Oral Judgment:
1. Admit. Taken up for final hearing with the consent of the learned counsel for rival parties.
2. Being aggrieved by judgment and decree dated 29.11.2008 passed by Ad-hoc District Judge-1, Nagpur holding that notice under section 164 of the Maharashtra Cooperative Societies Act,1960 (in short the "MCS Act") was not necessary before instituting a suit, Regular Civil Suit No.354/2004 and thereby reversing the judgment and decree passed by the trial Court in Regular Civil Appeal No.502/2007, the present Appeal has been filed by original defendant no.11- Shilpa Cooperative Housing Society.
FACTS:-
3. The respondents/plaintiffs filed suit for declaration that they are owners of the suit land having 1/7th share each and that the sale deed dated 16.12.1987 executed in favour of the defendant no.11-appellant-society is illegal and void ab initio and they were entitled to partition. They also claimed relief of injunction regarding construction activity etc. It is the case of the plaintiffs that the agricultural land survey No.36 admeasuring 3.13 HR of Ph No.38 Class-I village Besa, Tq. Dist. Nagpur is the ancestral property and the plaintiffs are daughters of late Bajirao Wankhede and sisters of defendant no.1. All the plaintiffs and defendant Nos.1 to 10 are Legal representatives of Bajirao Wankhede. Bajirao Wankhede died leaving behind him 3 sons and 4 daughters. All the daughters are plaintiffs. The plaintiffs have 1/7th share in the suit property. Accordingly, they were shown as owners in the revenue record. However, in the year 2003, they came to know for the first time, that their brother-defendant no.1-Sheshrao and other brothers had, on their own, sold the suit property to defendant no.11-appellant herein, and the name of society was accordingly mutated on 10.02.2002 by mutation entry No.304. When they came to know about the said transaction they made enquiry to find out that the sale deed dated 16.02.1987 was executed in favour of appellant-society. They lodged report to Police Station after their knowledge and applied for correction of revenue entries.
The appellant-Society prepared layouts and sold out plots to various persons. Under the impression that they were required to give notice under section 164 of the Maharashtra Cooperative Societies Act, they issued notice on 23.02.2004 and having found that members of the society were starting constructions, they prayed for waiving of the period of two months and filed the suit. The appellant-society filed separate application Exh.-35 under Order VII Rule 11 of the Civil Procedure Code regarding tenability of the suit on the ground that there was no compliance of section 164 of the MCS Act since the notice was issued by plaintiff but they did not wait for mandatory period of two months. The controversy is about notice under section 164 of the MCS Act since the counsel for the appellants argued only about the said issue. The trial Judge framed only one issue as to whether the plaint was liable to be rejected on account of failure to comply with provisions of Section 164 of the MCS Act and dismissed the suit instead of returning the plaint. The said order made by the trial Judge was the subject matter of challenge in appeal in Regular Civil Appeal No.502/2007, which came to be decided by the impugned judgment and decree. Hence, this Second Appeal by the housing society.
SUBMISSIONS:
4. In support of the Appeal, Mr. P.V. Vaidya, learned counsel for the appellant, argued that the notice under Section 164 of the MCS Act was a pre-requisite before the institution of the suit. Not only that, according to him, such a notice was, in fact, issued by the plaintiffs but then without waiting for mandatory period of two months, they lodged the suit in the court. Hence, the suit was untenable and was required to be dismissed. The application was rightly allowed by the trial Judge. However, the lower appellate court reversed the order of the trial Judge and held that the said suit was maintainable which is wholly wrong and illegal. He submitted that the society's business is to purchase the land and allot the plots to its members and, accordingly, it purchased the land in question and allotted the plots to its members. That being so, the subject-matter clearly touches the business of the society since it is the business of society to purchase the land and make plots and sell them to the members. Therefore, according to him, compliance of Section 164 of the MCS Act was essential. Action of respondents-plaintiffs in filing the suit without compliance of Section 164 of the MCS Act was clearly illegal and, therefore, the suit was liable to be dismissed. In support of his contentions, he relied on the decisions in Jijamata Sahakari Sakhar Karkhana Ltd. vs. Sukhdeo Ramhau Fulzade and anr.; 2011 (3)Bom.C.R. 413; Heritage Lifestyle and Developers Ltd. vs. Cool Breeze Co-op Hsg. Socy. Ltd.; 2014(2)Bom.C.R. 693 and judgment of Aurangabad Bench of this Court in A.O.No.3/2005 dated 17.01.2007.
5. Per Contra, Mr P. N. Kothari, learned counsel for the respondents, supported the impugned judgment and decree passed by the lower appellate court and submitted that the present respondents-plaintiffs have nothing to do with the society. Respondents correctly exercised their civil rights of claiming partition from their brothers and for setting aside illegal sale made by their brothers to the society. The respondents are neither members of the society nor they have any concern with the society and they are entitled to exercise their rights to ask for partition by filing civil suit in the court. There is no question of they going to the Cooperative Court for the subject matter of the suit since they wanted partition and their shares in the suit property, illegally purchased by the appellant-society. It cannot be said that it is the business of the society to purchase lands illegally and, therefore, Section 164 of the MCS Act is not attracted. Even though notice under section 164 of the MCS Act was issued, there cannot be any estoppel in not waiting for the period of two months when the law does not require issuance of notice under section 164 of the MCS Act. He prayed for dismissal of the appeal. Mr. Kothari relied on the decision in Adinath Limbaji Navale and Ors. vs. Policeman Housing Society, Beed and ors.; 2007 (6) Mh.L.J. 781.
CONSIDERATION:
6. Having heard the learned counsel for the rival parties at length and upon looking at the reasons given by the lower Appellate Court so also by the trial Court, the following two substantial questions of law are framed :-
1) Whether it was necessary/mandatory to serve the notice under section 164 of the MCS Act for the plaintiffs 1 to 3 (respondents 1 to 3 herein) for filing Regular Civil Suit No.354/2004?..No
2) Whether plaintiffs 1 to 3 (respondents 1 to 3) having served the notice under section 164 of the MCS Act, were estopped in law in filing the suit before expiration of statutory period of two months contemplated by he said provision? ..No
7. The first question is the moot question which is required to be answered having regard to the facts in the suit. It is not in dispute that the plaintiffs 1 to 3 are the daughters of Bajirao Wankhede; while defendant no.1-Sheshrao and two others are the sons of Bajirao Wankhede. After the demise of Bajirao Wankhede, the names of the legal heirs aforesaid, were duly inserted in the revenue records of the Government in respect of the suit property land Survey No.36; Area 3.13 hectare; Class I-village Besa Tq. and Dist. Nagpur. It is also not in dispute that defendant no.1-Sheshrao and his brothers without the knowledge and consent of the plaintiffs, that is, their sisters sold the suit property to the appellant-Cooperative Housing Society on 16.2.1987 by the sale deed. Mutation entry No.304 was taken for the first time in the name of the appellant (defendant No.11-society) on 10.12.2002. It is the case of the plaintiffs that they came to know about the said transaction in the year 2003 for the first time surreptitiously made by their brothers. The sisters, therefore, lodged the report to the Police Station and also applied for correction of the revenue entries, but by then, the appellant-society had prepared a Lay-out and sold out plots to various persons. The suit was filed by the sisters claiming a declaration that they have 1/7th share each in the suit property and that consequently the sale deed dated 16.12.1987 executed in favour of the appellant-Housing Society by their brothers was not binding on them and was void ab initio and, therefore, they were entitled to partition and separate possession. This is the nature of the suit - a pure and simple suit by sisters claiming partition, possession and declaration in the suit property left by their father.
8. Mr. Vaidya, learned counsel for the appellant submitted that Section 164 of the MCS Act provides for a mandatory notice of two months if a society is to be sued in the Civil Court. He submitted that notice u/s 164 of the MCS Act is a pre-requisite and mandatory provision. He then submitted that, in fact, notice u/s. 164 was given, but the Suit was filed before expiration of period of two months stated in section 164 of the MCS Act. In the light of the submission, the first question will have to be examined with reference to Section 164. Section 164 of the MCS Act reads thus:-
"Sec. 164 : Notice necessary in suits:
No suit shall be instituted against a society, or any of its officers, in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left."
That, the expression "any act touching the business of the society" occurring in Section 164 above, is required to be carefully considered. It is clear that Section 164 is attracted only when a suit is filed against the society relating to an act touching the business of the society and not otherwise. The word 'act' must be construed to mean 'legal act'. In the facts of the present case, what is clear to me is that the suit was filed by the sisters claiming declaration, partition and separate possession of the ancestral property in which they had 1/7th share each. The body of the plaint and the prayers made in the suit do not have anything to do with any act touching the business of the society. The submission made by Mr Vaidya, learned counsel for the appellant-society that it is a business of the society to purchase lands, carve out plots and sell them to the members of the society and, therefore, the suit property having been purchased for the same purpose, it will have to be held that it was an act touching the business of society does not at all appeal to me. The plaint averments could be decisive in the first place and, secondly, even if the defence is considered, the fact remains that it cannot be said to be the business of the society to purchase the properties illegally and without legal and proper saleable title. In the instant case, the suit filed by the plaintiff was for claiming their share, namely, 1/7th share each and that is their independent civil right and such a suit for exercising independent civil right before the Civil Court must be held to be without any prohibition contemplated by Section 164 of the MCS Act. The plaintiffs have no concern whatsoever with the appellant-society which purchased the suit property without there being any partition of the suit property. The act of the society in purchasing such a property in the absence of any partition between coparceners cannot be said to be a legal act or even the act touching the business of the society.
9. At this stage, it would be appropriate to refer to Section 91 of the MCS Act. Perusal of Section 91 shows that it also uses the expression "act touching the business of society". In the case of Deccan Merchants Cooperative Bank Ltd. vs. Dalichand Jugraj Jain and others : AIR 1969 SC 1320, the Supreme Court held that the expression "business" in Section 91 does not mean affairs of the society and the said expression has been used in a narrower sense means the actual trading or commercial or other similar business activity of the society which the society authorized to enter under the Act and the Rules and its bye laws. It is well settled legal position of interpretation that when a similar expression is used in different places in a suit, it carries the same meaning unless contrary intention is disclosed. The institution of the suit claiming partition, separate possession and declaration that the sale deed in favour of the appellant is void cannot be said to be either an act touching the business of the society even for that matter, 'dispute' touching the business of the society. Therefore, the provisions of Section 164 will have no application since the plaintiffs want to exercise their independent civil rights for claiming partition and separate possession and declaration. In the light of the above decision of the Apex Court and the facts of the present case, I am of the considered opinion, that notice u/s 164 for filing the suit was not at all necessary. The Question No.1,therefore will have to be answered in negative.
10. Coming to the second substantial question of law, I find that when notice u/s 164 of the MCS Act was not at all necessary before filing the suit in a civil court for partition, separate possession and declaration, even if the respondents/plaintiffs, in fact, had given such notice but did not wait for two months, there cannot be any estoppel against law when the legal position is no such notice is necessary for filing the suit as a pre-requisite to maintain the suit. Whether or not the plaintiffs had issued notice u/s 164 and did not wait for the period of two months, would make no difference at all.
11. In the result, I make the following order :
ORDER
i) Second Appeal No.417/2010 is dismissed, with no order as to cots.
ii) Regular Civil Suit No.354/2004 shall be decided by the trial Court within six months from the date of receipt of the writ.