Liability of heir to housing society


Member expired in 1989. Heir not made A member till date. Cheques towards society outgoings , issued by member , & after his death by the Heir not encashed by society. Now society claims arrears from Heir with 21% interest compounded monthly . Threatens Eviction. Questions--- 1- What is the liability of heir to society ? 2- Whether Law of limitation applies in this case ? 3- Whether society can evict heir from house ?
 
Reply   
 
Scientist/Engineer

You are saying "Heir not made A member till date."  Further you say "  Now society claims arrears from Heir with 21% interest compounded monthly"   If the heir was not made member how was it that Society is claiming arrears from him. It is difficult to give an opinion based on narrations in telegraphic language with contradicting statements. Give a complete connected narration of what all happened from 1989 till now. When the original member died, did the heir claim the property and apply for membership? Were there more than one heir? Was there any dispute between them?  Give a complete narration without omitting anything.

 
Reply   
 



Sir , these are FACTS  even though they appear as contradictory statements.Member expired in year 1989. Sole heir was associate member and also the nominee but nominaction papers were lost.  Society records were destroyed by white ants so they claim.society informed that Associated membership expires with the death of the member. Heir made application for membership in July 1990 but it was not even accepted by society , no reason was ever given . Registrar of coop society  did not respond in the matter. Society now claims arrear from heir , threatens eviction. Sir, may I now be guided in the matter ? 

 

 
Reply   
 
Scientist/Engineer

Still you have not stated whether the Society has accepted the heir as member of the Society or not. The question of accepting or not accepting payment will come only after the heir has been admitted as a member. You have reported that the Society was not encashing cheques issued by the heir. Then how is it that suddenly the Society is now  asking him to pay whether with or without interest.  Are there any written correspondence between the heir and the Society? You have written that the cheques were not encashed by the Society. Does it mean that the Society accepted the cheque and kept it with them without encashing?  What is the total amount demanded by the Society, how much of it is principal and how much is the interest? In which State is your Society? What is the address of the Society? Laws change from State to State.

 
Reply   
 

Sir , Society treated heir as Associate member till July 1998  accepted cheques issued by heir but NEVER encashed the cheques but still showed the amount as unpaid and levied 21 % interest compounded monthly .He was Never allowed to participate in general body meetings  or was given document in support of society charges.After July 1998 , Society informed heir that his associate membership expired with the death of member in year 1989.  and that heir was Not a bona-fide member of society but ONLY AN OCCUPANT of house .Heir still till date ,continued to issue cheques for society outgoings and society continued to accept cheques but is NOT ENCASHING the same. 

As on Dec.2017 claim is for Rs. 78.53lakhs,  out of which  principal amount is about Rs. 1.74 lakh and remaining amount of Rs. 76.79 lakh is the interest.          Amount remitted by heir is about Rs. 3 lakhs.

Heir and the society are in Mumbai City , MAHARASHTRA state.   Name and address of heir withheld at the request of heir to avoid any harm .Heir is about 70 years old , and a Diabetic and arthritis patient  , stays on 2nd floor with no lift.

Neither heir nor I have legal background and the fees of legal professionals  are on higher side.Heir wishes to settle the issue on mutually agreeable terms without entering into a legal battle.

 
Reply   
 
Scientist/Engineer

How did the deceased member get the flat?  Did he purchase it from a builder or from a previous member or was it alloted by the co-operate society of which he was a member? Or did he inherit the flat?  If there is a stamped conveyance deed in the name of the deceased member was the flat jointly purchased by the deceased member and the heir?  What was the relationshp between the deceased member and the heir, son, brother or any other?  On what basis was the heir made Associate Member? Was he a close relative of the member or had the heir also contributed for the purchase of the flat?

The position in Maharashtra is like this:  Under the Model bye-laws an Associate Member automatically ceases to be any kind of member on the death of the main member. Under Section 30 of the Maharashtra Co-operative Societies Act, 1960 the Society shall transfer the flat to the nominee, if there is one. If there are no nominees, the Society can transfer the flat to the person, who appears to the Society as heir of the deceased member. This is a tricky question, because an heir cannot demand the Society to transfer the flat. Only the Society can decide whether to transfer.  If the heir gets a succession certificate, then he can demand the Society to transfer the flat to him. Anyway even the heir was a nominee he cannot become owner of the flat without a succession certificate or a probate.

Whether penal interest can be charged will depend on many things. Anyway only simple interest can ne charged. The maximum rate of interest that can be charged is stipulated in the byelaws. But even then General Body has to pass a reslolution specifying the interest that is chargeable below that specified in the byelaws. Has General Body passed a resolution? If no resolution has been passed, no interest can be charged.

You have to address your complaint to the Assistant Registrar/Deputy Registrar pertaining to your Municipal Ward in Mumbai. Generally the Registrar does take action if you properly present your case.

I am very much older than the heir. I have also diabetis and arithritis. I also stay on the second floor in a building with no lift. Anyway those things do not deter me. If you want my help, please send me a PM giving your Telephone number/email id.

 

 
Reply   
 

Sir , People had purchased houses directly from Builder and then formed coop society. The father of Heir  purchased the house from one of these original member entirely by his own funds . Agreement was in member's name singly. The deceased member  by an application to society appointed Heir as his Associate member . The conveyance is in the name of society.

 General body has not passed any resolution for charging compound interest @ 21 % on monthly basis  but society states that members not raising any objections to 21% interest rate amounts to their concurrence to it .

Sir ,  from the guidance provided by you so far, it appears that heir unless made a member of society , is  NOT LIABLE to society for payment of society outgoings.If it is otherwise , please guide.    The other two questions asked earlier viz. 2-whether law of limitation  applies in this case and 3-whether society can evict heir from house  ,   however have not been answered. 

Heir informs , that  getting entangled in court cases, would in final analysis prove costly as he is short on finances and manpower. Besides, court decision which are based only on hard facts and legal provisions may not favour him and in that event he will have to pay out substantially or lose house . Legal matter will be a time consuming issue.

 
Reply   
 

Sir , People had purchased houses directly from Builder and then formed coop society. The father of Heir  purchased the house from one of these original member entirely by his own funds . Agreement was in member's name singly. The deceased member  by an application to society appointed Heir as his Associate member . The conveyance is in the name of society.

 General body has not passed any resolution for charging compound interest @ 21 % on monthly basis  but society states that members not raising any objections to 21% interest rate amounts to their concurrence to it .

Sir ,  from the guidance provided by you so far, it appears that heir unless made a member of society , is  NOT LIABLE to society for payment of society outgoings.If it is otherwise , please guide.    The other two questions asked earlier viz. 2-whether law of limitation  applies in this case and 3-whether society can evict heir from house  ,   however have not been answered. 

Heir informs , that  getting entangled in court cases, would in final analysis prove costly as he is short on finances and manpower. Besides, court decision which are based only on hard facts and legal provisions may not favour him and in that event he will have to pay out substantially or lose house . Legal matter will be a time consuming issue.

 
Reply   
 
Scientist/Engineer

" The conveyance is in the name of society".  Conveyance of what, conveyance of the flat?  Was the flat purchased in the name of the Society? Not possible.

Society cannot charge penal interest without GB resolution. From whatever you have stated so far it appears " Society did not encash the cheques given by heir because he was not member of the Society. Now Society would not make him member unless he pays the dues. That way you are going round and round for 29 years. Where is the question of law of limitation? The original member died in 1989. So far no one has been allotted his flat. Do you mean to say that the flat will remain without owner because the law of limitation will apply. The flat has to be alloted to someone and there cannot be any limitation on this point.  The heir cannot be evicted except by sending goondas. If the heir is afraid of going to court, things will continue in this manner without resolution. In due course the heir will die (I wish him long life) and it will be the turn of his heir to fight the Society.

It is not necessary to go to court. The heir has allowed grass to grow under his feet for 29 years. I know the Registrar's office in Mumbai. They are not lethargic as you say. You are lethargic and have not taken up the matter in the proper manner. What the heir can do now is first get a succession certificate in his favour. Then make an application to the Society for membership. Submit the membership application in the Regostrar's office. The Registrar will forward the application to the Society for a reply. The Society will then have to give a proper reply.

You should not have allowed 29 years to pass in this manner. A coward always loses.

 
Reply   
 

Dr.Sir, thank you very much for your guidance.The houses in building are purchased by people from the builder , then they formed the society .Since individual conveyance of houses is not possible, the conveyance of the entire building is done in favour of society.That makes society the owner of building without paying a penny to builder and it owns each and every house in the building and every purchaser of house in that building a tenant  of that society .

Sec 30 of M.ST.COOP.SOC .ACT 1960 as you have pointed out DOES NOT allow vacancy in membership of a society for long and it appears that it is MANDATORY  in nature .Keeping vacancy in membership for as many as 30 years as in present case ,not accepting the membership application from Heir in year 1990, not encashing the cheques issued by Heir till date, allowing the outgoings of society to accumulate to several lakhs of rupees, insisting that Heir should pay the entire amount of demand running into lakhs of rupee WITHOUT insisting verification of charges, all this ,to my mind amounts to harassment of sole heir to extract huge amount of money from him and dispossess him of the house. 

The auditors who have certified the accounts of society over several years till now, have not pointed out this in any of their reports . Registrar has conducted election of M.C. after certifying list of " eligible voters " which includes name of deceased member as a voter . Even in the past this matter was taken up with Registrar but no response. 

Can Heir claim  " law of limitation" as defence against society in the event it moves court ?  

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

Search Forum:








×

  LAWyersclubindia Menu