PETITIONER:
SMT. KRISHNA RAJPAL BHATIA & ORS.
Vs.
RESPONDENT:
MISS LEELA H. ADVANI & ORS.
DATE OF JUDGMENT19/09/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1989 AIR 122 1988 SCR Supl. (3) 60
1989 SCC (1) 52 1988 SCALE (2)1276
CITATOR INFO :
D 1990 SC1563 (14,15)
ACT:
Maharashtra Cooperative Societies Acg 1960-Section 91
Challenging order of eviction from premises in dispute,
under section 91--On the grounds that the agreement between
the parties was one of lease and not licence.
HEADNOTE:
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 flat. On a
joint application by both the parties, the Society granted
permission for his occupying the flat on terms of leave and
licence. The disputant later made a claim under s. 91 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 91. It was held that the parties stood in the
jural relationship of landlord and tenant and the dispute
did not touch upon 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 decision 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 owner members. On remand, the Judge. first
Cooperative Court recorded a finding that the Society was a
tenant Co-partnership type of society and the disputant was
only a tenant Co-partner member. Thereafter 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 him to vacate and hand over possession of the
flat. He went in appeal before the Maharashtra State Co-
operative Appellate Tribunal but without avail.
Dismissing the appeal, the Court,
HELD: The agreement between the parties was embodied in
PG NO 60
PG NO 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 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 hat 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 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 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 Appellate Court
and the Judge of the First Cooperative Court rightly held
her o be a tenant Co-partner member. The appellant's father
having been 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 ease and
not licence. [68G; 69D-E]
Sabharwal Brothers v. Smt. Guna Amrit Thandani, [1973] I
SCR 53 and Ramesh Himmatlal Shah v. Harsukh Jadavji Joshi,
[1975] Suppl. SCR 270, distinguished.
O.P. Bhatnagar v. Smt. Rukibai Narsindas, [1982] 3 SCR
681; Dr. Manohar Ramchandra .Sarlare v. The Konkan Co-
operative Housing Society Ltd. & Ors., AIR 1962 Bom. 154,
I.R.; Hingorani v. Pravinchandra, (1966-67) Bom. LR 306;
Contessa Knit Wear v. Udyog Mandir Cooperative Housing
Society, AIR (1980) Bom. 374 and Bandra Green Park Co-
operative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia
JUDGMENT:
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1945 of
1984.
From the Judgment and Order dated 16.12.1983 of the
Bombay High Court in W.P No 4356 of 1983.
R. Karanjawala. Mrs. Manik Karanjawala and Ejaz Maqbool
for the Appellants.
PG NO 62
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 judgment 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
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. Ist August 1981.
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 member,
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 agreement. Both
the parties made a joint application for admission of the
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 further
agreements and thereafter the period was further extended 11
months by an endorsement. The late Smt. Devibai Advani by
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, 196() (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 and that Rajpal Bhatia was in unauthorised
occupation. Her claim for eviction was however register by
Rajpal Bhatia inter alia on the ground that the transaction
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, Hotel & Lodging House Rates Control
Act, 1947 (Bombay Rent Act for short). That objection of his
PG NO 63
was sustained by the Officer on 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. 9 1 of the Act.
Aggrieved, the disputant the late Smt. Devibai Advani
carried an appeal to the Maharashtra State Cooperative
Appellate Tribunal. The Tribunal by its judgment and order
dated 8th February 1974 allowed 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 mixed type of society having both tenant co-partner
members and tenant owner members but since the disputant
described herself 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
society for letting the flat? Nor was there any necessity
for Rajpal Bhatia to seek admission as a nominal member
which made him subject to the bye-laws of the society.
According to the Tribunal, these circumstances were more in
consonance with the status of the disputant 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
disputant and accordingly remitted the aforesaid issue for a
decision afresh. During the tendency 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 application for
transposition was ultimately allowed.
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
September 1949 it was declared that Form ‘B’ was
inapplicable and therefore the mistake was rectified by a
unanimously carried resolution 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
accordingly Form ‘A’ was adopted and Form ‘B’ deleted. The
PG NO 64
modification in the byelaws was approved by a resolution
carried at the General Body 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 10(a) pro tanto stood amended. Due to sheer
inadvertence, however, byelaw 10(a) remained in the form it
was framed and this has given rise to an endless argument
before us. In the 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 10(a) as
originally 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 10(a)
which made no reference to the admission of membership of
any owner 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 learned Judge by his order dated 8th
September 1976 recorded a finding 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 Ist July 1977 dismissed the revision as not
pressed. Thereafter, 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 s. 91 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. According, the learned Judge rendered an award
directing the said Rajpal 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 November 1978
intimating the Court that Form ‘B’ had been deleted after
PG NO 65
the resolution passed at the Annual General Meeting held on
3rd September 1949 and the amendment of the byelaws effected
by order of the District Deputy Registrar dated 10th July
1950, and particularly in view of the fact that in the
latest copy of the bye-laws there is no reference to Form
‘B’, the conclusion was inescapable that the society is a
tenant co-partnership housing society and Form ‘B’ as was
originally appended to the byelaws was no longer applicable.
It observed that in view of its earlier judgment in Appeal
No. 236/78–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. Bhatnagar 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 681, it was no longer possible to contend that Shyam
Cooperative Housing Society Limited was a tenant ownership
housing society and not a tenant co partnership housing
society. It further observed that in view of the decision of
this Court in O. N. Bhatnagar s case, learned counsel
appearing for the appellants conceded the legal position but
contended 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
amended much later i.e., in the year i976 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 195() to the society
corresponding amendment was made on 25th December, 1974 and
thereafter it was approved on 28th April, 1976. 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 Co partnership type of society. Moreover, it has to
be noted that the present appellant was inducted in the said
premises on 1st January, 1964, i e. 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 no other alternative but to hold
PG NO 66
that the society is not 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 question 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
from the society or from the builders are called as
ownership 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
purchased the flat or he has contributed towards the cost of
the construction.
In the light of the principles laid down by this Court
in Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] I
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 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 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 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 admittedly 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 is patently erroneous. Learned
counsel very candidly accepted that he does not rely upon s.
PG NO 67
15A of the Bombay Rent Act. That had to be so because in the
first place his entire submission proceeds on the basis 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
2Ist May 1969, there was no subsisting licence existing as
on 1st February 1973 and s. 15A interms would be
inapplicable. We are afraid, in view of the decision of this
Court in O.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 Ist 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 transaction 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 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 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 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 adjudicate upon the dispute
under s. 91 of the Act was barred by s. 28 of the 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 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
members. Now, the nature of business which a society carries
PG NO 68
on has necessarily to be ascertained from the object for
which the society is constituted, and it logically follows
that whatever 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 the concern of the society formed with the object of
providing residential accommodation to its members, which
normally 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 possession of the premises for his own use
after the termination 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 dispute falling within the
purview of s. 91(1) of the Act. ”
In dealing with the inter-relation between the non-
obstante clause in s. 91(1) of the Act and that in s. 28 of
the Rent Act, it was observed:
“It seems to us that the two Acts can be best harmonised
by holding that in matters covered by the Rent Act, its
provisions, rather the provisions of the Act, should apply.
But where the parties admittedly do not stand in the jural
relationship of landlord and tenant, as here. the dispute
would be governed by s. 91(1) of the Act. No doubt, the
appellant acquired a right to occupy the flat as a licensee,
by virtue of his being a nominal member, but in the very
nature of things, his rights were inchoate. In view of these
considerations, we are of the opinion that the proceedings
under s. 91(1) of the Act were not barred by the provisions
of s. 28 of the Rent Act.”
It is quite evident from the affidavit sworn by Atmaram
Jhangiani, 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.
X where the flat in question is located. As H already
stated, while framing the bye-laws regulation in Form ‘B’was
PG NO 69
by mistake adopted. This mistake was realised in 1949 and at
the 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 substituting 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 the society. That being so, bye-law 10(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
10(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
appears from the certificate of registration issued by the
Registrar, Cooperative Societies that the society was
classified as a tenant co partnership housing society. The
erroneous description in bye law-10(a) of the society having
tenant owner members came to be rectified when the said bye-
law was replaced in l974 by a new bye-law 10(a). 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 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 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 finding of fact based on appreciation of evidence
recorded by the Courts below. There is no reason for us to
come to a contrary conclusion.
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] I SCR
53 proceeds on the assumption that Smt. Guna Amrit Thandani
was an owner member. It appears that the true 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 he a tenant co-partner
member. It follows that the ultimate conclusion arrived at
was based upon inaccurate facts. Be that as it may, a
decision based upon a statement of inaccurate facts which
has no semblance of reality would not change the actual
PG NO 70
legal status of the society as a tenant co-partnership type
of housing society, nor the classification made by the
Registrar, Cooperative Societies in his certificate of
incorporation issued by him, classifying 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 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 Brothers case
is clearly distinguishable on facts. The contention of Shri
Nariman that the society was a mixed type of society must
therefore fail.
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 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 sale of the aforesaid right to occupation of
the flat. The only restrictions 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 make the assignment
invalid under the Act unlike in the case of a transfer being
void under s. 47(3). Further, that s. 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 the right
to occupation ot’ a flat is property both attachable and
sale able, inasmuch as s. 60 of the Code of Civil Procedure,
l908, is not exhaustive as such. It also refers to any other
sale able 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 sale able. Specific non-
inclusion of a particular species of property under s. 60 is
PG NO 71
therefore not of any consequence if it is sale able
otherwise. the decision in 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 Bom. 154 brought out
the true concept of a tenant co-partner housing at p. 157 in
these words:
“(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
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 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)
Bom. LR 306; Contessa Knit Wear v. Udyog Mandir Cooperative
Housing Society. AIR 1980 Bom. 374 and Bandra Green Park Co-
operative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia
& Ors. AIR 1982 Bom. 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 principles laid down by
this Court in O. N. Bhatnagar’s case .
The result therefore is that the appeal must fail and is
dismissed(l 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. i and 2 on or after
31st March 1989 and shall not in the meanwhile part with,
assign or otherwise encumber the premises in any manner.
S.L. Appeal dismissed.