Can Society transfer the Share Certificate in the name of the nominee in spite of objections from legal heirs?
By Advocate Sanjeev Kanchan
I would like to deal with the above query in detail, since similar problems are faced in many co-operative societies.
For instance, a person has been nominated as a legal nominee by the deceased member in the records of a co-operative housing society. The said deceased husband died in Mumbai in 1999, leaving behind him his wife and his two adult sons. The sons have filed their objection with the society and requested them not to transfer the share certificate in the name of their mother, although she is the nominee of the flat as per the records of the society.
Section 30 of the Maharashtra Co-operative Societies Act 1960 deals with the provision of transfer of interest which is as under :-
Section 30(1) : On the death of a member of a Society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules. Or if no person has been so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member.
Provided that such nominee, heir or legal representative, as the case may be duly admitted as a member of the Society.
All transfer and payments duly made by a society in accordance with the provisions of Section 30(4) shall be valid and effectual against any demand made upon the society by any other person.
Rule 25, for the purpose of transfer of his share or interest under sub-section (1) of Section 30, a member of a Society may by a document signed by him, or by making a statement in any book kept for the purpose by the society, nominate any person or persons. Where the nomination is made by document, such document shall be deposited with the society during the members life-time and, where the nomination is made by statement it shall be signed by the member and attested by one witness.
Rule 25 Section 3
(i) Where a member of a society has not made any nomination, the society shall on the member’s death by a public notice exhibited at the office of the society, invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice.
(ii) After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as committee considers proper in the circumstances prevailing, the committee shall decide as to the person who in its opinion is the heir or the Legal Representatives of the deceased member and proceed to take action under Section 30.
However, what is important is the section and not the rules and bye- laws in as much as the rules and bye laws cannot provide everything contrary to the section. It is very clear on the plain reading of the section that the intention and purpose of Section 30 of the Maharashtra Co-operative Societies Act is to provide for who has to deal with the society on the death of a member and not to create a new rule of succession. The purpose of the nomination to make certain that the person with whom the society has to deal on the death of a member. The society has to deal with the legal nominee who has been nominated by the deceased member on the records of the society. The purpose of this section is to avoid confusion in case there are dispute between the heirs and legal representatives and to avoid uncertainties as to with whom the society should deal to get proper discharge. The society is not concerned with any kinds of dispute raised by any person whosoever, so for the transfer of membership of deceased member to his nominee is concerned. Nevertheless all the persons entitled to the estate of the deceased as per succession law applicable to them do not lose their right to the same, even after transfer of the shares in the name of the deceased member.
It is pertinent to note that transfer of any property including share of the society is not governed by the ordinary law but by the provisions of the Maharashtra Co-operative Societies Act, and the rules and bye-laws framed by the Society. However, the right of society to admit a person of its choice as a member cannot be exercised arbitrarily and so as to deprive person of his/her right to the shares or property of a deceased member. The law does not give a right to the society to refuse membership to a person who is entitled to become a member. To repeat, a society has the right to admit a nominee of a deceased member of an heir or legal representative of deceased member as chosen by the society as a member. A member of the society will have to obtain relief in the normal court against such person and have his rights ascertained and declared, and thereafter apply to the society on the basis of the Court Judgement to make him a member of the society.
Whether nomination is will
From the requirements for making a nomination, one may feel that nomination is Will. But is reality the Nomination is not a Will. Will as nomination filed in accordance with the provisions of rule and bye laws in the prescribed form and general intention (which is must in the Will) is not to provide for succession after death of a member.
Status of a Nominee
The provisions of nomination is found in various Acts, for example, L.I.C., Provident Fund, Gratuity, but the nomination does not create any title or interest in favour of the nominee. In a recent case under the Insurance Act, the Supreme Court in SMT SARBATI DEVI versus SMT USHA DEVI reported in A.I.R. 1984 SC, 346 held that it does not confer any beneficial interest in the nominee and the other heirs can claim the amount in accordance with the law of succession governing them. Therefore as a principal as can very well say that nominee is mere trustee with whom society can initially or prima facie deal with and after the death of a member, all the heirs of the deceased member will have a right of succession to the property, and the nominee cannot exclude other heirs. In other words the provisions of ordinary succession law will not be affected by nomination.
In view of aforesaid facts and the judgement, it is simply clear that the society will have to transfer the shares in the name of the nominee, irrespective of any objection being raised by any other person unless and until the aid objections obtain relief in the normal court against the nominee and society. In my opinion the society has no alternative except to transfer the shares in the name of the nominee.
my mom owns a collector’s land in Mumbai. she passed away without a will. she had filled up a nomination form and given my siste as a nominee.
but it was never acknowledged by the HOn secretary.
what is the procedure to transfer the share certificate on my sister;name ? can she own this collector’s land?? what is the procedure eventually she wants to sell the property
The nomination forms are usually filled in triplate. If the Sec. of the society has not acknowledged the form submitted to him, then submit one of the other two forms which you have with you. before doing that, however, ensure that you would have photocopied the form, had it attested and notorized. If the sec still is creating a problem, send an advocates notice.
is no objection certificate required by the daughter to transfer the flat to the nominee – sons. flat in sole name of the mother bought by the father..
we have a peculiar problrm in our society where the flat is nominated by the owner in the name of his wife and son on the raio of 1/3rd each. wife’s name is first. how to deal with such problem.
pradeep nabar
MY dad died and has left no will only nomiee of 4 people mom bro sis and me so as per nomination rule my mom is the frist person so she has ask every ione to sgin indemity bond as per mahrastra society bye law no 34 ,so will there be 3 still nomiee , or in the time to sell the house will mom able to sell the house with out our NOC the 2 have sgin the indemity bond , i have not so is it advise able to sgin it or not
My brother who owed a Flat in Vasai, Mahrastra died few years ago. He has registered Nomination with the Society in the ratio of 1/3 share each to his wife and two sons. His wife in fact died prior to his death and nomitation was not changed. Now, the surving legal heirs to the property is the two sons (adults) of the deceased. Please advise what is the procedure to get the shares and right in the flat transfered in the joint name of both the sons in equal measure. Please specify the documents to be furnished to the Socity.
What is the way surving legal heirs other than the nominee , when no will is made, can apply to be member of a co op hsg society?
Can the nominee nominate his sun or wife without concent of other surving legal heirs.
Can the nominee,nominate his sons and /or wife without the consent of surviving legal heirs ?
If he had 50%,then is it his sons & wife will share his % and % of other nominee / heir remains unaffected ?
No
Where can I get application form and submit the same for becoming member of co op hsg so in the ste of non nominated leagal heir ( No will exists)?
hiI have bought a property in 2006I have all the documents and papers including share certificate but the problem is that there are 4 signs in my share certificate as below1. Chairman – who was the chairman before my purchase of the flat which he sold before me purchasing2. Secretary – who bought a flat just before me but his share certificate has the same problem as me3. Treasurer – who was a member that time4. Witness – who has now applied for membership in 2009
Can u please help me out what should i do?
If the major childrens no objection required for transfer the share to nomonee after the deth of the member, If Yes plese advice wich low and rules
My mother who was flat owner in co-op society died without making will. She had nominated eldest daughter. can other 2 daughters claim for membership of society and what is the procedure and documents require for the same?
is no objection certificate required by the daughter-in-law to transfer the flat in her own name. flat in sole name of the mother bought by the father
Yes, a nominee is a trustee and the flat is transferred in his name. Can such a nominee make nomination i.e. can be renominate another person since the property does not belong to him.
My Father and Mother Jointly owned flat in Mumbai. Both have nominated me and made me as associate member in the share certificate. My father expired in 2008 and after that my mother want to sell the property and take all the share. What can i do?As per the will of my father – All his movable and immovable assest should be transferred to me only but he has put one condition (after the death of his wife) – Can i issue a notice to Society not to grant NOC for the sale of the flat –
Dear Sir,
Would like to know after the husband expiring and the share
certificate has been transfered on the wife name who was the nominee
of the flat jan 2011, is this change in name on the share certificate
is it called a transmission The reason I would like to know is she as now planning to sell the flat to give the share to the legal heirs,
has the the buyer of the flat have to wait for year to transfer the
share certificte on his name ie Jan 2012 or can the New buyer get it
done in the coming AGM. Also would like to know the society should not
have a problem in giving her an NOC as there no dues are outstanding
in her name.
I have submitted a request letter to the society to add my wife’s name in the share certificate and the society was kind enough to endorse my wife’s name as the second holder of my flat. Please let me know is that enough to safeguard the interest of my wife.
Hello Sir,
My father died in the year 2004 who was the owner of the flat. He had not submitted the nominee form to the society. Now we want the share certificate to be transferred on my mothers name. We all brothers and sisters have given an affidavit mentioning that the share certificate be transferred on my mothers name. The society members shown no objection in the society meeting and said that the flat will be transferred on the mothers name. I had also given my fathers death certificate and the share certificate to the society as a formality. Now I want to know how long it should really take to transfer the share certificate, what all procedures are involved in this and will I be able to register the flat on my mothers name with this share certificate. Please reply me on my email id ASAP.
Thank you very much in anticipation.
Sir,
We have a house in a society in district Mohali. This house was purchased by my Father & Mother. Very first this house was in the name of my father. But later on my father transferred the share in the name of my mother, as he remains sick. But unfortunately she passed away and the society transferred the same in the name of my father. Do you think this is valid. As I think this should be valid. Kindly give the opinion. Thanks & Regards.
What is the procedure to to transmit the flat in the name of the nominee? How can we get the required forms to be filled in by the nominee on the net? Will the down loaded forms be accepted by the society?
Please advise early.
Sir,
I have lost\misplaced my original share certificate.How can i acquire one duplicate share certificate ?
Hello Sir,
My brother and me purchaed a flat no. 1002 = having 2 agreement 1002A and 1002B of the same flat. 1002A belong to me and 1002B belongs to my brother. My brother stayed at different place with his wife and a minor kid. He died – we hv no nomination and no will. My brother wife also know / wants that the flat should be transferred to me – she is ready to sign any document – what docements are we suppose to give to society to transfer the flat in my name ? awaiting reply sir
i have property in the name of father and uncle,now we are separated from joint family of uncle, now i want to delete 2nd holder name(my uncle) in property how i can do it?
please tel me the exact procedure as per law
and also guide me what is the implication as per income tax
chetan shah
9867711221
victorzkl@hotmail.com
My mother is the shareholder of a shop in a Cooperative Society. My brother is now the nominee. He had applied for transfer of shop in his name. The society has asked for indemnity bond after which they will make him trustee. However he cannot sell the shop till he provides a succession certificate.
Now as per our internal family arrangement, my brother decided that the shop should be transferred to my name.
I applied to the society to transfer the shop in my name with following documents
“Memorandum Recording Oral Settlement”
“Affadavit cum declaration”
“Indemntiy Bond”
However society replied to my brother rather than me, that the society has decided to transfer the shop in my brothers name as a trustee, until he give succession certificate & also attached a copy of their previous reply.
I have following questions
1) Does a succession certificate apply to an immovable property
2) Is it necessary for the shop to be transferred to my brothers name first and then only it will go to the whose name is in succession certificate
3) Will I have to pay society transfer charges for both the name transfers
4) We inquired in court regarding succession certificate, however they said that for immovable property I have to produce letter of administration. However society is insisting of succession certificate. What should be done
both the nomination paper as well as share certificate has got misplaced in transition,but the society does have the copy ,but due to some vested interest they are not transferring the same in my mothers name. What is the alternative to get a copy from court or some office
Posted on March 12, 2012 at 12:58 pm
Hello Sir,
My brother and me purchaed a flat no. 1002 = having 2 agreement 1002A and 1002B of the same flat. 1002A belong to me and 1002B belongs to my brother. My brother stayed at different place with his wife and a minor kid. He died – we hv no nomination and no will. My brother wife also know / wants that the flat should be transferred to me – she is ready to sign any document – what docements are we suppose to give to society to transfer the flat in my name ? awaiting reply sir
one of the lady member of our society had died some years back.(in 2002) She had four children (two sons and two daughters ,all adults) As per record of society, nomination is given in favour 3 children (two sons and one daughters) Previous committee/s has not taken steps for transfer interest of shares till date . In 2009 two sisters and one son gave a letter to society stating that all four children has rights on flat, no transactions such transfer, sale etc, should be done without their knowledge . No action is taken by then managing committee on the letter
The son who has not signed letter(one of the nominee in nomination form) is staying in the flat and there is huge arrears of maintenance charges payable for the flat to the society.. We have recently written letter to the son who is residing in the flat to clear the dues as well as settle the issue of pending transfer of interest of shares among the family members..There is no response till date. We have also written to others but letters are retuned undelivered. We have come across existence of unregistered will which gives equal right to all the four. But the executor has not executed the will. None of four members are co-operating to solve the issue and blame each other for delay.
Please let us know the steps to taken to safeguard the interest of the society as well as what is procedure to be followed if they are not settling the issue among themselves.
While going through the nomination register, we have come across that one member has appointed his wife and three minor sons ( they have become major now ) as nominee/s with 25% share in 1981.
His wife has died long time back..Reminder has sent to him recently to revise/update the nomination .but no response
What is the position of society.
whether society can treat the existing nomination is still valid since no change is advised and treat the share equally between three sons who are major now (i.e 331/3% each) or we can advise him
the nomination given by him is longer valid since one of nominee has expired and if he is interested he should revise nomination, otherwise law will take own course in case any eventuality.
Please enlighten us the legal position.
My dad expired leaving behind a nomination and will stating that his flat to be nominated to his 3 sons and 2 daughters in equal proportion. 4 children have signed a letter to transfer the flat in their name. one is not signing the transfer papers as he is staying in the flat. What can the society do in this position. can they go ahead with the transfer without his signature.
I have a query. One lady staying in our society is estranged from her husband. He does not stay here but his name is first on property index II card and hers is second. Further the lady has submitted a POA signed by her ex husband assigning the half ownership in favor of his son as he turns 18. The lady is demanding the share certificate in her sons and her name. Can we issue share certificate in the minors name or issue it as per the property card Index II as available with the society showing Husband & wife’s name?
In our society one member is died who submitted nomination form in favor of his wife.He has two sons except no one is legal hair. One advocate suggested that society should obtain an affidavate from his wife declaring that there are only three legal hairs and her sons has no objection for transferring share certificate in her name and also to obtain no objection letters from her sons to that effect.
Please advice us whether this is correct procedure to transfer share certificate in her name.
Hello sir
I’m amit dodhiwala age 32 from mumbai . My mom bought a flat in 1998 in that she made me a joint holder but I was minor at that time by six months at the time of paying stamp duty and final registration I was fully major .then in 1999 our building made coop housing society at that time society said that no nomination is required by my mother as it was in joint name with me .my mother expired in 2010 unexpected with out leaving any will.after some days I went to society to transfer the share certificate in my name as I was the joint holder they asked me to take noc of my both married sister so I made affidavit and indemnity bond where I and my both sister had transfer their share and interest in the said flat on my name as a legal heir then society had transferred the share certificate 100% on my name . After some months I wished to sell the flat at that time society again asked for the noc of both the sister at that time one of my elder sister had objected and asked for the 1/3 share of the total value of the flat and sent notice to society to not to transfer the flat on third party name and she also clams that the affidavits given to society while changing the name in share certificate has not singed by her so I had approached the handwriting expert and results came that she has only singled the documents .but due to the notice sent by her to society they are not letting me to sell the flat and now I wish to take bank loan on the said flat society is not giving noc for that also so what action should I take and what are my rights holding in the flat.
Regards
IF Mother and son were joint holders of a flat in a society. Share cert, was in their names. Now son has expired and his wife too has expired leaving their son alive. Can mother apply to have society share cert. delete her son’s name and replace it with her nominated daughter’s name without no objection cert./affidavit from her grandson or is this compulsorily required by society.
If so can you mail me the formats for above.
My Father passed away in 2011 and now as no nomination was made in the society where we are staying, i want to make my mother as legal heir. Can i get the content to publish in news-paper. and what is the detailed procedure to make my mother a legal heir of that flat.
My mother nominated her five sons in the society. Now on her death the first nominee has applied for membership.He has submitted an indemnity bond. The society is insisting that all the nominees sign the indemnity bond although only the first will be admitted. The others have no objection to the membership of the first nominee.What is the right procedure? Thanks.
With Regards.
Nominee are mere trustee. There is no first or last nominee. If there is no objection, a family partition deed signed by all other nominee must be submitted to the society besides all other transfer formalities.
in my society there is one resident who have the share certificate in the name of 2 persons but one person is dead during august 2016 so he wants to remove the dead persons name from share certificate and keep only his name so, in this case can i need to issue new share certificate with new share certificate number or keep old share certificate number on the new share certificate.
He have the WILL of dead person and his is a nominee.