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PETITIONER: SMT. KRISHNA RAJPAL BHATIA & ORS.

       Vs.

RESPONDENT: MISS LEELA H. ADVANI & ORS.

DATE OF JUDGMENT19/09/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1989 AIR  122            1988 SCR  Supl. (3)  60  1989 SCC  (1)  52        1988 SCALE  (2)1276  CITATOR INFO :  D          1990 SC1563  (14,15)

ACT:     Maharashtra  Cooperative Societies Acg  1960-Section  91 Challenging  order  of eviction from  premises  in  dispute, under section 91--On the grounds that the agreement  between the parties was one of lease and not licence.

HEADNOTE:     By an agreement dated 1st January, 1964, the  disputant, a tenant Co-partner member of a Cooperative Housing Society, permitted  appellants’  father the user of her  flat.  On  a joint  application by both the parties, the Society  granted permission for his occupying the flat on terms of leave  and licence. The disputant later made a claim under s. 91 of the Maharashtra  Cooperative  Societies Act,  1960  (‘the  Act’) before  the District Deputy Registrar for his eviction.  The claim  for eviction was resisted by him on the  ground  that the transaction between the parties was one of lease and the Registrar  had no jurisdiction to enter upon  the  reference under section 91. It was held that the parties stood in  the jural  relationship of landlord and tenant and  the  dispute did  not  touch  upon business of  the  Society  within  the meaning of s. 91. Aggrieved, the disputant carried an appeal to the Maharashtra State Cooperative Appellate Tribunal. The Tribunal  remanded  the  case for a fresh  decision  on  the question  whether  the  disputant was  a  tenant  co-partner member or a tenant owner member, as the society was held  to be a mixed type of society of both tenant co-partner members and  tenant  owner  members. On  remand,  the  Judge.  first Cooperative Court recorded a finding that the Society was  a tenant Co-partnership type of society and the disputant  was only a tenant Co-partner member. Thereafter the dispute came up  for  adjudication  before  the  said  Judge.  The  Judge rendered an award holding that after the termination of  the licence  the possession of appellants’ father was  wrongful, and directing him to vacate and hand over possession of  the flat.  He  went in appeal before the Maharashtra  State  Co- operative Appellate Tribunal but without avail.     Dismissing the appeal, the Court,     HELD: The agreement between the parties was embodied  in                                                    PG NO 60

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                                                  PG NO 61 usual  standard form of an agreement for leave and  licence. The  parties  to  the  agreement were  bound  by  the  terms thereof. There was nothing to suggest that the agreement for leave and licence was merely a device to camouflage the real nature  of  the transaction, viz., creation  of  a  tenancy, which would clearly be against the bye-laws of the  society. The  disputant, the licensor, was only a  tenant  co-partner member and all hat she could do under the terms of the  bye- laws  was  to create a licence with the  permission  of  the society  by  making  the licensee to  be  a  nominal  member thereof.  The matter is directly covered by the decision  of this  Court  in O.P. Bhatnagar v.  Smt.  Rukibai  Narsindas, [1982] 3 SCR 681. [67C-E]     The  Society was purely a tenant co-partnership type  of housing society consisting only of tenant co-partner members and  there were no tenant owner members in the  society.  In view of the subsequent change brought about by the amendment of  the  bye-laws, there was no question  of  the  disputant being regarded as a tenant owner member. The Appellate Court and  the Judge of the First Cooperative Court  rightly  held her o be a tenant Co-partner member. The appellant’s  father having  been inducted into the premises under the  terms  of the  agreement for leave and licence could not say that  the disputant  was  a tenant owner member and not a  tenant  co- partner  member or that the transaction was one of ease  and not licence. [68G; 69D-E]     Sabharwal Brothers v. Smt. Guna Amrit Thandani, [1973] I SCR  53 and Ramesh Himmatlal Shah v. Harsukh Jadavji  Joshi, [1975] Suppl. SCR 270, distinguished.     O.P.  Bhatnagar v. Smt. Rukibai Narsindas, [1982] 3  SCR 681;  Dr.  Manohar  Ramchandra .Sarlare v.  The  Konkan  Co- operative  Housing Society Ltd. & Ors., AIR 1962  Bom.  154, I.R.;  Hingorani  v. Pravinchandra, (1966-67) Bom.  LR  306; Contessa  Knit  Wear  v. Udyog  Mandir  Cooperative  Housing Society,  AIR  (1980)  Bom. 374 and Bandra  Green  Park  Co- operative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia JUDGMENT:

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1945  of 1984.     From  the  Judgment and Order dated  16.12.1983  of  the Bombay High Court in W.P No 4356 of 1983.     R. Karanjawala. Mrs. Manik Karanjawala and Ejaz  Maqbool for the Appellants.                                                    PG NO 62     T.S. Krishnamurthy, R.N. Keshwani, Dilip Jhangiani, V.K. Punwani and M.K.D. Namboodiri for the Respondents.     The Judgment of the Court was delivered by     SEN, J. This appeal by special leave is directed against the  judgment  and order of the High Court of  Bombay  dated 16th December 1983 declining to interfere with the  judgment and  order  of the Maharashtra State  Cooperative  Appellate Court,  Bombay  dated 31st October, 1983.  By  the  impugned judgment the Appellate Court up-held the judgment and  order passed  by the Judge, First Cooperative Court, Bombay  dated 28th  August, 1981 directing the appellants to   vacate  and hand over possession of Flat No. 16 on First Floor of  Block No. 8 in the housing colony known as Shyam Niwas, situate at Warden Road, now called Bhulabhai Desai Road, Bombay and  to pay mesne profits @ Rs.450 per month and a further amount of Rs.42.50 towards maintenance, car parking and water  charges

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w.e.f. Ist August 1981.     The facts of the case are as follows. By an agreement in writing dated 1st January 1964, the disputant the late  Smt. Devibai  H.  Advani,  who was a  tenant  co-partner  member, permitted the appellants’ father Rajpal Bhatia, user of  her Flat  No. 16 for a period of 11 months as from that date  on the terms and conditions stated in the said agreement.  Both the  parties made a joint application for admission  of  the said  Rajpal Bhatia as a nominal member of the  society  and the  society  granted  the  requisite  permission  for   his occupying the flat in dispute on terms of leave and licence. At  the  request of Rajpal Bhatia, the  said  agreement  for leave and licence was renewed for 11 months each by  further agreements and thereafter the period was further extended 11 months  by an endorsement. The late Smt. Devibai  Advani  by her  lawyer’s  notice  dated 21st May  1969  terminated  the agreement for leave and licence. On 30th June 1969 she  made a claim under s. 91 of the Maharashtra Cooperative Societies Act,  196() (for short the Act’) before the District  Deputy Registrar  for  the  eviction  of  the  said  Rajpal  Bhatia alleging  him to be in unauthorised occupation of her  flat. The claim as laid by her was that she was a ’tenant  member’ of  the society  and that Rajpal Bhatia was in  unauthorised occupation.  Her claim for eviction was however register  by Rajpal Bhatia inter alia on the ground that the  transaction between the parties was one of lease and not of licence  and therefore  the Registrar had no jurisdiction to  enter  upon the  reference  under  s.  91 of the  Act  inasmuch  as  his jurisdiction to enter upon such claim was barred under s. 28 of  the  Bombay Rents, Hotel & Lodging House  Rates  Control Act, 1947 (Bombay Rent Act for short). That objection of his                                                    PG NO 63 was sustained by the Officer on Special Duty by his judgment and  award dated 16th November 1972. The learned Officer  on Special  Duty  held  that the parties  stood  in  the  jural relationship  of  landlord and tenant and further  that  the dispute  in question did not touch upon the business of  the society within the meaning of s. 9 1 of the Act.     Aggrieved,  the disputant the late Smt.  Devibai  Advani carried  an  appeal  to the  Maharashtra  State  Cooperative Appellate  Tribunal. The Tribunal by its judgment and  order dated 8th February 1974 allowed the appeal and remanded  the case  for  a  decision afresh on the  question  whether  the disputant  the  late Smt. Devibai Advani was  a  tenant  co- partner  member  or  a tenant owner member.  It  is  however necessary to mention that the Tribunal held that the society was  a mixed type of society having both  tenant  co-partner members  and  tenant owner members but since  the  disputant described  herself  as  a tenant  member,  and  particularly having  regard  to the fact that Rajpal Bhatia  get  himself admitted  as a nominal member queried: If she was  an  owner member  where was the necessity of taking permission of  the society  for letting the flat? Nor was there  any  necessity for  Rajpal  Bhatia to seek admission as  a  nominal  member which  made  him  subject to the bye-laws  of  the  society. According to the Tribunal, these circumstances were more  in consonance  with the status of the disputant being a  tenant member. It went on to say that there was no evidence led  to establish  that  the  flat  in  question  was  sold  to  the disputant and accordingly remitted the aforesaid issue for a decision afresh. During the tendency of the appeal, the late Smt.  Devibai  Advani made an application praying  that  the society  be  transposed  as disputant  no.  2.  Despite  the opposition   of   Rajpal   Bhatia.   the   application   for transposition was ultimately allowed.

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   Initially when the society was registered, it was really governed  by the regulation in Form ’A’. It however  appears that  by mistake, as is evident from the affidavit sworn  by Atmaram  Jhangiani, Chairman of the society,  regulation  in Form ’P’ which relates to tenant owner members was  adopted. This  mistake was detected in the year 1949 and  accordingly at  the  Annual General Meeting of the society held  on  3rd September   1949   it  was  declared  that  Form   ’B’   was inapplicable  and therefore the mistake was rectified  by  a unanimously  carried resolution that regulation in Form  ’A’ be  adopted instead of regulation in Form ’B’. The  District Deputy  Registrar,  Cooperative Societies,  Surat  by  order dated   10th  July  1950  approved  of  the  amendment   and accordingly  Form ’A’ was adopted and Form ’B’ deleted.  The                                                    PG NO 64 modification  in  the byelaws was approved by  a  resolution carried  at the General Body Meeting of the society held  on 26th  November  1950 and forwarded to  the  District  Deputy Registrar  for  approval. After the adoption  of  Form  ’A’, byelaw   10(a)  pro  tanto  stood  amended.  Due  to   sheer inadvertence, however, byelaw 10(a) remained in the form  it was  framed and this has given rise to an  endless  argument before us. In the certificate to incorporation issued by the Registrar,  Cooperative Societies the society is  classified as a tenant co-partnership society consisting of tenant  co- partner members. The mistake in allowing the byelaw 10(a) as originally framed making reference to tenant owner  members, came  to  the notice of the society in 1974  when  the  said byelaw  was deleted and substituted by a fresh byelaw  10(a) which  made no reference to the admission of  membership  of any owner member to the society or to the regulation in Form ’B’.     On  remand,  the  only contention  advanced  before  the Judge, First Cooperative Court, Bombay was that the  society was a tenant co-ownership type of society and not tenant co- partnership type. The  learned Judge by his order dated  8th September 1976 recorded a finding that the society, in fact, was  a tenant co-partnership type of society  and  therefore the  disputant was only a tenant co-partner member.  Against his  order  Rajpal  Bhatia  went  up  in  revision  to   the Maharashtra  State Cooperative Appellate Court which by  its order  dated  Ist July 1977 dismissed the  revision  as  not pressed.  Thereafter,  the dispute came up for  adjudication before  the learned Judge, First Cooperative  Court,  Bombay who framed five issues in all. The learned Judge allowed the parties to adduce their evidence thereon. After  considering the  evidence on record, the learned Judge by  his  judgment dated 28th August 1981 came to a definitive finding that the claim of the disputant was a claim touching the business  of the  society under s. 91 of the Act: that the society  is  a co-partnership type of society and not of co-ownership; that the  real nature of the transaction between the parties  was that embodied in the formal agreement for leave and  licence dated 1st January 1964 and further that after termination of the  licence  the possession of the said Rajpal  Bhatia  was wrongful.  According,  the learned Judge rendered  an  award directing  the  said Rajpal Bhatia to vacate and  hand  over possession of the flat in question.     The  appellants’ father Rajpal Bhatia went up in  appeal before the Maharashtra State Cooperative Appellate Court but without  any avail. It held inter alia that in view  of  the letter   addressed   by  the  District   Deputy   Registrar, Cooperative  Societies,  Bombay  dated  22nd  November  1978 intimating  the Court that Form ’B’ had been  deleted  after                                                    PG NO 65

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the resolution passed at the Annual General Meeting held  on 3rd September 1949 and the amendment of the byelaws effected by  order of the District Deputy Registrar dated  10th  July 1950,  and  particularly  in view of the fact  that  in  the latest  copy of the bye-laws there is no reference  to  Form ’B’,  the conclusion was inescapable that the society  is  a tenant  co-partnership housing society and Form ’B’  as  was originally appended to the byelaws was no longer applicable. It  observed that in view of its earlier judgment in  Appeal No.  236/78--Messrs  Bharat  Sales Service &  Anr.  v.  Smt. Rukibai Naraindas Bhavnani & Anr., decided on 12th  January, 1979  taking  that view upon investigation into  the  facts, which was upheld by the High Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas Bhavnani & Anr., in Miscellaneous Petition No.  271/79, decided on 21st April 1981, and later  by  this Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas, [1982]  3 SCR  681,  it was no longer possible to contend  that  Shyam Cooperative  Housing Society Limited was a tenant  ownership housing  society  and not a tenant  co  partnership  housing society. It further observed that in view of the decision of this  Court  in  O. N. Bhatnagar  s  case,  learned  counsel appearing for the appellants conceded the legal position but contended   that   the  decision  in  O.N.   Bhatnagar   was distinguishable on facts. It observed:     "It has to be noted that Form A’ was made applicable  to all  the  buildings of the society and not to  a  particular block or building. No doubt, the byelaws of the society were amended  much  later  i.e.,  in the  year  i976  though  the resolution proposing the amendment was passed in the meeting held  on  25.12.1974. It appears that, though Form  ’A’  was made   applicable   in  the  year  195()  to   the   society corresponding amendment was made on 25th December, 1974  and thereafter  it was approved on 28th April, 1976.  That  will not  make  any  difference because once  Form  ’A’  is  made applicable  and once Form ’B’ is deleted from  the  bye-laws the intention of the society was to convert the society to a Tenant  Co partnership type of society. Moreover, it has  to be noted that the present appellant was inducted in the said premises on 1st January, 1964, i e. much after the Form  ’A’ was  adopted.  As  mentioned above, it is not  open  to  the present appellant to challenge the status of the  respondent No.  I Devibai because, as mentioned above,  the  respondent No.  I  had surrendered her status as tenant owner  and  had become  tenant copartner member of the society. Under  these circumstances,  there  is no other alternative but  to  hold                                                    PG NO 66 that the society is not a mixed type of society but it is  a tenant co-partnership type of Society."     Further,  the Appellate Court held that  merely  because the disputant described herself as the owner of the flat was not decisive of the question as to whether she was a  tenant co-partner member or a tenant owner member, and added:     "Even  though the respondent No. 1 described herself  as the owner of the flat, we feel that as she has purchased the flat  from the society she might have described  herself  as the owner. In common parlance the flats which are  purchased from  the  society  or  from  the  builders  are  called  as ownership flats and very often we find that even a member in a tenant co-partnership type of society describes himself or herself  as  owner  of  the  flat,  either  because  he  has purchased the flat or he has contributed towards the cost of the construction.     In  the light of the principles laid down by this  Court in Associated Hotels of India Ltd. v. R.N. Kapoor, [1960]  I SCR 368 the Appellate Court further held on a  consideration

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of  the  evidence adduced by the parties  that  the  parties intended  by  the agreement to create a licence  and  not  a lease. It also held that the dispute was a dispute  touching the business of the society.     Shri  R.F. Nariman, learned counsel for  the  appellants argued  the  appeal with great clarity,  much  resource  and learning  we  heard him with considerable interest.  It  was contended, firstly, that the intention  Of the disputant the late Smt. Devibai Advani was to demise the flat in  question and  therefore the real transaction was one of lease  though camouflaged  in  the  form of an  agreement  for  leave  and licence  and  therefore the jurisdiction  of  the  Registrar under s. 91 of the Act to adjudicate upon the reference  was barred  by s. 28 of the Bombay Rent Act; and secondly,  that neither of the two resolutions subsequently  adopted by  the Annual  General Meeting or the General Body Meeting nor  the order  of  the District Deputy Registrar  could  change  the intrinsic character of the real status of the disputant  who was admittedly a tenant owner member, and the finding of the Appellate Court that she must be deemed to have relinquished her  status as tenant owner member and became a  tenant  co- partner member of the society is patently erroneous. Learned counsel very candidly accepted that he does not rely upon s.                                                    PG NO 67 15A of the Bombay Rent Act. That had to be so because in the first place his entire submission proceeds on the basis that the transaction between the parties was one of lease and not of licence and secondly, even otherwise, the licence  having admittedly  been terminated by the disputant’s notice  dated 2Ist  May 1969, there was no subsisting licence existing  as on   1st  February  1973  and  s.  15A  interms   would   be inapplicable. We are afraid, in view of the decision of this Court in O.N. Bhatnagar s case, the contentions advanced  by the learned counsel cannot prevail.     There  can  be no doubt whatever from the terms  of  the agreement dated Ist January 1964 as well as the overwhelming evidence  on record taken in conjunction with the facts  and circumstances appearing, coupled with the course of  conduct of  the parties that the real transaction was one  of  lease and  not  of licence. The agreement between the  parties  is embodied  in  the usual standard form of  an  agreement  for leave and licence. The parties being executants thereof  are bound  by  the terms of the agreement. There is  nothing  to suggest that the agreement for leave and licence was  merely a  device to camouflage the real nature of  the  transaction viz.  creation of a tenancy, which would clearly be  against the  bye-laws  of the society. The disputant the  late  Smt. Devibai  Advani, the licensor, was only a tenant  co-partner member and all that she could do under the terms of the bye- laws  was  to create a licence with the  permission  of  the society  by  making  the licensee to  be  a  nominal  member thereof. The evidence adduced by the disputant clearly shows that the flat in question was taken on a licence for a  term of  11  months which was renewed from time to  time  at  the request  of  the  late  Rajpal  Bhatia  till  the  disputant terminated  the  licence by notice dated 21st May  1969.  We also  find no merit in the contention that the  jurisdiction of  the  Cooperative Courts to adjudicate upon  the  dispute under  s.  91 of the Act was barred by s. 28 of  the  Bombay Rent Act.     The  matter is directly covered by the decision of  this Court in O.N. Bhatnagar’s case. In rejecting the  contention that a dispute of this nature was not a dispute touching the business  of the society within the meaning of s.  91(1)  of the Maharashtra Cooperative Societies Act. it was observed:

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   "In  the  present  case, the society  is  a  tenant  co- partnership  type housing society formed with the object  of providing residential accommodation to its co-partner tenant members. Now, the nature of business which a society carries                                                    PG NO 68 on  has  necessarily to be ascertained from the  object  for which  the society is constituted, and it logically  follows that  whatever the society does in the normal course of  its activities such as by initiating proceedings for removing an act  of trespass by a stranger, from a flat allotted to  one of its members, cannot but be part of its business. It is as much  the concern of the society formed with the  object  of providing  residential accommodation to its  members,  which normally  is its business, to ensure that the flats  are  in occupation  of its members, in accordance with the  bye-laws framed  by  it, rather than of a person in  an  unauthorised occupation, as it is the concern of the member, who lets  it out  to another under an agreement of leave and licence  and wants  to secure possession of the premises for his own  use after  the termination of the licence. It  must,  therefore, follow  that  a  claim by the  society  together  with  such members  for  ejectment  of a person who  was  permitted  to occupy   having  become  a  nominal  member  thereof,   upon revocation  of  licence,  is a dispute  falling  within  the purview of s. 91(1) of the Act. "     In  dealing  with the inter-relation  between  the  non- obstante clause in s. 91(1) of the Act and that in s. 28  of the Rent Act, it was observed:     "It seems to us that the two Acts can be best harmonised by  holding  that in matters covered by the  Rent  Act,  its provisions, rather the provisions of the Act, should  apply. But  where the parties admittedly do not stand in the  jural relationship  of landlord and tenant, as here.  the  dispute would  be  governed by s. 91(1) of the Act.  No  doubt,  the appellant acquired a right to occupy the flat as a licensee, by  virtue  of his being a nominal member, but in  the  very nature of things, his rights were inchoate. In view of these considerations,  we are of the opinion that the  proceedings under s. 91(1) of the Act were not barred by the  provisions of s. 28 of the Rent Act.’’     It is quite evident from the affidavit sworn by  Atmaram Jhangiani, Chairman of the Shyam Cooperative Housing Society Limited, that the society is purely a tenant  co-partnership type of Housing society consisting only of tenant co-partner members  and  there  are  no tenant  owner  members  in  the society; nor are there any tenant owner members in block No. X  where  the  flat in question is  located.  As  H  already stated, while framing the bye-laws regulation in Form ’B’was                                                    PG NO 69 by mistake adopted. This mistake was realised in 1949 and at the  Annual  General  Meeting of the  society  held  on  3rd September  1949 it was decided that the regulation  in  Form ’B’ was inapplicable and therefore the mistake was rectified by  deleting  Form  ’B’  and  substituting  Form  ’A’.  This amendment   was  duly  approved  by  the   District   Deputy Registrar,  Bombay  by his order dated 10th July  1950.  The aforesaid  resolution was duly ratified at the General  Body Meeting of the society. That being so, bye-law 10(a)  making a   reference  to  tenant  owner  members  became   a   mere superfluity  and  was wholly redundant. The  rights  of  the parties cannot be spelled out from the terms of the  bye-law 10(a)  as originally framed. Nor would the mere  description by  the  disputant the late Smt. Devibai  Advani  describing herself  to  be  the  owner  of  the  society,  affect   the classification  of the society because she was, in fact  and

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in  law,  nothing but a tenant co-partner  member.  It  also appears  from the certificate of registration issued by  the Registrar,  Cooperative  Societies  that  the  society   was classified  as a tenant co partnership housing society.  The erroneous description in bye law-10(a) of the society having tenant owner members came to be rectified when the said bye- law was replaced in l974 by a new bye-law 10(a). In view  of the subsequent change brought about by the amendment of  the bye-laws,  there  was  no question of  the  disputant  being regarded  as a tenant owner member. The Appellate  Court  as well  as  the learned Judge of the First  Cooperative  Court have rightly held her to be a tenant co-partner member.  The appellants’ father Rajpal! Bhatia having been inducted  into the premises under the terms of the agreement for leave  and licence dated 1st January 1964, cannot be heard to say  that disputant  was  a tenant owner member and not a  tenant  co- partner member or that the transaction was one of lease  and not   of  licence.  These  aspects  are  concluded  by   the concurrent finding of fact based on appreciation of evidence recorded  by the Courts below. There is no reason for us  to come to a contrary conclusion.     We  cannot but briefly refer to a few of  the  decisions cited.  As  explained  in the  affidavit  sworn  by  Atmaram Jhangiani.   Chairman  of  the  society,  the  decision   in Sabharwal Brothers v. Smt Guna Amrit Thandani, [1973] I  SCR 53 proceeds on the assumption that Smt. Guna Amrit  Thandani was  an owner member. It appears that the true  and  correct factual position was not placed before the Court that  under the changed bye-laws of the society, particularly after  the deletion of Form ’B’, she could only he a tenant  co-partner member.  It follows that the ultimate conclusion arrived  at was  based  upon  inaccurate facts. Be that  as  it  may,  a decision  based upon a statement of inaccurate  facts  which has  no  semblance of reality would not  change  the  actual                                                    PG NO 70 legal status of the society as a tenant co-partnership  type of  housing  society,  nor the classification  made  by  the Registrar,  Cooperative  Societies  in  his  certificate  of incorporation  issued by him, classifying the society  as  a tenant co-partnership society consisting only of tenant  co- partner  members. In view of the real factual  position  now brought out, it is difficult to come to the conclusion  that the society was a mixed type of society or that the building in  question  where the flat in dispute is  situate,  was  a multi-storeyed  building consisting of residential flats  of both types viz. tenant owner flats and tenant co partnership flats. In any event, the decision in Sabharwal Brothers case is clearly distinguishable on facts. The contention of  Shri Nariman  that the society was a mixed type of  society  must therefore fail.     The  decision of this Court in Ramesh Himmatlal Shah  v. Harsukh  Jadhavji  Joshi,  [ 1975] Suppl. SCR  270  is  also distinguishable.  In that case, the question was  whether  a flat  in a tenant co-partnership housing society was  liable to  attachment and sale in execution of a decree. The  Court laid  down  that  the right to occupy the flat  owned  by  a cooperative housing society is a species of property. It was further held that there was nothing in the language of s. 31 of  the  Maharashtra Cooperative Societies Act  to  indicate that  the right to occupation of such a flat which  was  the right  sought to be sold by auction, was not  attachable  in execution  of  the  decree. Nor was there  anything  in  the section  to  even  remotely include  a  prohibition  against attachment  or sale of the aforesaid right to occupation  of the  flat. The only restrictions under s. 29(2) of  the  Act

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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. As  regards  bye-law  710   the  Court  observed  that   any contravention  of the bye-law would not make the  assignment invalid under the Act unlike in the case of a transfer being void  under  s. 47(3). Further, that s. 29 read with  r.  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. The ultimate decision of the Court was that the right to  occupation  ot’ a flat is property both  attachable  and sale able, inasmuch as s. 60 of the Code of Civil Procedure, l908, is not exhaustive as such. It also refers to any other sale  able 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  sale  able.  Specific  non- inclusion of a particular species of property under s. 60 is                                                    PG NO 71 therefore  not  of  any  consequence  if  it  is  sale  able otherwise.  the decision in Ramesh Himmatlal Shah’s case  is therefore of little or no assistance.     Chainani, CJ speaking for himself and V.M. Tarkunde,  J. in Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative Housing  Society Ltd. & Ors., AIR 1962 Bom. 154 brought  out the true concept of a tenant co-partner housing at p. 157 in these words:     "(T)he  property in the whole estate remains  absolutely with  the society as a whole. The member contributes in  the first instance by shares and then pays rent so calculated as to cover not only the economic rent of his tenant or  house, but  also an amortization or sinking fund payment, which  at the  end of 25 years or 40 yars, as the case may be,  repays the whole value of the building. At the end of that  period, he is credited with further shares in the society equivalent to the value that he has paid up and the normal interest  on these  shares is equal to the economic rent which he has  to pay.  At  the  end  of the period he  is  therefore  in  the position of occupying the building free of rent Or merely so as  a tenant of the society of which he is himself a  member and therefore a controlling authority."     See  also:  I.R. Hingorani v.  Pravinchandra,  (1966-67) Bom. LR 306; Contessa Knit Wear v. Udyog Mandir  Cooperative Housing Society. AIR 1980 Bom. 374 and Bandra Green Park Co- operative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia &  Ors. AIR 1982 Bom. 428. These cases more or less  reflect the  different views that have prevailed in the  High  Court but  the law is now governed by the principles laid down  by this Court in O. N. Bhatnagar’s case .     The result therefore is that the appeal must fail and is dismissed(l with costs. The appellants are however given six months’  time  to  vacate the  disputed  premises  on  their furnishing  the usual undertaking to the Registrar  of  this Court within four weeks from today in the form of affidavits sworn by each one of them that they shall deliver vacant and peaceful possession to respondents nos. i and 2 on or  after 31st  March 1989 and shall not in the meanwhile  part  with, assign or otherwise encumber the premises in any manner. S.L.                                      Appeal dismissed.