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TMI Blog1975 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... vour 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angani (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. 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 Societie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 involve forfeiture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof as is specified in such nomination 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 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 ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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