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Bombay High Court

Saroj Arvind Modi AND ANRversusThe Divisional Joint registrar Cooperative Societies Konkan Bhavan AND ORS

Decided
Disposal
Disposed Off

Holding

The orders removing the petitioners were unsustainable and are set aside, as the transfers were governed by Section 41 and did not require registration.

Summary

The petitioners, Dolly Satish Kapoor and Saroj Arvind Modi, were members of a Tenant Co‑partnership Society and had purchased flats in 1982 and 1999 respectively. The Deputy Registrar ordered their removal from the Society’s membership under Section 154B‑9 of the Maharashtra Co‑operative Societies Act, 1960, and the Divisional Joint Registrar affirmed the order. The petitioners challenged the orders, arguing that at the time of their purchases the applicable law was Section 41 of the Act, which exempts compulsory registration of share transfer instruments, and that the Society is a tenant co‑partnership where such registration is not required. The Court examined the effect of the 2019 amendment introducing Chapter XIII‑B and Section 154B‑12, which mandates registration for transfers made after its commencement, and held that the petitioners’ transactions pre‑date this amendment and fall under the exemption. Consequently, the Court set aside both the Deputy Registrar’s and the Divisional Joint Registrar’s orders, allowing the writ petitions and restoring the petitioners’ membership.

Issues considered

  • Whether the transfer of shares in a Tenant Co‑partnership Society made before the 2019 amendment to the MCS Act requires registration under Section 154B‑12.
  • Whether Section 41 of the MCS Act provides an exemption from compulsory registration for such transfers.
  • Whether the removal of the petitioners from the Society’s membership under Section 154B‑9 is valid in the circumstances.

Legislation cited

Subjects

  • cooperative societies
  • tenant co‑partnership
  • share transfer
  • registration of instrument
  • Maharashtra Co‑operative Societies Act
  • removal of members
  • property law

Judgment

2026:BHC-AS:40605
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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.13084 OF 2026
             Dolly Satish Kapoor                                         ....Petitioner
                   V/S
             The Divisional Joint Registrar
             Co-operative Societies & Ors.                               ....Respondents

                                            WITH
                                WRIT PETITION NO.13085 OF 2026
             Saroj Arvind Modi & Anr.                                    ....Petitioners
                   V/S
             The Divisional Joint Registrar
             Co-operative Societies & Ors.                               ....Respondents
                                                _________

             Mr. Akshay Doctor with Mr. Devansh Bheda, Ms. Dhyan Shah i/b
             Purnand & Co. for the Petitioners.
             Mr. Sandesh Deshpande with Ms. Janhavi Chaudhari for Respondent
             No.3.
             Mr. P.V. Nelson-Rajan, AGP for Respondent Nos.1 and 2/State in WP
             13084 of 2026.
             Ms. S.A. Prabhune, AGP for Respondent Nos.1 and 2/State in WP 13085
             of 2026.
                                             __________

                                      CORAM : SANDEEP V. MARNE, J.
                                      DATE : 05 OCTOBER 2026.
             P.C.:

             1.       These Petitions challenge orders dated 4 November 2025 passed
             by the Divisional Joint Registrar dismissing the Revisions preferred by
             the Petitioners and confirming the orders dated 28 March 2024 passed by
             the Deputy Registrar. By orders dated 28 March 2024, the Deputy
             Registrar directed removal of names of Petitioners from membership of

             katkam                                 Page No. 1 of 4
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the Society under provisions of Section 154B-9 of the Maharashtra Co-
operative Societies Act, 1960 (MCS Act).


2.       I have heard Mr. Doctor, the learned counsel appearing for the
Petitioners, Mr. Deshpande, the learned counsel appearing for
Respondent No.3, Mr. Nelson-Rajan, the learned AGP appearing for the
Respondent Nos.1 and 2/State in Writ Petition No.13084 of 2026 and Ms.
Prabhune, the learned AGP appearing for the Respondent Nos.1 and
2/State in Writ Petition No.13085 of 2026.


3.       In the present case, the transaction of purchase of the flat by
Petitioner-Dolly Satish Kapoor has taken place on 5 November 1982. The
transaction of purchase of flat by Petitioner-Saroj Arvind Modi has taken
place on 1 February 1999. Provisions of Chapter XIII-B are introduced in
the MCS Act with effect from 9 March 2019. After introduction of
Chapter XIII-B to the MCS Act Section 154B-12 of the MCS Act mandates
that membership in the Society can be transferred only through a
registered document.


4.       However, before introduction of Chapter XIII-B of the MCS Act,
provisions of Section 41 of the MCS Act were applicable under which it
was not mandatory to compulsorily register instructment relating to
transfer of shares in the Society. The Full Bench of the Gujarat High
Court in Mulshanker Kunverji Gor & Ors. vs. Juvansinhji Shivubha
Jadeja1 as followed by this Court in Usha Arvind Dongre vs. Satish
Raghvendra Wagh & Ors.,2 has held that in a Tenant Co-partnership

1    1979 SCC OnLine Guj 54
2    1990 Mh.L.J. 306
katkam                               Page No. 2 of 4
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Society where the Society is owner of both the land and the structure,
transfer of shares does not require registration of instrument of transfer.
Similar view is taken by Division Bench of this Court in Sadbuddhi
Brahmesh Wagh & Ors. vs. Satish Raghvendra Wagh & Ors.3.


5.       In The Salsette Catholic Cooperative Housing Society Ltd. vs. The
Divisional Joint Registrar & Ors,4 this Court has held in paragraphs 13
to 15 as under:

         “13) So far as the aspect of registration is concerned, Section 41 of the MCS
         Act provides for exemption from compulsory registration of instruments
         relating to shares. Section 41 of the MCS Act provides thus:
                 41. Exemption from compulsory registration of instruments
                 relating to shares and debentures of society.—
                 Nothing in clauses (b) and (c) of sub-section (1), of section 17, of the
                 Indian Registration Act, 1908, shall apply-
                 (a) to any instrument relating to shares in a society, notwithstanding
                 that the assets of the society consist in whole or in part of immovable
                 property ; or
                 (b) to any debentures issued by any society and not creating, declaring,
                 assigning, limiting or extinguishing any right, title or interest to or in
                 immovable property, except insofar as it entitles the bolder to the
                 security afforded by a registered instrument whereby, the society has
                 mortgaged, conveyed or otherwise transferred the whole or part of its
                 immovable property, or any interest therein to trustees upon trust for
                 the benefit of the holders of such debentures; or
                 (c) to any endorsement upon, or transfer of, any debentures issued by
                 any society

         14)     However, Chapter XIII-B has been added to the MCS Act w.e.f. 9 March
         2019 and provisions of Section 154B-12 now require registered document for
         the purpose of transfer of shares, right, title and interest in the property of the
         society. Section 154B-12 of the MCS Act provides thus:

                 154B-12. Transfer of share, right, title and interests:
                 A Member may transfer his share, right, title and interest of his
                 property in the society by way of registered document by following the
                 due procedure as provided in the rules or bye-laws
3    2004 (1) Mh.L.J. 890
4    WP No.9475 of 2026, decided on 30 September 2026.
katkam                                          Page No. 3 of 4
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                                  15)    However, the transaction in the present case has occurred on 27
                                  October 2004, when provisions of Section 154B-12 did not find place in the
                                  MCS Act and transfer of shares was governed by the provisions of Section 41 of
                                  the MCS Act. Mr. Anturkar has relied upon judgment of Gujarat High Court in
                                  Mulshanker Kunverji Gor (supra) and judgments of this Court in Usha Arvind
                                  Dongre (supra) and Sadbuddhi Brahmesh Wagh (supra) in support of his
                                  contention that registration is not compulsory for purchase of shares in a
                                  tenant co-partnership society since transfer of shares does not include transfer
                                  of interest in the property. Petitioner has not clarified in the petition as to
                                  whether it is a tenant-co-ownership society or tenant-co-partnership society.
                                  The objection of absence of registration is not specifically raised in the
                                  Petition.             …              …              ...”


                         6.       In the present case Respondent No.3 is undoubtedly a Tenant Co-
                         partnership Society. The transaction of purchase of flats by the
                         Petitioners has occurred on 5 November 1982 and on 1 February 1999.
                         Petitioners have been paying maintenance dues to the Society for the
                         last several decades. It is therefore too iniquitous to throw the
                         Petitioners out of the Society on the ground that the instruments
                         through which they purchased their flats are not registered. Considering
                         the unique facts and circumstances of the case, I am of the view that the
                         impugned orders passed by the Deputy Registrar and by the Divisional
                         Joint Registrar are unsustainable.


                         7.       Petitions thus succeed. Order dated 28 March 2024 passed by the
                         Deputy Registrar and order dated 4 November 2025 passed by the
                         Divisional Joint Registrar are set aside. Writ Petitions are allowed in
                         above terms. There shall be no order as to costs.




                                                                                        (SANDEEP V. MARNE, J.)



                          katkam
Signed by: Sudarshan R. Katkam                                        Page No. 4 of 4
Designation: PS To Honourable Judge
Date: 07/10/2026 11:11:08


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