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Discussion > Property Law > CO Operative Housing Soc. Member Issue, Denial of Possession   Unanswered Threads Post New Topic

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There are 9 Replies to this message


Sandeep Madhavi


Manager
[ Scorecard : 30]
Posted On 02 February 2011 at 11:36 Report Abuse

Hi All,

We are facing a problem while dealing with Committee members of our society and society lawyers.
Let me cite the case in short here.

  • We have a property which was owned by my father in law and his brother (Uncle) since 1976.
  • My father in laws name appeared second on the Share certificate while Uncle's name appeared first.
  • Uncle expired in 1991 without any nomination or will. He was not in touch with his family since 1976.
  • My father in law expired in 2010 without any nomination or will.
  • This property was redeveloped in 2010 and the allotment of the flat was done in the name of my father in law. Unfortunately he expired just before getting that letter from society.
  • When my mother in law approached the Society they simply denied her the possession on the grounds that my father in law was not a member at all and above all he has not made any nomination or will.
  • We are in a very bad state now as its the only property of my mother in law which she has lived in for 30 years.

Can we get some advise on this case? If there are some property lawyers in these forums. Please advice.



Online certification courses in IP, IT and Social Media laws


Bharatkumar


ADVOCATE
[ Scorecard : 2487]
Posted On 02 February 2011 at 14:23 Report Abuse

U give a Application and attach a all relavent documents of the said property and enter the name of legal hairs of your father in law. OR  u contect the Registrar of society with all details. U contect local lawyer for this. 



Sandeep Madhavi


Manager
[ Scorecard : 30]
Posted On 02 February 2011 at 15:06 Report Abuse

Thanks Bharat.

We are not getting any good legal opinion.

When before the redevelopment, Society very cooly and calmly took the possession from us. However, when the property is redevloped they have started questioning membership.

Also, it would be great help if anyone can provide information abot Redevelopment schemes.

On what basis is the list of Bonafide members included in the Redevopment agreement? does the builder and lawyers refer to the form 'i' or "J" for this.

Please advice.



Lucky


partner
[ Scorecard : 46]
Posted On 02 February 2011 at 15:54 Report Abuse

In reference to your 1st query it does not matter at which position the name of the shareholder is mentioned on the share certificate , evry shareholder has as equal right.secondly when the redevelopment agreement was executed the consent of your father in law must have been taken.As mentioned by Mr.bharat u can also file a complaint with registrar of socities for the same.



Hemant Agarwal


ha21@rediffmail.com Mumbai : 9820174108
[ Scorecard : 3340]
Posted On 02 February 2011 at 22:07 Report Abuse

1.  In legal parlance under the MCS Act,   "ONLY & ONLY"  the first named person in the society Share Certificate  is the person who is called as a  "Registered Member"  and it is this first registered  member who derives  ANY & ALL the rights as may be mentioned in the MCS Act, Rules & Bye-Laws.


2.   The second registered member or say Joint member,  does NOT derive ANY right, IF the first registered member is alive (like attending AGMs, bit-chings, land-lord'giri,  Elections etc...)  ONLY the first registered member may be embroiled or participate in legal disputes.  The second registered member is only for non-legal connivence purposes only,  -BUT-   can  "re'derive"   the rights,  IF & WHEN  (written'ly)  PERMITTED BY THE FIRST REGISTERED MEMBER,  but again  "ONLY FOR"   for purposes of  AGMs, bit-chings, land-lord'giri,  Elections.


3 .  In the issue instant, the "uncle" is the first registered member.  Only the legal heirs of the "uncle"  replace the position of the first registered member.  A second registered member will always remain the second registered member and can never be replaced in the place of the first member. Unless of course the first registered member, relinquishes his title rights to the second name, via a duly registered and stamp duty paid deed.


4.  By the above logic only the first registered member (uncle) may make nomination for his flat or designate an associate member for his flat.  The second registered member does not derive any right whatsoever to make nominations or associate memberships.


5. IF there ae no Nominations or Will  or Deed &  IF there are no legal claimants of the Uncle,  THEN the present legal beneficiaries may file for rights of the property, in the High Court,  for a succession certificate or a letter of administration as the case may permit.


6.  After due procedure, the court may grant the approriate orders in favour of the beneficiaries,  which is then used in the society, for transfer of title and CHS membership.


7.  The registrar of coop societies have no jurisdiction in the above issues and he would just simply advise you to get a court decree pertaining to the title of the property.  The Society cannot transfer the flat to ANYBODY, without the court's orders and  IF  "IN"  the contrary the society would be held liable for fraud and forgery.  At the best, the occupants of the flat may be considered as "deemed nominees by virtue of and within the defination of the word "family".  However they do not derive ANY legal right or title over the property, unless a court order is obtained.


Keep Smiling .... Hemant Agarwal
 



Sandeep Madhavi


Manager
[ Scorecard : 30]
Posted On 03 February 2011 at 19:26 Report Abuse

Hi Hemant,

Thanks for your prompt and detailed reply. I have read many post of you on various forums and really appreciate your clarity of thoughts and hold on the legal provision.

We understand the provision for "Associate Member" and probably its a loop hole in the law which treats the co owner or joint owner of the property not at par with the First owner. When in fact both of them have equal rights to the property.

We would like to bring forth few more points and would like everyone's advice on the issue after considering these facts :

  • The Share Transfer form dated 1976 mentions both uncle and my father in law's name as the joint owners.
  • All the maintenance receipts since 1976 are issued in name of my father in law. If he is the associate member, how can the society issue receipts in his name?
  • The redevelopment agreement which was entered in 2007 was entered with my father in law. If he was the Associate member, then on what basis did the Committee members and Builder obtain his consent for redevelopment and enter into an agreement with him? How did they take the undertaking from him? Isn’t, the redevelopment agreement a fraud in that case? If the title of member is not appropriate, how can the society enter into such an agreement?
  • We are denied access to Share certificate and Register of members (Form "I" and Form "J"). Society simply ignores our request. When the builder made the redevelopment agreement, which document did he refer to for ascertaining the bonafide members of the Society? Why is the name of my father in law in the list of bonafide members? On one had we are saying Associate member has no ownership rights and on the other hand Society enters into an agreement considering him the Member of the Society.
  • Succession Certificate point is agreed and we have also given an undertaking in the form of Indemnity bond mentioning that we would be responsible for any claims on the property and honor them and as such there would not be any liability on the Society. We have also mentioned we would submit the certificate. We have also mentioned that we would not be selling the flat till the time we submit the succession certificate. Then on what grounds is the society withholding the possession of the property? We possessed the property for the last 30 years, what has changed after redevelopment?
  • The list of allottees has my father in laws name, in fact the Member board in the building and the name plate on the flat door has his name.
  • When we have provided all legal documents and indemnity bond, why the possession should be denied? Doesn’t this indicate ulterior motive of the Committee members?
  • The society lawyer arrogantly tells us to file case for everything that we ask information on.
  • Also, if there are different names in the Share transfer form and on the Share Certificates, who is the owner as per law?

We are very thankful to all of the forum members replies and are waiting for more responses.

Thanks

Madhavi Sandeep



Hemant Agarwal


ha21@rediffmail.com Mumbai : 9820174108
[ Scorecard : 3340]
Posted On 04 February 2011 at 12:48 Report Abuse

1.  The Associate member, under the MCS Act is only a  legal Power of Attorney,  ONLY FOR THE PURPOSE OF REPRESENTING THE FIRST NAMED MEMBER" in the  "reoutine affairs"  of the society.  Besides this nothing else.  He cannot sign or consent on any other documents which might pertain to ownership of the property.


2.  The Associate membership  automatically LAPSES, with the death of the  "FIRST"  member.


3.  A Joint member is NOT an associate member, BUT is a permanent 2nd member, BUT having restricted rights BUT with the compulsory consent of the FIRST member.  Nothing beyond this.  Your Uncle was a First registered member cum owner.  Your father-in-law was the second joint member.  YOUR FATHER-IN-LAW IS  .NOT.  AN  ASSOCIATE MEMBER.


4.  Associate member can be changed every month depending on the wishes of the First member.  However the joint or 2nd membership  CANNOT be changed FOREVER.


5.  In the issue instant, there is no scope for anything else.  The CHS is ONLY & ONLY for members and would reply only to its own members.  You are not the member.  The CHS is right in denying you share certificate or information or any other documents or anything else,  since you are not the members.


6.  Indemnity bond can be filed by anybody (even by the local Paan-wala)  and later can be denied or refused to be honoured in the event of future disputes.  It hardly has any legal value.  Why should the CHS file legal disputes and incure legal expenditure to


7.  Any Name on rent receipts or allotment letters or anything other documents,  cannot every diminish the ownership rights and title of the first registered name, for ever, unless there is a registered agreement  or a court decree.


8.  TO CONCLUDE,  If you are waiting for more responses, presumably thinking that something might come up to suit your favour, then it is not going to be within the parameters of law.


Keep Smiling .... Hemant Agarwal



Sandeep Madhavi


Manager
[ Scorecard : 30]
Posted On 04 February 2011 at 19:08 Report Abuse

Hi Hemant,

Thanks for the reply. I hope everyone understands this forum is a platform wherein we interact and discuss with professionals and people who have knowledge of the subject. This is NOT A COURT of LAW. Arrogance while interacting with your fellow forum members is not appreciated.

Regarding certain points which you mentioned in your reply :

If a Pan wala can also file an indemnity bond and give an undertaking which has no value, why should there be a provision in the act to give such undertaking? If it has no value why should CHS Act have such a provision.

Regarding society not sharing the documents - My Mom in law has requested for the documents and she has been denied the access even when she is the deemed member. Also, the society has not shared the documents with my father in law when he was alive, we have the application which he had sent to the Society. What should  this be called on the part of the Society?

Regarding the Maintenance Receipts, based on your clarification, seems like these can be issued in anybody's name irrespective of the ownership of the flat? But what is the rationale behind this when the First owner was alive till 1991? As far as I know, maintenance receipts are issued in the name of the owner of the flat even if the payment is made by someone else on his/her behalf.

Regarding allotment of flat and in fact taking possession of flat before redevelopment of the property - Today, can any relative or tenant who occupies my flat handover my flat for redevlopment? Does he have the authority to do that? Will my co op society enter into an agreement with that relative or tenant or society would first verify the title of that person and ascertain whether he is the owner or not?

Hemant, I am not arguing or defending ourselves, I am seeking answers to these questions which are very logical. And I believe, law is based on logical stuff.

Keep Smiling.....

Madhavi and Sandeep



Hemant Agarwal


ha21@rediffmail.com Mumbai : 9820174108
[ Scorecard : 3340]
Posted On 06 February 2011 at 09:26 Report Abuse

1.  People who do not understand the parameters of law or who do not  "want" to understand the law, would obviously refer blunt answers as  "arrogance"  or un-appreciable.  People prefer answers to their umpteen & irrelevant questions,  answers which are to their likings, immaterial of the fact whether it is applicable or not applicable in law.

 

2.  The answers in this open forum, is not in the form of Legal Advice, but only suggestions, and not necessarily for legal solutions, which can be solicited only from competent lawyers in person.

 

3.  Law does not work on the principal of logic or emotions or sentiments.  Law works on the principle of Law.

 

4.  If majority of the CHS members have consented for redevelopment,  then there is no need for any consent or letter or whatever from minority members.  In the instant matter only the "uncle" is the first registered member and the CHS is bound to protect the interest of ONLY its members.  Others have no lawful right under the MCS Act, to demand anything, irrespective of the fact that the CHS has  inadvertently issued bills in other names or issues/takes sign from anybody else.  The Fact remains that the title ownership is still resting with the uncle i.e. the first member.  Since you are a third party (non member), you do not derive any rights to approach the Coop Registrar or the Coop Court, to question or to rectify the above errors, more specifically so when there is no nomination or will of the deceased member.  The only remedy left for you is to approach the High Court, for property title and subsequent transfer of CHS membership, based on the court order.

 

To finally conclude on this topic, before it fades into oblivion.

QUOTE :   "It requires a very unusual mind to undertake the analysis of the obvious"

Keep Smiling .... Hemant Agarwal



priyanka


asst sales manager
[ Scorecard : 22]
Posted On 19 May 2014 at 15:21 Report Abuse

hi , my mother in law had made nomination in two names first my husband 60% & second was me 40% with 2 witness and had given to the society ...my mom in law expired in 2010 3rd july ...after that we gave all the documents to the society required by the society ....we also gave the notice in 2 local newspaper as per society ,idemnity bond,my husband has 3 sisters and out of that one sister is not in contact ....and my husband was staying in that house since a child....and the secratory now is insisting for succesion certificate to prove my husband is the only legal heir...its 2014....till now they have not traneferd the name of my husband in the share certificate...

 

we stay at ground floor and on top of our the chairman stays...in the past there was a bad pipe broken leakage from the chairmans house into our flat ...and my mother in law was bed ridden ..they refused to repair the pipe...so my husband had an argument wth the chairman to repair the same ...wch he did later on ...so thats the reason we got to knw that he is not transfering my husbands name...

also my mother in law had complained bfre aboutthe society to police staion coz the holi was dug in right in front of our back door ...and the cops told the society to change their  place to brun the holi..

so for that reason also the society asked for an apology letter which we gave them recently  and have acknowledge the copy from them .....still they have not done any of our work..

pls advice what do we do ...they are jst delaying

 

 

priyanka

 




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