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PETITIONER: RAMESH HIMMATLAL SHAH

       Vs.

RESPONDENT: HARSUKH JADHAVJI JOSHI

DATE OF JUDGMENT25/04/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. BHAGWATI, P.N.

CITATION:  1975 AIR 1470            1975 SCR  270  1975 SCC  (2) 105  CITATOR INFO :  D          1989 SC 122  (12)  R          1990 SC1563  (13)

ACT: Maharashtra   Co-operative  Societies  Act,  1960   Sections 29,31,47  and 146(a), 1961, Rule 24 and Bye-Laws 9 and  71-D right  of  a  judgment-debtor to occupy a flat  owned  by  a housing  society,  if  liable  to  attachment  and  sale  in execution of a decree against him. Code  of Civil Procedure, Section 60-Right to occupy a  flat owned  by  a co-operative housing society, if a  species  of property.

HEADNOTE: The  appellant  is the decree-holder.  He obtained  a  money decree  against  the respondent judgment-debtor and  took  a warrant  of attachment of flat No. 9 of  Paresh  Cooperative Housing Society Limited at Santacruz, Bombay.  This flat was attached  on August 8, 1970 and a warrant of attachment  was served  on  the  judgment-debtor while he  was  in  jail  in Rajkot.  In, due course a sale proclamation was also  issued in respect of the flat while the judgment-debtor was yet  in jail.   At  this  stage of the  proceedings,  the  judgment- debtor’s  brother,  Hasmukh  J. Joshi  took  out  a  chamber summons  challenging the execution oil the ground  that  the flat  did not belong to the judgment-debtor but belonged  to him   and  to  the  judgment-debtor’s  wife  and  that   the attachment  should be raised.  His chamber summons was  made absolute  but  in  appeal the order was set  aside  and  the matter  was  remanded.  The aforesaid chamber  summons  was, however,  finally dismissed on September 30, 1971.   Hasmukh did not take any further action against the rejection of his claim  to the property.  After coming out of the  jail,  the judgment-debtor filed a suit some time in 1972 to set  aside the  decree.   He, however, could not secure  an  order  for injunction  to prevent the execution of the decree  and  the suit  is  pending.  The flat was offered for  sale  and  was purchased  in auction by one Bhupendra N. Shah for a sum  of Rs.  34,000/-.   The sale, however, is  not  yet  confirmed. Subsequently  a new plea was taken by  the  judgment-debtor. This  time  he filed a chamber summons on  March  28,  1972,

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praying for the dismissal of the execution petition filed by the  decree-holder  and  for setting aside  the  warrant  of attachment  and proclamation of sale on the ground that  the flat  being a flat in a cooperative housing society was  not liable  to attachment and sale.  It was also stated that  he had not saleable interest in the said property under section 60,  Civil Procedure Code, and therefore, it was not  liable to  attachment.   The  Judge,  City  Civil  Court,   Bombay, dismissed  the chamber summons.  The learned  single  Judge, Bombay High Court, however, in appeal allowed the claim  and made  the summons absolute by directing that the  attachment and  sale  of  the flat being illegal  be  set  aside.   The appellant  preferred  a  Letters Patent  Appeal  before  the Bombay  High Court without success and the decision  of  the learned  single  Judge was affirmed.  Hence this  appeal  by special leave. It  was  contended for the appellant that the right  of  the judgment-debtor, who claims the right to occupation of  flat No.  9, is liable to attachment and sale in execution  of  a decree.   The  respondent contended that section 31  of  the Maharashtra  Co-operative  Societies Act,  1960,  completely bars  attachment  and  sale  of  the  flat  in  question  in execution  of  the decree.  It was also  contended  for  the respondent  that section 60, Civil Procedure Code, does  not specify   that  this  species  of  property  is  liable   to attachment. Allowing the appeal, HELD  :  (i)  While section 29(2) refers to  transfer  of  a member’s share or his interest in the capital or property of any society, section 31 in contrast speaks of "the share  or interest of a member in the capital of a society".  The Act, therefore,  makes a clear distinction between the  share  or interest in the capital and share or interest in property of the society. [278D-E] (ii)  The  right  or  interest to occupy  is  a  species  of property. There is 271 nothing  in the language of section 31 to indicate that  the right  to  occupation  which :is the right  to  be  sold  in auction is not attachable in execution of the decree.  There is  nothing  in  section  31  to  even  remotely  include  a prohibition  against  attachment or sale  of  the  aforesaid right  to  occupation of the flats.  The  only  restrictions under section 29(2) are that the member may not transfer his interest in the property prior to one year and the  transfer is made to an existing member of the society or to a  person whose  application for membership has been accepted  by  the Society.  It is true that bye-law 71D says that a member  to whom  a  tenement is allowed shall not assign  or  underlet, vacate  or part with the possession of the tenement  or  any part thereof without the previous consent in writing of  the Managing  Committee,  but  there is  nothing  to  show  that contravention  of  this bye-law makes  the  assignment  void under  the Act unlike in the case of a transfer  being  void under  section  47(3).  Section 29 read with rule  24  shows that  there is no prohibition as such against transfer of  a share to a member or even to a non-member if he consent.  to be  a  member  and makes an application  for  membership  by purchasing five shares as provided under bye-law 9. There is no reason to think that there is any question of refusal  of membership  of  the  Society  to  a  non-member  if  he’  is qualified otherwise and makes an appropriate application  in which cast the transfer of shares will be operative and thus the  assignment of the right to occupation will  hold  good. [278F-H, 279-B]

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(iii)Section  60  of the Civil Procedure  Code  is  not exhaustive  as such.  It also refers to any  other  saleable property, movable or immovable, whether the same be held  in the name of the judgment-debtor or by another person on  his behalf.  The right to occupation of a flat is property  both attachable  and  saleable.   Specific  non-inclusion  of   a particular   species  of  property  under  section  60,   is therefore,  not  of  any  consequence  if  it  is   saleable otherwise. [280-F-G]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1539  of 1974. Appeal  by special leave from the Judgment and Order of  the High Court of Bombay in LPA No. 80 of 1972. B.R.  Zaiwala,  D.  R.  Zaiwala, K. J.  John  and  J.  B. Dadachanji, for the Appellant. P. K. Chatterjee and D. P. Mukherjee, for the Respondent. G. L.  Sanghi and H. K. Puri, for Shri Suryakant N.  Gangani (Purchaser) The Judgment of the Court was delivered by GOSWAMI, J.-This appeal in forma pauperis rainses an  impor- tant question of law : Is a flat in a tenant  co-partnership housing society under the Maharashtra Cooperative  Societies Act,  1960 liable to attachment and sale in execution  of  a decree against a member in whose favour or for whose benefit the same has been allotted by the society ? We may briefly note the facts The  appellant  is the decree-holder.  He obtained  a  money decree  against  the respondent judgment-debtor and  took  a warrant  of attachment of flat No. 9 of  Paresh  Cooperative Housing  Society  Limited at Santacruz, Bombay.   This  flat (described  as  ownership  flat  in  ,common  parlance)  was attached on August 8, 1970 and a warrant 272 of attachment was served on the judgment-debtor while he was in  jail in Rajkot.  In due course a sale  proclamation  was also issued in respect of the flat while the judgment-debtor was  yet  in jail.  At this stage of  the  proceedings   the judgment-debtor’s   brother,  Hasmukh  Joshi  (for   brevity Hasmukh)   took  out  a  chamber  summons  challenging   the execution on the ground that the flat did not belong to  the judgment-debtor  but  belonged to him and to  the  judgment- debtor’s wife and that the attachment should be raised.  His chamber  summons was made absolute but in appeal  the  order was  set aside and the matter was remanded.   The  aforesaid chamber summons was, however, finally dismissed on September 30,  1971.         Hasmukh did not take any  further  action against  the rejection of his claim to the property.   After coming  out  of the jail, the judgment-debtor filed  a  suit some  time  in 1972 to set aside the decree.   He,  however, could  not  secure an order for injunction  to  prevent  the execution  of the decree and the suit is pending.  The  flat was  offered  for sale and was purchased in auction  by  one Bhupendra  N.  Shah  for a sum. of Rs.  24,000.   The  sale, however, is not yet confirmed.  Subsequently a new plea  was taken by the judgment-debtor.  This time he filed a  chamber summons on March 28, 1972, praying for the dismissal. of the execution  petition  filed  by  the  decree-holder  and  for setting aside the warrant of attachment and proclamation  of sale  on  the  ground  that  the flat  being  a  flat  in  a cooperative  housing society was not liable to  attachment and  sale.   It  was also stated that  be  had  no  saleable

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interest  in the said property under section 60, Civil  Pro- cedure Code, and therefore, it was not liable to attachment. The  Judge, City Civil Court, Bombay, dismissed the  chamber summons.   The  learned  single Judge,  Bombay  High  Court, however,  in appeal allowed the claim and made  the  summons absolute  by directing that the attachment and sale  of  the flat being illegal be set ,aside.  The appellant preferred a Letters  Patent Appeal before the Bombay High Court  without success and the decision of the learned single Judge   was affirmed.  Hence this appeal by special leave. The  flat  in  question is admittedly owned  by  the  Paresh Cooperative  Housing Society Limited (briefly the  Society). Originally  ’this  flat  stood in the  name  of  one  Ramesh Hariram  Chande and his wife.  It is not disputed before  us and  it has been so held by the court in the claim  case  by the judgment-debtor’s brother that the respondent  purchased the  flat benami in the name of his brother Hasmukh and  his wife Shashikala.  Although, therefore, the respondent is not t  registered holder of the flat, it is clear that the  flat is  held  by  his  brother and his wife  on  behalf  of  the respondent.   This  is  to be, noted as  section  60,  Civil Procedure  Code, reaches a benami holding., It may  also  be noted  that the respondent is now fighting the case  on  the basis  that the right to occupy the flat in question is  his property       which  is not liable to attachment and  sale. We  should  also  note  here  that  after  the  High   Court invalidated the attachment and sale, the flat was  purchased by  one  Suryakant  N. Sangani  (briefly  Suryakant)  having acquired  the  shares  in  the  Society  from  Hasmukh   and Shashikala.   It  is said that on the joint  application  of Shashikala and Suryakant, the shares were transferred to the latter on or about May 15, 1974. 273 The appeal came up for hearing earlier and when it was found that  the  respondent was not represented the  court  issued notice  to the purchaser, Suryakant, and also  directed  for appointment  of  an amicus curiae.  Mr. Chatterjee  has  now appeared  before us as amicus curiae and the  purchaser  has also  entered  appearance through  Mr.  Sanghi.  Ultimately, however, we did not hear Mr. Sanghi, as we are concerned  in this appeal only with the question of attachability and sale ability  which is a condition prior to the purchase  of  the property  by Bhupendra N. Shah.  Mr. SangHi, therefore,  had to retire from the appeal. The  point that arises for consideration in this appeal,  as stated earlier, is whether the right of the judgment-debtor, who claims the right to occupation of flat No. 9, is  liable to attachment and sale in execution of a decree.  Before  we proceed  further it is necessary to go through the  relevant provisions  of  the Maharashtra Cooperative  Societies  ACt, 1960  (briefly-  the  Act),.   The  Maharashtra  Cooperative Societies  Rules, 1961 (briefly described as the Rules)  and the Bye-laws of the Society.  The Act was passed in the year 1961   to  consolidate  and  amend  the  law   relating   to cooperative societies in the state of Maharashtra. Section  2 of the Act contains the definitions.  By  section 2(5)  ’by-laws’ means by-laws registered under this Act  and for  the  time  being  in  force,  and  includes  registered amendments  of such by-laws".  By section  2(11)  "dividend" means the amount paid, out of the profits of a society, to a member in proportion to the shares held by him.  By  section 2(16)...  housing  society’ means a society  the  object  of which  is providing its members with dwelling  houses".   By section  2(9)  "’member’  means  a  person  joining  in   an application  for the registration of a  cooperative  society

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which is subsequently registered, or a person duly  admitted to membership of a society after registration, and  includes a  nominal, associate or sympathiser member".  By section  2 (1) (b) "’associate member’ means a member who holds jointly a  share of a society with others, but whose name  does  not stand first in the share certificate".  By section 2(1)  (c) " ’nominal member’ means a person admitted to membership  as such after registration in accordance with the by-law".   By section 2(21) " ’prescribed’ means prescribed by rules".  By section 2(31) "’working capital’ means funds at the disposal of a society inclusive of paid up share capital, funds built out  of profits, and money raised by borrowing and by  other means." By  section  4  "a society, which has  as  its  objects  the promotion  of the economic interests or general  welfare  of its   members,  or  of  the  public,  in   accordance   with cooperative  principles, or a society established  with  the object  of facilitating the operations of any such  society, may be registered under this Act. Provided  that,  no  society shall be registered  if  it  is likely  to be economically unsound, or the  registration  of which  may  have all adverse effect on  development  of  the cooperative movement". 274 Chapter  III of the Act deals with members and their  rights and  liabilities.  Section 22 with which this chapter  opens provides  how a person may become a member.  For example  by section  22(1A) subject to the provisions of section 24,  an individual  competent to contract under the Indian  Contract Act  may  be  admitted as a member.  By  section  23(1)  "No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefore under  the provisions  of this Act and its bye-laws".   By  sub-section (2),  "Any  person aggrieved by the decision of  a  society, refusing him admission to its membership, may appeal to  the Registrar"  and  the. decision of the Registrar  under  sub- section (3) shall be final.  By section 25 "aperson shall  cease to be a member of a society on his  resignation from  the  membership  thereof being  accepted,  or  on  the transfer ofthe  whole  of his share or interest  in  the society  to another member, or on his death, or  removal  or expulsion  from  the society".  By section  26,  "no  person shall exercise the right of a member of a society, until  he has  made  such  payment  to the  society  in  respect  of.’ membership, or acquired such interest in the society, as may be prescribed by the rules, or the by-laws of such society". Section 28 contains certain restrictions on holding  shares. Two  of  the material sub-sections of section 29  which  are important and with which we are concerned may be set out :               29(1).  "Subject to the provisions of the last               preceding section as to the maximum holding of               shares and to any rules made in this behalf, a               transfer  of,  or  charge  on,  the  share  or               interest of a member in the share capital of a               society shall be subject to such conditions as               may be prescribed.               (2)   A,  member shall not transfer any  share               held by him or his interest in the capital  or               property of any society, or any part  thereof,               unless               (a)   he  has held such share or interest  for               not less than one year ;               (b)   the transfer is made to a member of  the               society  or to a person whose application  for               membership ,has been accepted".

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             Section 31 may also be set out :-               "The  share  or interest of a  member  in  the               capital  of  a society, or in  the  loan-stock               issued  by a housing society, or in the  funds               raised by a society from its members by way of               savings  deposit,  shall  not  be  liable   to               attachment  or sale under any decree or  order               of  a Court for or in respect of any  debt  or               liability   incurred  by  the  member  ;   and               accordingly,  neither  the  Official  Assignee               under  the  Presidency-towns  Insolvency  Act,               1909,  nor  a Receiver  under  the  Provincial               Insolvency  Act, 1920, nor any such person  or               authority under any corresponding law for  the               time being in force, shall be entitled to,  or               have any claim on, such share or interests."                                    275               Section 47 so far as material for our  purpose               may be quoted               47(1).  "Notwithstanding anything in any other               law  for the time being in force, but  subject               to any prior claim of Government in respect of               land revenue or any money recoverable as  land               revenue  and to the provisions of  section  60               and 61 of the Code of Civil Procedure, 1908.               (b)   any   outstanding   demands   or    dues               payable  to  a society by any member  or  past               member or deceased member, in respect of rent,               shares,  loans or purchase money or any  other               rights  or  amounts payable to  such  society,               shall  be a first charge upon his interest  in               the immovable property of the society".               (2)   No  property  or interest  in  property,               which  is  subject  to  a  charge  under   the               foregoing  sub-section,. shall be  transferred               in any manner without the previous  permission               of  the  society; and such transfer  shall  be               subject  to  such conditions, if any,  as  the               society may impose.               (3)   Any  transfer made in  contravention  of               subsection               (2) shall be void". Section  165  contains  the rule making  powers.   The  last section  167 provides that "for the removal of doubt, it  is hereby  declared that the provisions of the  Companies  Act, 1956,  shall not apply to societies registered or deemed  to be registered, under this Act". We  may now turn to the relevant Rules.  By rule 9  "when  a society  has been registered the by-laws of the society  as, approved  and registered by the Registrar shall be the  bye- laws  of the society".  Rule 10 contains classification  and sub-classification  of societies and we are  concerned  with the  fifth  class mentioned therein,  namely,  the  ’Housing Society’  which again is sub-divided into  three  categories and  we  are  concerned  in  this  appeal  with  the  second category,  namely, ’Tenant Co-partnership Housing  Society’, which  is  described  therein  as  an  example  of  "Housing Societies  which  hold both lands and building-,  either  on lease  hold  or  free hold basis and  allot  them  to  their members". Chapter III of the Rules deals with members and their rights and liabilities.  Rule 19 contains conditions to be complied with for admission for membership.  Rule 24 provides for the procedure  for  transfer of shares.  Rule  28  provides  for expulsion  of  members  and expulsion  from  membership  may

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involve forfeiture of shares held by the member.               We  may now notice some of the  material  Bye-               laws of the Society.                                    276                  Bye-law   6.   "All   persons   permanently               residing in Bombay city and suburban area  and               who   have   signed   the   application    for               registration,  are  original  members.   Other               members  may be admitted by the General  Body.               Every person on applying for membership  shall               deposit Re. 1 as entrance fee and the value of               at  least  five  shares  for  which  he  shall               receive a copy of the Bye-laws.  In case where               an  application is refused, the deposit  shall               ordinarily be returned".               6(1).   "The  General Body may admit  any  new               members  other than the promoters  subject  to               the  applicants satisfying the  qualifications               for  membership as prescribed under  the  bye-               laws".               (2)   "The   General  Body  shall  not   admit               members  exceeding the number of tenements  or               plots available for allotment".               (3)   The   General   Body  alone   shall   be               competent to allot tenements to the members on               the  basis  of policy framed by  it  for  such               allotment".                7(a). "A person may be admitted as a  nominal               member  on payment of Re. 1 only  as  entrance               fee   for   the  purposes   of   occupying   a               shop/godown/garage in the society.  A  nominal               member   shall  not  exercise  any  right   of               membership  or  receive  any  a  vantage,   or               benefit or dividend, etc."               7(b).  "A subletee, a licencee or a  caretaker               may  also be admitted as a nominal  member  of               the  Society on payment of Re. 1  as  entrance               fee.  Such member shall not exercise any right               of  membership  or receive  any  advantage  or               benefit or dividend, etc.".               8(a).   "No  person  shall be  admitted  as  a               member  of  the  Society who  already  owns  a               house,  a  plot or a flat in Bombay  city  and               suburban area, in his own name or in the  name               of  any  of his dependents or  of  his  family               members, such as wife/husband, children,  etc.               and whose need of a house, a plot or a flat in               the  opinion  of  the  General  Body  are  not               considered pressing or deserving........               10.   "No person shall exercise, the rights of               a member of the Society until he is  ’admitted               as  such  as laid down in Bye-law  No.  6  and               holds not less than five fully paid shares  in               the  Society and his name has been entered  in               the Register of Members". Chapter  VII  of the Bye-laws provides for  transmission  of interests.   Bye-law 14 contains how a nomination has to  be made, how ’a member may nominate a person to whom his  share or  interest  in  the  society or so  much thereof  as  is specified in such nomination                             277 shall  be  transferred at his decease, etc.   Bye-law  15(1) provides that ,ton receiving satisfactory proof of the death of a member, the General Body may transfer the share, or the interest of the member to the person or persons nominated or

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if  there  is no person so nominated to such person  as  may appear  to  the  General Body to be the heir  or  the  legal representative   of  the  member  or  to  pay  such  a   sum representing the value of such nominator’s share or interest as  determined in accordance with the Rule 23 of the  M.C.S. Rules  1961 deducting all sums due to the Society  from  the nominator........  Under  Bye-law 15(4). where  a  share  or shares  were  issued to a member by virtue of  his  being  a tenant or a lessee what would happen on the death of such  a member is provided for. Chapter  XX  deals with tenants.  Bye-law 71 with  which  it opens  says  "no  member shall be a tenant  of  the  Society unless  he  subscribes  to  such number  of  shares  as  the Managing Committee prescribes".               71A.   "Whenever a member to whom  a  dwelling               house/  tenement or flat has been allotted  by               the  society does not require it for  his  own               use for any particular period, he may hand  it               over to the society for using the same in such               manner as it may consider best".               71B.   "The  society may  offer  the  dwelling               house/tenements or flats falling vacant in its               possession in terms of the provisions of  bye-               law  No.  71(A) above, to any  person  in  its               discretion  for temporary occupation  for  the               period  indicated by the original allottee  on               such clear understanding provided that:               (i)   It shall give preference to such  person               as has already been enrolled as member of  the               society in terms of the provisions in  bye-law               but  who  could  not be  allotted  a  dwelling               house/tenement or flat by it;               (ii)  It  shall enroll the person to whom  the               dwelling house/tenement or flat is proposed to               be  allotted as a nominal member if he is  not               already a member of the society.               (iii)The payments received for such temporary               occupation shall be credited to the account of               the  original  allottee  and  be   apportioned               towards  satisfaction  of  the  dues  and  the               demands of the society outstanding against him               under   these   Bye-laws   and   the   tenancy               regulations.               71D.  "A member to whom a tenement is allotted               shall occupy it himself and shall not  assign,               underlet,  vacate or part with the  possession               of  the tenement any,part thereof without  the               previous  consent in writing of  the  Managing               Committee."                                    278               72.   "No  dwelling  house  offered  on  lease               shall be taken by persons who are not  members               of the Society unless no member is willing to               take it". Form  A to the Bye-laws contains "regulations  relating  to; tenancies to be granted by the Society to members in respect of houses held by the Society". From a review of the foregoing provisions the position  with reference to the particular Society is as follows There is no absolute prohibition in the Act or in the  Rules Or  in  the Bye-laws prohibiting transfer of interest  of  a member  in the property belonging to the Society.  The  only transfer  which  is  void  under the  Act  is  one  made  in contravention of sub-section (2) of section 47 [see  section 47(3)].   We have not been able to find any other  provision

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anywhere  to  the  same  effect.   In  the  scheme  of   the provisions a dichotomy is seen between share or interest  in the capital and interest in property of the Society.   While section 29(2) refers to transfer of a member’s share or  his interest in the capital or property of any society,  section 31 in contrast speaks of "the. share or interest of a member in  the capital of a society".  The Act, therefore, makes  a clear  distinction  between  the share or  interest  in  the capital  and share or interest in property of  the  Society. We have also noticed that the Act does recognise interest in the  immovable property of the Society as well [see  section 47(1)(b)].  We have seen the qualifications for  membership. There  is  no reason to suppose that if  the  qualifications under   the  Bye-laws  are  fulfilled  an  application   for membership may be rejected.  It is admitted that the flat is owned by the Society and the judgment-debtor has a right  or interest to occupy the same. This  right or interest to occupy is a species of  property. We  have  to consider whether this right to  the  particular property  is  attachable and saleable in  execution  of  the decree against the judgment-debtor.  It is contended by  Mr. Chatterjee,  amicus  curiae,  that section  31  of  the  Act completely bars attachment and sale of the said property  in execution  of the decree.  We have already pointed  out  the difference in language between section 29 and section 31 and also made reference to section 47(1) (b) in that connection. There  is nothing in the language of section 31 to  indicate that  the right to occupation which is the right to be  sold in  auction  is not attachable in execution of  the  decree. There  is nothing in section 31 to even remotely  include  a prohibition  against  attachment or sale  of  the  aforesaid right to occupation of the flat.  Once section 31 is out  of the  way, we am left with section 29 wherein we do not  find even  a provision of prior consent for transfer of share  or interest  in  such property.  The  only  restrictions  under section  29(2)  are  that the member may  not  transfer  his interest in the property prior to one year and the  transfer is made to an existing member of the Society or to a  person whose  application for membership has been accepted  by  the Society.  It is true that bye-law 71D says that a member  to whom  a tenement is allotted shall not assign  or  underlet, vacate  or part with the possession of the tenement  or  any part thereof without the previous consent in 279 writing  of the Managing Committee but there is  nothing  to show that contravention of this bye-law makes the assignment void  under the Act unlike in the case of a  transfer  being void  under  section  47(3).   There  is  no  impediment  to ratification of the assignment by the Committee particularly in  view of the legal position arising out of  the  conjoint effect of section 29, rule 24 and bye-law 9. Section 29 read with  rule  24 shows that there is no  prohibition  as  such against  transfer of a share to a member or even to  a  non- member  if  he  consents  to  be  a  member  and  makes   an application  for  membership by purchasing  five  shares  as provided  under bye-law 9. Reading the aforesaid  provisions there  is no reason to think that there is any  question  of refusal  of membership of the Society to a non-member if  he is qualified otherwise and makes an appropriate  application in  which case the transfer of shares will be operative  and thus  the  assignment of the right to occupation  will  hold good.   Further it is significant that under section  146(a) of  the Act, contravention of sub-section (2) of section  47 is  punishable under section 147 of the Act.   Contravention of  any  bye-law is, however, ;no offence.   We,  therefore,

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unhesitatingly  come to the conclusion that this species  of property,   namely the right to occupy a flat of this  type, assumes significant importance and acquires under the law  a stamp of transferability, in furtherance of the interest  of commerce.   We  have seen no fetter under any of  the  legal provisions  against such a conclusion.  The  attachment  and the  sale of the property: in this case in execution of  the decree are valid under the law. Multi-storeyed  ownership  flats  on  cooperative  basis  in cities  and  big  towns have come to stay  because  of  dire necessity  and  are in the process of  rapid  expansion  for manifold reasons.  Some of these are: ever growing needs  of an  urban  community  necessitating  its  accommodation   in proximity to cities and towns, lack of availability of  land in  urban  areas,  rise  in  price  of  building   material, restrictions under various rent legislations ,  disincentive generated  by  tax laws and other laws  for  embarking  upon housing  construction  on  individual  basis,  security   of possession depending upon fulfillment  of the conditions  of membership  of  a society which are none  too  irksome.   In absence  of  clear and unambiguous legal provisions  to  the contrary,  it  will  not be in public interest  nor  in  the interest  of  commerce to impose a ban on  sale  ability  of these  flats  by  a  tortuous  process  of  reasoning.   The prohibition,  if  intended by the legislature,  must  be  in express terms.  We have failed to find one. The phenomenon of ownership of flats as contra-distinguished from  personal houses has been ’in vogue in England as  well as  in  the  European  Continent.   Ownership  rights  ’over separate  parts  of  a building are  mentioned  in  Coke  on Littleton  and such "super-imposed free holds" have  existed in   England  in  various  places  for  a  long  time   (see International  and  Comparative  Law  Quarterly  Volume  VII January 1958, pages 36-37). With  regard  to  a flat-owners’s right to  dispose  of  his rights,  it is pointed out that "the flat owner may, in  the words of a leading French Commentator" "sell, donate,  leave by  will,  let or hypothecate" his right.   The  rights  are regulated by statutes in the Continent.  The 10 SC/75-19 280 German  Statute, for example, allows the flat owner’s  right to dispose of his property to be made subject to the consent of  other flat owners, out such consent may be refused  only "for  a very important reason," Article 12(1), (2)] and  the statute  gives the aggrieved flat-owner easy access  to  the court if a violation of this provision is alleged (see  ibid page  39).  Thus the trend is towards recognition  of  these rights. Now that attachment and sale have been held to be valid,  it will   be   for  the  auction-purchaser  first   to   obtain membership- of the society and the court before confirmation of  the sale will insist upon his membership of the  society which,  it  would  not be unreasonable to  assume,  will  be granted  by the Society in the ordinary course unless  there are cogent and relevant reasons for not doing so.  The  fact that  at  the time of auction-sale the purchaser was  not  a member   of  the  Society  would  not  in  law  affect   the saleability or prior attachment of the property in execution of the valid decree. The   judgment-debtor  has  a  valid  decree  against   him. Ordinarily  he  has  to discharge  Ms  liability  under  the decree,..  He  can pay the decretal amount  straightaway  or suffer his property to be attached: and sold in execution of the  decree.   As an honest debtor the liability  under  the

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decree  has  to be discharged.  Here the  Society  is  not-. objecting  to the attachment and sale of the  property,  but the  judgment debtor is.  We have seen there is no  absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share.  The auction-purchaser  is presumed  to  know  the  limitations  under  which  he   has purchased the right to occupy the flat in court auction.  If ultimately  the  Society  turns  down  his  application  for membership. (which of course cannot be done except for valid reasons)  it  is upto him to take such course of  action  as available under the law.  Such a remote contingency, per se, will  not make the particular right of. the  judgment-debtor in the flat non-attachable or non-saleable. It  is  contended by Mr. Chatterjee that section  60,  Civil Procedure  Code,  does  not specify  that  this  species  of property  is liable to attachment.  The  argument,  however, fails  to  take note of section 60 being not  exhaustive  as such.   It  refers  also to  any  other  saleable  property, movable  or immovable, whether the same be held in the  name of  the judgment-debtor or by another person on his  behalf. We  have  held  that the right to occupation of  a  flat  is property  both  attachable  and  saleable.   Specific   non- inclusion of a particular species of property under  section 60  is, therefore, not of any consequence if it is  saleable otherwise.  In the result the, judgment of the High Court is set  aside and the judgment-debtor’s chamber  summons  dated March  28, 1972, stands dismissed.  The appeal  is  allowed, but  there Will. be no order as to costs ’except  that.  the court-fees will be payable by, the appellant. We record our appreciation of the assistance rendered by Mr. Chatterjee  as  amicus   curiae and  also  by  Mr.  Zaiwala, counsel for the appellant. V.M.K.                                 Appeal allowed. 281