Registration formalities of Nominations in housing society
By Legal Bureau
The name and address of every person nominated for he purposes of sub-section (1) of section 30 and any revocation or variations of such nomination shall be entered in the register kept under rule 32.
Section 30 of the M.C.S. Act. – It is very clear on the plain reading of the section that the intention of the section 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 is to make certain the person with whom the society has to deal and not to create interest in the nominee to the exclusion of those who in law will be entitled to the estate. The purpose is to avoid confusion in case there are disputes between the heirs and legal representation and to avoid uncertainties as to with whom the society should deal to get proper discharge. Though in law, the society has no power to determine as to who are the heirs or legal representatives, with a view to obviate the similar difficulty and confusion, the section confers on the society to determine who is the heir or legal representative of a deceased member’s provides to such heir or legal representative. Neverthless, the persons entitled to the estate of the deceased do not lose their right to the same.
Society has no power, except provisionally and for a limited purpose to determine the disputes about who is the heir, or legal representatives. It, therefore, follows that the provisions for transferring a share and interest to a nominees or to the heir or legal representative as will be decided by the society is only meant to provide for interregum between the death and the full administration of the estate and not for the purpose of conferring any permanent right of such person to a property forming part of the estate of the deceased. The idea of having this section is to provide into unnecessary litigation which may take place as a result of dispute between the heirs.
Even when a person is nomination or even when a person is recognised as an heirs or a legal representative of the deceased member, the rights of the persons who are entitled to the estate or the interest of the deceased member y virtue of law governing succession are not lost and the nominee or the heir or legal representative recognised by the society, as the case may be, holds the share and interest of the deceased for disposal of the same in accordance with law. It is only as between the society and the nominee or heir or legal representative that the relationship of the society and its members is created and this relationship continues and subsists only till the estate is administered either by the person entitled to administer the same or by the court or the rights of the heirs or persons entitled to the estate are decided in a court of law. Thereafter, the society will be bound to follow such decision. (Gopal Vishnu Ghatnekar Vs. Madhukar Vishnu Gatnekar, 1982 Mah. L.R. 122 (126, 127).
A member of a co-operative society was allotted a piece of land under a lease from the society to construct building thereon and to hold shares in the society. The members executed a nomination towards and to hold shares in the society. The member executed a nomination towards one of his son as required under Rule 25 and in accordance with the Bye-law. On the death of the member the nominee filed a suit against brother claiming that by virtue of the nomination he was entitled to a decree for possession of the site and the structure over it. Execution of nomination does not create title in the property.
When one of the son is made a nominee to a flat owned by father and mother and on their death be cannot be said to be in occupation as a trustee for all heirs of deceased, but his occupation can be termed as co-owner and cannot e held as dishonest mis-appropriation of flat within the meaning of section 405 of the Penal code. (Shyam Lachmandas Aiwani Vs. The State of Maharashtra, 1991 Cri. L.J. 979).
The provisions of section 30 for transferring a share and interest into a nominee – The heir or legal representative as will be decided by the society, is meant to provide for interregnum between the death and the full administration of the estate, and not for the purpose of conferring any permanent right on such a person to a property forming part of the estate of the deceased. Scheme of section 30 is to provide for proper discharge to the society without involving the society into unnecessary litigation which may take place as a result of dispute between the heirs, or uncertainty as to who are the legal heirs or representatives.
Even when a person is nominated, or a person is recognised as an heir or a legal representative of deceased member the right of the person who are entitled, to the estate of the interest of the deceased member by virtue of law governing succession are not lost, and the nominee or the heir or the legal representative recognised by the society, as the case may be, holds the share and interest of the deceased for disposal of the same in accordance with law. (Gopal Vishnu Ghatnekar Vs. Madhukar Vishnu Ghatkenak, 1982 Mah. L.J. 65 : 1981 Bom. C.R. 1010 : A.I.R. 1982 Bom. 482 (SJ) : 84 Bom. L.R. 41.
A transfer of share or interest of the deceased member is done to a person or person enumerated in accordance with the Rules, the said transfer is not covered under the Note under Schedule 37 of the Maharashtra Sugar Factories (Reservation of Areas and Regulation of Crushing and Sugarcane supply) Order, 1984 or the restriction under circular of the Direction of Sugar dated 16-5-1981 (Rahur Sahakari Sakhar Karkhana Ltd., Vs. State of Maharashtra, (1987) 1 Bom C.R. 168 : A.I.R. 1987 Bom. 248 (D.B.)).
The transfer must be in accordance with the principles laid in this section. Wen procedure is followed according to Rule 25(1) and (3) regarding transfers of share or interest and all payment to the nominees, heirs or the legal representative of the deceased member than it shall be valid otherwise it is void. (Ramesh Shah Vs. Harsukh, A.I.R. 1975 S.C. 1470).