MULSHANKER KUNVERJI GOR Vs. JUVANSINHJI SHIVUBHA JADEJA

JUDGEMENT

(1.) In order to appreciate the question which has been referred to the Full Bench it is necessary to state a few facts. Plot NO. 8 was allotted by Santosh Co-operative Housing Society to one Girish Morarji Mehta. The society constructed houses and the house constructed on plot No. 8 was allotted by the society to Girish. On 16th December 1965 Girish applied to the society for transfer of his shares to Juvansinh Shivubha Jadeja the plaintiff. The society accepted the transfer of the shares and admitted Juvansinh Shivubha Jadeja to its membership. When Girish was occupying the house in question he had let it out to the defendants. Upon transfer of shares by Girish to Juvansinh the plaintiff the latter claimed to recover from the defendants rent in respect of the suit premises. The defendants did not accept Juvansinhs title as a result of which rent remained unpaid from 1st January 1965 to 31st October 1967 Notice of demand was served upon the defendants Rent also remained in arrears thereafter. Thereupon the plaintiff filed against the defenddants the present suit for recovery of possession of the suit premises on the ground of arrears of rent and also claimed decree in respect of arrears of rent. The learned trial Judge upheld the defence raised by the defendants and dismissed the suit. The plaintiff appealed to the District Court. The learned Appellate Judge reversed the finding recorded by the learned trial Judge allowed the appeal set aside the decree of dismissal passed by the learned trial Judge and passed in favour of the plaintiff decree for possession. It is that decree which is challenged by defendants in this Civil Revision Application.

(2.) This Civil Revision Application was in the first instance placed before me It appeared that it raised an important question as to the validity of transfer of the suit premises from Girish to the plaintiff. It was therefore referred to a Division Bench. It came up before the Division Bench consitting of my learned Brother A. N. Surti and M. K. Shah JJ who felt that the question which the civil revision application raised was a question of considerable importance affecting a fairly good section of our society. Therefore they referred to the Full Bench the following question

(3.) It is not in dispute that Girish was the original allottee from Santosh Co-operative Housing Society Ltd. of the super-structure standing on plot No. 8 and that Girish in his turn had transferred his shares in the society along with the suit premises to the plaintiff with the approval of the society. It is not in dispute before us that this transaction was not effected by a registered instrument such as one contemplated by sec. 54 of the Transfer of Property Act. Obviously therefore the provisions of sec. 17 of the Registration Act 1908 were not satisfied. The question therefore which we are required to answer is whether an immovable property allotted by a co-operative housing society to its member can be transferred by the member with the approval of the society to another person without registered instrument of transfer. In order to examine the contention which has been raised before us it is necessary to refer to certain provisions of the Gujarat Co-operative Societies Act 1961 Sec. 30 specifies restrictions on transfer of shares or interest. It provides as follows: