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TMI Blog1979 (9) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... d not accept Juvansinh's title as a result of which rent remained unpaid from 1st January, 1966'to 31st October 1967. Notice of demand was served upon the defendants rent also remained in arrears thereafter. Thereupon the plaintiff filed against the defendants the present suit for recovery of possession of the suit premises on the ground of arrears of rent and also claimed decree in respect of arrears of rent The learned trial Judge upheld the defence raised by the defendants and dismissed the suit. The plaintiff appealed to the District Court. The learned Appellate Judge reversed the finding recorded by the learned trial Judge, allowed the appeal, set aside the decree of dismissal passed by the learned trial Judge and passed in favour of the plaintiff decree for possession. It is that decree which is challenged by defendants In this civil revision application. 2. This civil revision application was in the first instance placed before me. It appeared that it raised an important question as to the validity of transfer of the suit premises from Girish to the plaintiff. It was therefore referred to a Division Bench. It came up before the Division Bench consisting of my lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer. Section 30 makes it abundantly clear that a member of a co-operative housing society to whom the society has allotted a house is not an absolutely free agent to transfer the property allotted to him In order to enable himself to transfer to another person a house allotted to him, it is, inter alia necessary that he must have held the share or' interest in the' capital or property of 'the society for not less than one year and that, with the approval of the committee of 'the society, such transfer is sought to be made to a member of the society or to a person - if he is initially an outsider - whose application for membership has been accepted by the society. Section 37 is required to be noted for the purpose of discovering that the society is a body corporate with perpetual succession and a common seal and has the power to ac quire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all such things as are necessary for the purpose for which it is constituted. It is clear, therefore, that a co-operative housing society upon its registration becomes a legal person which is distinct from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re compulsory registration of non-testamentary instruments specified therein. An instrument by which interest in immovable property is transferred by one person to another will certainly fall either under clause (b) or clause (c) of sub-section (1) of Section 17 provided the consideration for such transfer is of the value of one hundred rupees or upwards. But for Section 42 of Gujarat Co-operative Societies Act, 1961, Girish could not have transferred the house in question to the plaintiff except under a registered sale deed. That is the combined effect of Section 54 of the Transfer of Property Act read with Section 17(1) (b) and (c) of the Registration Act, 1008. Sub-section (2) of Section 17 itself carves out a limited exception to the rule specified in clause (b) and clause (c) of sub-section 17(1) of Section 17. It provides as follows:- (2) Nothing in clauses (b) and (c) of sub-section (1) applies to - (I) any composition-deed; or (ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property: . Clause (ii) of sub-section (2) of Section 17 therefore exempts fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be paid by the transferee; (c) all liabilities of the transferor due to the society are discharged- and (d) the transfer is registered in the books of the society. (2) Any charge in favour of the society on the share so transferred will continue unless discharged otherwise. 5. We have no doubt in our minds that Section 42 of the Gujarat Co-operative Societies Act, 1961, inter alia, ex empts from compulsory registration instruments relating to shares in a society notwithstanding that the assets of such society consist wholly or in part of immovable property. Shares in a co-operative housing society have a necessary relation to the immovable properties which the society constructs and which are allotted by the society to its members. It is necessary, therefore, to find out what an instrument of transfer relating to shares in a society conveys to the transferee. It has been argued that there are two types of co-operative housing societies. One. type is called 'tenant co-partnership society . Another is called tenant ownership society A tenant co-partnership, society is a society where the land is owned by the society and upon which houses are constructe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upy and enjoy it is transferred by the transfer of his shares by one member to another. This expression does and cannot therefore embrace within its sweep any personal interest, independent of the society, which a member may have in the immovable property which he occupies. Such a situation arises in case of a. tenant ownership society . It has been argued that in tenant ownership society . the land belongs to the society and the superstructure thereupon is constructed, not by the society out of its funds but, by the member out of his personal funds. In such a case, when by an instrument a member transfers his shares in the society to another person, he not only transfers his shares but also his right to occupy and enjoy the land belonging to the society and the super-structure which he has constructed out of his personal funds and which belongs to him personally. The transfer of such a superstructure cannot be effected except under a . registered conveyance because clause (a) of Section 42 does not exempt from compulsory registration the transfer of a member's personal immovable property - not belonging to the society - to another. It is therefore clear that in case of a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. The judgment of the Supreme Court is reported in Ramesh Himatlal Shah v. Harsukh Jadhavii Joshi AIR1975SC1470 . It was a case of tenant co-partnership society and the question which arose was whether a flat allotted to a member in such a society could be attached in sale in execution, of a decree against the member to whom it was allotted. The Supreme Court held that the member's interest in the flat allotted to him in such a society could be sold and attached. Relying upon the decision, Miss Shah has argued that the Supreme Court has made a clear distinction between the assets of the society and the right to occupy which a member enjoys upon allotment of the property to him by the society. The Supreme Court in that case was not concerned with the question of compulsory registrability or otherwise of the transfer of right to occupy which a member enjoys upon allotment of the immovable property to him by a tenant co-partnership society . Such a right of occupation conferred upon the member by the tenant co-partnership society can indeed be attached and sold as held by the Supreme Court. It, however, does not mean that it can be transferred only under a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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