
Limited, took the aforesaid flat on a monthly rent of Rs. 5,000/
-. The above said monthly rent, was deposited in the joint
account of the petitioner Pratima Chowdhury and Partha
Mukherjee. c
4. On 29.6.1992, the petitioner Pratima Chowdhury
addressed a letter to the Secretary of the Society, requesting
the Society to transfer flat no. 50 to the name of her nominee
Kalpana Mukherjee. The letter dated 29.6.1992 of Pratima
Chowdhury, made some express factual disclosures. Firstly, that D
she was not in good health. Secondly, that she was not in a
position to move to Calcutta from Bombay in the near future.
Thirdly, that Kalpana Mukherjee was already residing in the flat
in question along with Partha Mukherjee. Fourthly, that above
nominee Kalpana Mukherjee was her close relative. In addition E
to the request of transfer of flat no. 50 in favour of her nominee
Kalpana Mukherjee, Pratima Chowdhury also informed the
Society through her letter dated 29.6.1992, that all municipal
taxes and service charges in connection with the above flat
should be collected from Kalpana Mukherjee. F
5. Pratima Chowdhury then addressed another letter dated
11.11.1992, to the Secretary of the Society, reiterating her
request made in the previous letter dated 29.6.1992 wherein
she again expressed clearly that the transfer being sought by G
her, was without any monetary consideration.
6. ·it was pointed out in letter dated 11.11.1992, that the
formal request for the transfer was only being made, in order
to comply with the rules regulating such transfer, and also, to
avoid future complications. Consequent upon the aforesaid H
678 SUPREME COURT REPORTS [2014) 2 S.C.R.
A deliberations, Pratima Chowdhury executed an agreement
dated 13.11.1992, transferring her right, title and interest in the
flat no. SD. On the same day as the aforesaid agreement was
executed, Kalpana Mukherjee moved an application (on
13.11.1992).
B
7. The Board of Directors of the Society in their meeting
held on 14.2.1993, resolved to accept the resignation of
Pratima Chowdhury, and to accept the membership of Kalpana
Mukherjee (in place of Pratima Chowdhury), and to seek the
C approval of the Deputy Registrar, Co-operative Societies for
the transfer of flat no. SD to the name of Kalpana Mukherjee,
on the basis of letters of Pratima Chowdhury dated 11.11.1992
and 11.11.1992. Accordingly, the Secretary of the Society
addressed a letter dated 10.3.1993 to the Deputy Registrar,
Co-operative Societies, for the approval of the decision of the
· D Board of Directors (of the Society, dated 14.2.1993).
8. On 23.4.1993, Pratima Chowdhury wrote a letter to the
Senior Commercial Executive, of the Calcutta Electric Supply
Corporation (South Region Office) requesting him to transfer
E the electricity-supply meter of flat no. SD to tile name of Kalpana
Mukherjee. The instant letter dated 23.4.1993, is also disputed
by Pratima Chowdhury. She has even disputed her signature
on the said letter. She also filed a first information report at the
Gariahat Police Station, Kolkata, complaining that her signature
F o the above letter was forged.
9. The Assistant Registrar, Co-operative Societies raised
certain objections on the request of the Society for transfer of
flat no. SD from the name of Pratima Chowdhury to the name
of Kalpana Mukherjee. In this behalf the Assistant Registrar,
G Co-operative Societies informed the Secretary of the Society,
that the application of Kalpana Mukherjee for membership had
not been submitted in the proper format. It was also pointed
out, that the original affidavit had not been appended to the
application. Lastly, it was brought out, that the Salary
H Certificate, Income Tax Clearance Certificate and Professional
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 679
ANR. [JAGDISH SINGH KHEHAR, J.]
Tax Certificates had not been appended to the application of A
Kalpana Mukherjee, for the transfer of the flat in her name. On
22.9.1993, the Secretary of the Society provided all the
required documents sought by the Department of the Co-
operative Societies.
B
10. Partha Mukherjee was transferred by his employer
Colgate Palmolive (India) Limited, from Calcutta to Bombay.
Consequently, Colgate Palmolive (India) Limited terminated the
agreement executed by it with Pratima Chowdhury on
19.10.1993, with immediate effect. In the letter dated
19.10.1993, Colgate Palmolive (India) Limited required Partha C
Mukherjee to. hand over vacant possession of flat no. SD to
Pratima Chowdhury, after refund of security. On 21.10.1993,
Kalpana Mukherjee, from her own account, deposited rent in
the Bank account of Prati ma Chowdhury. On 28.10.1993,
Partha Mukherjee addressed a letter to P.R. Keswani, D
Company Secretary of Colgate Palmolive (India) Limited, along
with a receipt bearing no. 9893, depicting refund of the security
deposit (of Rs. 60,000/-). The aforesaid refund was sHown to
have been made by Pratima Chowdhury.
E
11. On 16.12.1994, 500 shares of Tata Chemicals Limited,
50 shares of Siemens, 500 shares of Indian Aluminium and
100 shares of l.T.C. Hotels, standing in the joint names of Partha
Mukherjee and Sova Mukherjee (wife of Partha Mukherjee)
were transferred to the name of Pratima Chowdhury. According F
to the petitioner Pratima Chowdhury, the above transfer of
shares was in lieu of loans extended by her to Partha Mukherjee.
However, according to Kalpana Mukherjee, the transfer of the
above shares, constituted consideration paid on her behalf (by
her son Partha Mukherjee) to Pratima Chowdhury in lieu of the G
transfer of flat no. 50.
12. Pratima Chowdhury wrote a letter dated 28.2.1995 to
the Secretary of the Society, that she had not received any reply
to her letter dated 11.11.1992. She also informed the Secretary
of the Society, that she had decided to return to Calcutta H
680 SUPREME COURT REPORTS [2014] 2 S.C.R.
A permanently. Accordingly, she informed the Secretary of the
Society, that her request for transfer of her membership to the
name of Kalpana Mukherjee, be treated as withdrawn. It is the
case of Pratima Chowdhury, that the Society never responded
to her letter dated 28.2.1995. It is also her case, that her letter
s dated 28.2.1995 was never forwarded by the Society, to the
Department of Co-operative Societies.
13. On 8.3.1995, the Society approached the Deputy
Registrar, Co-op3rative Societies, seeking approval for the
admission of Kalpana Mukherjee as a member of the Society
C (in place of Pratima Chowdhury). On 13.3.1995, the Deputy
Registrar, Co-operative Societies conditionally approved the
membership of Kalpana Mukherjee. Accordingly, on 13.3.1995
itself the shares of Pratima Chowdhury were transferred to the
name of Kalpana Mukherjee. On 22.3.1995, Pratima
D Chowdhury addressed a letter to the Deputy Registrar, Co-
operative Societies, with a copy to the Chairman of the Society.
In the above letter, the Deputy Registrar, Co-operative
Societies was requested to direct the Society to withdraw the
offer of transfer of her membership to Kalpana Mukherjee. It
E was also requested, that the application ml;lde by Kalpana
Mukherjee for transfer of share certificates in her name, be not
approved. The instant letter dated 22.3.1995, depicts the fact
that Pratima Chowdhury was unaware of the deliberations of
the Society, as also, the approval (of the deliberations of the
F Society), by the Deputy Registrar, Co-operative Societies, on
13.3.1995. In pursuit of the same objective, Pratima Chowdhury
wrote another letter dated 28.3.1995, to the Secretary of the
Society. She enclosed therewith, the letter which she had
addressed to the Deputy Registrar, Co-operative Societies
G dated 22.3.1995. Therein, she again reiterated, that her
request for transfer of membership in favour of Kalpana
Mukherjee be treated as withdrawn. In order to consider the
request made by Pratima Chowdhury in her letter dated
22.3.1995 (to the Deputy Registrar, Co-operative Societies)
H and the letter dated 28.3.1995 (to the Secretary of the Society);
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 681
& ANR. [JAGDISH SINGH KHEHAR, J.]
the Society convened a meeting of the Board of Directors on A
2.4.1995. Rather than considering the issue on merits, the
Board of Directors resolved, that it had no legal competence
to restore the membership of the Society, as also, the retransfer
of the ownership of the flat no. 5D, to Pratima Chowdhury.
Having so resolved, the Secretary of the Society forwarded a B
copy of the resolution dated 2.4.1995, to the petitioner on
10.4.1995.
14. At this juncture, it would be relevant to mention, that
the Board of Directors of the Society approved the transfer of C
flat no. 5D (comprising of three bed rooms, two bath rooms,
one drawing-cum-dinning room, one verandah and one kitchen
on the fourth floor, located at no:48/IE, Gariahat Road, Calcutta
- .700019 to the name of Kalpana Mukherjee. In addition to the
aforesaid flat, the ownership of Pratima Chowdhury also
comprised of a covered garage space, on the ground floor. The D
same were not mentioned in the clearances dated 14.2.1993
(by the Board of Directors of the Society) and 13.3.1995 (by
the Deputy Registrar, Co-operative Societies). Consequently
based on the agreement dated 25.4.1995 between Kalpana
Mukherjee and the Society, the said garage space was also E
subsequently transferred to the name of Kalpana Mukherjee.
15. On 16.4.1995 within two weeks, from the date decision
taken by the Board of Directors (on 2.4.1995) and within one
week from the date of communication thereof to the petitioner F
(through letter dated 10.4.1995), Prati ma Chowdhury
addressed a notice dated 16.4.1995, contesting the validity of
the Board of Directors' Resolution dated 2.4.1995. The
petitioner also assailed the approval of the said transfer dated
13.3.1995. The Deputy Registrar, Co-operative Societies G
referring to the petitioner's letter dated 28.2.1995 (wherein
Pratima Chowdhury had withdrawn her request for transfer of
membership in favour of Kalpana Mukherjee), wrote a letter
dated 31.5.1995 to the Secretary of the Society. In the letter
dated 31.5.1995, the Deputy Registrar, Co-operative Societies
H
682 SUPREME COURT REPORTS [2014] 2 S.C.R.
A also highlighted the fact that, the Society had not brought the
letter dated 28.2.1995 to the notice of Deputy Registrar, Co-
operative Societies, at the time of seeking approval of the Co-
operative Department. The Secretary of the Society was
accordingly directed, to take a decision on the matter, and to
B forward the same to the Deputy Registrar, Co-operative
Societies. Being alive of the letter dated 31.5.1995, which was
addressed by the Deputy Registrar, Co-operative Societies to
the Secretary of the Society, the petitioner through her letter
dated 13.6.1995 informed the Secretary of the Society, that the
c withdrawal letter dated 28.2.1995 addressed by her was
received by the Secretary of the Society, and further that the
same had been duly acknowledged on 6.3.1995. The petitioner
highlighted the fact, that the approval of the .Deputy Registrar,
Co-operative Societies should not have been sought (by the
D Secretary of the Society), after the receipt of the petitioner's
communication dated 28.2.1995.
16. Since, the petitioner was not communicated any
determination, by the concerned authorities. She addressed a
notice on 9.9.1995, calling upon the Secretary of the Society,
E to deliver the possession of the flat no. 5D, along with the share
certificates, to her within seven days of the receipt of the said
notice. On 21.11.1995, the Society denied all the allegations
made by the petitioner against the Society (contained in the
notice). On the cl.aim of retransfer of the shares and flat made
F by the petitioner, the Society responded by asserting, that the
shares had been transferred to the name of i<alpana
Mukherjee, and on the basis thereof flat no. 5D also had been
transferred in her name, thereupon, the Society did not have
any legal authority to restore/retransfer the same to the name
G of the petitioner. On 19.12.1995, the Deputy Registrar, Co-
operative Societies also informed Pratima Chowdhury, that the
transfer of her shares and flat in favour of Kalpana Mukherjee
had been completed, and since the Society had resolved on
2.4.1995 that it had no legal competence to cancel the same,
H nothing could be done in the matter.
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 683
ANR. [JAGDISH SINGH KHEHAR, J.]
17. Dissatisfied with the determination of the Co-operative A
Societies, as also, the denial of the consideration at the hands
of the Deputy Registrar, Co-operative Societies, the petitioner
filed Dispute Case No. 29/RCS of 1995-96. The aforesaid
dispute case was adjudicated upon by D.K. Ghosh in his
capacity as Arbitrator. B
17(i) During the course of the above determination,
Kalpana Mukherjee (who was impleaded as respondent no. 1)
filed a reply on 22.2.1996 which deserves a special mention.
Firstly, according to the reply filed by Kalpana Mukherjee flat C
no. 5D was purchased by Partha Mukherjee in the name of
Kalpana Mukherjee (mother of Partha Mukherjee). The above
flat was purchased for a total consideration of Rs. 4,29,000/-.
The said consideration was paid by way of transfer of shares,
in the name of Partha Mukherjee to the name of Pratima
Chowdhury. Highlighting the above factual position is important D
because the entire paper work pertaining to the transfer of flat
no. 5D, from the name of Pratima Chowdhury to the name of
Kalpana Mukherjee indicates, that the above transfer was
without any monetary consideration, whereas stands adopted
by Kalpana Mukherjee was that as a matter of fact the said E
transfer was on a consideration of Rs. 4,29,000/-. Secondly,
according to Kalpana Mukherjee (respondent no. 1), Pratima
Chowdhury's letter dated 28.2.1995 was afterthought. It is
therefore, that Kalpana Mukherjee in her reply emphasized that
the letter dated 28.2.1995, was only a scheme devised by F
Pratima Chowdhury to wriggle out of the transaction.
17(ii) The Secretary of the Society filed separate written
reply to the case filed by Pratima Chowdhury. In its reply the
Society supported the transfer of shares, as also, the transfer G
of flat no. 5D to the name of Kalpana Mukherjee. The Society
clearly brought out in their reply, that Pratima Chowdhury through
her letter dated 29.6.1992 had informed the Society, that
Kalpana Mukherjee was in occupation of the flat, and as such,
maintenance charges for the flat should be recovered from her.
H
684 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Furthermore, according to the Society, the transfer of the
shares, as also, of flat no. 5D to the name of Kalpana Mukherjee
was approved at the request of Pratima Chowdhury, made
through her letter dated 11.11.1992. It was submitted, that the
aforesaid request was considered by the Department of Co-
B operative Societies, which approved the resignation of Pratima
Chowdhury and the consequential transfer of membership vide
Resolution of the Board of Directors of the Society dated
14.2.1993. The above resolution had been forwarded by the
Secretary of the Society, to the Deputy Registrar, Co-operative
c Societies (by letter dated 10.3.1993), for approval. It was
pointed out that the Deputy Registrar, Co-operative Societies
had approved the Resolution of Board of Directors of the Co-
operative Societies on 13.3.1995. Additionally, it was pointed
out, that after the approval of the change of membership to the
D name of Kalpana Mukherjee, the petitioner Pratima Chowdhury
had required the Senior Commercial Executive of Calcutta
Electric Supply Corporation, to transfer the electricity-supply
meter of flat no. 5D to the name of Kalpana Mukherjee.
According to the Society, the above facts clearly evidenced the
unequivocal intention of Pratima Chowdhury to transfer her
E shares and flat no. 5D to the name of Kalpana M~kherjee,
which was given due effect to by the Society after seeking the
approval of the Deputy Registrar, Co-operative Societies. In
view of the aforestated factual position, the Society denied the
claim raised by Pratima Chowdhury in Dispute Case No. 29/
F RCS of 1995-96.
17(iii) It is also imperative to record herein, that Pratima
Chowdhury had filed rejoinder, to the written statements filed
on behalf of Kalpana Mukherjee and the Society before the
G Arbitrator. It was pointed out in the rejoinder, that Partha
Mukherjee was married to Sova Mukherjee. Sova Mukherjee
was the daughter of H.P. Roy and Bani Roy (sister of the
petitioner, Pratima Chowdhury). On account of the above
relationship she had treated Sova Mukherjee as her daughter
H and Partha Mukherjee as her son. Consequently on the transfer
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 685
& ANR. [JAGDISH SINGH KHEHAR, J.]
of Partha Mukherjee to Calcutta (from Bombay), she allowed A
·him to reside in flat no. 50. At the behest of Parth~ Mukherjee,
his employer Colgate Palmolive (India) Limited entered into a
lease agreement with Pratima Chowdhury on 9.3.1992. Under
the lease agreement Pratima Chowdhury was entitled to rent
at the rate of Rs. 5,000/- per month. The lease agreement was B
executed for a period of three years, with overriding condition,
that the tenure of lease would coincide with the tenure of Partha
Mukherjee at Calcutta, while in the employment of Colgate
Palmolive (India) Limited. It was also pointed out, that Partha
Mukherjee had opened a joint account along with petitioner c
Pratima Chowdhury, for the deposit of rent payable by Colgate
Palmolive (India) Limited. It was also pointed out, that Partha
Mukherjee singularly operated the aforesaid joint account. In his
above capacity he encashed the rent deposited by Colgate
Palmolive (India) Limited, without the knowledge and notice of
0
the petitioner Pratima Chowdhury. She also asserted in the
rejoinder, that she could obtain the details of the agreement
executed with Colgate Palmolive (India) Limited, as also, the
deposits of rent in her joint account with Partha Mukherjee, only
after she had issued a letter to Colgate Palmolive (India)
Limited, that she would not make any claim from the employer E
of Partha Mukherjee, on the basis of information supplied. In
her rejoinder Pratima Chowdhury also asserted, that Partha
Mukherjee had forced her to sign the letter dated 11.11.1992,.
without disclosing the contents thereof. The categoric stance
adopted by Pratima Chowdhury in her rejoinder was, that she F
was not aware of the contents of letter dated 11.11.1992, and
furthermore, Partha Mukherjee had obtain her signature on
other blank papers as well, by falsely informing her that the
papers would be used to explain his stay in flat no. 50. She
also denied having executed the document dated 13.11.1992, G
which was allegedly notarized at Calcutta. In fact she denied
her presence at Calcutta on 13.11.1992. She further stated, that
Partha Mukherjee did not remain in employment of Colgate
Palmolive (India) Limited after his transfer to Bombay. It was
also pointed out by her, that on his return to Bombay, Partha H
686 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Mukherjee started his independent business in aluminium
products. For the said business Pratima Chowdhury claims to
have advanced a loan of Rs.2 lakhs to Partha Mukherjee. The
loan stated to have been extended to Partha Mukherjee was
by way of a cheque drawn in favour of Bharat Aluminium
B Company, for the supply of raw material for the business of
Partha Mukherjee. She further contended, that Partha
Mukherjee also took loan of Rs. 1,S0,000/- from Bani Roy
(sister of the petitioner, Pratima Chowdhury). It was pointed out,
that the share certificates held by Partha Mukherjee jointly with
c his wife Sova Mukherjee, were transferred to the petitioner
Pratima Chowdhury and her sister Bani Roy during the year
1994, toward repayment of loans taken from them by Partha
Mukherjee. The position accordingly adopted was, that the
transfer of share certificates did not constitute consideration in
D lieu of the transfer of flat no. SD to Kalpana Mukherjee. A
categoric assertion was made by the petitioner Pratima
Chowdhury in her rejoinder, that on 30.11.1992 Partha
Mukherjee had no company shares either in his own name or
in the name of his wife Sova Mukherjee (nor in the joint names
of the husband and wife). Accordingly, the plea raised by
E Kalpana Mukherjee in her reply (to the dispute case filed by the
petitioner Pratima Chowdhury) was that the transfer transaction
was for consideration, and that, the payment of consideration
made by transfer of shares from the name of Partha Mukherjee
to the name of Pratima Chowdhury, was false. Pratima
F Chowdhury also denied, that she had addressed a letter dated
23.4.1993 to the Senior Commercial Executive of the Calcutta
Electric Supply Corporation (South Region Office).. She
disputed even her signatures on the above letter, and further
asserted, that she had filed a first information report at the
G Gariahat Police Station, Kolkata. On the basis of the factual
position noticed hereinabove, the petitioner Pratima Chowdhury
reiterated, that she had neither surrendered, nor resigned from
the membership of the Society, nor had she sought the transfer
of flat no. SD from her name to the name of Kalpana Mukherjee.
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 687
ANR. [JAGDISH SINGH KHEHAR, J.]
18. Before the Arbitrator, the petitioner examined three A
· witnesses. She examined herself as PW1, she examined Vani
Ganapati as PW2 and H.P. Roy as PW3. H.P. Roy PW3 (is
married to Bani Roy, the sister of the petitioner Pratima
Chowdhury) is the father-in-law of Partha Mukherjee. Kalpana
Mukherjee examined four witnesses in her defence. She B
examined herself as DW1, Partha Mukherjee her son was
examined as DW2, the Secretary of the Society was examined
as DW3 and S.N. Chatterjee, Advocate, who had notarized the
documents referred to above, was examined as DW4.
19. In the process of adjudicating upon the matter, the C
Arbitrator framed six issues of fact, and seven issues of law.
The same are being extracted hereunder:
"QUESTIONS OF FACT INVOLVED
D
i) Whether the Plaintiff tendered resignation on 11.11.92
from the membership of the Society or not.
ii) Was the document executed on 13.11.92 a deed of
transfer of flat or an agreement for transfer of flat.
E
iii) Whether consideration money was paid by the
Defendant no. 1 to the plaintiff or not.
iv) Whether the payment of consideration money by way
of transfer of shares of companies can be treated as valid
F
payment of consideration money or not.
v} Whether the Defendant no. 2 accepted the admission
of the membership of the Defendant no. 1 on 14.2.93 or
vi} Whether the flat in question was encumbered due to G
existence of lease and license agreement at the material
point of time i.e. on 11.11.92 or on 13.11.92.
"QUESTIONS OF LAW INVOLVED
i) Whether the instant dispute is barred ljy law of limitation. H
688 SUPREME COURT REPORTS [2014] 2 S.C.R.
A ii) Whether sub-section 9 of section 85 of West Bengal Co-
Operative Societies Act, 1983 was followed in case of
transfer of flat in question of the plaintiff.
iii) Whether section 69 and 70 of the West Bengal Co-
Operative Societies Act 1983 were followed in respect of
B
admission of membership of the Defendant no. 1.
iv) Whether Rules 135(3) (a) and 142(1) of West Bengal
Co-Operative Societies Rules 1987 were obeyed or not.
c v) Whether Rule 127(1) of West Bengal Co-Operative
Societies Rules 1987 was obeyed in case of nomination
or not.
vi) Whether the disputed transfer of flat contradicted the
relevant provisions of the Bye-laws of the Defendant
D Society or not.
vii) The Doctrine of estoppel as per sections 115 & 116
of the Evidence Act 1872 whether attracted or not."
E 20. It is necessary for us to briefly record the factual as also
the legal conclusions drawn by the Arbitrator in his order dated
5.2.1999, while disposing of the disputes raised by Pratima
Chowdhury. Accordingly we are summarizing the same
hereunder:-
F (i) In respect of the letter dated 11.11.1992, the Arbitrator
observed that the same was drafted by Partha Mukherjee. This
inference came to be drawn from the manuscript of the original.
The Arbitrator pointed out that the letter dated 11.11.1992,
disclosed that the transaction was not based on passing of
G monetary consideration, whereas, Kalpana Mukherjee had
expressly asserted in her defence, that the transaction was
executed on an agreed consideration of Rs. 4,29,000/-.
Kalpana Mukherjee had also affirmed, that the aforesaid
consideration had passed from the transferee to the transferor
H by transfer of shares of Partha Mukherjee, to the name of
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 689
& ANR. [JAGDISH SINGH KHEHAR, J.]
Pratima Chowdhury. The Arbitrator relying on the contents of A
the letter dated 11.11.1992, recorded that the letter itself
mentioned that the details disclosed therein, were meant purely
to comply with the rules and to avoid future complications. The
Arbitrator felt, that if Pratima Chowdhury had the intention to sell
the flat, she would have mentioned the same in her letter dated B
11.11.1992. It was also observed by the Arbitrator, that there
was no justification for not mentioning the monetary
consideration in the said letter. On the instant aspect of the
matter the Arbitrator was of the view, that the disclosure of the
above consideration would have clearly avoided future c
complications (which seem to be the intention for writing the
letter dated 11.11.1992). The Arbitrator also pointed out, that
the letter dated 11.11.1992 could not be treated as a letter of
resignation of the petitioner Pratima Chowdhury from the
Society. In this behalf it was noticed, that the word "resignation" 0
was completely absent from the text of the letter dated
11.11.1992.
(ii) In respect of letter dated 13.11.1992 the Arbitrator
pointed out, that the same was notarized by S. N. Chatterjee,
Advocate, who was the son-in-law of the sister of Kalpana E
Mukherjee (defendant No. 1, before the Arbitrator). Although,
the above notary stated that the letter dated 13.11.1992 was
signed by all the parties concerned before him at Calcutta, he
acknowledged, that he did not issue any notarian certificate in
terms of Section 8 of the Notary Act. According to the Arbitrator, F
Pratima Chowdhury and all the witnesses appearing for her,
had unequivocally and categorically affirmed, that she (Pratima
Chowdhury) was in Bombay on 11.11.1992, as also, on
13.11.1992. Therefore, according to the Arbitrator, the question
of her appearing before the notary at Calcutta on 13.11.1992, G
did not arise at all. According to the Arbitrator, the registration
number of the Society had not been mentioned in the document
dated 13.11.1992, this according to the Arbitrator, made the
document suspicious because Anil Kumar Sil, the Secretary of
the Society, had mentioned that the above document dated H
690 SUPREME COURT REPORTS [2014] 2 S.C.R
A 13.11.1992 was executed at his residence. If the above factual
position was correct, according to the Arbitrator, the registration
number would have been supplied by the Secretary of the
Society, and would have been mentioned in the document itself.
Furthermore, according to the Arbitrator, the document dated
B 13.11.1992 was in the nature of deed of transfer, but such
transfer would materialize after (and not before) the consent of
the Board of Directors of the Society, and the approval of the
Deputy Registrar, Co-operative Societies. As per the Arbitrator,
even the first step towards transfer of flat no. 50 had not
c commenced on 13.11.1992, and therefore, the question of
allotment and handing over the possession of the flat to the
nominee Kalpana Mukherjee, in accordance with the terms and
conditions of the allotment and bye-laws of the Society did not
arise either in law or in fact, as has been wrongly stated in the
said document dated 13.11.1992. As per the Arbitrator even
0
the document dated 13.11.1992 was silent on the consideration
for such transfer, despite Kalpana Mukherjee expressing that
the above transfer was for a sale consideration of Rs. 4,29,000/
-. According to the Arbitrator, the possession of Kalpana
E Mukherjee, was through Partha Mukherjee, because of the
lease and license agreement between Pratima Chowdhury and
Colgate Palmolive (India) Limited (which commenced on
1.4.1992 and was terminated on 19.10.1993), and not on the
basis of the document dated 13.11.1992. The Arbitrator also
pointed out, that Kalpana Mukherjee had deposited rent in the
F account of Pratima Chowdhury on 21.10.1993, describing it as
rent payable to Pratima Chowdhury. The Arbitrator further
observed that Pratha Mukherjee in his letter dated 28.10.1993
mentioned Pratima Chowdhury as the landlady of flat no. 50.
Based on the above two instances of 21.10.1993 and
G 28.10.1993, the Arbitrator was of the view, that the assertion
of transfer of flat no. 50 by Pratima Chowdhury to Kalpana
Mukherjee stood clearly annihilated.
(iii) On the issue of the consideration money, the Arbitrator
H noted, that Kalpana Mukherjee had stated in her defence, that
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 691
& ANR. [JAGDISH SINGH KHEHAR, J.]
the parties had orally settled the passing of consideration in lieu A
of flat no. 5D, at Rs.4,29,000/-. It was also her contention, that
the parties had settled that the above agreed consideration
would be paid by Partha Mukherjee to Pratima Chowdhury by
transferring his shares in different companies to the name of
Pratima Chowdhury. But Pratima Chowdhury categorically 8
denied the passing of any consideration, as she had no
intention to sell the property. She also asserted, that the shares
shown to have been transferred from the name of Partha
Mukherjee to the name of Pratima Chowdhury, were acquired
by Partha Mukherjee long after November, 1992 {when the C
letters dated 11.11.1992 and 13.11.1992 were issued) i.e. from
August, 1993 to April, 1994. The details of the transfer of
shares was disclosed in the award passed by the Arbitrator as
under:-
"COMPANY'S NAME NO. OF SHARES ACQUIRED . D
T~ta Chemicals Ltd. 50 nos. 8.9.93
Tata Chemicals Ltd. 450 nos. 27.10.93
Siemens 50 nos. 2.8.93 E
Indian Aluminium 500 nos.· 4.3.94
l.T.C. Hotels 100 nos. acquired
with Mr. H.P.
Roy 4.4.94" F
The above shares were acquired by Partha Mukherjee jointly,
either with his wife or with his father-in-law, long after the
material point of time. Pratima Chowdhury's assertion before
the Arbitrator, questioning truthfulness of the assertion of G
Kalpana Mukherjee, was also based on the fact that, Kalpana
Mukherjee {or Partha Mukherjee) could not have agreed to
transfer to Pratima Chowdhury, what they did not themselves ·
hold when the transaction was allegedly executed. In order to
falsify the contention of Kalpana Mukherjee {and Partha H
692 SUPREME COURT REPORTS (2014] 2 S.C.R.
A Mukherjee) that consideration was paid to Pratima Chowdhury
by transfer of shares as noticed above, it was stated that after
Partha Mukherjee was transferred from Calcutta to Bombay in
the year 1993, he did not continue with his employment with
Colgate Palmolive (India) Limited, as he wanted to start a
B business of aluminium products with one R.K. Sen in Bombay.
Keeping in view the above objective, Partha Mukherjee took a
loan of Rs. 2 lakhs from Pratima Chowdhury. The above loan
was extended by Pratima Chowdhury by way of cheques drawn
in favour of Bharat Aluminium Company Limited for supply of
C raw materials for Partha Mukherjee's business. It was further
contended that Partha Mukherjee similarly took a loan of Rs. 2
lakhs from his own wife Sova Mukherjee which was repaid by
Partha Mukherjee through cheques (bearing nos. 021865,
021866 and 021867) drawn on the Bank of Baroda. It was
further pointed that Partha Mukherjee had similarly taken a loan
D for a sum of Rs.1.5 lakhs for the same purpose from Bani Roy
(his mother-in-law) which he had still not repaid. It was pointed
out, that at the asking of H.P. Roy (his own father-in-law, father
of Sova Mukherjee) Partha Mukherjee had transferred share
certificates standing in his name, ana in the name of his wife
E Sova Mukherjee, to the name of Pratima Chowdhury, towards
repayment of the abovementioned loans. Accordingly, the case
of Pratima Chowdhury was, that transfer of shares by Partha
Mukherjee to the name of Pratima Chowdhury, was for a
completely different transaction, and had nothing to do with the
F allowing of the usage and occupation of the flat, by Kalpana
Mukherjee and Partha Mukherjee.
(iv) On the lease and license agreement the Arbitrator
noticed, that Partha Mukherjee (son of Kalpana Mukherjee), and
G son-in-law of Pratima Chowdhury's sister Bani Roy, was allowed
to reside in flat no. 5D, consequent upon his transfer from
Bombay to Calcutta (while in the employment of Colgate
Palmolive (India) Limited). It was also noticed, that the lease
and license agreement, was executed by Colgate Palmolive
H (India) Limited, at the instance of Partha Mukherjee, for a
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 693
ANR. [JAGDISH SINGH KHEHAR, J.]
monetary consideration of Rs. 5,000/- per month, as rent A
payable to Pratima Chowdhury. To deposit the above
consideration Partha Mukherjee opened a joint account in the
names of Pratima Chowdhury and himself. The Arbitrator noted,
that when Partha Mukherjee drafted the letter dated 11.11.1992,
he utterly neglected to mention the subsisting lease and license B
agreement between Colgate Palmolive (India) Limited and
Pratima Chowdhury. The Arbitrator also noticed, that Kalpana
Mukherjee did not inform Colgate Palmolive (India) Limited that
flat no. SD had been transferred from the name of Pratima
Chowdhury to her name. On the contrary the Arbitrator pointed c
out, that Kalpana Mukherjee on 21.10.1993, deposited rent in
the account of Pratima Chowdhury, by filing the bank deposit
slips. Furthermore, the Arbitrator noticed, that Partha Mukherjee
in h~ letter dated 28.10.1993 mentioned, that Pratima
Chowdhury as the landlady of flat no. SD. According to the D
Arbitrator, the above factual position clearly indicates, that
Kalpana Mukherjee along with her son Partha Mukherjee were
aware, that flat no. SD belonged to the petitioner, even on 21/
28.10.1993. Whereas, they wrongly depicted the transfer
thereof from the name of Pratima Chowdhury to the name of
Kalpana Mukherjee through letter dated 11.11.1992 and E
13.11.1992. Since the lease and license agreement between
Colgate Palmolive (India) Limited and Pratima Chowdhury
continued from 1.4.1992 to 19.10.1993, there was no question
of handing over of possession thereof by Pratima Chowdhury
to Kalpana Mukherjee. F
(v) On the submissions advanced on behalf of Pratima
Chowdhury in respect of one covered garage space on the
premises of the Society is concerned, the Arbitrator concluded
from the documents submitted by Kalpana Mukherjee, that G
Pratima Chowdhury had one covered garage space also. The
said covered garage space was not mentioned in the document
dated 13.11.1992. Thereafter, based on an agreement
executed between Kalpana Mukherjee on the one hand and the
Society on the other, the said garage space was also H
694 SUPREME COURT REPORTS [2014) 2 S.C.R.
. .
A transferred to the. name of Kalpana Mukherjee on 25.4.1995.
According to the Arbitrator, the instant agreement dated
25.4.1995, had no validity as the same was neither mentioned
in the letter dated 11 .11 .1992, nor in the document dated
13.11.1992. And therefore cannot.be considered as having the
B approval of Pratima Chowdhury. Accordingly, the Arbitrator
expressed the view that the covered garage space must be
deemed to have never been transferred by Pratima Chowdhury
to Kalpana Mukherjee. The Arbitrator also concluded, that the
agreement dated. 25.4.1995 cou.ld not have been executed in
c the absence of Pratima Chowdhury. Based on the a1:>ove ·
factual position Pratima Chowdhury had also alleged
connivance between Kalpana Mukherjee and the SoCiE!ty, so
as to deprive Pratima Chowdhury.of her property.
(vi) Besides the above factual conclusions drawn by the
D Arbitrator, the Arbitrator had also concluded that the Society
violated various provisions of the West Bengal Co-operative
·Societies Act, 1983, and the rules framed thereunder, as also
the bye-laws of the Society. The Arbitrator summarized the
conclusions drawn on the legal issues as under:-
E
"Keeping in view of the all above, I am of the opinion that
the transfer of the flat no. 5D of the Defendant No. 2 Society
was not done in accordance with laws including West
Bengal Co-Operative Socities Act, Rules,'lndian Contract
F Act, Transfer of Property Act due to re~n at a glance.
1) Section 85(9), Section 70, S~ction 69 of West
Bengal Co-Operative Socities Act 1983 have been
flouted.
G 2) Rule 127(1 ), Rule 135(3)(a), Rule 142(1) have been
flouted.
3) Bye-laws have been contradicted.
4) No consideration· money was paid by the
H Defendant no. 1 to the Plaintiff.
PRATI MA CHOWDHURY v. KALPANA MUKHERJEE & 695
ANR. [JAGDISH SINGH KHEHAR, J.]
5) Societies accepted the resignation of the Plaintiff A
on 14.2.93 which she had not tendered, if that be
so, the society did not act as per Rule 143 also.
6) The flat in dispute was under the lease and license
agreement at the material time since bank account
8
in this respect was operated by the son of the
Defendant no. 1 who also deposited cheque on
Plaintiffs behalf.
7) The instant dispute case is·not barred by limitation.
c
8) The transaction of 13.11.92 does not attract the
doctrine of estoppel."
21 . Based on the abovementioned conclusions drawn by
the Arbitrator on the factual and legal issues canvassed by the D
rival parties. The Arbitrator passed the following award:
"AWARD
Keeping in view of the above, based on documents,
assessing all the pros and cons, on the basis of equity, E
justice and good conscience, I pass the following
'AWARD':
a) The agreement dt. 13.11.92 between the Plaintiff
and Defendant no. 1 is invalid, void and incomplete
and F
b} The relevant resolution dt. 14.2.93 (Agenda no. 1)
of the Managing Committee of the Defendant no.
2 is quashed and;
c} The Defendant no. 2 is directed to ensure and G
conform that the plaintiff gets the possession of flat
no. 5D with garage space with immediate effect and
issue share certificate in her name immediately and
d} Any other action if any taken by any authority on and H
696 SUPREME COURT REPORTS [2014) 2 S.C.R.
A after 13.11.92 affecting the membership of the
Plaintiff in any manner whatever is also quashed.
The above Judgment and Award have been given
on Pronouncement before the parties present."
B 22. Dissatisfied with the award rendered by the Tribunal
on 5.2.1999, Kalpana Mukherjee preferred an appeal bearing
no. 14 of 1999 before the West Bengal Co-operative Tribunal
(hereinafter referred to as the Co-operative Tribunal). The
Society (defendant no. 2, before the Arbitrator) preferred a
C separate appeal bearing no. 29 of 1999, to assail the award
of the Arbitrator dated 5.2.1999. While dwelling upon the
controversy between the parties, the Co-operative Tribunal
considered it appropriate to highlight the social relationship and
affinity between the parties. According to the Cooperative
o Tribunal, the relationship between the parties had an essential
bearing, to an effective detennination of the controversy. Insofar
as the instant aspect of the matter is concerned, rather than re-
narrating the position taken into consideration, we consider it
more appropriate to extract hereunder the narration recorded
E by the Co-operative Tribunal itself. The same is accordingly
reproduced hereunder:-
"For proper appreciate of evidence it is proper to
introduce the parties. P.W. Chowdhury, the respondent no.
1 in both the appeals is a spinster and now aged 50+. She
F is a graduate. She studies in Calcutta and other places.
She is an exponent to Bharat Natyam and performs dance
at many places of India. For a pretty long time she has
been residing at Bombay. Smt. Bani Roy is her sister. B.
Roy's husband Mr. H.P. Roy is a wealthy person in
G Bombay. P. Chowdhury has been living in the family of Mr.
H:P. Roy since the put up herself in Bombay. Partha
Mukherjee is the son-in-law of H.P. Roy. K. Mukherjee who
is the appellant in appeal no. 14/1999 is the mother of
Partha Mukherjee. K. Mukherjee retired from service in the
H National Library, Calcutta in 1994. While in service, she
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 697
ANR. [JAGDISH SINGH KHEHAR, J.]
would stay. in the Govt. accommodation at Balvediare A
Road, Alipur. Partha Mukherjee, Son of K. Mukherjee is
an Engineer from 1.1.T., Kharag'pur and obtained M.B.A.
from Ahmedabad and at the material time worked as Sales
Manager/Regional Manager of Colgate Palmolive Ltd. in
Bombay, Calcutta and other places. Partha Mukheree B
married Sova Mukherjee, who was the daughter of H.P.
Roy of Bombay. P. Chowdhury, her sister Bani, H.P. Roy,
Partha and Sova, all lived together for a prolonged period
of time in the house of H.P. Roy at Bombay. Partha
married Sova sometimes in 1987 and little after marriage, c
he and Sova started living in the house of H.P. Roy.
Evidence has it to say that the relationship of Pratima with
Sova Rinki is, as Pratima herself says, "like my daughter''.
Similarly, the evidence of Pratima runs that after marriage,
her relationship with Partha was "like my son". In 1992, 0
Partha worked for Palmolive Co. Ltd. in Bombay and while
working there he, as we have earlier observed, would stay
in the house of H.P. Roy. In January, 1992, Pratima was
allotted a flat being no. 58 at 48E, Gariahat Road, Calcutta-
19 belonging to the society. The said flat was originally E
allotted to Smt. lndrani Bhattacharya and the said Smt.
lndrani Bhattacharya having transferred the flat to Smt. P.
Chowdhury, the latter came to be an allottee of that flat, but
P. Chowdhury did not reside there at all. In March/April,
1992, Partha was transferred from Bombay to Calcutta and
needed an accommodation. Colgate Palmolive Co. Ltd., F
was required to arrange accommodation for its officers.
As Pratima and Partha became very closer and Pratima
treated Partha like her son, Partha put up himself in the
flat of Pratima in April, 1992 and it was the Colgate
Palmolive Co. Ltd., which by virtue of an agreement for G
license with Pratima used to pay Rs.5000/- per month as
rent to Pratima. These are all facts admitted. We see that
the relationship amongst Pratima, Partha and Kalpana
grew very closer because of Partha marrying the daughter
of the sister of Pratima. This background has to be borne H
698 SUPREME COURT REPORTS [2014] 2 S.C.R.
A in mind while appreciating the evidence on record."
Having traced the relationship between the parties, as has been
recorded hereinabove, the Co-operative Tribunal was of the
view, that the entire approach of the Arbitrator was erroneous,
as the Arbitrator had treated Pratima Chowdhury as a
8
pardanashin lady. The above inference, drawn by the Co-
operative Tribunal, is also being extracted hereunder:-
"The entire approach of the Ld. Arbitrator seemed to have
gone into the fashion as if the respondent no. 1 P.
C Chowdhury was a pardanasin lady, that she was unaware
of the documents she was executing that it was Partha who
managed to get all the documents executed by Pratima
so as to obtain transfer of the flat in the name of his mother
Kalpana Mukherjee. Let it be recorded here at the outset
D that P. Chowdhury, having regard to her status, education
and wealth cannot be allowed to take the benefit of what
a pardanasin woman is entitled to on two-fold grounds;
firstly, she is highly education (illegible) and a literate
woman and secondly, the pleading of Pratima Chowdhury
E as we get from plaint does not make out such a case. "
Just in the manner in which we have recorded the conclusions
drawn by the Co-operative Arbitrator, highlighting each
individual aspect taken into consideration, we will also
endeavour to similarly summarize the conclusions drawn by the
F Co-operative Tribunal on different aspects of the matter. The
above conclusions are being recorded hereunder:-
(i) The Co-operative Tribunal was of the view, that the
determination rendered by the Arbitrator was erroneous on
G account of the fact that the Arbitrator did not take into
consideration a letter of vital importance to the controversy. In
this behalf, the Co-operative Tribunal examined the letter dated
29.6.1992, which Pratima Chowdhury had written to the Society,
wherein she had indicated that due to her indifferent health, she
H was not in a position to visit Calcutta in the immediate future.
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 699
ANR. [JAGDISH SINGH KHEHAR, J.]
She accordingly requested 'the Society to transfer her flat to "my A
nominee Kalpana Mukherjee, a close relative of mine". In the
above letter Pratima Chowdhury had also stated, that Kalpana
Mukherjee was already occupying the flat, and was staying in
it with her son (Partha Mukheree), and her daughter-in-law
(Sova Mukherjee). She accordingly requested the Society, that B
for the maintenance of the flat, charges payable should be
recovered from the residents of the flat. It would be relevant to
mention, that Pratima Chowdhury had accepted having written
the above letter (in the rejoinder filed by her before the
Arbitrator). Despite the above Pratima Chowdhury had c
explained, that the letter dated 29.6.1992 had been signed by
her at the instance of Partha Mukherjee. According to the Co-
operative Tribunal, the above letter dated 29.6.1992 written by
Pratima Chowdhury on her letterhead from Bombay,
demolished the entire case set up by her. Primarily on the basis
0
of the said letter dated 29.6.1992 the Co-operative Tribunal
concluded, that the factual inferences recorded by the Arbitrator
without reference to the above letter, were not justified. It came
to be expressly concluded by the Co-operative Tribunal, that
motives attributed to Partha Mukherjee were clearly unjustified.
E
(ii) According to the Co-operative Tribunal, after having
written the above letter dated 29.6.1992, Pratima Chowdhury
wrote two other letters dated 11.11.1992 and 13.11.1992. On
the basis of the above letters, flat no. 5D was transferred by
the Society, to the name of Kalpana Mukherjee, consequent F
upon the approval of the Deputy Registrar, Co-operative
Societies. In the opinion of the Co-operative Tribunal, Pratima
Chowdhury did not assail the action of the Society in transferring
flat no. 5D to Kalpana Mukherjee till February, 1995. According
to the Co-operative Tribunal, the challenge to the transfer of the G
above flat in the name of Kalpana Mukherjee, was raised only
after a marital discord had developed between Partha
Mukherjee and his wife Sova Mukherjee. On account of the
above discord, Partha Mukhrjee left the company of the family
of his father-in-law (H.P. Roy). It was only thereupon, that H
700 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Pratima Chowdhury assailed the transfer of the flat (from her
name, to the name of Kalpana Mukherjee). According to the
Co-operative Tribunal, the Arbitrator overlooked the above
extremely relevant factual position and accordingly erred in
drawing his conclusions.
B
(iii) Insofar as the document dated 13.11.1992 is
concerned, the Co-operative Tribunal having examined it,
recorded that the same was executed by Pratima Chowdhury
and Kalpana Mukherjee (both as executants), which was
attested by H.P. Roy (father-in-law of Partha Mukherjee) and
C which was also sworn before a notary. The Co-operative
Tribunal also observed, that the aforesaid document had been
executed on a non-judicial stamp paper of Rs.40/-. The above
document in its text recorded, that Pratima Chowdhury had
transferred the possession, right, title and interest of flat no. 50
0 in favour of Kalpana Mukherjee (the nominee/transferee). The
reason for the aforesaid transfer was indicated in document
dated 29.6.1992. It was mentioned, that on account of her
(Pratima Chowdhury's) indifferent health and on account of
having decided to permanently settle in Bombay, she had
E agreed to transfer the flat no. 50 in favour of Kalpana
Mukherjee. It was also duly recorded in the above document,
that possession of flat no. 50 had already been handed over
to Kalpana Mukhrjee. It was also pointed out, that Kalpana
Mukherjee had already applied for membership of the Society,
F whereafter, she would be entitled to all rights and privileges
over flat no. 50 in terms of the bye-laws of the Society.
According to the Co-operative Tribunal, Pratima Chowdhury
did not deny execution of document dated 13.11.1992. As per
the Co-operative Tribunal, the submission of Pratima
G Chowdhury about having signed a blank paper, on which
Partha Mukherjee had executed the document dated
13.11.1992, was not acceptable. The Co-operative Tribunal
was of the view, that Pratima Chowdhury having admitted her
signatures on the document dated 13.11.1992, it was not open
H to her to deny the execution thereof. For the same reason, the
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 701
ANR. [JAGDISH SINGH KHEHAR, J.]
Co-operative Tribunal rejected the contention advanced on A
behalf of Pratima Chowdhury, that she had never appeared
before the notary at Calcutta because she had never gone to
Calcutta during the period when the documents dated
11.11.1992 and 13.11.1992 were executed. The Co-operative
Tribunal felt compelled to record the aforesaid conclusion in the B
following words: "Regardless of whether the document called
agreement dated 13.11.1992 is legal or not, the fact remains
that the document was executed by the transferor and the
transferee, and it could not be denied that long before the
agreement was executed, possession of the flat was delivered c
way back in March, 1992.". Therefore, all the findings recorded
by the Arbitrator in respect of the document dated 13.11.1992
were not accepted for the above reasons.
(iv) While dealing with the documents dated 29.6.1992,
11.11.1992 and 13.11.1992, the Co-operative Tribunal D
expressed disbelief at the determination of the Arbitrator to the
effect, that Pratima Chowdhury had no intention to transfer her
membership and her flat bearing no. 50 to Kalpana Mukherjee.
According to the Co-operative Tribunal, the question whether
monetary consideration passed from Kalpana Mukherjee to E
Pratima Chowdhury or not, was a different issue, however, the
letters dated 29.6.1992, 11.11.1992 and 13.11.1992 clearly
expressed the intention of Pratima Chowdhury to transfer flat
no. 50 in favour of her nominee Kalpana Mukheaee. The Co-
operative Tribunal was also of the view, that the Arbitrator was· F
unjustified in observing, that the above letters were drafted by
Partha Mukherjee, or that, Partha Mukheree prevailed over
Kalpana Mukherjee to execute the above letters. According to
the Co-operative Tribunal, neither the evidence available on the
records of the case, nor the circumstances of the case justified G
any such inference.
(v) While dealing with the issue of consideration, which had
passed from Kalpana Mukherjee to Pratima Chowdhury on
account of transfer of flat no. 50, the Co-operative Tribunal
H
702 SUPREME COURT REPORTS [2014] 2 S.C.R.
A expressed, that the Arbitrator appeared to have been of the
view that since in the letter dated 11.11.1992 it was stated, that
no monetary transaction was involved, there could be no sale,
and consequently, when there was no sale, there could be no
transfer. The Co-operative Tribunal expressed the view, that
B sale was not the only mode of transfer. Relying on the letter
dated 11.11.1992 the Co-operative Tribunal felt, that it could
not be conclusively held, that Pratima Chowdhury had no
intention to transfer flat no. 50 in the name of Kalpana
Mukherjee. In fact, according to the Co-operative Tribunal, the
c issue of passing of consideration and the issue of transfer of
the property were two independent issues. The said issues,
according to the Tribunal, had to be determined as per the
totality of the circumstances of the case. On the instant aspect
of the matter the Co-operative Tribunal expressed the view, that
D the rival parties were tied up by a matrimonial relationship,
inasmuch as, the niece (Sova Mukherjee) of Pratima
Chowdhury was the cementing factor, of their relationship.
Accordingly, whether or not consideration had passed between
the parties, could not be considered as a decisive factor. In fact, .
E the Co-operative Tribunal was pleased to further conclude,
"Even assuming for the sake of argument that no monetary
transaction was involved, the factum of transfer is not abrogated
thereby". According to the Co-operative Tribunal, the provisions
of the West Bengal Co-operative Societies Act, and the Rules
framed thereunder, do not mandate, that transfer could only be
F made by way of sale. Keeping in view the closeness of the
relationship, which is existed between the parties, according
to the Co-operative Tribunal, the issue of paramount
importance was not the receipt of monetary consideration, the
issue of paramount importance was only "... to accommodate
G the plaintiffs niece Sova and her husband Partha, that was
uppermost in the mind of the plaintiff ... " Referring to the facts
of the present case, the Co-operative Tribunal held, that
consistent with the case of Pratima Chowdhury based on an
oral agreement, Partha Mukherjee transferred shares of
H different companies " ... worth Rs.4,29,000/- in favour of the
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 703
& ANR. [JAGDISH SINGH KHEHAR, J.]
plaintiff on 6.12.1994 by way of consideration of the A
apartment. .. ". It is necessary to notice the observations made
by the Co-operative Tribunal on the instant aspect of the matter.
The same are accordingly reproduced in the words of the Co-
operative Tribunal: "One may not believe the reality of oral
agreement so as to determine the price and of payment thereto B
by transfer of shares of different companies in favour of the
respondent no. 1. But if it appears from the documents which
show that in the latter part of the year 1994, shares worth
Rs.4,29,000/- were transferred in favour of P. Chowdhury and
if no convincing evidence is forthcoming as to payment of that c
money for different purpose or for different reason then one is
to believe the passing of consideration price, and the passing
of consideration price when proved would virtually prove the
alleged oral agreement to that effect."
(vi) The Co-operative Tribunal· also examined the rival D
contentions of the parties in respect of the place where the
documents in question were executed. It was pointed out, that
the evidence produced by Pratima Chowdhury to the effect, that
she had signed the documents in Bombay, could not be
accepted. Likewise, according to the Co-operative Tribunal,_ the E
witnesses produced by Pratima ChoWdhury on the above issue,
were not reliable. According to the Co-operative Tribunal, when
the notary who was an Advocate stated on oath, that the
documents were executed in Calcutta before him, it was not
possible to give credence to the statement of Pratima F
Chowdhury or the witnesses produced by her. According to the
Co-operative Tribunal, it needed to be kept in mind even,
insofar as the instant aspect of the matter was concerned, that
Pratima Chowdhary had raised a dispute in respect of the
transfer of flat no. 50 only after a marital discord had developed · G
between Partha Mukherjee and Sova Mukherjee.
(vii) According to the Co-operative Tribunal "the question
as to why Kalpana Mukherjee was not made a nominee in
January, 1992 when she was put in possession of the flat, lies
H
704 SUPREME COURT REPORTS [2014] 2 S.C.R.
A in the fact that since 1987, Kalpana Mukherjee's son Partha
Mukherjee had been residing in Bombay with his father in law
H.P. Roy and Pratima Chowdhury. According to the Co-
operative Tribunal, the Arbitrator recorded a useless reasoning,
that the nomination in favour of Kalpana Mukherjee was not
B acceptable. Referring to Sections 79 and 80 of the West Bengal
Co-Operative Societies Act, the Co-operative Tribunal
expressed the view, that it was not compulsory that transfer of
nomination could only be in favour of a member of the family
of the person making the nomination. According to the Co-
e operative Tribunal, the letters/documents dated 29.6.1992,
11 .11.1992 and 13.11 .1992 were sufficient proof of the
nomination by Pratima Chowdhury in favour of Kalpana
Mukherjee. It was also pointed out, that the Society had
accepted the above nomination, which was approved by the
D Deputy Registrar, Co-Operative Societies. It was accordingly
concluded by the Co-operative Tribunal, that in such a situation,
no separate letter giving consent to the transfer was required.
(viii) Another interesting aspect of the matter dealt with by
the Co-operative Tribunal was based on the principle of
E estoppel. Rather than expressing the observations and
conclusions drawn by the Co-operative Tribunal in our words,
we consider it just and appropriate to narrate the findings
recorded by the Co-operative Tribunal by extracting its
observations. The same are accordingly reproduced
F hereunder:-
"Section 115 of the Evidence Act provides that "when one
person has by his declaration act or commission,
intentionally causes or permits another person to believe
a thing to be true and to act upon such belief, neither he
G
nor his representative shall be allowed in the suit or
proceeding between herself and such person or his
representative shall be allowed in the suit or proceeding
between herself and such person or his representation, to
deny the truth of that thing". The following facts are very
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 705
ANR. [JAGDISH SINGH KHEHAR, J.]
much present to invoke the doctrine. A
(a) Fraud, undue influence (illegible) and
misrepresentation has not been proved;
(b) (illegible)
B
(c) (Illegible)
(d) Partha was in need of accommodation in Calcutta;
(e) Long before transfer Kalpana was already made a
nominee in respect of the flat in question; C
(f) Unquestionably two letters dated 19.6.1992 and
13.11.1992 are there addressed by Pratima to the
society clearly asking for transfer of the flat in favour
of Kalpana; D
(g) Possession was delivered pursuant to those letters
nd agreement dated 13.11.1992;
(h) Lease and license agreement with Colgate
Palmolive Ltd., legally cannot destroy the factum of E
transfer;
(i) Partha and Kalpana are led to believe about the
completion of transfer;
F
Under the law it (illegible) required to be executed
and registered under the T.P. Act and the l.R. Act;
(k) Pratima writes to CESC to henceforth collect all
charges from Kalpana;
G
(I) Pratima slept a slumber after the signing of the
agreement dated 13.11.1992 till April, 1993.
These facts are to our mind sufficient to invoke the .
doctrine of estoppel. When society acted upon letters. of
the plaintiff/respondent no. 1 and transfer was effected, th,e H
706 SUPREME COURT REPORTS [2014] 2 S.C.R.
A respondent no. 1 is estopped from challenging her stand."
(ix) It was argued before the Co-operative Tribunal, that
when the lease and license agreement came to an end, Partha
Mukherjee wrote a letter to Colgate Palmolive India Limited
informing it of the termination of the lease and license
8 agreement by asserting, that "Landlady refunded back the
security deposit of Rs.60,000/-". Factually, Partha Mukherjee
had deposited the above amount of Rs.60,000/-, in the Calcutta
office of Colgate Palmolive (India) Limited. It was argued
before the Co-operative Tribunal, that the use of the expression
C "landlady" by Partha Mukherjee, was indicative of the fact that
the transfer of flat no. 5D had actually not taken place.
According to the. Co-operative Tribunal, the aforesaid argument
was not acceptable because in the eyes of Colgate Palmolive
(India) Limited, Pratima Chowdhury was a landlady and
D accordingly it was not required that Partha Mukherjee should
inform Colgate Palmolive (India) Limited, that Pratima
Chowdhury had transferred flat no. 5D to the name of his
mother Kalpana Mukherjee.
E Based on the aforesaid findings recorded by the Co-
operative Tribunal, both the appeals were allowed. The
impugned award passed by the Tribunal dated 5.2.1999 in
Dispute Case No. 29/RCS of 1995-96 was set aside.
Accordingly, the dispute raised by Pratima Chowdhury was
F dismissed.
23. Dissatisfied with the common order passed by the Co-
operative Tribunal dated 16.5.2002, vide which Appeal nos. 14
of 1999 and 29 of 1999 were disposed of, the petitioner
invoked the civil revisional jurisdiction of the High Court at
G Calcutta (hereinafter referred to as, the High Court). During the
course of deliberations before the High Court, Pratima
Chowdhury assailed the findings recorded by the Co-operative
Tribunal on various aspects of the matter. The High Court in its
deliberations traced.the sequence of facts in the background
H of the _facts ..as were examined by the Arbitrator, as also, the
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 707
& ANR. [JAGDISH SINGH KHEHAR, J.]
Co-operative Tribunal. No new facts were taken into A
consideration. The High Court adjudicated upon the matter vide
an order dated 14.2.2006, whereby Civil Order nos. 3039 and
3040 of 2002 were jointly disposed of. The different
perspectives and angles within the framework of which the High
Court examined the controversy, are being briefly narrated B
hereunder:-
(i} The High Court excluded various facts taken into
consideration by the Arbitrator. For excluding certain facts from
consideration, the view of the High Court was, that the factual
position introduced by Pratima Chowdhury by filing a rejoinder C
before the Arbitrator, could not be taken into consideration. The
consideration of the High Court was recorded in the impugned
order dated 14.2.2006, as under:-
"After service of copy of the written statement, the plaintiff D
before the learned Arbitrator filed a rejoinder thereby
attempting to introduce certain facts. But the learned
Tribunal observe(!i that there could be no scope for filing
of such rejoinder either under the Code of Civil Procedure
or under the West Bengal Co-Operative Societies Rules." E
In fact, on the instant aspect of the matter the High Court,
adopted as correct the following observations recorded in the
order passed by the Co-operative Tribunal:-
--__
"It has to be clearly stated that under no provision_ of law F
the plaintiff can be allowed to submit a rejoinder to the
written statement of the defendant and the facts introduced
in the rejoinder were illegally taken note of by the Ld.
Arbitrator and whatever evidence she introduced to
translate that rejoinder cannot be legally accepted." G
(ii} The High Court was of the view, that the stance adopted
by Pratima Chowdhury was impermissible under the principle
of, justice and equity, the doctrine of fairness, as also, the
doctrine of estoppel. This aspect of the matter came to be
H
708 SUPREME COURT REPORTS [2014] 2 S.C.R.
A examined in the following manner:-
"After due consideration of all relevant facts and materials
it appears that there could be very little scope for the
society to recall its stand just because after about three
years, Pratima Chwodhury decided otherwise. In fact
B
resolution of the dated 14.2.1993 was forwarded to the
Deputy Registrar, Co-operative Societies with
recommendation for transfer of flat and shares in favour
of Kalpana Mukherjee .~s far back as on 10.3.1993. It
appears that the De1:l1uty Registrar, Co-operative
c Societies, asked for certain document on 26.7.1993, which
were submitted by the society on 22.9.1993. Thereafter,
membership of Kalpana Mukherjee in place of Pratima
Chowdhury was approved. Thus, backing out by Pratima
Chowdhury after about three years of her own consistent
D request for transfer in favour of Kalpana Mukherjee and her
request to C.E.S.C. to transfer electric meter, cannot have
any support in the eyes of law. Pratima Chowdhury also
did not bother to intimate Kalpana Mukherjee while
requesting the society for necessary action in view of her
E change of mind. This is against the doctrine of fairness.
Lord Dening in his book, The Discipline of Law, 7th
Reprint, page 223, observed:
"It is a principle of justice and of equality. It comes
F to this, when a man by his words or conduct has
led another to believe that he may safely act on the
faith of them - and the other does act on when it
would be unjust or inequitable for him to do so."
In the words of Dixon, J.:-
G
"The principle upon which estoppel in pais is founded is
that the law should not permit an unjust departure by a party
from an assumption of fact which he has caused another
party to adopt or accept for the purpose of their legal
H relations."
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 709
ANR. [JAGDISH SINGH KHEHAR, J.]
The said principle was further stretched to the following A
extent:- ·
"At any rate, it applies to an assumption of ownership or
absence of ownership. This gives rise to what may be
called proprietary estoppal. There are many cases where 8
he is not the owner, or, at any rate, is not claiming an
interest therein, or that there is no objection to what the
other is doing. In such cases, it has been held repeatedly
that the owner is not to be allowed to go back on what he
has led the other to believe. So much so that his own title C
to the property, be it land or goods, has been held to
limited or extinguished, and new rights and interest have
been created therein. 'And this operates by reason of his
conduct what he was led the other to believe even though
he never intended it."
D
It may be said that even in absence of actual
promise, if a person by his words or conduct, so behaves
as to lead another to believe that he will not insist on his
strict legal rights, knowing or intending that the other will
act on that belief and he does so act, that again will raise E
an equity in favour of the other, and it is for a court to equity
to say in what way the equity may be satisfied. An equity
does not necessarily depend on agreement but on words
or conduct. The Privy Council in V. Wellington Corporation
observed that the Court must look at the circumstances in F
each case to decide in what way the equity can be
satisfied."
(iii} The High Court expressly approved the manner in
which the controversy had been examined by the Co-operative
Tribunal, by taking into consideration the past relationship G
between the parties, and the souring of the relationship between
the two spouses, i.e., Partha Mukherjee and Sova Mukherjee.
Having examined the dispute in the aforesaid prospective, the
High Court observed as under:-
H
710 SUPREME COURT REPORTS (2014) 2 S.C.R.
A "On behalf of the petitioner it was also submitted that the
learned Tribunal failed to appreciate the findings of the
-learned Arbitrator arrived at after proper appreciation of
the evidence in the said proceeding. The learned Tribunal
seem to be in agreement.with the view that the document
B dated 13.11.1992 cannot be called as a proper and
complete document of transfer. The learned Tribunal,
thereafter explored as to whether such a document is at
all necessary for effecting transfer of an apartment by a
member to another person. Relying upon the letters dated
c 29.6.1992 and 11.11.1992 and quite rightly, without
attempting to read more than what meets the eyes, the
learned Tribunal held that Pratima Chowdhury by such
letters, expressed her desire to transfer the flat in favour
of her nominee Kalpana Mukherjee. This was quite relevant
in the context of relationship between two families arising
D
out of the marital tie. It cannot be said that the learned
Tribunal was not at all justified in observing that in the
backdrop of the present case, payment of consideration
could not be the decisive factor."
E {iv) On the subject of passing of consideration, the High
Court principally accepted the view propounded by the Co-
. o_perative Tribunal. The High Court made the following
observations on the issue of consideration:-
p "The learned Tribunal appears to have considered the
aspect relating to transfer of flat in proper perspective.
Nothing could be placed before this Court so as to justify
brushing aside of the observation of the learned Tribunal
that "neither the Act nor the rule rules out transfer by gift
or will. But the Rule does not provide the manner of
G
transfer, nor does it mandate that transfer has to be
effected by any of the modes necessary as provided for
in the Transfer of Property Act. The transferee has to be
· an allottee or a re-allottee."
-H On perusal of the impugned judgment, it is found that
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 711
& ANR. [JAGDISH SINGH KHEHAR, J.]
the learned Tribunal referring to Rule 201 (3) of the West A
Bengal Co-operative Societies Rule, 1974 and relevant
Rule of 1987 observed that the question of payment of
consideration money is primarily and purely a matter
between the transferor and the transferee. It was held that
"deletion of the Rule 201 (3) from the present Rule of 1987 B
clearly fortifies the position of the society which effected
transfer on the repeated request of the respondent no. 1
in full compliance with the provisions of the Act and the
Rules. This being so, for a transferee to hold possession
is required the certificate of allotment, not a deed of c
conveyance from the transferor"."
Significantly enough the learned Tribunal mentioned
about the manner in which Pratima Chowdhury got the flat
from the original member, Smt. lndrani Bhattacharya and
wondered as to how then there could be any grievance in D
regard to the transfer by the said Pratima Chowdhury in
favour of Kalpalan Mukherjee. The story of giving money
to Partha Mukherjee by way of loan could not be
established to the satisfaction of the judicial conscience
of the learned Tribunal and for reasons as mentioned in E
the impugned judgment, the learned Tribunal did not
choose to brush aside the assertions made on behalf of
Kalpana Mukherjee that shares amounting to Rs.4,29,000/
- were transferred in favour of Pratima Chowdhury. ·.
Controversy relating to alleged non-payment of F
consideration money, in the facts and circumstances of the
present case, were not seen to have nay legs, to stand
upon."
Having recorded the aforesaid findings, the High Court in its G
conclusion recorded the following observations:-
"But, as observed earlier, the judgment and order under
challenge does not· seem to be suffering from any such
infirmity or jurisdictional error, which calls for or justifies any
interference by this Court." H
712 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Based on the analysis of the controversy in the manner
summarized hereinabove, the High Court dismissed the
challenge raised by Pratima Chowdhury by a common order
dated 14.2.2006. The common order passed by the Co-
operative Tribunal dated 16.5.2002, and the common order
B passed by the High Court dated 14.2.2006 were assailed by
Pratima Chowdhury by filing Special Leave to Appeal (Civil)
no. 15252 of 2006.
2,4. Leave granted.
C 25. The factual narration recorded by us, the
circumstances taken into consideration by the Arbitrator, and
the Co-operative Tribunal, as also, the analysis of the High Court
have all been detailed hereinabove. Suffice it to state, that there
were no further facts besides those already referred to
D hereinabove, which were brought to our notice during the course
of hearing. It is also not necessary for us to record the
submissions advanced at the hands of the learned counsel for
the rival parties. All that needs to be mentioned is, that the same
submissions as were put forward by the respective parties
E hitherto before, came to be addressed before this Court as well.
We shall, therefore, venture to examine the veracity of the
propositions advanced on behalf of the rival parties by
compartmentalizing the submissions advanced before us under
different principles of law. We would thereupon record our final
F conclusions.
26. First and foremost, it surprises us that Co-operative
Tribunal, as also, the High Court excluded from consideration,
the factual position expressed in the rejoinder filed by the
appellant (before the Arbitrator). In excluding the aforesaid
G factual position, the Co-operative Tribunal and the High Court
did not rely on any provision of law nor was any reliance placed
on any principle accepted and recognized in legal
jurisprudence. It is not a matter of dispute, that after Kalpana
Mukherjee and the Society were permitted to file written replies
H before the Arbitrator, the rejoinder filed thereto on behalf of
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 713
& ANR. [JAGDISH SINGH KHEHAR, J.]
Pratima Chowdhury, was permitted to be taken on record. It is A
not in contention, that in the written replies filed before the
Arbitrator, Kalpana Mukherjee had adopted inter alia the
stance, that consideration was paid to Pratima Chowdhury in
lieu of the transfer of flat no. 5D to her name, even though the
documents relied upon by the rival parties, expressed otherwise. B
A number of documents not mentioned in the Dispute Case
filed by Pratima Chowdhury were also relied upon by Kalpana
Mukherjee. Pleadings between the parties could be considered
as complete, only after Pratima Chowdhury was permitted to
file a rejoinder (in case she desired to do so). She actually filed c
a rejoinder which was taken on record by the Arbitrator. Both
parties were permitted to lead evidence, not only on the factual.
position emerging from the complaint filed by Pratima
Chowdhury and the written replies filed in response thereto (by
Kalpana Mukherjee, and the Society), but also, the factual D
position highlighted by Pratima Chowdhury in her rejoinder
affidavit It is, therefore, not on the basis of the pleadings of the
parties, but also on the basis of the evidence led in support of
the aforesaid pleadings, that the Arbitrator had recorded his
findings in his award dated 5.2.1999. We are therefore of the
view, that the Arbitrator had acted in accordance with law, and E
therefore the exclusion from consideration, of the factual position
asserted by Pratima Chowdhury in her rejoinder, by the Co-
operative Tribunal and the High Court was wholly unjustified ..
The factual narration by Pratima Chowdhury, could not be
excluded from consideration, while adjudicating upon the rival F
claims between Pratima Chowdhury and Kalpana Mukherjee.
The instant aspect of the decision of the High Court, is therefore
liable to be set aside, and is accordingly set aside. Just the
instant determination, would result in a whole lot of facts which
were not taken into consideration by the adjudicating authorities, G
becoming relevant. Despite that, we feel, that remanding the
matter for a denovo consideration, would place a further burden
on the parties. Having heard learned counsel at great length,
we shall settle the issues finally, here and now.
H
714 SUPREME COURT REPORTS [2014] 2 S.C.R. .
A 27. The Co-operative Tribunal in its order dated 16.5.2002
had invoked the principle of estoppal, postulated in Section 115
of the Indian Evidence Act. The High Court affirmed the
conclusions drawn by the Co-operative Tribunal. In addition to
the above principle, the High Court invoked the principles of
B equity and fairness. Insofar as the latter principles are
concerned, we shall delve upon them after examining the
contentions of the rival parties, as equity and fairness would
depend upon the entirety and totality of the facts. The above
aspect can therefore only be determined after dealing with the
C intricacies of the factual circumstances involved. We shall,
however, endeavour to deal with the principle of estoppal, so
as to figure whether, the rule contained in Section 115 of tbe
Indian Evidence Act could have been invoked, in the facts and
circumstances of the present case. Section 115 of the Indian
'D Evidence Act is being extracted hereinabove:-
"115. Estoppal.- When one person has, by his
declaration, act-or omission, intentionally caused or
permitted another person to believe a thing to be
true and to act upon such belief, neither he nor his
E representative shall be allowed, in any suit or
proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration
F A intentionally and falsely leads B to believe that certain
land belongs to A, and thereby induces B to buy and pay
for it. The land afterwards becomes the property of A, and
A seeks to set aside the sale on the ground that, at the
time of the sale, he had no title. He must not be allowed
G to prove his want of title."
It needs to be understood, that the rule of estoppal is a doctrine
based on fairness. It postulates, the exclusion of, the truth of
the matter. All, for the sake of fairness. A perusal of the above
H provision reveals four salient pre conditions before invoking the
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 715
ANR. [JAGDISH SINGH KHEHAR, J.]
rule of estoppal. Firstly, one party should make a factual A
representation to the· other party. Secondly, the other party
should accept and rely upon the aforesaid factual
representation. Thirdly, having relied on the aforesaid factual
representation, the second party should alter his position.
Fourthly, the instant altering of position, should be such, that it B
would be iniquitous to require him to revert back to the original
position. Therefore, the doctrine of estoppal would apply only
when, based on a representation by the first party, the second
party alters his position, in such manner, that it would be unfair
to restore the initial position. In our considered view, none of c
the ingredients of principle of estoppal contained in Section 115
of the Indian Evidence Act, can be stated to have been
satisfied, in the facts and circumstances of this case. Herein,
the first party has made no representation. The second party
has therefore not accepted any representation made to her.
0
Furthermore, the second party has not acted in any manner, nor
has the second party altered its position. Therefore, the
question whether the restoration of the original position would
be iniquitous or unfair does not arise at all. Even if consideration
had passed from Kalpana Mukherjee to Pratima Chowdhury, E
on the basis of the representation made by Pratima
Chowdhury, we could have accepted that Kalpana Mukherjee
had altered her position. In the facts as they have been
presented by the rival parties, especially in the background of
the order passed by the Arbitrator, that no consideration had
passed in lieu of the transfer of the flat, and especially in the F
background of the factual finding recorded by the Co-operative
Tribunal and the High Court, that passing of consideration in
the present controversy was inconsequential, we have no
hesitation whatsoever in concluding, that the principle of
estoppal relied upon by the Co-operative Tribunal and the High G
Court, could not have been invoked, to the detriment of Pratima
Chowdhury, in the facts and circumstances of the present case.
Insofar as the instant aspect of the matter is concerned, the
legal position declared by this Court fully supports the
conclusion drawn by us hereinabove. In this behalf, reference H
716 SUPREME COURT REPORTS [2014) 2 S.C.R.
A may be made, firstly, to the judgment rendered by this Court in
Kasinka Trading vs. Union of India, (1995) 1 SCC 274,
wherein this Court noticed as under:-
"11. The doctrine of promissory estoppel or equitable
estoppel is well established in the administrative law
B
of the country. To put it simply, the doctrine
represents a principle evolved by equity to avoid
injustice. The basis of the doctrine is that where any
party has by his word or conduct made to the other
party an unequivocal promise or representation by
c word or conduct. which is intended to create legal
relations or effect a legal relationship to arise in the
future. knowing as well as intending that the
representation. assurance or the promise would be
acted upon by the other party to whom it has been
D made and has in fact been so acted upon by the
other party. the promise. assurance or
representation should be binding on the party
making it and that party should not be permitted to
go back upon it. if it would be inequitable to allow
E him to do so. having regard to the dealings, which
have taken place or are intended to take place
between the parties."
(emphasis is ours)
F The above sentiment recorded in respect of the principle of
estoppel was noticed again by this Court in Monnet /spat &
Energy Ltd. vs. Union of India & Ors., (2012) 11 SCC 1,
wherein this Court expressed its views in respect of the
principle of estoppel as under:-
G
"289. As we have seen earlier, for invoking the principle
of promissory estoppel there has to be a promise,
and on that basis.the party concerned must have
acted to its prejudice."
H (emphasis is ours)
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE &717
ANR. [JAGDISH SINGH KHEHAR, J.]
The ingredients of the doctrine of estoppal in the manner A
expressed above were also projected in H.S. Basavaraj (D)
by his LRs. & Anr. Vs. Canara Bank & Ors., (2010) 12 SCC
458, as under:-
"30. In general words, estoppal is a principle applicable 8
when one person induces another or intentionally
causes the other person to believe something to be
true and to act upon such belief as to change his/
her position. In such a case, the former shall be
estopped from going back on the word given. The
principle of estoppal is, however, only applicable in C
cases where the other party has changed his
position relying upon the representation thereby
made."
(emphasis is ours) D
As already noticed hereinabove, none of the ingredients of
estopp,el can be culled out from the facts and circumstances
of the present case. In view of above, we hereby set aside the
determination by the Co-operative Tribunal, as also the High E
Court, in having relied on the principle of estoppal, and thereby,
excluding the pleas/defences raised by Pratima Chowdhury to
support her claim.
28. The admitted factual position in the present
controversy, in our considered view, is absolutely clear and F
unambiguous. Had the different adjudicating authorities taken
into consideration the undisputed factual position, there ought
not to have been much difficulty in resolving the difficulty. We
shall highlight a few relevant admitted facts which crossed our
mind while' hearing the matter and whilst recording the order:- G
(i) The reason for transferring flat no. 50 indicated in the
letters dated 11.11.1992 and 13.11.1992 was on account of
the close relationship between Pratima Chowdhury and
H
718 SUPREME COURT REPORTS [2014] 2 S.C.R.
A Kalpana Mukherjee, which was expressed by observing " ... my
nominee Kalpana, a close rel13_tive of mine ... ". 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
B 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
c Chowdhury's niece Sova Mukhrjee was married to Partha
Mukheijee, 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
0 flat no. 50 which she had purchased for a consideration of Rs.4
lakhs, she would have done so by transferring it to the name of
her niece Sova Mukherjee. Affinity to Sova Mukherjee, and the
love, affection and welfare of Sova Mukherjee, would not extend
to a gesture of the nature under reference, i.e., by way of
E transfer of immovable property, of substantial value, without
consideration, to the mothe.r in law of Sova Mukherjee.
Therefore, factually the expression of close relationship between
Pratima Chwodhury and Kalpana Mukherjee depicted in letters
dated 11.11.1992 and 13.11.1992 are on the face of it, false
and incorrect. It is, therefore, improper for the adjudicating
F authorities to have accepted the factum of close relation~hip of
the parties, in so far as, the transfer of flat no. 50, is concerned.
(ii) There is hardly any justification for having accepted
another important factual position depicted in the letters dated
G 11.11.1992 and 13.11.1992. In this behalf, our reference is to
the fact that flat no. 50 was sought to be transferred by Pratima
Chowdhury to Kalpana Mukherjee, without consideration. First
and foremost, the aforesaid factual position is not acceptable
on account of the statement of Kalpana Mukherjee herself. In
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 719
& ANR. [JAGDISH SINGH KHEHAR, J.]
the written reply filed before the Arbitrator, Kalpana Mukherjee A
took the express stance, that Pratima Chwodhury had
transferred flat no. 50 to her name, by accepting a
consideration of Rs.4,29,000/-. Sbe further asserted.,that the
aforesaid consideration had passed from Kalpana Mukherjee
to Pratima Chowdhury through Partha Mukherjee. According to B
Kalpana Mukherjee, Partha Mukherjee transferred shares in his
name valued at Rs.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. 50 was transferred from the name of Pratima Chowdhury, c
to that of Kalpana Mukherjee.
(iii) The letters dated 11.11.1992 and 13.11.1992
expressly recorded, that the factual position narrated in the
above letters was on account of "compliance with the rules
regulating such transfer, and also, for avoiding future D
complications".· In view of the factual position noticed in the
foregoing paragraphs, it is apparent, that false facts were being
recorded for compliance with the rules and regulations, as also,
for avoiding future complications. One would have appreciated
the recording of consideration in lieu of the transfer of property E
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 F
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 G
the transferee Pratima Chowdhury. If consideration was to pass,
and had actually passed, it is·difficult to understand why the
parties would say, that the transaction did not involve passing
of consideration. It is therefore clear, that all the ingredients of
H
720 SUPREME COURT REPORTS [2014] 2 S.C.R.
A letter dated 11.11.1992 and 13.11.1992 are shrouded in
suspicious circumstances. 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. 50 was being gifted by
Pratima Chowdhury to Kalpana Mukherjee, on account of lack
B 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
c position in her written reply before the Arbitrator.
(iv) It is relevant to mention, that in the written statement
filed by Kalpana Mukherjee (before the Arbitrator) the stand
adopted by ,her was, that a consideration of Rs.4,29,000/- had
passed from her to Pratima Chowdhury, by way of transfer of
D shares (standing in the name of her son, Partha Mukherjee) to
the name of Pratima Chowdhury. In this behalf it would be
relevant to notice, that the documents of transfer executed
between Pratima Chowdhury and Kalpana Mukherjee were
dated 11.11.1992 and 13.11.1992. Based thereon, the Board.
E of Directors of the Society, in its meeting held on 14.2.1993,
resolved to accept the resignation of Pratima Chowdhury. It was
further resolved, to accept the membership of Kalpana
Mukherjee in her place. On the date of execution of the
documents under reference, as also on the date of passing of
F the resolution by the Board of Directors of the Society, Partha
Mukherjee did not have any shares in his name. The shares
which Partha Mukherjee acquired, and which Kalpana
Mukherjee claims to have been transferred in lieu of
consideration (to the name of Pratima Chowdhury), were shown
G to have been acquired on or after 8.9.1993. The dates of
acquisition of the said shares, as were recorded in the order
passed by the Arbitrator, which position has not been disputed
before us, are as follows:-
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 721
& ANR. [JAGDISH SINGH KHEHAR, J.]
"COMPANY'S NAME NO. OF SHARES ACQUIRED A
Tata Chemicals Ltd. 50 nos. 8.9.93
Tata Chemicals Ltd. 450 nos. 27.10.93
Siemens 50 nos. 2.8.93 B
Indian Aluminium 500 nos. 4.3.94
l.T.c~ Hotels 100 nos. acquired with
Mr. H.P. Roy
4.4.94" c
It is therefore apparent, that 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 D
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 E
t_be 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 F
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. This aspect of the
matter would bring out a legitimate query, namely, why should
Kalpana Mukherjee have adopted a false stance, contrary to
the expressed position in the letters dated 11.11.1992 and G
· 13.11.1992. This further exposes, the suspicious nature of the
transfer transaction.
(v) On the subject of transfer of shares from the name of
Partha Mukherjee to the name of Pratima Chowdhury, which, H
722 SUPREME COURT REPORTS [2014] 2 S.C.R.
A according to Kalpana Mukherjee constituted passing of
. consideration to Pratima Chowdhury (in lieu of the transfer of
flat no. 50). Pratima Chowdhury had adopted the stance, that
the transfer of the above shares was on account of return of
loans extended by Pratima Chowdhury to Partha Mukherjee.
s. Insofar as the instant aspect of the matter is concerned Pratima
Chowdhury had asserted, that after the transfer of Partha
Mukherjee from Calcutta to Bombay in the year 1993, he gave
up his employment with Colgate Palmolive (India) Limited, and
started a business of aluminium products with one R.K. Sen,
c at Bombay. To help Partha Mukherjee with his above business
venture, Pratima Chowdhury had (on the asking of Partha!
Mukherjee) paid a sum of Rs. 2 lakhs by way of cheque, to
Bharat Aluminium Company Limited, for supply of raw materiali;
to Partha Mukherjee's business venture. It was also pointed out,
that Partha Mukherjee had also taken a loan for a sum of Rs.
0
1,50,000/- for the same purpose from Bani Roy (sister of
Pratima Chowdhury). It was also asserted, that Sova Mukherjee
had similarly extended loans, by making payments through
cheque to Partha Mukherjee. The Arbitrator had accepted the
E above assertion of Pratirna Chowdhury. For the· above
determination, the Arbitrator had placed reliance, on
documentary and o·ral evidence, produc.ed by Pratima .
Chowdhury. The instant factual aspect of the matter was totally
overlooked by the Co-operative Tribunal, as well as, by the High
Court. Keeping in view the factual position depicting in
F paragraph (iv) above, we have no doubt in our mind, that 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. 50 to the name of
G Kalpa11a 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. ·
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 723
& ANR. [JAGDISH SINGH KHEHAR, J.]
(vi) The fact that Pratima Chowdhury had addressed a A
letter to the Secretary of the Society, dated 28.2.1995, for
withdrawal of her earlier letter dated 11.11.1992, is not in
dispute. It is also not a matter of dispute, that at the time when
Pratima Chowdhury addressed the above letter, neither the
transfer of membership, nor the transfer of the flat, had assumed B
finality. The transfer of membership, as also the transfer of the
flat, would assume finality only upon the approval of the same
by the Deputy Registrar, Co-operative Societies. The factual
position emerging from the record of the case reveals, that the
Society sought the approval of the Deputy Registrar, Co- c
operative Societies for the transfer of membership, as also, flat
no. 5D to the name ot 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
0
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 E
examined the withdrawal letter dated 28.2.1995, ·the matter
cer:tainly 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. Thus viewed,
it was not justified for the Society to deny consideration of the F
withdrawal letter dated 28.2.1995. Acceptance or rejection on
merits is another matter, but non-consideration is not
understandable. The instant non-consideration clearly
invalidates the resolution passed by the Society.
G
(vii) On 22.3.1995, Pratima Chowdhury addressed a letter
to the Deputy Registrar, Co-operative Societies, imploring him
to take appropriate action, by considering the ·withdrawal letter
dated 28.2.1995. We are surprised, that the Deputy Registrar,
Co-operative Societies adopted the same stance, as was H
724 SUPREME COURT REPORTS [2014] 2 S.C.R.
A adopted by the Society. 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
B 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
c to the Deputy Registrar, Co-operative Societies). The
determination by the Deputy Registrar, Cooperative Societies,
canno.t therefore be treated as a valid and legitimate
consideration. Acceptance or rejection on merits is another
matter, but non-consideration is just not understandable. The
instant non-consideration clearly invalidates the approval
0 granted by the Deputy Registrar, Co-operative Societies.
(viii) The veracity of the execution of the documents dated
11.11.1992 and 13.11.1992 by Pratima Chowdhury, was also
examined by the Arbitrator. In the above examination, the
E Arbitrator arrived at the conclusion, that Pratima Chowdhury
was in Bombay and not in Calcutta when the above documents
were executed. The above finding was recorded on the basis
of three witnesses produced on behalf of the complainant
(before the Arbitrator). While rejecting the conclusion drawn by
F the Arbitrator, the Co-operative Tribunal overlooked the
statements of the witnesses produced by Pratima Chowdhury,
merely because the notary was an Advocate. The Co-operative
Tribunal reasoned, that the statement of S.N. Chatterjee, an
Advocate, had to be given more weightage, than the witnesses
G produced by Pratima Chowdhury. The above determination at
the hands of the Co-operative Tribunal, besides being perverse,
is also totally unacceptable in law. In the facts and
circumstances of the present case, the statement of the notary
should have been rejected and discarded, simply because the
H notary in his deposition had acknowledged, that he did not issue
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 725
& ANR. [JAGDISH SINGH KHEHAR, J.]
any notarial certificate in terms of Section 8 of the Notary Act. A
In the absence of issuance of any such certificate, notarization
of the document dated 13.11.1992 was clearly subject to
suspicion. The conclusion drawn by the Co-operative Tribunal
as also the High Court, to the effect that the document dated
13 ..11.1992 was executed at Calcutta, is therefore, based on B
' no evidence whatsoever. The fact that the document dated
13.11.1992 had not been executed in Calcutta, was also sought
to be substantiated by showing, that the registration number of
the Society was not depicted in the said letter, even though the
said letter was shown to have been executed at the residence c
of the Secretary of the Society. It was reasoned, that the
Secretary of the Society would have supplied the aforesaid
number, if the above document had been executed at his
residence. Having rejected the credibility of the statement of
S.N. Chatterjee {the notary), and having not accepted the fact D
that the above document was executed at the residence of Anil
Kumar Sil, the Secretary of the Society, we find no reason for
not accepting the statements of the three witnesses produced
by Pratima Chowdhury, to show that she {Pratima Chowdhury)
wcis at Bombay on 11.11.1992, as well as, on 13.11.1992.
E
Herein again, the Cooperative Tribunal and the High Court,
erred on the face of the record, by not taking into consideration
material facts, available on the file of the ~ase.
{ix) In the background of the factual position emerging from
the deliberations recorded hereinabove, it is also necessary to F
notice, that the Arbitrator had placed heavy reliance on the fact,
that Kalpana Mukherjee had deposited rent on 21.10.1993
{payable to Pratima Chowdhury), into the account of Pratima
Chowdhury, by herself, filling up the bank deposit voucher.
Accordingly, the Arbitrator inferred, that the property in G
question, even to the knowledge of Kalpana Mukherjee, had not
actually been transferred to her name by Pratima Chowdhury ·
{at least upto 21.10.1993). That was the reason, why Kalpana
M~kherjee had continued to deposit rent for flat no. SD, into the
account of Pratima Chowdhury upto 21.10.1993. Coupled with H
726 SUPREME COURT REPORTS [2014] 2 S.C.R
A the aforesaid factual aspect, the Arbitrator placed great reliance
on the letter dated 28.10.1993 addressed by Partha Mukherjee
to Colgate Palmolive (India) Limited, wherein, he described
Pratima Chowdhury as the "landlady". Undoubtedly, if the
documents relied upon by Kalpana Mukherjee were genuine,
B Partha Mukherjee would not have acknowledged the ownership
of Pratima Chowdhury over flat no. 50 (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
vjtal facts, and needed to be examined, if the order passed by
c 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,
0
we are of the view that entire sequence of transfer, is rendered
doubtful and suspicious.
(x) The determination of the Arbitrator, on the subjec.t of
the transfer of the covered garage, to the name of Kalpana
E Mukherjee was also overlooked by the Co-operative Tribunal,
as well as, by the High Court. From the facts already narrated
above, it is clear that Pratima Chowdhury, had one covered
garage space also. Whilst reference was made about the
details of the flat sought to be transferred, in the transfer
F documents, no reference was made to the covered garage
space. Based on the letter dated 11.11.1992, and the
document dated 13.11.1992, flat no. 50 was transferred to the
name of Kalpana Mukherjee. The instant transfer however did
not include the covered garage space. Thereafter, based on
G 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.
H Therefore, according to the view expressed by the Arbitrator,
PRATIMA CHOWDHURY v. KALPAN~ MUKHERJEE 727
& ANR. [JAGDISH SINGH KHEHAR, J.]
the covered garage space, must be deemed to have never been A
transferred to Kalpana Mukherje by its erstwhile owner. The
Arbitrator also expressed the view, that the agreement dated
25.4.1995 could not have been executed without the
participation of Pratima Chowdhury. The above factual position
has not been disputed at the hands of Kalpana Mukherjee, B
before this Court. The above reasoning, in our considered view,
was fully justified. The instant aspect of the matter was also
totally overlooked by the Co-operative Tribunal, as well as, by
the High Court. For the above reason also, the findings of the
fact, recorded by the Co-operative Tribunal and by the High c
Court, are bound to be treated as perverse.
29. For all the reasons recorded by us in foregoing sub-
paragraphs, we are of the view that the Co-operative Tribunal
as well as the High Court, seriously erred in recording their
conclusions. We are satisfied in further recording, that the D
Arbitrator was wholly justified in allowing the Dispute Case filed
by Pratima Chowdhury, by correctly appreciating the factual and
legal position.
30. The Co-operative Tribunal as well as the High Court, E
had invoked the principle of justice and equity, and the doctrine
of fairness, while recording their eventual findings in favour of
Kalpana Mukherjee. It is, therefore, necessary for us, to delve
upon the above aspect of the matter. Before we venture ta
examine the instant controversy in the above perspective, it is F
necessary to record a few facts. It is not a matter of dispute,
that for a long time Pratima Chowdhury had been residing at
Bombay. She was residing at Bombay in the house of H.P. Roy
and Bani Roy. Bani Roy, as stated above, is the sister of
Pratima Chowdhury. H.P. Roy is a wealthy person. Partha G
Mukherjee son of Kalpana Mukherje, is an engineering
graduate from llT, Kharagpur. He also possesses the
qualification of MBA, which he acquired from Ahmedabad.
Originally Partha Mukherjee was employed as Sales Manager/
Regional Manager with Colgate Palmolive (India) Limited, at
H -
SUPREME COURT REPORTS [2014] 2 S.C.R:
A Bombay. Partha Mukherjee married Sova Mukherjee (the
daughter of H.P. Roy), whilst he was posted at Bombay in 1987.
Soon after his marriage, Partha Mukherjee and Sova
Mukherjee also started to live in the house of H.P. Roy (father-
in-law of Partha Mukherjee). The evidence available on. the
B record of the case reveals, that Pratima Chowdhury treated
Sova Mukherjee as her daughter, and Partha Mukherjee as her
son. In 1992; Partha Mukherjee was transferred from Bombay
to Calcutta. Immediately on his transfer, Pratima Chowdhury
accommodated him in flat no. 50. Subsequently, Colgate
c Palmolive (India) Limited entered into a lease and licence
agreement, in respect of flat no. 50 with Pratima Chowdhury,
so as to provide residential accommodation to Partha
Mukherjee (as per the terms and conditions of his employment).
Obviously, Partha Mukherjee was instrumental in the execution
of the above lease and licence agreement. In order to deposit
0
monthly rent payable to Pratima Chowdhury (by Colgate
Palmolive (India) Limited), Partha Mukherjee opened a bank
account in the name of Pratima Chowdhury, jointly with himself.
He exclusively operated the above account, for deposits as well
as for withdrawals. Not only that, the findings recorded by the
E Arbitrator indicate that the letter dated 11.11.1992 written by
Pratima Chowdhury was drafted by Partha Mukherjee. The
aforesaid conclusion was drawn from the fact th.at the
manuscript of the original was in the handwriting of Partha
Mukherjee. All the above facts demonstrate, a relationship of
F absolute trust and faith between Pratima Chowdhury and Partha
Mukherjee. The aforesaid relationship emerged, not only on
account of the fact that Partha Mukherjee was married to Sova
Mukherjee (the niece of Pratima Chowdhury)! but also on
account of the fact, that Partha Mukherjee and his wife Sova
G Mukherjee soon after their marriage lived in the house of H.P.
Roy (husband of the sister of Pratima Chowdhury). They
resided together with Pratima Chowdhury till 1992, i.e., for a
period of more than a decade, before Partha Mukherjee was
transferred to Calcutta. In our considered view the relationship
H between Partha Mukherjee and Pratima Chowdhury would
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 729
& ANR. [JAGDISH SINGH KHEHAR, J.]
constitute. a fiduciary relationship. Even though all the above A
aspects of the relationship between the parties were taken into
consideration, none of the adjudicating authorities dealt with the
controversy, by taking into account the fiduciary relationship
between the parties. When parties are in fiduciary relationship,
the manner of examining the validity of a transaction, specifically B
when there is no reciprocal consideration, has to be based on
parameters which are different from the ones applicable to an
ordinary case. Reference in this behalf, may be made to the
decision rendered by this Court in Subhas Chandra Das
Mushib vs. Ganga Prosad Das Mushib, AIR 1967 SC 878, c
wherein this Court examined the twin concepts of "fiduciary
relationship" and "undue influence". and observed as under:
"We may now proceed to consider what are the essential
in- gredients of undue influence and how a plaintiff who
seeks relief on this ground should proceed to prove his D
case and when the defendant is called upon to show that
the contract or gift was not induced by undue influence. The
instant case is one of gift but it is well settled that the law
as to undue influence is the same in the case of a gift inter-
vivos as in the case of a contract. E
Under s. 16 1 of the Indian Contract Act a contract is said
to be induced by u ue influence where the relations
1
subsisting between the parties are such that one of the
parties is in a position to dominate the will of the other and F
uses that position to obtain an unfair advantage over the
other. This shows that the court trving a case of undue
influence must consider tWo things to start with. namely. (1)
are the relations between the donor and the donee such
that the donee is in a position to dominate the will of the G
donor and (2) has the donee used that position to obtain
an unfair advantage over the donor'?
Sub-section (2) of the section is illustrative as to when a
person is to considered to be in a position to dominate
the will of another. These are inter alia (a) where the donee H
730 SUPREME COURT REPORTS [2014] 2 S.C.R.
A holds a real or apparent.authority over the donor or where
he stands in a fiduciary relation to the donor or (b) where
he makes a contract with a person whose mental capacity
is temporarily or permanently affected by reason of age,
illness, or mental or bodily distress.
B
Sub-section (3) of the section throws the burden of proving
that a contract was not induced by undue influence on the
person benefiting by it when two facto.rs are found against
him. namely that he is in a position to dominate the will of
another and the transaction appears on the face of it or
c on the evidence adduced to be unconscionable.
The three stages for consideration of a case of undue
influence were expounded in the case of Ragunath Prasad
v. Sarju Prasad and others (AIR 1924 PC 60) in the
D following words :- "In the first place the relations between
the parties to each other must be such that one is in a
position to dominate the will of the other. Once that position
is substantiated the second stage has been reached-
namely. the issue whether the contract has been induced
E by undue influence. Upon the determination of this issue
a third point emerges. which is that of the onus trobandi.
If the transacuon appears to be unconscionable. then the
burden of proving that the contract was not induced by
•
undue influence is to lie upon the person who was in a
F position to dominate the will of the other."
(emphasis is ours)
The subject of fiduciary relationship was also examined by this
Court in, Krishna Mohan Kut alias Nani Charan Kut vs.
G Pratima Maity, (2004) 89 sec 468, wherein it was held as
under:
" .....When fraud, mis-representation or undue influence is
alleged by a party in a suit. normally. the burden is on him
to prove such fraud. undue influence or mismpresentation.
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE 731
& ANR. [JAGDISH SINGH KHEHAR, J.]
But. when a person is in a fiduciary relationship with A
another and the latter is in a position of active confidence
the burden of proving the absence of fraud.
misrepresentation or undue influence is upon the person
in the dominating position and he has to prove that there
was fair play in the transaction and that the apparent is B
the real. in other words that the transaction is genuine and
bona fide. In such a case the burden of proving the good
faith of the transaction is thrown upon the dominant party.
that is to say. the party who is in a position of active
confidence. A person standing in a fiduciary relation to c
another has a duty to protect the interest given to his care
and the Court watches with jealously all transactions
between such persons so that the protector may not use
his influence or the confidence to his advantage. When the
party complaining shows such relation the law presumes
0
everything against the transaction and the onus is cast
against the person holding the position of confidence or
trust to show that the transaction is perfectly fair and
reasonable. that no advantage has been taken of his
position. This principle has been engrained in Section 111
E
of the Indian Evidence Act, 1872 (in short the 'Evidence
Act'). The rule here laid down is in accordance with a
· principle long acknowledged and administered in Courts
of Equity in England and America. This principle is that
he who bargains in a matter of advantage with a person
who places confidence in him is bound to show that a F
proper and reasonable use has been made of that
confidence. The transaction is not necessarily void ipso
facto, nor is it necessary for those who impeach it to
establish that there has been fraud or imposition, but the
burden of establishing its perfect fairness, adequacy and G
equity is cast upon the person in whom the confidence has
been reposed. The rule applies equally to all persons
standing in confidential relations with each other. Agents,
trustees, executors, administrators, auctioneers, and
others have been held to fall within the rule. The Section H
732 SUPREME COURT REPORTS [2014] 2 S.C.R.
A requires that the party on whom the burden of proof is laid
should have been in a position of active confidence where
fraud is alleged, the rule has been clearly established in
England that in the case of a stranger equity will not set
aside a voluntary deed or donation, however, improvident
B it may be, if it be free from the imputation of fraud, surprise,
undue influence and spontaneously executed or made by
the donor with his eyes open. Where an active confidential.
or fiduciary relation exists between the parties. there the
burden of proof is on the donee or those claiming through
c him. It has further been laid down that where a person
gains a great advantage over another by a voluntary
instrument. the burden of proof is thrown upon the person
receiving the benefit and he is under the necessity of
showing that the transaction is fair and honest.
D 13. In judging of the validity of transactions between
persons standing in a confidential relation to each other,
it is very material to see whether the person conferring a
benefit on the other had competent and independent
advice. The age or capacity of the person conferring the
E benefit and the nature of the benefit are of very great
importance in such cases. It is always obligatory for the
donor/beneficiary under a document to prove due
execution of the document in accordance with law, even
de hors the reasonableness or otherwise of the
F transaction, to avail of the benefit or claim rights under the
document irrespective of the fact whether such party is the
defendant or plaintiff before Court.
14. It is now well established that a Court of Equity, when
a person obtains any benefit from another imposes upon
G
the grantee the burden, if he wishes to maintain the contract
or gift. of proving that in fact he exerted no influence for
the purpose of obtaining it. The proposition is very clearly
started in Ashburner's Principles of Equity, 2nd Ed., p.229,
thus:
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 733
ANR. [JAGDISH SINGH KHEHAR, J.]
"When the relation between the donor and donee A
at or shortly before the execution of the gift has
been such as to raise a presumption that the donee
had influence over the donor. the court sets aside
the gift unless the donee can prove that the gift was
the result of a free exercise of the donor's will."" B
(emphasis is ours)
The above conclusions recorded by this Court, came to be
reiterated recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5
sec 558. c
31. While deciding the proposition in hand, we must keep
in mind the law declared by this Court on the subject of fiduciary
relationship. We will also proceed by keeping in mind, what we
have already concluded in the preceding paragraph, i.e., that D
relationship between Partha Mukherjee and Pratima
Chowdhury was a relationship of faith, trust and confidence.
Partha Mukherjee was in a domineering position. He was
married to Sova Mukherjee. Sova Mukherjee is the daughter
of H.P. Roy. Pratima Chowdhury has lived for a very long time E
in the house of H.P. Roy. During that period (after his marriage)
Partha Mukherjee also shared the residential accommodation
in the same house with Pratima Chowdhury, for over a decade.
In Indian society the relationship between Partha Mukherjee
and Pratima Chowdhury, is a very delicate and sensitive one.
F
It is therefore, that Pratima Chowdhury extended all help and
support to him, at all times. She gave him her flat when he was
transferred to Calcutta. She also extended loans to him, when
he wanted to set up an independent business at Bombay.
These are illustrative instances of his authority, command and
influence. Instances of his enjoying the trust and confidence of G
Pratima Chowdhury include, amongst others, the joint account
of Pratima Chowdhury with Partha Mukherjee, which the latter
operated exclusively, and the drafting of the letters on behalf
of Pratima Chowdhury. In such fact situation, we are of the view,
that the onus of substantiating the validity and genuineness of H
734 SUPREME COURT REPORTS [2014] 2 S.C.R.
A the transfer of flat no. 50, by Pratima Chowdhury, through the
letter dated 11.11.1992 and the document dated 13.11.1992,
rested squarely on the shoulders of Kalpana Mukherjee.
Because it was only the relationship between Partha Mukherjee
and Pratima Chowdhury, which came to be extended to
B Kalpana Mukherjee. The document dated 13.11.1992 clearly
expressed, that the above transfer was without consideration.
Kalpana Mukherjee in her written reply before the Arbitrator
asserted, that the above transfer was on a consideration of
Rs.4,29,000/-. The Arbitrator in his order dated 5.2.1999
c concluded, that Kalpana Mukherjee could not establish the
passing of the above consideration to Pratima Chowdhury. The
Cooperative Tribunal, as well as, the High Court, despite the
factual assertion of Kalpana Mukherjee were of the view, that
passing of consideration was not essential in determination of
the genuineness of the transaction. We are of the view, that the
0
Cooperative Tribunal, as well as, the High Court seriously erred
in their approach, to the determination of the controversy. Even
though the onus of proof rested on Kalpana Mukherjee, the
matter was examined by requiring Pratima Chowdhury to
E establish all the alleged facts. We are of the view, that Kalpana
Mukherjee miserably failed to discharge the burden of proof,
which essentially rested on her. Pratima Chowdhury led
evidence to show, that she was at Bombay on 11.11.1992 and
13.11.1992. In view of the above, the letter dated 11.11.1992
and the document dated 13.11.1992, shown to have· been
F executed at Calcutta could not be readily accepted as genuine,
for the said documents fell in the zone of suspicion, more so,
because the manuscript of the letter dated 11.11.1992 was in
the hand-writing of Partha Mukherjee. Leading to the inference,
that Partha Mukherjee was the author of the above letter. It is
G therefore not incorrect to infer, that there seems to be a ring of
truth, in the assertion made by Pratima Chowdhury, that Partha
Mukherjee had obtained her signatures for executing the letter
and document referred to above. We find no justification
whatsoever for Pratima Chowdhury, to have transferred flat no.
H
PRATIMA CHOWDHURY v. KALPANA MUKHERJEE & 735
ANR. [JAGDISH SINGH KHEHAR, J.]
50 to Kalpana Mukherjee, free of cost, even though she had A
purchased the same for a consideration of Rs. 4 lakhs in the
year 1987. Specially so, when she had no direct intimate
relationship with Kalpana Mukherjee. By the time the flat was
transferred, more than a decade had passed by, during which
period, the price of above flat, must have escalated manifold. B
Numerous other factual aspects have been examined by us
above, which also clearly negate the assertions made by
Kalpana Mukherjee. The same need not be repeated here, for
reasons of brevity. Keeping in mind the above noted aspects,
we are of the considered view, that invocation of the principle c
of justice and equity, and the doctrine of fairness, would in fact
result in returning a finding in favour-of Pratima Chowdhury, and
not Kalpana Mukherjee.
32. For the reasons recorded hereinabove, the instant
appeal is allowed, the order dated 16.5.2002 passed by the D
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. 50 to Pratima Chowdhury, within one E
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. 50 to the name of Pratima
Chowdhury, without any delay.
F
D.G. Appeal allowed.
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