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Determining the successor

Saturday, September 11, 2010

What is the procedure to get a flat transferred in the absence of a nomination? My father died last year and the society has been asking us to issue public notices in newspapers and complete a few other procedures before transferring the flat in my name. I am the only son and have a married sister who doesn’t have any objections to the flat being transferred in my name.
Rakesh Doshi

After the demise of any member of a society, his legal heirs can have the flat transferred in their name can submit relevant documents to the society in order to transfer the flat from the name of the deceased to the name of the heir.

Before beginning the procedure, the heirs should find out whether the deceased member has filed a nomination. In cases of no nominations, the applicant should issue a public notice in two local newspapers at his own expense. Only after doing so should applicants start the proceedings to transfer the flat in their name.

The applicant should submit the following documents to the society:
(a) Along with an entrance fee of Rs.100, an application for membership in the prescribed form;
(b) A certified true copy of the deceased member’s death certificate.
(c) The original share certificate.
(d) An undertaking from the applicant that he will use said flat only for the purpose for which it has been allotted and no further change of user will be made unless he procures a written permission by the managing committee.
(e) A declaration as prescribed by the Urban Land Ceiling and Regulations Act, 1976.
(f) An indemnity bond on Rs.200 stamp paper claiming to indemnify the Society and its office bearers against any claim/suit or other legal proceedings by any other lawful and equitable heir/heirs of the deceased member of the society.

However, a nominee of a property in a housing society does not automatically become the absolute owner of the property after the death of the original owner, the Bombay High Court had ruled in an important order.

Delivering the verdict in a legal battle that has dragged on for 29 years, Justice A P Deshpande said it would be the personal law of an individual that would determine the successor to the property; not the nomination under the Cooperative Societies Act.

“The Maharashtra Cooperative Societies Act (MCSA) does not provide for a special rule of succession altering the rule of succession laid down under the personal law,” the judge said citing two earlier judgements. The court held that a nominee did not become the ‘absolute owner’ and was empowered only to hold the “property in trust for the real owners, for the purpose of dealing with the society.” A nominee has to give way to legal heirs.

The Court’s judgement came in dispute over a 5,610 sq ft plot at Pune at the Nav Rajasthan Cooperative Housing Society in Pune bought by Shivram Satur who had named his wife Tarabai as nominee.

Tarabai tried to sell the property after his death but her four children sued her. Two sub-ordinate courts upheld the sale agreement saying Tarabai had become the sole owner of the property as a result of the nomination.
The HC however did not agree and said that her children also had a right over the plot as they were the legal heirs. The Hindu law says that in case there is no will at the time of the death of a man, the property is equally shared between the wife and the children. Muslims are governed by their personal laws.

Under the MCSA, on the death of a member the society can transfer the interest to a nominee or an heir or a legal representative. The HC also said that such a nominee does not become the only owner. The nominee represents the legal heirs of the deceased member while dealing with the cooperative society and is only empowered to act on behalf of the real owners. This is a temporary arrangement between the death of the member and till the court decides the legal heir who is entitled to the property or estate.

The HC judgement has been stayed for eight weeks on request from the developer who bought the property.

NOMINATION FACTS
• A society member can make a nomination, which can be revoked at any time.
• On the death of a member, the society transfers the shares to the nominee or the heir or the legal representative.
• In case no nominee is mentioned, the society puts out a public notice inviting claims.
• The nominee is in charge of the property only till the court decides who is entitled to the property as per the succession laws.

(Visit www.draftcraft.in for further information. Email your detailed queries complete with name and contact details to the columnist Gajanan Khergamker at and/or call 022-32010593 for personal intervention)
 

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