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Tuesday, February 11, 2014

sec.16 of Indian Contract Act - Transfer of property - Burden lies on the person who is in fiduciary relationship and who obtained benefit out that relationship by playing undue influence and fraud etc., - Plot allotted by Housing co operative society - the person who is in fiduciary capacity with appellant played undue influence, fraud and obtained the signature of appellant and got transferred her property in the name of his wife - Arbitrator correctly passed award set aside the transfer of house - Tribunal and High court wrongly set aside the order of Arbitrator - Apex court held that burden lies on the respondent who obtained property in favour of his wife name who is in fiduciary relationship with appellant by playing fraud , undue influence etc., and set aside the orders of tribunal and High court and directed to restore the possession with in one months = Pratima Chowdhury …Appellant Versus Kalpana Mukherjee & Anr. ...Respondents = 2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41212

sec.16 of Indian Contract Act - Transfer of property - Burden lies on the person who is in fiduciary relationship and who obtained benefit out that relationship by playing undue influence and fraud etc., - Plot allotted by Housing co operative society - the person who is in fiduciary capacity with appellant played undue influence, fraud and obtained the signature of appellant and got transferred her property in the name of his wife - Arbitrator correctly passed award set aside the transfer of house - Tribunal and High court wrongly set aside the order of Arbitrator - Apex court held that burden lies on the respondent who obtained property in favour of his wife name who is in fiduciary relationship with appellant by playing fraud , undue influence etc., and set aside the orders of tribunal and High court and directed to restore the possession with in one months =

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.


            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
                 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
                 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 by law of limitation.


             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 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.


              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
                 Society or not.

            vii) The Doctrine of estoppel as per sections 115 & 116  of  the
                 Evidence Act 1872 whether attracted or not.”

  “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, Indian Contract Act, Transfer  of
           Property Act due to reason at a glance.


           1)    Section 85(9), Section 70, Section 69 of West  Bengal  Co-
                 Operative Socities Act 1983 have been flouted.


           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 Defendant no. 1  to
                 the Plaintiff.


           5)    Societies accepted the resignation  of  the  Plaintiff  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  in  this
                 respect was operated by the son of the Defendant no. 1  who
                 also deposited cheque on Plaintiff’s behalf.


           7)    The instant dispute case is not barred by limitation.


           8)    The transaction of 13.11.92 does not attract the  doctrine of estoppel.”
    
 “AWARD
           Keeping in view of the above, based on documents, assessing  all
           the pros and cons, on the basis  of  equity,  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


           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 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
                 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.”    
The Co-operative Tribunal as well as the High Court, 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  to  examine  the  instant  controversy  in  the   above
perspective, it is 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  Mukherjee  son  of  Kalpana  Mukherje,  is  an
engineering  graduate  from  IIT,  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  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 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. 5D.  Subsequently,  Colgate  Palmolive  (India)
Limited entered into a lease and licence agreement, in respect of  flat  no.
5D 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 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  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 that the manuscript of the original was in the  handwriting  of  Partha
Mukherjee.  All the above facts  demonstrate,  a  relationship  of  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
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  between  Partha  Mukherjee   and   Pratima   Chowdhury   would
constitute a fiduciary relationship.  Even though all the above  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 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, 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 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.

      Under s. 16 (1) of the Indian Contract Act a contract is  said  to  be
      induced by undue influence where the relations subsisting between  the
      parties are such that one of the parties is in a position to  dominate
      the will of the other and uses  that  position  to  obtain  an  unfair
      advantage over the other. This shows that the court trying 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 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  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.

      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 factors 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 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 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 by  undue  influence.  Upon  the
      determination of this issue a third point emerges, which  is  that  of
      the onus probandi. If the transaction 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 position to  dominate
      the will of the other.”


Burden lies on when fraud, mis representation or undue influence is alleged ?   
Krishna Mohan Kul alias Nani Charan Kul vs. Pratima  Maity,  (2004)  89  SCC
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 misrepresentation. 
But,  when  a  person  is  in  a
      fiduciary relationship with 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 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. 
      
on the subject of fiduciary  relationship.   
"When the relation between the donor and  donee  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."”


                                                          (emphasis is ours)

The above  conclusions  recorded  by  this  Court,  came  to  be  reiterated
recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558.

We  will
also proceed by keeping in mind, what  we  have  already  concluded  in  the
preceding paragraph, i.e., that 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 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.   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  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
the transfer of flat no. 5D, 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 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 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 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 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 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  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. 5D to  Kalpana  Mukherjee,  free  of  cost,  even  though  she  had
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.  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 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.

For the reasons recorded hereinabove, the instant appeal is  allowed,
the order dated 16.5.2002 passed  by  the  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. 5D to Pratima Chowdhury,  within  one  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.  5D  to  the
name of Pratima Chowdhury, without any delay.

2014 ( Feb. Part)judis.nic.in/supremecourt/filename=41212
P SATHASIVAM, JAGDISH SINGH KHEHAR
                                                                “REPORTABLE”


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1938 OF 2014
               (Arising out of SLP (Civil) Nos. 15252 of 2006)


Pratima Chowdhury                                  …Appellant

                                   Versus

Kalpana Mukherjee & Anr.                              ...Respondents



                               J U D G M E N T


JAGDISH SINGH KHEHAR, J.

1.    Orchestra Co-operative House Society Limited (hereinafter referred  to
as ‘the Society’) raised flats at 48/IE, Gariahat Road, Calcutta  –  700019.
Indirani 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.  
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 Indirani Bhattacharya was approved by the Deputy  Registrar,  Co-
operative Societies.

2.    On 27.3.1991, Indirani Bhattacharya  submitted  her  resignation  from
the Society in favour of Pratima Chowdhury (i.e.,  the  petitioner  herein).
On 15.4.1991, Indirani Bhattacharya executed an agreement  for  transfer  of
flat no. 5D 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 Indirani Bhattacharya sought the approval of 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
Indirani  Bhattacharya,  as  also,  the  consequential   transfer   of   the
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 Pratima Chowdhury on 17.2.1992,  that  her
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  respondent)  occupied  the
petitioner’s flat.
Partha Mukherjee was employed as Regional Sales  Manager
with Colgate Palmolive (India)  Limited.   On  9.3.1992,  Colgate  Palmolive
(India) Limited, confirmed having taken flat no. 5D 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  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.

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.
5D to  the  name  of  her  nominee  Kalpana  Mukherjee.
The  letter  dated
29.6.1992 of Pratima  Chowdhury,  made  some  express  factual  disclosures.
Firstly, that 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 to the request of transfer of flat  no.  5D  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.

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 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 deliberations, Pratima Chowdhury  executed  an
agreement dated 13.11.1992, transferring her right, title  and  interest  in
the flat no. 5D.  On the same day as the aforesaid agreement  was  executed,
Kalpana Mukherjee moved an application (on 13.11.1992).

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 approval of the  Deputy  Registrar,  Co-operative  Societies
for the transfer of flat no. 5D to the name of  Kalpana  Mukherjee,  on  the
basis of letters of  Pratima  Chowdhury  dated  11.11.1992  and  13.11.1992.
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  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 the electricity-supply meter of flat  no.
5D to the 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  on  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.  5D  from
the name of Pratima Chowdhury to the name of  Kalpana  Mukherjee.   In  this
behalf  the  Assistant  Registrar,  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  Certificate,
Income Tax Clearance Certificate and Professional Tax Certificates  had  not
been appended to the application of 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.

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  Mukherjee  to
hand over vacant possession of flat  no.  5D  to  Pratima  Chowdhury,  after
refund  of  security.   On  21.10.1993,  Kalpana  Mukherjee,  from  her  own
account, deposited rent in  the  Bank  account  of  Pratima  Chowdhury.   On
28.10.1993, Partha Mukherjee addressed a letter  to  P.R.  Keswani,  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.

11.  On 16.12.1994, 500 shares of  Tata  Chemicals  Limited,  50  shares  of
Siemens, 500 shares of Indian Aluminium and 100  shares  of  I.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 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 transfer of flat no. 5D.

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 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 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-operative
Societies, seeking approval for the admission  of  Kalpana  Mukherjee  as  a
member of the Society (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  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  was  also  requested,
that the application  made  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  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  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) and  the  letter  dated  28.3.1995
(to the Secretary of the Society); the Society convened  a  meeting  of  the
Board of Directors on  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  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 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  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
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 (through  letter  dated  10.4.1995),
Pratima  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 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  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
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 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 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, 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 claim of retransfer of the shares and flat made by the  petitioner,  the
Society responded by asserting, that the shares had been transferred to  the
name of Kalpana 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 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,  nothing  could
be done in the matter.

17.   Dissatisfied with the determination of the Co-operative 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.

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 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 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 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 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 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.
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-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 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 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 shares and flat no. 5D  to  the  name  of  Kalpana
Mukherjee, 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/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 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 and Partha Mukherjee as her  son.
 Consequently  on  the  transfer  of  Partha  Mukherjee  to  Calcutta  (from
Bombay), she allowed him to reside in flat no. 5D.  At the behest of  Partha
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 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   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  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 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  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.  5D.   She
also denied  having  executed  the  document  dated  13.11.1992,  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 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 Company, for the supply of raw material  for  the  business
of Partha Mukherjee.  She further  contended,  that  Partha  Mukherjee  also
took loan of Rs.  1,50,000/-  from  Bani  Roy  (sister  of  the  petitioner,
Pratima Chowdhury).  It was pointed out, that the  share  certificates  held
by Partha Mukherjee jointly with 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 lieu of the transfer of flat no.  5D  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 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 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  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. 5D from her  name  to  the  name  of
Kalpana Mukherjee.

18.   Before the Arbitrator, the petitioner examined three  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 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 Arbitrator  framed
six issues of fact, and seven issues of law.  The same are  being  extracted
hereunder:
           “QUESTIONS OF FACT INVOLVED


              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.


            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
                 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
                 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 by law of limitation.


             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 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.


              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
                 Society or not.

            vii) The Doctrine of estoppel as per sections 115 & 116  of  the
                 Evidence Act 1872 whether attracted or not.”

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:-

(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  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 by transfer of shares of Partha Mukherjee, to the name  of
Pratima Chowdhury.  The Arbitrator relying on the  contents  of  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  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  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”  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  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,  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, 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  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
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. 5D had not 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 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  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  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. 5D.  Based on the above two instances of 21.10.1993 and 28.10.1993,  the
Arbitrator was of the view, that the assertion of transfer of  flat  no.  5D
by Pratima Chowdhury to Kalpana Mukherjee stood clearly annihilated.

(iii) On the issue of the consideration money, the  Arbitrator  noted,  that
Kalpana Mukherjee had stated in her defence, that  the  parties  had  orally
settled  the  passing  of  consideration  in  lieu  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  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  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




           Tata Chemicals Ltd.    50 nos.          8.9.93
           Tata Chemicals Ltd.    450 nos.         27.10.93
           Siemens                50 nos.          2.8.93
           Indian Aluminium       500 nos.         4.3.94
           I.T.C. Hotels          100 nos.         acquired with
                                                   Mr. H.P. Roy
                                                   4.4.94”


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 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 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  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  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 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,  and  in  the  name  of  his  wife  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
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  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
(India) Limited, at  the  instance  of  Partha  Mukherjee,  for  a  monetary
consideration  of  Rs.  5,000/-  per  month,  as  rent  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 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.  5D  had  been
transferred from the  name  of  Pratima  Chowdhury  to  her  name.   On  the
contrary the Arbitrator pointed 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 his letter dated 28.10.1993 mentioned,  that  Pratima  Chowdhury  as  the
landlady of flat no. 5D.  According to the  Arbitrator,  the  above  factual
position clearly indicates,  that  Kalpana  Mukherjee  along  with  her  son
Partha Mukherjee were aware, that flat no. 5D 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  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.

(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 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
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 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 could not have  been  executed
in the absence of Pratima Chowdhury.  Based on the  above  factual  position
Pratima Chowdhury had also alleged connivance between Kalpana Mukherjee  and
the Society, so as to deprive Pratima Chowdhury of her property.

(vi)  Besides the above factual conclusions drawn  by  the  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:-
           “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, Indian Contract Act, Transfer  of
           Property Act due to reason at a glance.


           1)    Section 85(9), Section 70, Section 69 of West  Bengal  Co-
                 Operative Socities Act 1983 have been flouted.


           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 Defendant no. 1  to
                 the Plaintiff.


           5)    Societies accepted the resignation  of  the  Plaintiff  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  in  this
                 respect was operated by the son of the Defendant no. 1  who
                 also deposited cheque on Plaintiff’s behalf.


           7)    The instant dispute case is not barred by limitation.


           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  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,  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


           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 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
                 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.”

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 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 Tribunal, the relationship between the  parties
had an essential bearing, to an effective determination 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 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  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 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 National Library,
      Calcutta in 1994.  While in service,  she  would  stay  in  the  Govt.
      accommodation at Balvediare Road, Alipur.  Partha Mukherjee, Son of K.
      Mukherjee is an Engineer from I.I.T., Kharagpur  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 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,  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, 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.  5B  at
      48E, Gariahat Road, Calcutta-19 belonging to the  society.   The  said
      flat was originally allotted to Smt. Indrani Bhattacharya and the said
      Smt. Indrani 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., 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 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 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 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. 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 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 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 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 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 was not in a position to visit Calcutta in the
      immediate future. She accordingly requested the  Society  to  transfer
      her flat to “my 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 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
      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  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.

  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 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 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 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.

 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 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.  5D  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
      agreed to transfer the flat no. 5D in favour of Kalpana Mukherjee.  It
      was also duly recorded in the above document, that possession of  flat
      no. 5D had already been handed over to Kalpana Mukhrjee.  It was  also
      pointed out, that Kalpana Mukherjee had already applied for membership
      of the Society, whereafter, she would be entitled to  all  rights  and
      privileges over flat no. 5D 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 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  to  her  to  deny  the
      execution thereof.  For the same  reason,  the  Co-operative  Tribunal
      rejected the contention advanced on 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  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 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  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.
      5D to Kalpana Mukherjee.  According to the Co-operative Tribunal,  the
      question whether monetary consideration passed from Kalpana  Mukherjee
      to 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. 5D  in  favour
      of her nominee Kalpana Mukherjee.  The Co-operative Tribunal was  also
      of the view, that the Arbitrator was 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 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. 5D, the  Co-operative  Tribunal  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 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. 5D in the  name  of  Kalpana  Mukherjee.   In  fact,
      according to the  Co-operative  Tribunal,  the  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  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,  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 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 the plaintiff’s  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 different companies “… worth Rs.4,29,000/- in favour of  the
      plaintiff on 6.12.1994 by way of consideration of the 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  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
      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 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 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  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. 5D only after a marital discord had developed
      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 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  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-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 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  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
      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 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 much present to invoke the doctrine.


              a) Fraud, undue influence  (illegible)  and  misrepresentation
                 has not been proved;
              b) (illegible)
              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;
              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;
              g) Possession was delivered  pursuant  to  those  letters  and
                 agreement dated 13.11.1992;
              h) Lease and license agreement with  Colgate  Palmolive  Ltd.,
                 legally cannot destroy the factum of transfer;
              i) Partha and Kalpana are led to believe about the  completion
                 of transfer;
              j) Under the law it (illegible) required to  be  executed  and
                 registered under the T.P. Act and the I.R. Act;
              k) Pratima writes to CESC to henceforth  collect  all  charges
                 from Kalpana;
              l) 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, the 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 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
      “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 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.

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 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 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 of the facts  as  were  examined  by
the Arbitrator, as also, the  Co-operative  Tribunal.   No  new  facts  were
taken into 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 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 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  before
      the  learned  Arbitrator  filed  a  rejoinder  thereby  attempting  to
      introduce certain facts.  But the learned Tribunal observed 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.”

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  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.”

(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 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  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 as far back as on 10.3.1993.   It  appears
      that the Deputy Registrar, Co-operative 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  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
      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  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.:-

      “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 relations.”

The said principle was further stretched to the following extent:-

      “At any rate, it applies to an assumption of ownership or  absence  of
      ownership.   This  gives  rise  to  what  may  be  called  proprietary
      estoppel.  There are many cases where 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  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.”

            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 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 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 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:-
      “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 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  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 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.”


(iv)   On  the  subject  of  passing  of  consideration,  the   High   Court
principally accepted the view propounded by the Co-operative Tribunal.   The
High Court made the following observations on the issue of consideration:-
      “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
      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.”


            On perusal of the  impugned  judgment,  it  is  found  that  the
      learned Tribunal referring to Rule  201(3)  of  the  West  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  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 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. Indrani Bhattacharya and wondered as to  how  then  there
      could be any grievance in 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  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  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  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.”

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  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.

24.   Leave granted.

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 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 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 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 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 before the Arbitrator, the  rejoinder
filed thereto on behalf of Pratima Chowdhury, was permitted to be  taken  on
record.  It is 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.  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  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  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  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  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,  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.

27.   The Co-operative Tribunal in its order  dated  16.5.2002  had  invoked
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 above principle, the High  Court  invoked  the
principles of 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 intricacies of the  factual  circumstances  involved.
We shall, however, endeavour to deal with the principle of estoppel,  so  as
to figure whether, the rule contained in Section 115 of the Indian  Evidence
Act could have been invoked, in the facts and circumstances of  the  present
case.   Section  115  of  the  Indian  Evidence  Act  is   being   extracted
hereinabove:-
      “115.       Estoppel.- 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 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


            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  to  prove  his  want  of
           title.”


It needs to be understood, that the rule of estoppel 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  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  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  would  be  iniquitous
to require him to revert back to  the  original  position.   Therefore,  the
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.   In  our  considered
view, none of the ingredients of principle of estoppel 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.  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,  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  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  estoppel
relied upon by the Co-operative Tribunal and the High 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
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 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  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  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 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)

The above sentiment recorded in respect of the  principle  of  estoppel  was
noticed again by this Court in Monnet Ispat  &  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:-

      “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.”
                                                          (emphasis is ours)

The ingredients of the doctrine of estoppel in the  manner  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, estoppel is a principle  applicable  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
           estoppel is, however, only applicable in cases where  the  other
           party has changed his position relying upon  the  representation
           thereby made.”
                                                          (emphasis is ours)

As already noticed hereinabove, none of the ingredients of estoppel  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 Court, in  having  relied  on  the  principle  of
estoppel, 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  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:-

(i)   The reason for transferring flat  no.  5D  indicated  in  the  letters
dated 11.11.1992 and 13.11.1992 was on account  of  the  close  relationship
between Pratima Chowdhury and Kalpana  Mukherjee,  which  was  expressed  by
observing “…my nominee Kalpana, a close relative 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 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 Chowdhury’s niece Sova Mukhrjee was  married  to
Partha Mukherjee, 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 flat no. 5D 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  transfer  of
immovable property, of substantial  value,  without  consideration,  to  the
mother 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  authorities  to
have accepted the factum of close relationship of the  parties,  in  so  far
as, the transfer of flat no. 5D, is concerned.

(ii)   There  is  hardly  any  justification  for  having  accepted  another
important factual position depicted in  the  letters  dated  11.11.1992  and
13.11.1992.  In this behalf, our reference is to the fact that flat  no.  5D
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 the written reply filed before the Arbitrator,  Kalpana  Mukherjee  took
the express stance, that Pratima Chwodhury had transferred flat  no.  5D  to
her name, by  accepting  a  consideration  of  Rs.4,29,000/-.   She  further
asserted,  that  the  aforesaid  consideration  had  passed   from   Kalpana
Mukherjee to Pratima  Chowdhury  through  Partha  Mukherjee.   According  to
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. 5D  was  transferred  from  the  name  of  Pratima
Chowdhury, 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 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 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  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
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  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.  5D  was  being  gifted  by
Pratima Chowdhury to Kalpana Mukherjee, 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
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 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 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 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 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 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:-
           “COMPANY’S NAME  NO. OF SHARES ACQUIRED


           Tata Chemicals Ltd.    50 nos.          8.9.93
           Tata Chemicals Ltd.    450 nos.         27.10.93
           Siemens                50 nos.          2.8.93
           Indian Aluminium       500 nos.         4.3.94
           I.T.C. Hotels          100  nos.          acquired  with
      Mr.
                                                   H.P.     Roy
                                             4.4.94”


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 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  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  Kalpana  Mukherjee
(through Partha Mukherjee) on the date of  transfer  of  flat  no.  5D  from
Pratima Chowdhury to Kalpana Mukherjee.  In sum and 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  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,  according  to  Kalpana
Mukherjee constituted passing of  consideration  to  Pratima  Chowdhury  (in
lieu of the transfer of flat no. 5D).  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.   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,  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
materials to Partha Mukherjee’s business venture.  It was also pointed  out,
that Partha Mukherjee had also taken a loan for a sum of Rs. 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 above assertion of Pratima Chowdhury.  For the above determination,  the
Arbitrator had placed reliance, on documentary and oral  evidence,  produced
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 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. 5D to the name  of  Kalpana
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.

 (vi) The fact  that  Pratima  Chowdhury  had  addressed  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 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-operative  Societies  for  the  transfer  of
membership, as also, flat no.  5D  to  the  name  of  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  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  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 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 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.

(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  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  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 to the  Deputy
Registrar,  Co-operative  Societies).   The  determination  by  the   Deputy
Registrar, Cooperative Societies, cannot 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  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 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  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  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
notary in his deposition  had  acknowledged,  that  he  did  not  issue  any
notarial certificate in terms of Section  8  of  the  Notary  Act.   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
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 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 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)  was  at  Bombay  on
11.11.1992, as well  as,  on  13.11.1992.   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 case.

(ix)   In  the  background  of  the  factual  position  emerging  from   the
deliberations recorded hereinabove, it is also  necessary  to  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 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 Mukherjee  had  continued  to
deposit rent for flat no. 5D, into the account  of  Pratima  Chowdhury  upto
21.10.1993.  Coupled with  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,  Partha  Mukherjee  would  not  have
acknowledged the ownership  of  Pratima  Chowdhury  over  flat  no.  5D  (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 vital  facts,
and needed to be examined, if the order passed by 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,  we  are  of  the  view
that entire sequence of transfer, is rendered doubtful and suspicious.

(x)   The determination of the Arbitrator, on the subject  of  the  transfer
of the covered garage, to the name of Kalpana 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 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. 5D  was  transferred
to the name of Kalpana Mukherjee.  The  instant  transfer  however  did  not
include the  covered  garage  space.   Thereafter,  based  on  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.  Therefore,  according  to
the view expressed by the Arbitrator, the  covered  garage  space,  must  be
deemed to have never been 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, 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 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 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, 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  to  examine  the  instant  controversy  in  the   above
perspective, it is 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  Mukherjee  son  of  Kalpana  Mukherje,  is  an
engineering  graduate  from  IIT,  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  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 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. 5D.  Subsequently,  Colgate  Palmolive  (India)
Limited entered into a lease and licence agreement, in respect of  flat  no.
5D 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 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  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 that the manuscript of the original was in the  handwriting  of  Partha
Mukherjee.  All the above facts  demonstrate,  a  relationship  of  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
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  between  Partha  Mukherjee   and   Pratima   Chowdhury   would
constitute a fiduciary relationship.  Even though all the above  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 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, 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 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.

      Under s. 16 (1) of the Indian Contract Act a contract is  said  to  be
      induced by undue influence where the relations subsisting between  the
      parties are such that one of the parties is in a position to  dominate
      the will of the other and uses  that  position  to  obtain  an  unfair
      advantage over the other. This shows that the court trying 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 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  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.

      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 factors 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 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 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 by  undue  influence.  Upon  the
      determination of this issue a third point emerges, which  is  that  of
      the onus probandi. If the transaction 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 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 Kul alias Nani Charan Kul vs. Pratima  Maity,  (2004)  89  SCC
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 misrepresentation.
But,  when  a  person  is  in  a
      fiduciary relationship with 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 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 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 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 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 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 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 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  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 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.


      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 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 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 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:


           "When the relation between the donor and  donee  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."”


                                                          (emphasis is ours)

The above  conclusions  recorded  by  this  Court,  came  to  be  reiterated
recently in Anil Rishi Vs. Gurbaksh Singh, (2006) 5 SCC 558.

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 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 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.   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  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
the transfer of flat no. 5D, 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 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 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 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 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 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  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. 5D to  Kalpana  Mukherjee,  free  of  cost,  even  though  she  had
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.  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 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  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. 5D to Pratima Chowdhury,  within  one  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.  5D  to  the
name of Pratima Chowdhury, without any delay.


                                       ………………………….CJI.
                                        (P. Sathasivam)


                                        …………………………….J.
                                        (Jagdish Singh Khehar)

New Delhi;
February 10, 2014.
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