SMT. KRISHNA RAJPAL BHATIA & ORS.versusMISS LEELA H. ADVANI & ORS.

A
               SMT. KRISHNA RAJPAL BHATIA & ORS.
                                 v.
                    MISS LEELA H. ADVANI & ORS.

                            SEPTEMBER 19, 1988

B                     [A.P. SEN AND B.C. RAY, JJ.]

          Maharashtra Cooperative Societies Act, 1960--Section 91 Chal-
    lenging order of eviction from premises in dispute, under section 91-
    0n the grounds that the agreement between the parties was one of lease
    and not licence.
c        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 Oat. On a joint application by both the
   parties, the Society granted permission for his occupying the Oat on
   terms of leave and licence. The disputant later made a claim under s. 91
D 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 9 I. It was held that the parties stood in the jural
  relationship of landlord and tenant and the dispute did not touch upon
E 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 deci-
  sion 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
F owner members. On remand, the Judge, First Cooperative Court
  recorded a finding th'\t the Society was a tenant Co-partnership type of
  society and the disputant was only a tenant co-partner member. There-
  after 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
G him   to vacate and hand over possession of the Oat. He went in appeal
  before the Maharashtra State Co-operative Appellate Tribunal but
  without avail.

          Dismissing the appeal, the Court,

H         HELD: The agreement between the parties was embodied in the
                                         60
                      SMT. K.R. BHATIA v. MS. L.H. ADVANI                   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         A
      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
      that she could do under the terms of the bye-laws was to create a licence   B
      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      c
      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 Appel-
      late Court and the Judge of the First Cooperative Court rightly held her
      to be a tenant Co-partner member. The appellant's father having been        D
      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
      lease and not licence. [68G; 690-E]

           Sabharwal Brothers v. Smt. Guna Amrit Thandani, [1973] l SCR           E
      53 and Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, [1975]
      Suppl. SCR 270, distinguished.

           O.P. Bhatnagar v. Smt. Rukibai Narsindas, [1982] 3 SCR 681;
      Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative Hous-
      ing Society Ltd. & Ors., AIR 1962 Born. 154, I.R.; Hingorani v.             F
      Pravinchandra, (1966-67) Born. LR 306; Contessa Knit Wear v. Udyog
      Mandir Cooperative Housing Society, AIR (1980) Born. 374 and
      Bandra Green Park Co-operative Housing Society Ltd. & Anr. v. Mrs.
      Dayadasi Kalia & Ors., AIR 1982 Born. 428, referred to.

           CIVIL APPELLATE JURISDICTlON: Civil Appeal No. 1945                    G
      of 1984.

           From the Judgment and Order dated 16.12.1983 of the Bombay
      High Court in W.P. No. 4356 of 1983 .
..r         R. Karanjawala, Mrs. Manik Karanjawala and"Ejaz Maqbool               H
      for the Appellants.
     62         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

A        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 judg-
B ment 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
c;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 w.e.f. 1st August 1981.

D         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 mem~bcr, 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 agree-
    ment. Both the parties made a joint application for admission of the
E 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
    two further agreements and thereafter the period was further extended
    for 11 months by an endorsement. The late Smt. Devibai Advani by
Ji' 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, 1960 {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
G and that Rajpal Bhatia was in unauthorised occupation. Her claim for
    eviction was however resisted by Rajpal Bhatia inter alia on the
    ground that the transact10n 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,        \.
H Hotel & Lodging House Rates Control Act, 1947 (Bombay Rent Act
            SMT. K.R. BHATIA v. MS. L.H. ADVANI [SEN, J.]             63

for short). That objection of his was sustained by the Officer on           A
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. 91 of the Act.
                                                                        B
      Aggrieved, the disputant the late Smt. Devibai Advani carried
an appeal t0 the Maharashtra State Cooperative Appellate Tribunal.
The Tribunal by its judgment and order dated 8th February 1974
a,llowed 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 C
mixed type of society having both tenant co-partner members and
tenant owner members but since the disputant described herselt 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 D
society for letting the flat? Nor was there any necessity for Rajpal
Bhatia to seek admission as a nominal member which made him sub-
ject to the bye-laws of the society. According to the Tribunal, these
circumstances were more in consonance with the status of the dis-
putant 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 E
disputant and accordingly remitted the aforesaid issue for a decision
afresh. During the pendency 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 applica-
tion for transposition was ultimately allowed.
                                                                        F .
      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 G
September 1949 it was declared that Form 'B' was inapplicable and
therefore the mistake was rectified by a unanimously carried resolu-
tion 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 accord-
ingly Form 'A' was adopted and Form 'B' deleted. The modification in H
    64         SUPREME COURT REPORTS                 [1988) Supp. 3 S.C.R.

  the byelaws was approved by· a resolution carried at the General Body
A
  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 lO(a) pro tanto stood amended. Due to sheer
  inadvertence, however, byelaw lO(a) remained in the form it was
  framed and this has given rise to an endless argument before us. In the
B 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 JO(a) as origina)ly 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 lO(a) which
  made no reference to the admission of membership of any owner
C 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
D learned Judge by his order dated 8th September 1976 recorded a find-
  ing 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 1st July 1977 dismissed the revision as not pressed. Thereafter,
E 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
F s. Y J 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. Accord-
  ing, the learned Judge rendered an award directing the said Rajpal
G 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
H November 1978 intimating the Court that Form 'B' had been deleted
                   SMT. K.R. BHATIA v. MS ..L.H. ADVANI !SEN, J.l         65

        after the resolution passed at the Annuilt,_General Meeting held on 3rd A
        September 1949 and the amendment of th~ byelaws effected by order
        of the District Deputy Registrar dated 10th J~!Y 1950, and particularly
        in view of the fact that in the latest copy of ti\e bye-laws there is no
        reference to Form 'B ', the conclusion was inesdpable that the society
        is a tenant co-partnership housing society and Form 'B' as was origi-
 .>     nally appended to the byelaws was no longer ap_plicable. It observed B
        that in view of its earlier judgment in Appeal No. 236n8--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. Bhatnagat 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 68.J, it was no      c
        longer possible to contend that Shyam Cooperative Housing Society
        Limited was a tenant ownership housing society an.ct not a tenant co-
        partnership housing society. It further observed that in view of the
        decision of this Court in 0 .N. Bhatnagar's case, learned counsel
        appearing for the appellants conceded the legal position but contended D
        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 E
                    amended much later i.e., in the year 1976 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 1950 to the society
                    corresponding amendment was made on 25th December,
 ,.                 1974 and thereafter it was approved on 28th April, 1976. F
                    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 Copartnership type of society. More-
                    over, it has to be noted that the present appellant was
                    inducted in the said premises on 1st January, 1964, i.e. G
                   ·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 H
    66         SUPREME COURT REPORTS                [1988) Supp. 3 S.C.R.

               no other alternative but to hold that the society is not a
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 ques-
B   tion 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
c              from the society or from the builders are called as owner-
               ship 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 pur-
               chased the flat or he has contributed towards the cost of the
D               construction.''

  In the light of the principles laid down by this Court in Associated
  Hotels of India Ltd. v. R.N. Kapoor, [1960) 1 SCR 368 the Appellate
  Court further held on a consideration of the evidence adduced by the
  parties that the parties intended by the agreement to create a licence
B 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
F 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
o 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 admit-
  tedly 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
H is patently erroneous. Learned counsel very candidly accepted that he
                 SMT. K.R. BHATIA v. MS. L.H. ADVANI [SEN, J.I            67

     does not rely upon s. 15A of the Bombay Rent Act. That had to be so
     because in the first place his entire submission proceeds on the basis      A
     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 21st May 1969, there
     was no subsisting licence existing as on 1st February 1973 ands., 15A
     interms would be inapplicable. We are afraid, in· view of the decision      B
     of this Court in 0. 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 1st 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 tran_s-   c
       action 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 agree-
       ment for leave and licenc~ was merely a device to camouflage the real     D
       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          E
       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 adjudi-
       cate upon the dispute under s. 91 of the Act was barred bys. 28 of the    F
       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
                                                                                 G
      Societies Act, it was observed:

                 "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 mem-
                 bers. Now, the nature of business which a society carries on.   H
    68         SUPREME COURT REPORTS                  [ 1988] Supp. 3 S.C.R.

               has necessarily to be ascertained from the object for which
A              the society is constituted, and it logically follows that what-
               ever 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
B              the concern of the society formed with the object of provid-
               ing residential accommodation to its members, which nor-
               mally 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
c              possession of the premises for his own use after the termina-
               tion 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
D              dispute falling within the purview of s. 91( I) of the Act."

    In dealing with the inter-relation between the non-obstante clause in
    s. 91( 1) of the Act and that ins. 28 of the Rent Act, it was observed:

               "It seems to us that the two Acts can be best harmonised by
E              holding that in matters covered by the Rent Act, its provi-
               sions, rather the provisions of the Act, should apply. But
               where the parties admittedly do not stand in the jural rela-
               tionship of landlord and tenant, as here, the dispute would
               be governed bys. 91(1) of the Act. No doubt, the appellant
               acquired a right to occupy the flat as a licensee, by virtue of
F              his being a nominal member, but in the very nature of
               things, his rights were inchoate. In view of these considera-
               tions, we are of the opinio;- that the proceedings under
               s. 91( l) of the Act were not barred by the provisions of
               s. 28 of the Rent Act."

G       It is quite evident from the affidavit sworn by Atmaram Jhan-
  giani, 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. 8 where the flat in question is located. As
H already stated, while framing the bye-laws regulation in Form 'B' was
           SMT. K.R. BHATIA v. MS. L.H. ADVANI [SEN, J.]              69

by mistake adopted. This mistake was realised in 1949 and at the
                                                                             A
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 substitut-
ing 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        B
the society. That being so, bye-law JO( 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 lO(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 in law, nothing but a tenant co-partner member. It also
                                                                             c
appears from the certificate of registration issued by the Regist~ar,
Cooperative Societies that the society was classified as a tenant co-
partnership housing society. The erroneous description in bye
law-JO(a) of the society having tenant owner members came· to be
rectified when the said bye-law was replaced in 1974 by a new bye-law        D
 JO( a). ln view of the subsequent change brought about by the amend-
ment 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         E
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 findings
of fact based on appreciation of evidence recorded by the Courts
below. There is no reason for us to come to a contrary conclusion.           F

      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] l SCR 53 proceeds on the assumption that Smt.
Guna Amrit Thandani was an owner member. It appears that the true            G
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 be a tenant co-partner member. It follows
that the ultimate conclusion arrived at was based upon i!Jaccurate
facts. Be that as it may, a decision based upon a statement of inaccu-
rate facts which has no semblance of reality would not change the            H
      70          SUPREME COURT REPORTS                 [1988) Supp. 3 S.C.R.

      actual legal status of the society as a tenant co-partnership type of
i\ housing society, nor the classification made by the Registrar, Coopera-
      tive Societies in his certificate of incorporation issued by him, classify-
      ing 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
a     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 Brother's
      case is clearly distinguishable on facts. The contention of Shri Nariman
      that the society was a mixed type of society must therefore fail.

C:          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
D     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
If    sale of the aforesaid right to occupation of the flat. The only restric-
      tions under s. 29(2) of the Act 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
p     make the assignment invalid under the Act unlike in the case of a
      transfer being void under s. 47(3). Further, thats. 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
,C3   the right to occupation of a flat is property both attachable and sale-
      able, inasmuch as s. 60 of the Code of Civil Procedure, 1908 is not
      exhaustive as such. It also refers to any other saleable property, move-
      able or immoveable, 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 saleable. Specific
H     non-inclusion of a particular species of property under s. 60 is there-
               SMT. K.R. BHATIA v. MS. L.H. ADVANI [SEN, J.}             71

    fore not of any consequence if it is saleable otherwise. the decision in
                                                                               A
    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 Born. 154 brought out the true ·con-
    cept of a tenant co-partner housing at p. 157 in these words:              B

               "(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
                                                                               c
               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   D
               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) Born. LR 306;
    Contessa Knit Wear v. Udyog Mandir Cooperative Housing Society,            E
    AIR 1980 Born.' 374 and Bandra Green Park Co-operative Housing
    Society Ltd. & Anr. v. Mrs. Dayadasi Katia & Ors., AIR 1982 Born.
    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 princi-
    ples laid down by this Court in O.N. Bhatnagar's case.
~                                                                              F
          The result therefore is that the appeal must fail and is dismissed
    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. ' and 2 on or after 31st       G
    March 1989 and shall not in the meanwhile part with, assign or
    otherwise encumber the premises in any manner.

    S.L.                                                 Appeal dismissed.