Vs. Jubilee Hills Coop. House Bld. Soc. & Anr  Insc 265 (2 May 2006)
Sinha & P.P. Naolekar S.B. Sinha, J :
appeals are directed against judgments and orders dated 13.11.2001 and
22.4.2002 passed by the High Court of Andhra Pradesh in Civil Revision Petition
No. 283 of 2000 and Civil Miscellaneous Petition No. 7763 of 2002 respectively.
Hills Cooperative House Building Society Limited, Hyderabad is a Society registered under the
Andhra Pradesh Cooperative Societies Act, 1964. It had enrolled a large number
of members. The father of the one Shri Anne Srinivas and the mother of the
Appellant, Mrs. A. Annapurna Devi, herein were members of the said Society.
perusal of the bye-laws framed by the said Society, it appears that it intended
to allot one plot to the family of the member concerned. The bye-laws contain
provisions for nomination.
19 to 22 which are relevant for our purpose read as under:
"Every member may be
declaration attested by two witnesses nominate a person or persons to whom his
share or interest, shall be paid or transferred on his death.
nominee may be changed by filing a fresh declaration with the Secretary. In the
absence of any nomination the amount of his share or interest shall be paid or
transferred to such person as may appear to the Managing Committee to be
legally entitled. In case of any doubt the Managing Committee shall call for a
succession certificate and act in accordance therewith. All amounts payable to
a minor shall be paid to him through his guardian.
The Society shall keep a Book
wherein the names of all persons so nominated and all revocation or variation
(if any) of such nomination shall be recorded within fifteen days.
All shares transferred by virtue of
a nomination or by him or by legal transfer shall be transferred to the nominee
or heir on his becoming a member. He shall not, however, be entitled to
withdraw any such share on account of such transfer.
The nominee of a deceased member
shall be made a member provided he fulfils the qualifications of
membership." The mother of the Appellant herein expired on 15.8.1977. It
was not notified to the Society. A plot bearing No. 39 in Phase III in Jubilee
Hills admeasuring 600 sq. yards was allotted in her favour. On or about
5.11.1981, a notice was circulated to the members of the society that allotment
of plots would be done by way of draw of lots. A copy of the said notice was
also sent to Mrs. A Annapurna Devi (since deceased). Plot No. 39 was allotted
in her favour on a provisional basis by the society on 20th June, 1982. She was called upon to pay a sum
of Rs. 4,003.90 within one month from the date of receipt thereof. However, as
no payment was made within the stipulated period, on or about 30.9.1982, a
letter was issued granting final extension of time upto 30.11.1982 to make
payment. It was categorically stated therein that the provisional allotment
would be cancelled and no representation in that behalf shall be entertained if
no payment is made on or before 30.11.1982 for confirmation of provisional
allotment of the said plot. The said amount admittedly was not paid evidently
because in the meantime the mother of the Appellant had expired.
Anne Srinivas was admitted as a member of the Society on 6.8.1983 in place of
his father who was a member of the Society.
on 16.9.1983, plot No. 39 was allotted in his favour.
Appellant on behalf of her mother wrote a letter on 16.3.1985 to the First
Respondent herein for allotment of site in respect of membership No. 1646
Allotment of site for Membership 1646.
request you kindly allot me a site in lieu of my plot No. 39 in phase 3 which
has been given to someone else. I had to pay to the society around Rs. 4,000/-,
I am ready to pay the above amount immediately and start construction of the
house if you would kindly allot me a suitable plot nearby. The plot 39 in phase
3 which was allotted to me was given to some one else. I was not in Hyderabad for more than 2 = years and in
correspondence from you was received by me.
came to the office to find out about my plot no. 39, I was told that the same
has been allotted to some one else. There has been a confusion and I had not
received any of your letters. I would be even grateful to you if you consider
my case and allot me a suitable site to construction of the house immediately.
you, Yours faithfully, For A. Anapoornamma Son. A. Jithender Nath"
[Emphasis supplied] In response to the said letter, the allottee was informed
that due to non-payment of development charges, the said allotment had been
letter dated 21.6.1985, the Appellant informed the Society about the death of
her mother and sought membership of the Society by way of transfer.
18.3.1986, he made a representation for allotment of a new plot stating :
received your letter dated 20-9-1985. In
this regard, I would like to inform you, that I have already submitted an
affidavit duly notarized, and a death certificate of my mother Late Smt. A. Annapurnamma.
enclose the original Affidavit No. 13820 dated 21-6-85, which is duly signed by gazetted officer.
request you to kindly transfer the membership to my name and please allot a new
plot to me, I am ready to pay any balance due amount and I am also ready to
built a house immediately." Respondent No. 1 Society admitted the
Appellant as a member on 28.4.1986. Despite the fact that the membership had
been transferred to the Appellant, a sale deed was executed by the Society in favour
of Srinivas on 7.2.1987. The said deed was also presented for registration.
having been admitted as a member of the Society, no plot admittedly was
allotted to the Appellant. The Appellant made a representation for allotment of
plot on 15.11.1988. The Society in terms of its letter dated 3.1.1990 declined
to make any allotment in his favour.
the said action on the part of the Society, the Appellant filed an application
on 4.3.1990 before the Assistant Registrar of the Cooperative Society which was
numbered as ARC 21 of 1990 praying for:
Plaintiff, therefore, prays that this Hon'ble Court may be pleased to declare that the Plaintiff is entitled
Plot No. 39 of the Defendant Society and or in the alternative:
to declare an
alternative plot in the same block to an extent of 600 sq. yards and deliver
An injunction be
granted restraining the Defendant from allotting the plot No. 39 to any other
member of the Society, pending disposal of the suit." In the said proceeding,
Srinivas was not impleaded as a party. He, thus, evidently had no notice
thereof. The First Respondent in response to the notice issued by the Registrar
allegedly stated that the said plot No. 39 has been allotted to Srinivas and he
had constructed a house thereupon.
the same Srinivas was not impleaded.
Presiding Officer visited the site and found that no house was constructed and,
therefore, made an award in favour of the Appellant on or about 22.4.1991
directing the Society to allot the plot No. 39 in favour of the Appellant.
Pursuant thereto or in furtherance thereof, the Appellant paid all the amounts
payable therefor. It is, however, not in dispute that that despite the same, a
deed of sale was registered in favour of Srinivas by the First Respondent on
appeal marked as CTA No. 6 of 1991 was preferred before the Third Assistant
Judge, City Civil Court, Hyderabad by the First Respondent against the award. However, as the
transfer of membership was not intimated to Srinivas, he filed a suit in the
court of VII Assistant Judge, City Civil Court,
Hyderabad which was marked as OS No. 3702 of
1992 wherein the Appellant herein was not impleaded as a party. During pendency
of the said suit, Srinivas transferred his right, title and interest in favour
of the Second Respondent herein by a deed of sale dated 25.7.1992. The Second
Respondent thereafter filed an interlocutory application in the said CTA No. 6
of 1991 for being impleaded as a party thereat which was numbered as I.A. No. 651
of 1993. Both the proceedings were transferred to the District Cooperative
Tribunal, Hyderabad, C.T.A. No. 6 of 1991 was
renumbered as C.T.A. No. 130 of 1996.
meantime, the Civil
Court granted a
decree in the said original suit No. 3702 of 1992 on 16.10.1996 in favour of
the Second Respondent.
30.09.1996, an appeal was preferred by the First Respondent against the award
dated 22.4.1991 before the Cooperative Tribunal. The Second Respondent also
filed an application for impleading himself as a party therein. By an order
dated 30.09.1996, the said appeal as also the said I.A. were dismissed in
said decree passed in OS No. 3702 of 1992 was put in execution by the Second
Respondent which was marked as EP No. 2 of 997. A revision application was also
filed before the High Court by the Second Respondent against the order dated
30.09.1996 dismissing the appeal preferred by the First Respondent in default.
said revision petition was dismissed with a liberty reserved to the Second Respondent
to come on record as an additional respondent if the said appeal was restored
to its original file. The Appellant also filed an execution petition for
executing the award dated 22.4.1991 before the Second Assistant Judge, City
Civil Court, Hyderabad. An application was filed therein by the Second
Respondent contending that the said execution petition was not maintainable and
by an order dated 27.4.1998, the same was allowed by the executing court,
view of the above discussion, it is evident that the petitioner is claiming
title and possession independently and not through the JDR Society and that
prima facie the petitioner has lawful title over the disputed plot and also
possession of the same and that the JDR Society had no title over the disputed
plot even by the date of filing of plaint in ARC 21/90 and that therefore the
petitioner cannot be dispossessed in execution of the decree in ARC 21/90. It
is made clear that the question of right, title or interest in the property
between the parties to this petition to the extent of their relevance for the
proper adjudication of this petition alone has been considered in the light of
the observation in 1992 (1) ALT 371." The Appellant preferred an appeal
against the said order dated 27.4.1998 in the Court of Additional Chief Judge,
City Civil Court, Hyderabad which was numbered as CMA No. 163 of 1998 and by a
judgment and order dated 22.12.1999, the said appeal was allowed opining that
no valid title passed to the said Srinivas prior to 22.4.1991 as the sale deed
in his favour was registered after passing of the award. It was observed:
far as the transfer made in the name of the petitioner is concerned by the said
Srinivas, it is not hit by clause 'G' of A.P. Cooperative Societies Act, 1964
(directions of the effective and proper functioning of the cooperative
societies in the State) since, the same was passed on 3.12.1997 which is
subsequent to the sale deed executed in the name of the petitioner. The
petitioner obtained the sale deed from her son who is the power of attorney
holder of the said Srinivas under Ex. A.9. However, this Court has arrived at a
conclusion that three is no valid title passed to the said Srinivas prior to
the award passed by the Tribunal on 22-4-1991. The society being a party to the
said award, it ought to have stopped the registration by virtue of the award
and in fact, it did not stop the same, and kept in abeyance, and allowed the
document to be registered to deprive the award passed by the Tribunal.
Therefore, I am of the opinion, that the learned Asst. Judge has arrived at a
wrong conclusion and on the wrong premise that R.2 had no vested right in the
said property, allowed the petition. Hence, it suffers from infirmities and the
impugned order is liable to be set aside by allowing the appeal." The
legality of the said order dated 22.12.1999 came to be questioned by the Second
Respondent herein before the High Court by filing a revision application which
by reason of the impugned order dated 13.11.2001 was allowed by a learned judge
of the said Court stating:
lower appellate court lost the sight of the fact that as on the date of the
order of the Deputy Registrar, the deed was pending registration and once it
was registered on 13-6-1991, much prior to the initiation of execution
proceedings by the first respondent, it dates back to the date of presentation
of the document, i.e. 7-2-1987. In such circumstances and in view of the
provisions contemplated in Section 47 of the Registration Act as well as the law
laid down by the Supreme Court, which was followed by other High Courts, the
view taken by the lower appellate court cannot be sustained. Accordingly, the
order passed by the lower appellate court is set aside.
the right and entitlement of the first respondent vis-`-vis the second
respondent cannot be defeated on account of the above proceedings to which he
is not a party. It is, therefore, left open to the first respondent to approach
the Deputy Registrar for such directions as are necessary and permissible in
law in view of the development that has taken place culminating in the order of
the Executing Court in E.A. No. 155 of 1997." An
application for clarification of the said order made by the Second Respondent
herein was disposed of by the High Court in terms of an an order dated
direction in the order dated 13.11.2001 in CRP No. 283 of 2000 as regards the
right of the respondents to approach the Deputy Registrar for such directions,
as are necessary and permissible in law are obviously for allotment of an
alternative plot other than plot No. 39 phase II which was found to have been
validly transferred in favour of Mr. A. Srinivas the vendor of the petitioner
herein, i.e., Smt. Mina Patalay. The matter is accordingly clarified." The
Appellant is, thus, before us.
view of the fact that one award was passed in favour of the Appellant herein
which attained finality, rightly or wrongly, and similarly a decree having been
passed in favour of the Respondent, this Court with a view to do justice
between the parties on or about 10.8.2005 asked the learned counsel appearing
on behalf of the First Respondent herein to produce the bye-laws, the scheme of
allotment and as to whether any other plot was available which could be allotted
in favour of the Appellant. This Court was informed that one plot being plot
No. 400, Phase III was available and the same would be allotted to the
Appellant. The said offer was accepted by the Appellant. An undertaking was
also given to pay the price therefor and other legal dues as and when demanded
by the Society.
to or in furtherance of acceptance of the said offer, and payment made by the
Appellant to the Society, an allotment letter was issued in his favour in
respect of the said plot No. 400. However, interlocutory applications were
filed by one B.M. Ramalingeswara Rao being I.A. Nos. 5- 10 of 2005. The matter
came up before a 3-Judge Bench presided over by Hon'ble the Chief Justice of
India and in an order dated 9.9.2005 noticing the statements made in this said
application that the said plot was allotted to the applicant therein in 1984,
it was directed to be put up on 21.9.2005.
applications being Nos. 11 12 were also filed by Dr. M.S. Raju wherein also
notices were issued. In interlocutory applications being Nos. 13 14 by,
however, while issuing notice by an order dated 8.12.2005, this Court directed:
heard learned counsel for the parties, we are of the opinion that the
respondent No. 1 Jubilee Hills Coop. House Bld. Soc. should file its responses
to the interlocutory applications for impleadment filed before us. Such
respondents should be filed by 12.1.2006. The President of the respondent Society
shall hand over authenticated copies of the relevant documents and shall also
keep the original records with the learned counsel for the respondent Society
to enable the parties hereof to make inspection thereto. After such inspections
of the Society's records are carried out, the parties before us including those
who have filed applications for impleadment in these appeals would be at
liberty to file their affidavits. Such affidavits should be filed by
25.1.2006." An application for impleadment has also been filed by one J.S.
Rama Murthy being I.A. Nos. 15-16 wherein it has been stated that an award in
his favour has been passed under Section 61 of the Andhra Pradesh Cooperative
Societies Act, wherein it was directed :
regard to the facts, mentioned above and on considering totality of the
circumstances of the case, the Respondent Society (i.e.) Jubilee Cooperative
House Building Society Ltd. TA-No. 173, Hyderabad is hereby directed to allot and register a suitable plot to
petitioner." Mr. S. Muralidhar, learned counsel appearing on behalf of the
Appellant, at the outset, submitted that the order the High Court as regards
interpretation of Section 47 of the Registration Act, 1908 holding that the
sale deed registered in favour of the said Srinivas by the First Respondent on
13.6.1991 would be effective from 7.2.1987 is not correct being contrary to a
5-Judge Bench decision of this Court in Ram Saran Lall and Others v. Mst Domini
Kuer and Others [(1962) 2 SCR 474]. It was urged that the High Court committed
a manifest error in foreclosing the Appellant's right in respect of plot No. 39
by directing him to approach the Deputy Registrar seeking for the remedies
our attention to Bye-laws 70(a) and 71, it was contended that as in terms
thereof it is postulated that the lands belonging to the Respondent- Society
would be divided into plots for members thereof and each member was eligible
for being allotted a plot of land, the High Court acted illegally and without
jurisdiction in passing the impugned judgment particularly in view of the fact that
in terms of Rule 17 of the Andhra Pradesh Cooperative Societies Rules, 1964
(for short "the Rules") as also Bye-law 19 of the Society, a
nomination by a member is envisaged. It was argued that as the Appellant was
admitted as a member in place of his deceased mother, he became eligible for
being allotted the very plot being No. 39 which could not have been allotted to
the said Srinivas as no sale deed had been executed in his favour at the
relevant time. Once the Appellant was admitted to the membership, in all
fairness, the Registrar, Society should have cancelled the allotment made in favour
of the said Srinivas and allotted the same to the Appellant. In any event, the
society ought to have brought the relevant records to the notice of the
Registrar so as to enable him to consider grant of alternative relief in his favour
as had been prayed for.
further urged that by reason of the award dated 22.4.1991, the Appellant's
indefeasible right on the said plot has been recognized and the appeal preferred
thereagainst having been dismissed, the same attained finality. The said award,
therefore, became final and binding and, thus, in terms of the Bye-laws the
vested right of the Appellant therein could not have been taken away by reason
of the decree passed in the suit. In any event as he was not a party in the
said suit, the decree passed in favour of the Second Respondent is not binding
on him. The principle of res judicata, the learned counsel would submit, is,
thus, attracted and in that view of the matter, the Respondents herein cannot
question the correctness or otherwise of the said award which was evidently
made prior to registration of the deed of sale in favour of the said Srinivas.
In any event, plot No. 400 having been allotted in favour of the Appellant, the
Society must be held to have recognized the right of the Appellant for
allotment of plot in his capacity as a member of the Respondent Society. As
the said plot was available for allotment, Mr. Muralidhar would submit, this
Court may grant prayer (a) in favour of the Appellant by directing
formalization of the allotment of the said plot by execution and registration
of a sale deed in his favour.
H.S. Gururaja, learned senior counsel appearing on behalf of the Second
Respondent, on the other hand, submitted that the allotment made in favour of
the mother of the Appellant must be deemed to have been cancelled by the
Society as the requisite payments therefor as demanded by the Society had not
Ramakrishna Prasad, learned counsel appearing on behalf of the First Respondent
Society, urged that at the point of time when purported allotment of plot No.
400 was made in favour of the Appellant herein, the Administrator was Incharge,
but the affairs of the Society having been taken over by the elected body, it
has now been found out that there were several persons in whose favour
directions have been issued by the Authorities/ Tribunals to consider the
matter relating to allotment of plots in their favour in accordance with seniority.
T.L.V. Iyer, Mr. M.N. Rao, Mr. L. Nageswara Rao, learned senior counsel also
addressed us pressing the impleadment applications filed by different
applicants. Our attention has also been drawn to an order dated 13.06.2005
passed by the Andhra Pradesh Cooperative Tribunal wherein it was directed that
allotment of plots including plot no.400 should be made in accordance with the
principal question which arises for consideration in this appeal is as to
whether the award passed in favour of the Appellant herein is capable of
enforced in law. The said question may have to be answered in favour of the
Appellant only, if the principle of res judicata is found to be applicable in
Appellant became a member of the Cooperative Society in place of his mother. As
a member of a Society, nobody had a right to be allotted a plot far less a
particular plot. Plot No. 39 was indisputably allotted in favour of his mother.
But before the provisional allotment could fructify by making a formal
allotment and executing a deed of sale in her favour, she had expired. This
fact was not communicated by the Appellant to the First Respondent Society for
a long time. He in his letter dated 16.3.1985 accepted that he was out of Hyderabad for more than two and half years.
He did not deny or dispute that in the mean time the Society issued several
letters in the name of all allottees to deposit the development cost. A notice
had also been issued to all the allottees asking them to deposit the development
charges failing which the order of allotment would stand cancelled. It stands
admitted that the development charges had not been deposited in respect of plot
No. 39. It may be that no formal letter of cancellation of the said plot was
issued but in view of the admitted position that the requirements as contained
in letter dated 30.9.1982 of the First Respondent having not been complied
with, the allotment would in law, be deemed to be cancelled.
inference as regards cancellation of the said allotment must be drawn in view
of the fact that plot No. 39 admittedly was allotted in favour of Mr. Srinivas.
Even if there had been no express cancellation of allotment of the said plot,
by reason of a fresh allotment, the provisional allotment made in favour of
mother of the appellant must be held to have come to an end. The allotment of
plot No. 39 in favour of the mother of the Appellant was a provisional one. By
reason of such provisional allotment, the allottee did not derive any legal
right far less an indefeasible right. Such provisional allotment would have
acquired permanence provided the requirements therefor were complied with.
the Appellant in its letter dated 16.3.1985 requested for allotment of another
site in lieu of plot No. 39 in Phase III as the same had been given to someone
else. He was informed thereabout. He never put forward his case before the
First Respondent to allot plot No. 39 in his favour upon cancellation of such
allotment made in favour of Mr. Srinivas.
in his other letters, similar requests were made. The Appellant was also aware
of the fact that allotment made in favour of her mother had been cancelled due
to non-payment of the development charges. He had specifically asked for
allotment of another site wherefor he was even ready to make extra-payment. He
had, thus, consistently been asking for allotment of a new plot. He despite
such knowledge that allotment of plot No. 39 made in favour of his mother had
been cancelled and subsequently made in favour of somebody else, while
questioning the refusal on the part of the First Respondent herein to allot
another plot in his favour and initiating the arbitration proceeding only
prayed for an order of injunction restraining the Society from allotting plot
No. 39 to any other member of the Society. His main prayer, however, was that
an allotment of an alternative plot in the same block to the extent of 600 sq.
yards be made and the vacant possession thereof be delivered.
beyond any cavil of doubt that the conduct of the First Respondent Society was
not fair. When it had made an allotment in favour of Mr. Srinivas, it was
obligatory on its part to disclose all the facts before the Registrar so as to
enable him to arrive at an independent opinion. It failed and neglected to do
so and, thus, it created all sorts of confusions.
contention of the Appellant is correct, that after the said award, the Society
accepted the deposit of the requisite amount from the Appellant, we fail to see
any reason as to why the said fact was not brought to the notice of the said Srinivas.
The appeal preferred by the First Respondent against the Appellant herein was
also not properly pursued. We do not know whether any application for
restoration has been filed.
be true, as was submitted by Mr. Gururaja that the appeal was dismissed for
default by the Cooperative Tribunal without giving any proper notice of
transfer, but in the facts and circumstances of the case, it is not necessary
to deal with the said question.
contention of the Appellant is to be accepted that by reason of the provisional
allotment made in favour of his mother, he acquired an indefeasible right only
because he at a later date was admitted as a member of the Society,
indisputably, the said Srinivas had acquired a higher right as not only the
said plot was allotted in his favour but also a deed of sale was executed. The
Appellant does not deny or dispute about the factum of execution of sale by the
First Respondent herein in favour of Shri Srinivas as far back as on 7.02.1987.
aforementioned situation, the effect as regards application of Section 47 of
the Registration Act requires consideration. The said provision reads as under:
Time from which registered document operates.
registered document shall operate from the time from which it would have
commenced to operate if no registration thereof had been required or made, and
not from the time of its registration." In terms of the aforementioned
provision, therefore, if a deed of sale is executed although not registered,
the right, title and interest in respect thereof shall pass with retrospective
effect, i.e., from the date of execution thereof.
question is no longer res integra in view of a large number of decisions of
Privy Council as also this Court including Kalyanasundaram Pillai v. Karuppa Mooppanar
[AIR 1927 PC 42], Venkatasubba Shrinivas Hegde v. Subba Rama Hegde [AIR 1928 PC
86], Radhakisan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Others
[(1961) 1 SCR 248], K.J. Nathan v. S.V. Maruthi Rao and Other [(1964) 6 SCR
727], Nanda Ballabh Gururani v. Smt. Maqbool Begun, [(1980) 3 SCC 346] and Thakur
Kishan Singh (Dead) v. Arvind Kumar [(1994) 6 SCC 591].
would hereinafter notice a few decisions. In Radhakisan Laxminarayan Toshniwal
(supra), a Constitution Bench of this Court has clearly held:
was then submitted that the sale deed had as a matter of fact, been executed on
February 1, 1944; but respondent Sridhar brought the suit not on the cause of
action arising on the sale dated February 1, 1944, but on the transaction of
April 10, 1943, coupled with that of April 24, 1943, which being mere contracts
of sale created no interest in the vendee and there was no right of pre-emption
in Respondent 1 which could be enforced under the Code. Mr Chatterji urged that
it did not matter if the sale took place later and the suit was brought earlier
but the suit as laid down was one to pre-empt a sale of April 1943 when, as a
matter of fact, no sale had taken place. If respondent Sridhar had based his
right of pre- emption on the basis of the sale of February 1, 1944, the appellant would have taken such defence as the law
allowed him. The defence in regard to the conversion of the land from
agricultural into non-agricultural site which negatives the right of
pre-emption would then have become a very important issue in the case and the
appellant would have adduced proper proof in regard to it. The right of
pre-emption is a weak right and is not looked upon with favour by courts and
therefore the courts could not go out of their way to help the pre-
emptor." The aforementioned decision has consistently been followed by
this Court. Strong reliance has been placed by Mr. Muralidhar on Ram Saran Lall
(supra). It is interesting to note that in that case the decision of the
earlier Constitution Bench of this Court in Radhakisan Laxminarayan Toshniwal
(supra) was not brought to the court's notice. Hon'ble the Chief Justice B.P. Sinha
was a party to both the decisions. His Lordship, therefore, presumably was
aware of the distinctive features of both the cases.
Saran Lall (supra), the Constitution Bench of this Court was considering a
different question, namely, in the light of the provision relating to
pre-emption what would constitute a complete sale, as would appear from the
will assume that the learned Attorney-General's construction of the instrument
of sale that the property was intended to pass under it on the date of the
instrument is correct. Section 47 of the Registration Act does not, however,
say when a sale would be deemed to be complete. It only permits a document when
registered, to operate from a certain date which may be earlier than the date
when it was registered. The object of this section is to decide which of two or
more registered instruments in respect of the same property is to have effect.
The section applies to a document only after it has been registered. It has
nothing to do with the completion of the registration and therefore nothing to
do with the completion of a sale when the instrument is one of sale.
which is admittedly not completed until the registration of the instrument of
sale is completed, cannot be said to have been completed earlier because by
virtue of Section 47 the instrument by which it is effected, after it has been
registered, commences to operate from an earlier date. Therefore we do not
think that the sale in this case can be said, in view of Section 47, to have
been completed on January 31, 1946" [Emphasis supplied] The said decision,
therefore, does not in any way support the contention of Mr. Muralidhar; rather
runs counter thereto.
notice that in Hiralal Agrawal v. Rampadarth Singh and others [(1969) 1 SCR 328
: AIR 1969 SC 244] this Court made similar observations. Therein this Court was
considering the question as to whether an application for pre-emption which was
filed before the registration of the deed, although, cognizance in relation
thereto was taken thereafter, would be valid.
knowledge, that plot No. 39 has been allotted to somebody else, the Appellant
did not make the said Srinivas a party in his application before the Registrar.
Ex facie the award being in violation of the principles of natural justice
would be a nullity.
have, furthermore, noticed hereinbefore the prayers made by the Appellant in
the said arbitration proceedings. In view of prayer (a) which was the main
prayer ex facie the Registrar acted illegally and without jurisdiction in
directing the First Respondent to allot plot No. 39. The First Respondent made
it clear that the plot in question had been allotted in favour of the said Srinivas.
The question as to whether he raised constructions thereupon or not was
immaterial. He despite such allotment having been made in his favour was not impleaded
as a party. He was a necessary party.
award therefor could have been passed in his absence. In any event, so far as
plot No. 39 is concerned, the only prayer made by the Appellant was an order of
injunction. The Registrar while exercising his judicial function had no
jurisdiction to pass such an order of injunction in view of prayer (a) made in
said award, therefore, was a nullity. In this view of the matter, the
principles of res judicata will have no application. [See. Haryana State Coop.
Land Development Bank v. Neelam (2005) 5 SCC 91, Ram Chandra Singh v. Savitri Devi
and Ors. ,JT 2005 (11) SC 439] An order which was passed by an authority
without jurisdiction need not be set aside, being a nullity, it in the eyes of
law never existed. [See Balvant N. Viswamitra and Others v. Yadav Sadashiv Mule
(Dead) Through LRS. and Others (2004) 8 SCC 706] Furthermore, the said award
was put in execution. The Executing Court
in view of title passed in favour of the said Srinivas and consequent
acquisition of title by him in terms of the deed of sale executed by him in favour
of the Second Respondent herein was entitled to enter into the question as to
whether the said award was capable of being executed. As the High Court rightly
found that the Second Respondent has acquired a valid title with effect from a
date prior to making of the award, the same became inexecutable. If the said
award was not capable of being executed, the remedy of the Appellant evidently
lies to ventilate his grievance as regards allotment of plot by initiating a
true that even in the suit filed by the Second Respondent herein against the
First Respondent being OS No. 3702 of 1992 the Appellant was not impleaded as a
party. The decree passed, therefore, may not be binding on the Appellant. For
the self-same reasons we have assigned hereinbefore, the said decree may not
operate as a res judicata but we have to consider the matter from a different
angle. The Second Respondent did not enforce the decree as against the
Appellant herein where as the award, in view of the peculiar facts and
circumstances of this case, was required to be enforced by the Executing Court
as against the Second Respondent besides the First Respondent herein and in
that view of the matter the Second Respondent in law could file an appropriate
application not only for his impleadment but also to show that the award is not
enforceable in law.
High Court's judgment, therefore, is unassailable albeit for additional reasons
at this stage notice that Mr. Muralidhar categorically stated that his client
does not press for allotment of plot No. 39 and he would be satisfied if some
other plot is allotted in its favour. This brings us to consideration to the
question of allotment of plot No. 400.
question which now arises for consideration is that what would be the effect of
allotment of plot No. 400 in Phase III by the First Respondent during pendency
of the proceedings before this Court. We have noticed hereinbefore that this
Court, while asking the learned counsel appearing on behalf of the First
Respondent, was of the opinion that interest of justice may be subserved if
some plot which was available for allotment could be directed to be allotted in
favour of the Appellant herein. A representation was made, which now turns out
to be wrong, on behalf of the First Respondent that the plot No. 400 was
available for allotment. It was in that situation, the offer of the First
Respondent as regard allotment of the said plot to the Appellant was accepted.
The Appellate paid a huge sum therefor.
said amount has also been appropriated by the First Respondent.
in law only because an order of allotment has been issued in favour of the
Appellant herein by the First Respondent, the same by itself would not mean
that thereby the right of the others for being considered therefor or for that
matter any other plot which was available for allotment could be put in jeopardy.
This Court whence proceeded to consider the matter of allotment of another plot
in favour of the Appellant by the First Respondent, it had evidently in its
mind that same plot may be available for allotment but by reason thereof, the
right of somebody else was not meant to be nor could be affected. Even in
exercise of its jurisdiction under Article 142 of the Constitution while making
an attempt to do complete justice to the parties this Court cannot pass an
order which could cause injustice to others and in particular to those who are
not before it. The correctness or otherwise of the contentions raised by the impleaded
parties, thus, need not be gone into. We must, however, place on record that
our attention has been drawn to the fact that several proceedings as regard
allotment of plot at the hands of the society are pending adjudication before
several forums. Even a direction has been issued by a Cooperative Tribunal as
regard allotment of plot No. 400. It goes without saying that the courts of law
would always see to it that while making allotment of plot by a cooperative
society, no discrimination is caused amongst the members. The Cooperative
Society having been formed for the purpose of allotment of plots to its members
must strictly and scrupulously follow the statutory rules as also the bye-laws
framed by it. It must also act within the four corners not only of the statue
and statutory rules but also the bye-laws framed by it. In terms of the extant
law, seniority rule would govern the matter of allotment of land amongst the
members of the Society. This Court is not in a position to determine the inter
se dispute, if any, even as regard the seniority amongst the members.
fact this Court has not been called upon to do so nor in view of the lis
between the parties we can go thereinto. Whether the Appellant would be senior
in the matter of allotment of plot over the others is a disputed question of
fact. Such disputed question of fact, as and when any occasion arises therefor,
must be gone into and adjudicated upon by an appropriate forum.
Appellant as a member has a right, although not indefeasible, to be considered
for allotment of a plot along with other members similarly situated. Such a
right, therefore, could not have been taken away nor directed to be taken away
by any court of law.
therefore, are of the opinion that interest of justice would be sub- served if
the First Respondent is directed to consider the question of allotment amongst
its members upon strict compliance of the extant rules including its bye-laws wherefor
cases of all persons eligible therefor must be considered.
goes without saying that in the event of any dispute or difference as regard
entitlement to be allotted a plot between the parties, they would be at liberty
to initiate such proceedings or ventilate their grievances before such forums
as is permissible in law.
brings to the fore another question viz. as to whether, in view of the conduct
of the First Respondent, the Appellant should be monetarily compensated. We
think so. The First Respondent despite the knowledge that the award dated
22.4.1991 was not enforceable appears to have taken some amount from the
Appellant. It compelled the Appellant to fight litigations before various
forums. The Appellant also had to initiate an execution proceeding for
execution of the award passed by the Registrar. It succeeded at least before
one court. Even before this Court, a wrong representation was made by the First
Respondent that plot No. 400 was available for allotment to the Appellant. The
said representation was turned to be wrong. As we are not in a position to
consider the correctness or otherwise of one representation or the other by the
First Respondent herein as also the contentions raised by the impleaded
parties, we are of the opinion that the conduct of the First Respondent is
deplorable. It being a Society was obligated to render all assistance to this
Court so as to enable it in turn to render a decision in accordance with law.
It could not have made any mis-representation before us. We are not bothered as
to whether at the relevant point of time the First Respondent was represented
by an Administrator or an elected body. It was admittedly being represented who
could do so before us in law.
therefore, direct the Registrar of the Cooperative Society to initiate an
enquiry against the persons concerned who were responsible for making a wrong
representation before us and take suitable action against them in accordance
with law. We further direct that all amounts deposited by the Appellant before
the First Respondent be refunded to him with penal interest at the rate of 24%
per annum, subject, of course, to deduction of such amount to which the First
Respondent was entitled to for admitting him as a member of the Society. The
First Respondent shall also pay a further sum of Rs. 1,00,000/- (Rupees one lakh
only) to the Appellant herein by way of compensation. The First Respondent
shall also pay a sum of Rs. 1,00,000/- (Rupees one lakh only) to the Second
Respondent by way of compensation. Such payments be made to them within a
period of four weeks from date. The First Respondent shall be at liberty to
recover the amount of interest as also the amount of compensation directed to
be paid to the Appellant herein from such persons who may be found responsible therefor.
the foregoing reasons, these appeals are dismissed, subject, however, to the
aforementioned observations and directions. The parties shall, however, in the
facts and circumstances of the case pay and bear their own costs throughout.
view of our views aforementioned, it is not necessary for us to pass any
separate order on the interlocutory applications. They are disposed of