Non-encumbrance certificate for co-operative society flat.

This query is : Resolved 
 

(Querist)
16 September 2019

My friend Mr. Rajagopal owns a flat in a co-operative housing society in Mumbai. His father purchased the flat in 1959. He died in 1965. The flat was allotted to Mr. Rajagopal in 1965 as the nominee of his father. There was no registration or stamp duty during those days for the purchase-sale or transfer of co-operative society shares and flats. Everything was done within the society only and whatever records are in Society's office only. Now my friend wants to sell the flat. From where and how shall he obtain non-encumbrance certificate? For obvious reasons there is no record of transfer of the flat in the sub-registrar's office.


SHIRISH PAWAR, 7738990900 (Expert)
16 September 2019

Dear Dr. MPS Ramani,

Encumbrance certificate is issued by advocate. So appoint advocate and supply all the details of properties and documents to him for encumbrance certificate. You have to take all the precaution while investing crores of rupees.

Regards,

kavksatyanarayana (Expert)
16 September 2019

Ji, is your friend paying taxes? who is paying electrical bill? Why kept silent all these years. Without mother document, it is not possible to sell the property. 1.obtain a certificate from the coop housing society that your friend is residing as a legal heir of his father since the year 1965. 2. File a notarised affidavit regarding the fact of ownership. consult local advocate having knowledge in property matters.

Dr. MPS RAMANI Ph.D.[Tech] (Querist)
17 September 2019

For co-operative society flats in Mumbai, municipal taxes are paid by the society in society's name. The society recovers the amount from individual members along with other expenses. My friend has electricity bills in his own name. 40 or 50 year old bills may not be available. There is no question of keeping silent all these years. Now only the need has come. There is no mother document with individual flat owners. Mother documents are available for the whole building with the society. Names of individual members are not mentioned. The only document available with my friend is the share certificate with his name endorsed on it. Co-operative society members are called tenant members. The tenancy right is a "property" of value which is transferable, subject to stamp duty with effect from 1980 or thereabout. The period of possession under the Limitation Act is 12 years. I do not know whether the sub-registrar's office will give non-encumbrance certificate for 12 years when registered documents for original purchase or transfer are not available with them.

P. Venu (Expert)
17 September 2019

What are the documents available as to purchase of the flat by Rajgopal's father?

Dr. MPS RAMANI Ph.D.[Tech] (Querist)
18 September 2019

The documents available with Rajagopal's father were (1) endorsement in the share certificate of his father's name and a letter from the then Hon. Secretary that the flat has been allotted to Rajagopal's father. The letter is 60 years old and it is on the point of disintegration. When the flat was transferred to Rajagopal his name has been endorsed on the share certificate in 1965. In fact almost all the flats have been transferred to new members. For flats transferred and retransferred after 1980 there are stamped and registered documents. The need for non-encumbrance certificate comes only when the prospective purchaser asks for it or when the purchaser wants to take a bank loan for the purchase.

Hemant Agarwal (Expert)
20 September 2019

1. IF AT ALL, the original Sale Deed is not traceable (for any reason, whatsoever ....) in House or at SRO, THEN get a "Police Report" of the same, stating facts, that it is lost /misplaced /stolen /whatever....

2. ISSUE proper Public Notice in two local Newspapers, thru a registered Advocate.

3. Execute a "Irrevocable Indemnity Bond", in favor of Buyer-party, indemnifying buyer against ANY & ALL losses /claims /whatever...., of any kind whatsoever & whichsoever.

4. Armed with above documents & other existing available society documents, execute proper Sale Deed with confirming & consenting signatures of ALL residual legal heirs. PERIOD.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

Dr. MPS RAMANI Ph.D.[Tech] (Querist)
20 September 2019

As I have already stated there were no sale deeds for co-operative society flats in Maharashtra in 1959 and 1965. Flats were transferred by endorsement on the respective share certificate and entries in the books of the Society. Sale deeds are there only for purchases or transfers after 1980 or thereabout. So the question of loss, misplacement or theft of transfer deed does not arise. Public notice can be given. Indemnity bond also can be given. As regards residual legal heirs all class I heirs except Mr. Rajagopal are dead. Some of the class 2 heirs are also dead. The residual class 2 heirs and class 3 heirs are distributed all over the world and the whereabouts of many of them are not known. It is 60 years from the original purchase of the property and more than 54 years after the death of the original purchaser. The period for 'adverse possession' under the limitation act is 12 years, which is long over. Only last month there was a Supreme Court judgment that private property under adverse possession cannot be dispossessed after 12 years. Are the signatures of 'residual heirs' still necessary?

Isaac Gabriel (Expert)
28 September 2019

Everything is within the prerogative of the society. Initially the plots/ flats would have been allotted and conveyance deed could have been issued.Simultaneously, the details would have been furnished to the Municipality/ Electricity for the purpose of updation, but in the name of the society.In due course,due to efflux of time the legal heirs would have taken charge by ernolling name as successor in the society records as Associate member.Those who wanted to disp[ose/sell need to get certificate from the society as per byelaws and such cases would have been registered in Registrar's office.If you to dispose, get certificate for the occupation for the so many years and follow the process at the Registrar's office. The certificate/document issued by the society constitutes encumbrance. Even if the society is not in exisence, the Tax bills and Telephne/Electricity/ bills alone forms record. This is the case of Housing societies and it is unique situation faced by the registrar offices in executing the alenation / Sale deeds.

Dr. MPS RAMANI Ph.D.[Tech] (Querist)
28 September 2019

According to the recent (2019) amendment to the Maharashtra Co-operative Societies Act a nominee is to be admitted as a 'Provisional Member'. But Mr. Rajagopalan was admitted as "member" 54 years ago. If it is prerogative of the society can we say that he is a member with full rights? There are many members like Mr.Rajagopalan.

Isaac Gabriel (Expert)
03 October 2019

It could be verified at the membership admission register maintained in the Society/audit Report.

Dr. MPS RAMANI Ph.D.[Tech] (Querist)
03 October 2019

I thank all those experts who responded to this for their valuable advice.



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