Full Judgment Text
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PETITIONER:
RAMESH HIMMATLAL SHAH
Vs.
RESPONDENT:
HARSUKH JADHAVJI JOSHI
DATE OF JUDGMENT25/04/1975
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
ALAGIRISWAMI, A.
BHAGWATI, P.N.
CITATION:
1975 AIR 1470 1975 SCR 270
1975 SCC (2) 105
CITATOR INFO :
D 1989 SC 122 (12)
R 1990 SC1563 (13)
ACT:
Maharashtra Co-operative Societies Act, 1960 Sections
29,31,47 and 146(a), 1961, Rule 24 and Bye-Laws 9 and 71-D
right of a judgment-debtor to occupy a flat owned by a
housing society, if liable to attachment and sale in
execution of a decree against him.
Code of Civil Procedure, Section 60-Right to occupy a flat
owned by a co-operative housing society, if a species of
property.
HEADNOTE:
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 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 J. Joshi took out a chamber
summons challenging the execution oil 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 his
claim to the property. After coming out of the jail, the
judgment-debtor filed a suit some time in 1972 to set aside
the decree. He, however, could not secure an order for
injunction to prevent the execution of the decree and the
suit is pending. The flat was offered for sale and was
purchased in auction by one Bhupendra N. Shah for a sum of
Rs. 34,000/-. The sale, however, is not yet confirmed.
Subsequently a new plea was taken by the judgment-debtor.
This time he filed a chamber summons on March 28, 1972,
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praying for the dismissal of the execution petition filed by
the decree-holder and for setting aside the warrant of
attachment and proclamation of sale on the ground that the
flat being a flat in a cooperative housing society was not
liable to attachment and sale. It was also stated that he
had not saleable interest in the said property under section
60, Civil Procedure Code, and therefore, it was not liable
to attachment. The Judge, City Civil Court, Bombay,
dismissed the chamber summons. The learned single Judge,
Bombay High Court, however, in appeal allowed the claim and
made the summons absolute by directing that the attachment
and sale of the flat being illegal be set aside. The
appellant preferred a Letters Patent Appeal before the
Bombay High Court without success and the decision of the
learned single Judge was affirmed. Hence this appeal by
special leave.
It was contended for the appellant that 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. The respondent contended that section 31 of the
Maharashtra Co-operative Societies Act, 1960, completely
bars attachment and sale of the flat in question in
execution of the decree. It was also contended for the
respondent that section 60, Civil Procedure Code, does not
specify that this species of property is liable to
attachment.
Allowing the appeal,
HELD : (i) While section 29(2) refers to transfer of a
member’s share or his interest in the capital or property of
any society, section 31 in contrast speaks of "the share or
interest of a member in the 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. [278D-E]
(ii) The right or interest to occupy is a species of
property. There is
271
nothing in the language of section 31 to indicate that the
right to occupation which :is the right to be sold in
auction is not attachable in execution of the decree. There
is nothing in section 31 to even remotely include a
prohibition against attachment or sale of the aforesaid
right to occupation of the flats. The only restrictions
under section 29(2) 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. It is true that bye-law 71D says that a member to
whom a tenement is allowed shall not assign or underlet,
vacate or part with the possession of the tenement or any
part thereof without the previous consent in writing of the
Managing Committee, but there is nothing to show that
contravention of this bye-law makes the assignment void
under the Act unlike in the case of a transfer being void
under section 47(3). Section 29 read with rule 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 consent. to
be a member and makes an application for membership by
purchasing five shares as provided under bye-law 9. There is
no reason to think that there is any question of refusal of
membership of the Society to a non-member if he’ is
qualified otherwise and makes an appropriate application in
which cast the transfer of shares will be operative and thus
the assignment of the right to occupation will hold good.
[278F-H, 279-B]
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(iii)Section 60 of the Civil Procedure Code is not
exhaustive as such. It also refers 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. 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. [280-F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1539 of
1974.
Appeal by special leave from the Judgment and Order of the
High Court of Bombay in LPA No. 80 of 1972.
B.R. Zaiwala, D. R. Zaiwala, K. J. John and J. B.
Dadachanji, for the Appellant.
P. K. Chatterjee and D. P. Mukherjee, for the Respondent.
G. L. Sanghi and H. K. Puri, for Shri Suryakant N. Gangani
(Purchaser)
The Judgment of the Court was delivered by
GOSWAMI, J.-This appeal in forma pauperis rainses an impor-
tant question of law : Is a flat in a tenant co-partnership
housing society under the Maharashtra Cooperative Societies
Act, 1960 liable to attachment and sale in execution of a
decree against a member in whose favour 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
272
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 his claim to the property. After
coming out of the jail, the judgment-debtor filed a suit
some time in 1972 to set aside the decree. He, however,
could not secure an order for injunction to prevent the
execution of the decree and the suit is pending. The flat
was offered for sale and was purchased in auction by one
Bhupendra N. Shah for a sum. of Rs. 24,000. The sale,
however, is not yet confirmed. Subsequently a new plea was
taken by the judgment-debtor. This time he filed a chamber
summons on March 28, 1972, praying for the dismissal. of the
execution petition filed by the decree-holder and for
setting aside the warrant of attachment and proclamation of
sale on the ground that the flat being a flat in a
cooperative housing society was not liable to attachment
and sale. It was also stated that be had no saleable
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interest in the said property under section 60, Civil Pro-
cedure Code, and therefore, it was not liable to attachment.
The Judge, City Civil Court, Bombay, dismissed the chamber
summons. The learned single Judge, Bombay High Court,
however, in appeal allowed the claim and made the summons
absolute by directing that the attachment and sale of the
flat being illegal be set ,aside. The appellant preferred a
Letters Patent Appeal before the Bombay High Court without
success and the decision of the learned single Judge was
affirmed. Hence this appeal by special leave.
The flat in question is admittedly owned by the Paresh
Cooperative Housing Society Limited (briefly the Society).
Originally ’this flat stood in the name of one Ramesh
Hariram Chande and his wife. It is not disputed before us
and it has been so held by the court in the claim case by
the judgment-debtor’s brother that the respondent purchased
the flat benami in the name of his brother Hasmukh and his
wife Shashikala. Although, therefore, the respondent is not
t registered holder of the flat, it is clear that the flat
is held by his brother and his wife on behalf of the
respondent. This is to be, noted as section 60, Civil
Procedure Code, reaches a benami holding., It may also be
noted that the respondent is now fighting the case on the
basis that the right to occupy the flat in question is his
property which is not liable to attachment and sale.
We should also note here that after the High Court
invalidated the attachment and sale, the flat was purchased
by one Suryakant N. Sangani (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.
273
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 Societies ACt,
1960 (briefly- the Act),. The Maharashtra Cooperative
Societies Rules, 1961 (briefly described as the Rules) and
the Bye-laws of the Society. The Act was passed in the year
1961 to consolidate and amend the law relating to
cooperative societies in the state of Maharashtra.
Section 2 of the Act contains the definitions. By section
2(5) ’by-laws’ means by-laws registered under this Act and
for the time being in force, and includes registered
amendments of such by-laws". By section 2(11) "dividend"
means the amount paid, out of the profits of a society, to a
member in proportion to the shares held by him. By section
2(16)... housing society’ means a society the object of
which is providing its members with dwelling houses". By
section 2(9) "’member’ means a person joining in an
application for the registration of a cooperative society
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which is subsequently registered, or a person duly admitted
to membership of a society after registration, and includes
a nominal, associate or sympathiser member". By section 2
(1) (b) "’associate member’ means a member who holds jointly
a share of a society with others, but whose name does not
stand first in the share certificate". By section 2(1) (c)
" ’nominal member’ means a person admitted to membership as
such after registration in accordance with the by-law". By
section 2(21) " ’prescribed’ means prescribed by rules". By
section 2(31) "’working capital’ means funds at the disposal
of a society inclusive of paid up share capital, funds built
out of profits, and money raised by borrowing and by other
means."
By section 4 "a society, which has as its objects the
promotion of the economic interests or general welfare of
its members, or of the public, in accordance with
cooperative principles, or a society established with the
object of facilitating the operations of any such society,
may be registered under this Act.
Provided that, no society shall be registered if it is
likely to be economically unsound, or the registration of
which may have all adverse effect on development of the
cooperative movement".
274
Chapter III of the Act deals with members and their rights
and liabilities. Section 22 with which this chapter opens
provides how a person may become a member. For example by
section 22(1A) subject to the provisions of section 24, an
individual competent to 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(1). "Subject to the provisions of the last
preceding section as to the maximum holding of
shares and to any rules made in this behalf, a
transfer of, or charge on, the share or
interest of a member in the share capital of a
society shall be subject to such conditions as
may be prescribed.
(2) A, member shall not transfer any share
held by him or his interest in the capital or
property of any society, or any part thereof,
unless
(a) he has held such share or interest for
not less than one year ;
(b) the transfer is made to a member of the
society or to a person whose application for
membership ,has been accepted".
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Section 31 may also be set out :-
"The share or interest of a member in the
capital of a society, or in the loan-stock
issued by a housing society, or in the funds
raised by a society from its members by way of
savings deposit, shall not be liable to
attachment or sale under any decree or order
of a Court for or in respect of any debt or
liability incurred by the member ; and
accordingly, neither the Official Assignee
under the Presidency-towns Insolvency Act,
1909, nor a Receiver under the Provincial
Insolvency Act, 1920, nor any such person or
authority under any corresponding law for the
time being in force, shall be entitled to, or
have any claim on, such share or interests."
275
Section 47 so far as material for our purpose
may be quoted
47(1). "Notwithstanding anything in any other
law for the time being in force, but subject
to any prior claim of Government in respect of
land revenue or any money recoverable as land
revenue and to the provisions of section 60
and 61 of the Code of Civil Procedure, 1908.
(b) any outstanding demands or dues
payable to a society by any member or past
member or deceased member, in respect of rent,
shares, loans or purchase money or any other
rights or amounts payable to such society,
shall be a first charge upon his interest in
the immovable property of the society".
(2) No property or interest in property,
which is subject to a charge under the
foregoing sub-section,. shall be transferred
in any manner without the previous permission
of the society; and such transfer shall be
subject to such conditions, if any, as the
society may impose.
(3) Any transfer made in contravention of
subsection
(2) shall be void".
Section 165 contains the rule making powers. The last
section 167 provides that "for 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
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involve forfeiture of shares held by the member.
We may now notice some of the material Bye-
laws of the Society.
276
Bye-law 6. "All persons permanently
residing in Bombay city and suburban area and
who have signed the application for
registration, are original members. Other
members may be admitted by the General Body.
Every person on applying for membership shall
deposit Re. 1 as entrance fee and the value of
at least five shares for which he shall
receive a copy of the Bye-laws. In case where
an application is refused, the deposit shall
ordinarily be returned".
6(1). "The General Body may admit any new
members other than the promoters subject to
the applicants satisfying the qualifications
for membership as prescribed under the bye-
laws".
(2) "The General Body shall not admit
members exceeding the number of tenements or
plots available for allotment".
(3) The General Body alone shall be
competent to allot tenements to the members on
the basis of policy framed by it for such
allotment".
7(a). "A person may be admitted as a nominal
member on payment of Re. 1 only as entrance
fee for the purposes of occupying a
shop/godown/garage in the society. A nominal
member shall not exercise any right of
membership or receive any a vantage, or
benefit or dividend, etc."
7(b). "A subletee, a licencee or a caretaker
may also be admitted as a nominal member of
the Society on payment of Re. 1 as entrance
fee. Such member shall not exercise any right
of membership or receive any advantage or
benefit or dividend, etc.".
8(a). "No person shall be admitted as a
member of the Society who already owns a
house, a plot or a flat in Bombay city and
suburban area, in his own name or in the name
of any of his dependents or of his family
members, such as wife/husband, children, etc.
and whose need of a house, a plot or a flat in
the opinion of the General Body are not
considered pressing or deserving........
10. "No person shall exercise, the rights of
a member of the Society until he is ’admitted
as such as laid down in Bye-law No. 6 and
holds not less than five fully paid shares in
the Society and his name has been entered in
the Register of Members".
Chapter VII of the Bye-laws provides for transmission of
interests. Bye-law 14 contains how a nomination has to be
made, how ’a member may nominate a person to whom his share
or interest in the society or so much thereof as is
specified in such nomination
277
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
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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
over to the society for using the same in such
manner as it may consider best".
71B. "The society may offer the dwelling
house/tenements or flats falling vacant in its
possession in terms of the provisions of bye-
law No. 71(A) above, to any person in its
discretion for temporary occupation for the
period indicated by the original allottee on
such clear understanding provided that:
(i) It shall give preference to such person
as has already been enrolled as member of the
society in terms of the provisions in bye-law
but who could not be allotted a dwelling
house/tenement or flat by it;
(ii) It shall enroll the person to whom the
dwelling house/tenement or flat is proposed to
be allotted as a nominal member if he is not
already a member of the society.
(iii)The payments received for such temporary
occupation shall be credited to the account of
the original allottee and be apportioned
towards satisfaction of the dues and the
demands of the society outstanding against him
under these Bye-laws and the tenancy
regulations.
71D. "A member to whom a tenement is allotted
shall occupy it himself and shall not assign,
underlet, vacate or part with the possession
of the tenement any,part thereof without the
previous consent in writing of the Managing
Committee."
278
72. "No dwelling house offered on lease
shall be taken by persons who are not members
of the Society unless no member is willing to
take it".
Form A to the Bye-laws contains "regulations relating to;
tenancies to be granted by the Society to members in respect
of houses held by the Society".
From a review of the foregoing provisions the position with
reference to the particular Society is as follows
There is no absolute prohibition in the Act or in the Rules
Or in the Bye-laws prohibiting transfer of interest of a
member in the property belonging to the Society. The only
transfer which is void under the Act is one made in
contravention of sub-section (2) of section 47 [see section
47(3)]. We have not been able to find any other provision
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anywhere to the same effect. In the scheme of the
provisions a dichotomy is seen between share or interest in
the capital and interest in property of the Society. While
section 29(2) refers to transfer of a member’s share or his
interest in the capital or property of any society, section
31 in contrast speaks of "the. share or interest of a member
in the 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 the right to occupation which is the right to be sold
in auction is not attachable in execution of the decree.
There is nothing in section 31 to even remotely include a
prohibition against attachment or sale of the aforesaid
right to occupation of the flat. Once section 31 is out of
the way, we am left with section 29 wherein we do not find
even a provision of prior consent for transfer of share or
interest in such property. The only restrictions under
section 29(2) 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. It is true that bye-law 71D says that a member to
whom a tenement is allotted shall not assign or underlet,
vacate or part with the possession of the tenement or any
part thereof without the previous consent in
279
writing of the Managing Committee but there is nothing to
show that contravention of this bye-law makes the assignment
void under the Act unlike in the case of a transfer being
void under section 47(3). There is no impediment to
ratification of the assignment by the Committee particularly
in view of the legal position arising out of the conjoint
effect of section 29, rule 24 and bye-law 9. Section 29 read
with rule 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. Reading the aforesaid provisions
there is no reason to think that there is any question of
refusal of membership of the Society to a non-member if he
is qualified otherwise and makes an appropriate application
in which case the transfer of shares will be operative and
thus the assignment of the right to occupation will hold
good. Further it is significant that under section 146(a)
of the Act, contravention of sub-section (2) of section 47
is punishable under section 147 of the Act. Contravention
of any bye-law is, however, ;no offence. We, therefore,
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unhesitatingly come to the conclusion that this species of
property, namely the right to occupy a flat of this type,
assumes significant importance and acquires under the law a
stamp of transferability, in furtherance of the interest of
commerce. We have seen no fetter under 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 as contra-distinguished
from personal houses has been ’in vogue in England as well
as in the European Continent. Ownership rights ’over
separate parts of a building are mentioned in Coke on
Littleton and such "super-imposed free holds" have existed
in England in various places for a long time (see
International and Comparative Law Quarterly Volume VII
January 1958, pages 36-37).
With regard to a flat-owners’s right to dispose of his
rights, it is pointed out that "the flat owner may, in the
words of a leading French Commentator" "sell, donate, leave
by will, let or hypothecate" his right. The rights are
regulated by statutes in the Continent. The
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280
German Statute, for example, allows the flat owner’s right
to dispose of his property to be made subject to the consent
of other flat owners, out such consent may be refused only
"for a very important reason," Article 12(1), (2)] and the
statute gives the aggrieved flat-owner easy access to the
court if a violation of this provision is alleged (see ibid
page 39). Thus the trend is towards recognition of these
rights.
Now that attachment and sale have been held to be valid, it
will be for the auction-purchaser first to obtain
membership- of the society and the court before confirmation
of the sale will insist upon his membership of the society
which, it would not be unreasonable to assume, will be
granted by the Society in the ordinary course unless there
are cogent and relevant reasons for not doing so. The fact
that at the time of auction-sale the purchaser was not a
member of the Society would not in law affect the
saleability or prior attachment of the property in execution
of the valid decree.
The judgment-debtor has a valid decree against him.
Ordinarily he has to discharge Ms liability under the
decree,.. He can pay the decretal amount straightaway or
suffer his property to be attached: and sold in execution of
the decree. As an honest debtor the liability under the
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decree has to be discharged. Here the Society is not-.
objecting to the attachment and sale of the property, but
the judgment debtor is. We have seen there is no absolute
prohibition against transfer of a right to occupation of the
flat or even to transfer a share. The auction-purchaser is
presumed to know the limitations under which he has
purchased the right to occupy the flat in court auction. If
ultimately the 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 will be payable by, the appellant.
We record our appreciation of the assistance rendered by Mr.
Chatterjee as amicus curiae and also by Mr. Zaiwala,
counsel for the appellant.
V.M.K. Appeal allowed.
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