TaxTMI 
TaxTMI 
1989 (12) TMI 359
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.... between the petitioner and the respondent relating to the distribution of the estate of their deceased parents. 3. Under an agreement of reference dated 5th August, 1987 executed by both the parties the disputes were referred to the joint arbitration of Mr. M.K. Kotwal and Mr. S.K. Kotwal, both of them close relatives of the parties. The recital to the agreement of reference which is at Exhibit 'C' sets out that the property left by the deceased persons mainly consists of Flat No. G-3, in Sharda Ashram at Bhavani Shankar Road, Dadar, Bombay-28 some ornaments, shares, fixed deposits of companies and bank accounts. Under the terms of the agreement of reference the arbitrators were inter alia, required to ascertain the estate belonging to both the deceased persons and divide that same as suitably and conveniently as possible between the parties in equal shares in such manner as the arbitrators think fit. 4. The statements of claim were filed by both the parties as also replies to each other's claims. By an award dated 30th June, 1988 the arbitrators have given detailed direction relating to the division of the estate. They have inter alia declared and directed that the ....
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.... instruction which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, of the value of one hundred rupees and upwards, to or in immovable property requires compulsory registration as provided in the Registration Act. The petitioner contends that the present award declares an interest in Flat No. G-3, Dadar Co-operative Housing Society, Bhavani Shankar Road, Dadar and/or it confers the ownership of this flat on the respondent and extinguishes the petitioner's right therein on payment of ₹ 1,50,000/- as set out in the award. Hence it is covered by section 17(1)(b) of the Registration Act. See in this connection Ratan Lal Sharma v. Purshottam Marit. 7. In order to examine this contention it is necessary to look at the nature of right which the deceased persons had in the flat. The land and the building in which this flat is situated belong to the Dadar Co-operative Housing Society Ltd. this is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. It is a tenant co-partnership housing society. The land and the building belong to the Society. The flats ....
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....e or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (c) to any endorsement upon, or transfer of, any debentures issued by any society. The arbitration pertains to shares in the said society and the award gives a declaration in respect of these shares. Therefore section 17(1)(b) does not apply to such an award. 10. In the case of Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, the Supreme Court has held that a flat in a tenant co-partnership housing society under the Maharashtra Co-operative Societies Act can be attached and sold in execution of a decree against the allottee. This judgment however, does not deal with the question whether an interest in such a flat can be considered as an interest in immovable property which requires registration under section 17 of the Registration Act. In fact the Supreme Court has pointed out that the attachment and sale in such a case is only of the right to occupy the flat and of the right to obtain a transfer of shares. It has been observed that it will be for the auction purchaser first to obtain membership of the society and that the Court, before confirm....
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....Court has held that such a transfer of shares by one person to another can be brought about without a registered instrument because section 42 (a) carves out an exception to the Rule enunciated in sub-section (1) of section 17 of the Registration Act. 13. In the present case therefore the award which deals with transfer of shares in the said flat in a Tenant Co-partnership Society does not require registration under section 17(1)(b) of the Registration Act. 14. Mr. Desai has drawn my attention to the decision of the Supreme Court in the case of Lachhmandas v. Ram Lal and anr., in which the Supreme Court has said that where a party to an arbitration proceeding claims that half share in the disputed immoveable property is held by the opposite party as benamidar for him and that he is the real owner of the entire property and the arbitrator passes an award accordingly, the award does create, declare or assign a right, title and interest in the immoveable property. Section 17 requires registration in such a case if the value of the immoveable property is ₹ 100/- or upwards. He also relied upon a decision of the Supreme Court in the case of Capt. (now Major) Ashok Kashyap v. Mrs....