GHATKOPAR PARVATI SADAN CO-OPERATIVE HOUSING SOCIETY LTDversusSMT. HARSHIDA BHARAT KANABAR AND ORS

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                      AGK
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO.9393 OF 2013

                      Ghatkopar Parvati Sadan Cooperative
ATUL
GANESH                Housing Society Limited                           … Petitioner
KULKARNI
Digitally signed by
                                V/s.
ATUL GANESH
KULKARNI
Date: 2026.02.18
                      Harshida Bharat Kanabar & Ors.                    … Respondents
18:28:19 +0530




                      Mr. Pratik B. Rahade i/by Mr. P.N. Joshi for the
                      petitioner.
                      Mr. Vijay M. Vaghela for respondent No.1.


                                                  CORAM          : AMIT BORKAR, J.

                                                  DATED          : FEBRUARY 17, 2026
                      P.C.:

                      1.      By the present petition instituted under Article 227 of the
                      Constitution of India, the petitioner invokes the supervisory
                      jurisdiction of this Court to challenge the Judgment and Order
                      dated 26 February 2013 passed by the Divisional Joint Registrar,
                      being respondent No.3, in Revision Application No. 383 of 2009.

                      2.      The   factual   background       giving   rise   to     the    present
                      proceedings is required to be stated in some detail. One Ramji
                      Gopal Chavan was the original purchaser and member in respect
                      of Flat No.1. He had acquired the said flat from the builder and
                      promoter under an Agreement dated 22 April 1966 and was duly
                      admitted as a member of the petitioner society. Ramji Gopal
                      Chavan expired on 18 January 1990, leaving behind his widow,
                      Smt. Ratanben Ramji Chavan, and six other legal heirs. By a



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declaration of consent executed by the remaining legal heirs on 9
July 1992, Smt. Ratanben was recognized and recorded as a
member in place of the deceased Ramji Gopal Chavan. Smt.
Ratanben thereafter expired on 14 February 1999. She left behind
her legal heirs. It is not in dispute that she had not made any
nomination in accordance with law or the bye laws of the society.

3.    After the death of Smt. Ratanben, her legal heirs neither
sought admission to membership of the society nor obtained any
prior consent from the society. Despite this, they executed an
Agreement dated 13 September 2005 in favour of respondent No.1
and purported to transfer the shares and interest in respect of the
said flat. Under the said agreement, they undertook to hand over
vacant and peaceful possession to respondent No.1 on or before 31
October 2005 upon payment of the balance consideration. A
separate declaration and indemnity document was also executed
by the heirs in favour of respondent No.1. These steps were taken
without the knowledge or approval of the petitioner society.

4.    The record further indicates that possession of the flat was
handed over to respondent No.1 on 7 December 2002 without
obtaining any prior permission or no objection from the society.
Thereafter, on 14 September 2005, certain heirs addressed a
request to the society seeking issuance of a no objection certificate.
By its communication dated 22 September 2005, the society
informed the heirs that the flat continued to stand in the name of
Smt. Ratanben Chavan. It was specifically stated that the legal
heirs were first required to have the share certificate transferred in
the name of the nominees or legal heirs in accordance with law.



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The society also recorded that respondent No.1 had sought
permission to use the flat for commercial purposes, which request
had been rejected. The heirs were informed that further steps for
transfer could be considered only upon receipt of a written
undertaking from the proposed purchaser that the flat would not
be used for commercial purposes, and after compliance with the
requisite formalities for transfer of shares in favour of the legal
heirs.

5.       In continuation of its earlier correspondence, the society, by
letter dated 26 December 2005, conveyed that upon oral request it
had agreed in principle to enroll two of the legal heirs as nominees
of the deceased Smt. Ratanben Chavan. This was made subject to
strict compliance with specified requirements, namely submission
of the original death certificate of Smt. Ratanben Chavan, filing of
Application Form No.15 along with Rs.100 towards expenses for
issuance of no objection from other legal heirs, execution of an
indemnity bond in the prescribed Form No.18, and payment of
outstanding dues of the society, if any. The society further recorded
that the possession of respondent No.1 was unauthorized and that
such possession ought not to have been delivered without
obtaining prior no objection from the society.

6.       On 4 February 2006, the legal heirs submitted certain
documents and requested transfer of the flat in the names of two
nominees. Subsequently, on 5 August 2008, the society recorded
the names of Smt. Ansuya Ramji Chavan and Mukund Ramji
Chavan as nominees of the deceased Smt. Ratanben. On 23
February 2008, these two nominees applied to the society seeking



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transfer   of   the   flat   in   favour   of   respondent   No.1.     By
communication dated 8 March 2008, the society informed
respondent No.1 that the said application would be placed before
the General Body only upon compliance with certain conditions,
namely production of a copy of a duly registered transfer deed,
payment of admission and transfer fees, and submission of an
undertaking that no repairs would be undertaken until admission
to membership and that the flat would be used strictly for
residential purposes.

7.    On 12 March 2008, respondent No.1 forwarded a cheque of
Rs.500 and expressed inability to produce a registered transfer
deed. Thereafter, in the Special General Body Meeting held on 27
May 2008, the society resolved to reject the application of
respondent No.1 for membership. The decision was communicated
on 6 June 2008 and was supported by several reasons. The society
recorded that respondent No.1 had acted contrary to the
provisions of the Act, Rules, and bye laws even prior to admission
to membership and had failed to furnish the required undertaking.
It was further observed that the Agreement dated 13 September
2005 executed with the legal heirs was contrary to the provisions
of the Maharashtra Co operative Societies Act and was not binding
on the society. The society also alleged that respondent No.1 had
carried out permanent alterations and changes in the layout of the
flat without permission, thereby causing damage to the property of
the society. It was emphasized that the building vests in the society
and that occupation without admission as a member was
unauthorized. The society further stated that the proposed



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transferee was not acceptable to the members and that her
conduct and that of her family members was detrimental to the
interest of the society. It was also alleged that a portion of a shop
premises had been occupied without permission. On these
grounds,    respondent   No.1     was    treated   as   ineligible   and
undesirable, and her application for membership was rejected. The
documents submitted by her were returned.

8.    Aggrieved by the said rejection, respondent No.1 preferred
an application before respondent No.2 under Section 22(2) read
with Section 23(3) seeking a declaration of her entitlement to
membership of the petitioner society. The said application came to
be rejected by order dated 26 October 2009.

9.    Being dissatisfied with the order of respondent No.2,
respondent    No.1    preferred   a     revision   application    before
respondent No.3. The Divisional Joint Registrar, by order dated 26
February 2013, allowed the revision application. It is this order
which is impugned in the present writ petition filed by the
petitioner society.

10.   The learned Advocate appearing for the petitioner society
submitted that the Deputy Registrar had recorded a categorical
finding that the agreement on the basis of which respondent No.1
sought membership was not a registered document. Despite such
finding, the revisional authority, placing reliance upon the decision
of this Court in Usha Arvind Dongre vs. Suresh Raghunath Kotwal,
1990 (3) Bom. C.R. 389, directed that membership be conferred
upon respondent No.1. It was contended that the specific




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objections and grounds raised by the society while rejecting the
application for membership were not examined or dealt with by
the authorities functioning under the Act. According to the
petitioner, the revisional authority failed to consider the statutory
requirements and the factual objections which went to the root of
the matter.

11.   Inviting attention to Section 154B 12 of the Maharashtra Co
operative Societies Act, the learned Advocate submitted that the
statutory scheme mandates execution of a registered instrument
before a member can transfer his right, title, and interest in the
property attached to the shares. It was urged that in the absence of
such a registered conveyance, no valid transfer of interest could be
recognized and, consequently, the authorities under the Act could
not have directed conferment of membership. It was further
submitted     that   although   Chapter   VIII   B   was   introduced
subsequently, even prior to its incorporation the legal position was
that a person claiming through transfer must establish lawful
transfer of the underlying interest. Mere execution of an
unregistered agreement, according to the petitioner, does not
create ownership rights in respect of the flat and, therefore, such a
person cannot seek transfer of membership as a matter of right.

12.   In reply, the learned Advocate appearing for respondent No.1
contended that the society had, in fact, acknowledged that
respondent No.1 was in possession of the flat in the capacity of
owner. It was argued that the society was aware of the transfer and
had treated respondent No.1 as having stepped into the shoes of
the original member, yet it sought to deny her membership solely



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on the ground that no registered instrument had been produced.
Placing reliance upon the judgment of this Court in Usha Arvind
Dongre, it was submitted that transfer of shares in a co operative
housing society and endorsement on the share certificate does not
require compulsory registration under the Registration Act. On
that basis, it was contended that absence of a registered
conveyance could not, by itself, defeat the claim for membership. It
was, therefore, urged that the revisional authority had correctly
appreciated the legal position and had rightly directed that
respondent No.1 be admitted to membership. On these grounds,
dismissal of the writ petition was sought.

Legal analysis:

13.   The Maharashtra Co operative Societies Act lays down a
clear procedure as to      how rights in a flat held through a co
operative housing society are to be transferred and how a person
can be admitted as a member. Membership in such a society is not
a stand alone status. It is closely tied to the rights in the flat which
are represented through the shares of the society. One cannot
separate the two. The share certificate reflects the member’s
interest in the property. Therefore, whenever a person claims that
the right, title, or interest in a flat has been transferred to him, the
law governing transfer of immovable property must also be
examined.

14.   Transfer of immovable property is not left to oral
understandings. The Registration Act requires that such transfer
must be through a registered instrument, if it creates or transfers




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rights in immovable property above the prescribed value.
Registration is gives legal sanctity to the transaction. It provides
public notice. It protects third parties. It prevents disputes about
title. Once a document is registered, it becomes enforceable not
only between the parties but also against others. In contrast, a
private agreement, not registered, may create certain personal
obligations between the parties to that agreement. However, it
does not, by itself, complete the transfer of ownership in the eye of
law.

15.    In the context of a co operative housing society, this
distinction becomes crucial. When a flat is transferred, what is
transferred is not merely the physical possession of the premises.
The transfer affects the proprietary interest attached to the shares
of the society. It affects the rights and obligations within the
collective body of members. Therefore, if the proprietary interest
has not been validly conveyed through a registered document, the
society cannot be compelled to treat the transferee as a lawful
successor to the member. Mere execution of a unregistered
agreement between legal heirs and a third party cannot bind the
society, especially when the statutory framework prescribes a
different mode of transfer.

16.    The society, in the present case, took the stand that any
person seeking admission must first establish lawful entitlement.
That stand is in accordance with the scheme of the Act. A co
operative society functions on mutual confidence and legal
certainty. If membership were to be granted without proper
transfer of title, it would expose the society to competing claims,



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internal disputes, and possible litigation from other heirs or third
parties.

17.   The requirements insisted upon by the society, such as
production of a registered deed, death certificate of the deceased
member, indemnity bond, undertakings to abide by the bye laws,
payment of admission and transfer fees, and clearance of
outstanding dues, flow from the Act and the bye laws. They ensure
that the society records are accurate and that the incoming
member accepts the discipline of the society. The indemnity
protects the society from future claims by other heirs. The death
certificate confirms succession. The registered deed confirms
lawful transfer. Each requirement has a purpose.

18.   The revisional authority, however, did not examine the
consequence of the absence of a registered instrument. It did not
address whether, in the absence of such document, the respondent
could claim to have acquired legal title to the flat. It also did not
analyze how membership could be directed when the foundational
transfer itself was incomplete in law. The question of title goes to
the root of entitlement. If the respondent did not acquire lawful
title in accordance with the Registration Act and the MCS Act, the
direction to confer membership rests on unenforceable right.

19.   Possession alone does not automatically create title. The
society’s temporary dealings, or even knowledge of occupation,
cannot be treated as full acceptance of ownership when statutory
formalities are absent. The revisional authority treated the society’s
awareness of occupation as acceptance of ownership.                   A




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cooperative society holds property and manages membership by
rules. It can insist on compliance before admitting a transferee.
The society’s insistence on formalities is consistent with the
statutory scheme. Where occupation began without NOC and
without transfer formalities, the society was entitled to treat that
occupation as unauthorized.

20.   In Usha Arvind Dongre, the controversy before the Court was
of a different nature. The dispute arose out of an arbitration award
passed under the framework of the co operative law. The award
directed transfer of share certificates in a housing society. The
question that fell for consideration was whether such an
arbitration award, which directed transfer of shares, required
compulsory registration under the Registration Act before it could
be acted upon by the society.

21.   The Court examined the character of the award and the
nature of the right flowing from it. The emphasis was on whether
the award itself created or declared rights in immovable property
so as to attract the requirement of registration. The context was
confined to the implementation of an adjudicated award between
parties who were already regulated by the society. The Court was
not confronted with a situation where a third party, claiming
through an unregistered private agreement with legal heirs of a
deceased member, sought admission as a fresh member without
completing statutory formalities.

22.   It is important to bear this distinction in mind. In Usha
Arvind Dongre, the transfer of shares was in pursuance of a




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binding arbitral determination. The issue was limited to the legal
effect of that award and whether its enforcement demanded
registration. The Court was not examining the validity of a sale
transaction of a flat based on an unregistered agreement. Nor was
it concerned with unauthorized possession, non compliance with
bye laws, or the absence of succession formalities.

23.   Therefore, the ratio of that decision must be read in the light
of the issue actually decided. A precedent answers the specific
question that was raised before the Court. It cannot be extended to
situations which present additional legal issues and factual
differences. In the present matter, the foundation of the claim is an
unregistered agreement executed by legal heirs and not an
arbitration award. The legal consequences flowing from these two
situations are not identical.

24.   The revisional order dated 26 February 2013 is set aside. The
society’s resolution rejecting admission of respondent No.1 stands
confirmed.

25.   The writ petition is allowed. The petition is disposed of
accordingly. No order as to costs.


                                             (AMIT BORKAR, J.)




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