The ownership of immovable property must be proved through registered documents, and unregistered documents cannot be relied upon to establish ownership.

1. This Notice of Motion is taken out by the applicant, who is the father of the award debtors/respondents, to raise the attachment levied upon flat No.57 in Mantri Corner, Sayani Road, Mumbai-400 026. The attachment has been levied upon the property of the award debtors where they reside. The applicant would claim that though the award debtors reside there, he is the sole owner of the attached property. It does not belong to the award debtors and hence the attachment must be raised.

2. In para2 of the affidavit-in-support of the Notice of Motion the applicant has stated that he resides in the attached premises for the last many years as the member of the society. The society has issued share certificate No.29 in respect of the distinctive shares bearing Nos.141 to 145 which stand in his name. He also claims to be paying the maintenance for the attached flat and has relied upon other documents to show his possession. In para5 of the affidavit-in-support he has claimed to be an exclusive owner of the attached premises. In para6 he has stated that the premises belong to him and the respondents/award debtors have no rights in the said premises.

3. To show that the applicant is the member of Mantri Corner society, the applicant has produced original share certificate issued by the society initially in the name of Smt. Lilavati D. Naik who is the mother of the applicant. The applicant has been shown as an associate member. After the death of his mother he has been transferred the share certificate. This document, therefore, would evidence the membership of the applicant. Mr. Kanade contended that under Section 41 of the Cooperative Societies Act, 1961 a share certificate is not registrable. Section 41 exempts the compulsory registration of instrument relating to shares and debentures of the society. Under Section 41(a) an instrument relating to the shares of the society is, therefore, not registrable. Consequently his contention that the share certificate evidencing the allotment of shares in the society is not registrable would stand to reason. Indeed a share certificate does not contemplate a transfer of an immovable property worth Rs.100/or more and, therefore, is not registrable even under Section 17 of the Registration Act, 1908.

4. Mr. Kanade relied upon the case of Usha Arvind Dongre Vs. Suresh Raghunath Kotwal 1990(3) Bom. C. R. 389 in which the learned single Judge of this Court, as she then was, considered the case of a tenant copartnership housing society which is the kind of society in which the applicant has been allotted shares and which has issued the share certificate to the applicant. Para7 of the judgment shows that the land and the building belong to the society. The flats are allotted for occupation to the members of the society. Consequently simplicitor upon the share certificate showing the allotment of shares by the society which owns the immovable property, the applicant cannot raise the attachment. The applicant can only show the shares allotted to him for occupation as a member of the society.

It has been held in para10 of the judgment relying upon the Supreme Court's judgment in the case of Ramesh Himmatlal Shah Vs. Harsukh Jadhavji Joshi AIR 1975 SC 1470, that a flat in a tenant co-partnership housing society is attachable and saleable in execution of the decree against the allottee and hence the purchaser must obtain the membership of the society before confirmation of the sale. That judgment also does not show how the ownership can be claimed by a member of the tenant co-partnership society and how it can be claimed on an unregistered agreement. Hence the membership of the applicant in the housing society would not entitle the applicant to raise the attachment that is levied.

5. The applicant must show his title if the applicant claims that the attached property belongs to the applicant and he is the owner of the attached property. If he shows his title, he would be entitled to raise the attachmen