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Smt. Indrani Wahi v. The Registrar, West Bengal Co-Operative Societies & Ors.
Factual and Procedural Background
The petitioner challenged the respondents' refusal to approve her membership in the Sarobar-View Cooperative Housing Society Limited. The refusal was based on the ground that the nomination made by the petitioner's late father was not valid under section 79 of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of the West Bengal Co-operative Societies Rules, 1987.
Facts as stated in the opinion:
- The petitioner's father, Late B.R. Sengupta, was a member of the Society and had been allotted a flat. He nominated the petitioner as his nominee in respect of his share and interest in the Society; the petitioner's name was recorded in the society's register as nominee.
- The father died on 22 July 2003, and the petitioner informed the Society of his death.
- By letter dated 13 November 2003, the Society's Secretary refused to admit the petitioner as a member on the ground that, being a married daughter, she could not be accepted as a member of her deceased father's family.
- The Secretary forwarded a copy of a letter from the Deputy Registrar of Co-operative Societies dated 11 November 2003, which held that the nomination in favour of the petitioner could not be accepted as not valid under section 79 read with the Rules.
- The petitioner filed the present writ petition challenging these decisions and raising the question whether the definition of "family" under the West Bengal Co-operative Societies Rules, 1987 includes married daughters.
Procedural outcome: The writ petition was allowed. The Society's decision dated 13 November 2003 and the Deputy Registrar's communication dated 11 November 2003 were quashed. The Deputy Registrar was directed to grant approval of the petitioner's membership within two weeks of communication of the order, and the Society was directed to regularise the petitioner's membership within two weeks of receipt of formal approval. There was no order as to costs.
Legal Issues Presented
- Whether the definition of "family" under the West Bengal Co-operative Societies Rules, 1987 (specifically Rule 127 read with the Explanation to section 13(2) of the West Bengal Co-operative Societies Act, 1983) includes married daughters.
- Whether a married daughter can be a valid nominee for the share or interest of a deceased member under section 79 of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of the West Bengal Co-operative Societies Rules, 1987.
Arguments of the Parties
Appellant's (Petitioner's) Arguments
- Rule 127 expressly includes "major sons and daughters" in the Explanation and does not exclude married daughters; therefore major daughters (including married daughters) are within the meaning of "family".
- The respondents have misinterpreted the provisions of the Act and Rules and illegally refused to accept the nomination made by the late father in favour of the petitioner.
- The Court cannot read words into the statute; where the wording is clear and unambiguous, the Court must give effect to it rather than add restrictions not found in the text.
Respondents' Arguments
- The legislature's inclusion of categories such as "dependent widow of a predeceased son" and related detailed entries in the Explanation to section 13(2) demonstrate an intention that a married daughter should not be included in her father's "family" for the purposes of the Act and Rules.
- A married woman cannot be a member of two families at the same time; once married, she becomes member of her husband's family and therefore cannot be treated as a member of her father's family for nomination purposes.
- If there is any conflict between the Act and the Rules, the Act (and specifically the Explanation to section 13(2)) prevails over the Rules.
- The respondents relied on section 23 of the Hindu Succession Act, 1956 to argue that a married daughter is not entitled to the right of residence in her father's dwelling-house except in limited circumstances, using this as supportive context.
- The respondents relied on several judicial decisions (listed in the opinion) to support their contention that a married daughter should not be treated as part of her father's family for the purposes of nomination and membership.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1992 SC 129 – Regional Director, Employees' State Insurance Corporation v. High Land Coffee Works of P.F.X. Saldanha & Sons | Principle that the word "include" in a statutory definition is generally used to enlarge meaning rather than restrict it. | The Court relied on this authority to interpret "include" in the Explanation to Rule 127 as expanding the meaning of "family" (i.e., to support an inclusive construction that covers major daughters). |
| AIR 1992 SC 96 – Union of India v. Deoki Nandan Aggarwal | Principle that courts cannot add words to a statute or read words into it; the Court's role is to declare the law, not rewrite it. | The Court cited this decision in discussing the respondents' argument and the limits on judicial interpretation. The Court concluded that respondents were effectively attempting to add the word "unmarried" before "daughter" and rejected such an attempt relying on the principle that courts cannot read in words not present in the statute. |
| AIR 1990 Kar 317 – M.C. Thimmaraju v. Puttakenchamma | Relied upon by respondents in support of their contention (as cited in the opinion). | The opinion records that the respondents relied on this decision; the Court did not adopt this authority as determinative and did not discuss its reasoning in detail in the text of the judgment. |
| AIR 1992 Cal 60 – Sripatinath Neogi v. Smt. Ira Rani Sur | Relied upon by respondents in support of their contention (as cited in the opinion). | The opinion records that the respondents relied on this decision; the Court did not adopt it as determinative and did not analyse its ratio in the judgment. |
| AIR 1992 Kar 362 – (Srimathi Kalamma v. Srimathi Veeramma) | Relied upon by respondents in support of their contention (as cited in the opinion). | The opinion records reliance by respondents on this decision; the Court did not further apply or adopt it as controlling in this judgment. |
Court's Reasoning and Analysis
The Court's analysis proceeded by close textual interpretation of the relevant statutory provisions and rules, with attention to how the word "include" operates in definitions:
- The Court noted that Rule 127 contains an Explanation which states that "family" shall have the same meaning as given in the Explanation to section 13(2) of the Act and "shall include major sons and daughters." The Court emphasized that Rule 127 thereby expressly extends the definition to major sons and daughters.
- The Court observed that the framers of the Rules deliberately did not qualify "major daughters" with any matrimonial status; the Rules do not state that daughters included must be unmarried. The matrimonial status of major sons and daughters is not referred to in the rule.
- The Court rejected the respondents' attempt to read a restriction (that daughters must be unmarried) into the definition. The Court explained that where the statutory language is clear, the Court cannot add or read words into it (citing Union of India v. Deoki Nandan Aggarwal on that principle).
- The Court applied the principle from the Saldanha decision that the word "include" is used to enlarge the meaning of a definition rather than restrict it, and therefore Rule 127's use of "shall include major sons and daughters" serves to expand the scope of "family."
- The Court considered but found inapplicable the respondents' reliance on section 23 of the Hindu Succession Act, 1956. The Court stated it did not find how the provision of the Hindu Succession Act was applicable to the facts of the present case when the West Bengal Co-operative Societies Act and Rules specifically include major daughters without an embargo on nomination rights.
- On this textual and purposive basis, the Court concluded that the respondents misconstrued the provisions of the West Bengal Co-operative Societies Act and the Rules when they refused to accept the nomination in favour of the petitioner on the ground that she was a married daughter.
Holding and Implications
Holding:
The writ petition is allowed. The decision of the Society communicated by letter dated 13 November 2003 and the Deputy Registrar's communication dated 11 November 2003 are quashed.
Directions and immediate consequences:
- The Deputy Registrar of Co-operative Societies is directed to grant necessary approval of the petitioner's membership without further delay but positively within two weeks from the date of communication of the order.
- The competent authority of the Sarobar View Co-operative Housing Society Limited is directed to regularise the petitioner's membership in the Society pursuant to the nomination made by her late father in every respect within two weeks from the date of receipt of formal approval from the Deputy Registrar.
- There will be no order as to costs.
- An urgent xerox certified copy of the judgment is to be made available to the learned advocates of the parties on usual undertaking.
Broader implications:
The judgment holds that the statutory scheme (Act and Rules) when read together includes major daughters within the definition of "family" for purposes of nomination under Rule 127 and section 79, and that administrative refusal to accept such a nomination on the ground that the daughter is married was a misconstruction of the law. The opinion does not purport to announce a broader principle beyond the statutory interpretation and the direct effect on the petitioner and respondents; it specifically directs administrative steps to give effect to the nomination.
Judgment
P.K Chattopadhyay, J.—The petitioner herein has filed this writ petition challenging the decisions of the respondents regarding non-approval of membership of the petitioner in the Sarobar-View Cooperative Housing Society Limited on the ground that the nomination made by the late father of the petitioner was not in terms of section 79 of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of the West Bengal Co-operative Societies Rules, 1987.
2. The parties herein have raised an important issue before this Court relating to the definition of ‘family’ under the West Bengal Cooperative Societies Rules, 1987 and more precisely whether the definition of ‘family’ shall also include married daughters under the said West Bengal Co-operative Societies Rules, 1987.
3. The factual aspects of this matter are briefly narrated hereinafter:
4. The father of the petitioner Late B.R Sengupta was a member of the Sarobar View Co-operative Society Ltd. (hereinafter referred to as the ‘the Society’) and was allotted a flat in the housing complex of the Society. The Society is registered under the West Bengal Cooperative Societies Act, 1983 (hereinafter referred to as the ‘said Act’).
5. In accordance with the provisions of the said Act and the West Bengal Co-operative Societies Rules (hereinafter referred to as the ‘said Rules’), the petitioner's father had nominated the petitioner as his nominee in respect of his share and interest in the Society. Consequently, the name of the petitioner was recorded in the register of members of the Society as the nominee of Late B.R Sengupta.
6. The father of the petitioner died on 22nd July, 2003. The petitioner intimated the society about the death of her father.
7. By a letter dated 13th November, 2003 the Secretary of the Society informed the petitioner that she could not be admitted as a member of the society inspite of the nomination of her father as the said petitioner being the married daughter cannot be accepted as a member of the family of her deceased father. The Secretary of the society also forwarded a copy of the letter issued by the Deputy Registrar of Co-operative Societies (Housing) dated 11th November, 2003 in this regard wherein the said Deputy Registrar specifically held that the nomination made by the late father of the petitioner in her favour cannot be accepted on the alleged ground that the said nomination was not valid in terms of section 79 of the West Bengal Co-operative Societies Act, 1983 read with West Bengal Co-operative Societies Rules, 1987.
8. Scrutinising the aforesaid written communication of the Deputy Registrar of the Co-operative Societies dated 11th November, 2003 and the subsequent written communication of the Secretary of the Society dated 13the November, 2003, it appears that the real issue dated 13th November, 2003, it appears that the real issue raised in this petition is whether the family of a deceased member can also include a married daughter under the provisions of West Bengal Cooperative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987. The relevant provisions of the said Co-operative Society Act, 1983 and Rules, 1987 are quoted hereinbelow:
“Section 13. Application for registration. (2) Where an application for registration of a Co-operative Society and its by-laws is made by individuals, the number of applicants shall not be less then ten, each of whom shall belong to a different family.
Explanation.—For the purpose of this sub-section, a family shall be deemed to consist of husband, wife, minor sons and daughters, dependent widow of a predeceased son, minor sons and daughters of a dependent widow of a predeceased son and husband's dependent parents.”
“Section 79. Nomination of transferee.—Subject to the by-laws of a co-operative society, any member of such co-operative society may in accordance with the rules nominate a person in whose favour the co-operative society shall dispose of the share or interest of such member on his death.”
Rule 127. Nomination of transferee.—(1) A member of a cooperative Society may in accordance with the provision of section 79, nominate in writing any person belonging to his family to whom the share or interest or the value of such share or interest shall, on his death, be paid or transferred under the provision of the Act:
Provided that if a member has no family he may nominate any person to whom such share or interest or the value of such share or interest shall be paid or transferred:
Provided further that such member may, from time to time, revoke such nomination and make a fresh nomination.
(2) Every co-operative society shall keep a register of all persons so nominated.
(3) In case the nominee of a member dies, the member shall report the death to the society/and make a fresh nomination if he so desires.
Explanation.—For the purpose of this rule a family shall have the same meaning as given in the Explanation to sub-section (2) of section 13 and shall include major sons and daughters.”
9. The learned counsel of the petitioner submits that the major sons and daughters mentioned in Rule 127 of the West Bengal Cooperative Societies Rules, 1987 cannot exclude the married daughters. Mr. Kapur submits that the respondents herein have wrongly interpreted the provisions of the West Bengal Co-operative Societies Act and Rules framed thereunder and illegally refused to accept the nomination made by the late father of the petitioner in her favour.
10. Mr. Bhattacharyya, learned counsel of the respondents, however, submits that the legislature by including dependent widow of predeceased son, minor sons and daughter of dependent widow in the explanation to section 13(2) made its intention clear to the effect that the married daughter cannot be member of her father's family otherwise dependent widow, being the member of a different other family before the marriage, would not have been included as a member of the family of her father-in-law or husband. Moreover, a lady cannot be regarded as member of two families at a time. Writ petitioner, as such, being the member of the family of her husband cannot by any stretch of imagination be a member of her father's family.
11. Mr. Bhattacharyya further submits that in case of any conflict between the Act and the Rule, the provisions of Act will prevail over the Rules. In the instant case, if there is any confusion with regard to the explanation made in Rule 127 with the explanation in section 13(2) of the Act, it goes without saying that provision of section 13(2) explanation will prevail and as such married daughter cannot be termed to be the member of her father's family.
12. Mr. Bhattacharyya also referred to section 23 of the Hindu Succession Act and submits that married daughter would not be entitled to right of residence in the family dwelling house. The provision of section 23 of the Hindu Succession Act is quoted hereunder:
“Section 23. Special Provisions respecting dwelling houses.— Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.”
13. Mr. Bhattacharyya referred to and relied upon the following decisions in support of his aforesaid contention:
1. AIR 1990 Kar 317 (M.C Thimmaraju v. Puttakenchamma*)
2. AIR 1992 Cal 60 (Sripatinath Neogi v. Smt. Ira Rani Sur)
3. AIR 1992 Kar 362 (DB) (Srimathi Kalamma v. Srimathi Veeramma)
14. Mr. Bhattacharyya therefore, submits that in view of the aforesaid provision of the Hindu Succession Act, 1956, the petitioner herein being a married daughter is also not entitled to claim even he right of residence in the dwelling house of her late father. Mr. Bhattacharyya further submits that the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules. 1987 do not provide for nomination in favour of married daughter and the Court cannot rewrite, recast or reframe legislation, as it has no power to legislate. Mr. Bhattacharyya referred to and relied upon a decision of the Supreme Court reported in AIR 1992 SC 96 (Union of India v. Deoki Nandan Aggarwal).
15. The learned counsel of the respondents therefore, specifically urged before this Court that the petitioner herein being the married daughter cannot be a legal nominee of her deceased father under the West Bengal Co-operative Societies Act and Rules framed thereunder.
16. The meaning of a family has been specifically mentioned in the explanation to Rule 127 wherein an exhaustive meaning to the said definition of family has been given. It has been mentioned in the explanation to Rule 127 that the family shall have the same meaning as given in the Explanation (2) to sub-section (2) of section 13 and shall also include major sons and daughters.
17. The explanation to Rule 127 specifically includes major sons and daughters as the members of the family. The framers of the rule while including the major sons and daughters within the definition of the family did not put any bar or restriction on the married daughters. The matrimonial status of the major sons and daughters have not been specifically mentioned in the rule.
18. The matrimonial status of the major sons and daughters has been deliberately ignored by the framers of the rules. The respondent authorities herein are seeking to give a narrow meaning to the definition of ‘family’ under the West Bengal Co-operative Societies Act and Rules by putting a restriction on the married daughters and refusing to include the married daughter within the definition of the family although the provisions of the Co-operative Societies Act and Rules never excluded the married daughters from the definition of the family.
19. Explanation to section 13(2) of the West Bengal Co-operative Societies Act categorically includes minor sons and daughters within the definition of the family and Rule 127 extended the said definition by specifically providing that the family shall have the same meaning as given in the explanation to section 13(2) of the West Bengal Cooperative Societies Act and shall also include major sons and daughters. Accordingly, in view of section 13(2) of the West Bengal Co-operative Societies Act, 1983 and Rule 127 of West Bengal Cooperative Societies Rules, 1987 both minor and major daughters are included in the definition of the family.
20. The framers of the rules consciously did not put any restriction on the major daughters while defining family by recognising and/or referring to their marital status. It is well-settled that the Court cannot add or read words in a statute when the meaning of the statute is clear and unambiguous.
21. The respondents herein are seeking to put an embargo and/or restriction on the married daughters and are refusing to include them in the family of a member even though no such restriction and/or embargo has been clearly spelt out in the West Bengal Cooperative Societies Act and Rules framed thereunder.
22. The learned counsel of the respondents wants to read Rule 127 of the West Bengal Co-operative Societies Rules by incorporating the word ‘unmarried’ before the word ‘daughter’ which cannot be permitted.
23. In my view, the word ‘include’ has been mentioned in the explanation to Rule 127 for the purpose of enlarging the scope and meaning of the word ‘family’ and not for the purpose of putting any restriction. The decision of the Supreme Court in the case of the Regional Director, Employees' State Insurance Corporation v. High Land Coffee Works of P.F.X Saldanha & Sons reported in AIR 1992 SC 129 is very much relevant in this regard. The relevant portion from the said judgment is quoted hereunder:
“7. ……………. The word ‘include’ in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words and phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include………..”
24. Relying upon the decision of the Supreme Court reported in AIR 1992 SC 96 (Union of India v. Deoki Nandan Aggarwal), Mr. Bhattacharyya, learned counsel of the respondents has rightly submitted before this Court that the Court cannot add words to a statute and read words into it. But unfortunately, the respondents herein have refused to include the petitioner in the family of her deceased father on the ground that the said petitioner is the married daughter although the provisions of the West Bengal Co-operative Societies Act and Rules framed thereunder do not put such embargo and/or restriction specifically on a married daughter and thus, the respondents herein are seeking to add words to a statute by treating major daughters as only major unmarried daughters and not the married daughters which, in my opinion, cannot be permitted. The relevant portion from the aforesaid decision of the Supreme Court is quoted hereunder:
“14. …………..The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be………..”
25. Mr. Bhattacharyy, learned counsel of the State respondents referred to section 23 of the Hindu Succession Act, 1956 in order to narrate the rights of the married daughter in the dwelling house but I do not find how the provision of the Hindu Succession Act is applicable in the facts of the present case particularly when the provisions of the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987 specifically include major daughters in the family of a member without putting any embargo the right of nomination in favour of such member/members.
26. For the aforementioned reasons, I am of the opinion that the respondents herein have misconstrued the provisions of the West Bengal Co-operative Societies Act, 1983 and the West Bengal Co-operative Societies Rules, 1987 while refusing to accept the nomination made by the late father of the petitioner, a member of the society, in favour of the petitioner herein.
27. Accordingly, the decision of the society as communicated to the petitioner by the written communication dated 13the November, 2003 being annexure ‘P-4’ to the writ petition pursuant to the decision of the Deputy Registrar of the Co-operative Societies mentioned in the Memo No. 2957/33/85.KMAH dated 11th November, 2003 being annexure ‘P-5’ to the writ petition cannot be sustained in law and both of them are therefore, quashed.
28. The respondent Deputy Registrar of Co-operative Societies is directed to grant necessary approval of the membership of the petitioner without any further delay but positively within a period of two weeks from the date of communication of this order and the competent authority of the Sarobar View Co-operative Housing Society Limited is also directed to regularise the membership of the petitioner in the society pursuant to the nomination made by the late father of the petitioner in every respect within a period of two weeks from the date of receipt of formal approval of membership from the Deputy Registrar of Co-operative Societies in terms of this order.
This writ petition is thus allowed.
There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment be make available to the learned advocates of the respective parties, if applied for, on completion of usual undertaking in this regard.
Petition allowed
A.K.G
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