Maharashtra Co-operative Societies Act, 1960 – s.48(e) – Plaintiff, a member of the Co-operative Society obtained a loan from the Society and created a charge on his ancestral property (the suit land) in favour of the Society – Later, plaintiff also obtained loan from defendant no.1 and executed a Registered Sale Deed dated 02.11.1971 of the suit land in his favour and defendant no.1 executed a re-conveyance deed – However, defendant no.1 executed a Registered Sale Deed in favour of defendant no.2 in respect of certain portion of the suit land – Plaintiff sought possession and re-conveyance of the suit land – Trial Court declared sale deed dated 02.11.1971 as void u/s.48 and ordered re-conveyance of suit land in favour of plaintiff – Eventually, Single Judge set aside the decree of possession and dismissed the plaintiff’s suit – Appeal dismissed by Division Bench – Challenge to:
Held: s.48(e) declares void any transaction by a member-loanee against the society, where he/she alienates such immovable property on which a charge is created under declaration – Alienation of any such property on which a charge is created in favour of the concerned co-operative society by way of declaration is beyond the capacity of the owner/member who has declared it as a charged property, until the amount, for which the charge was created along with the interest, is repaid in full – However, even if a part of the amount due is paid then the society may, on an application moved by the member, release from charge such part of the property, as it may deem proper having regard to the outstanding amount – The right to sue or get a declaration qua any alienation made by a loanee is available only to the society in favour of whom the property under a declaration was charged – Thus, with regard to a transaction, unless the society comes forward to seek its nullification/setting aside, the same would be a voidable action and not void ab initio – Neither the amount for which the charge was created was repaid to the Society either in full or in part nor any such application for part-release was either filed before or accepted by the Society prior to the sale deed dated 02.11.1971 in favour of defendant no.1 – The Society had itself resolved to release the charge on the suit land on 27.08.1973 – It never moved before any forum for enforcing its charge over the suit land or raised any grievance w.r.t either of the Sale Deeds – Plaintiff cannot be allowed to benefit from his own wrong – Single Judge and the Division Bench committed no error – No merit in the appeal. [Paras 20-22, 24, 25, 32-34]
Maharashtra Co-operative Societies Act, 1960 – s.48(e), directory:
Held: s.48(e) which says that any alienation made in contravention of the provisions of clause (d) shall be void has to be read as directory to the extent that the same can be acted upon only at the instance of the party aggrieved (viz. the society concerned) upon whom the right has been created under the statute. [Para 25]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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