26 November 2010
My mother was sole owner of a flat which is in a co-operative housing society and registered as per West Bengal Co-operative Societies Act 1983. We are 2 brothers, father deceased. I lived with mother and took care of her, brother lived outside and did not take care of her. She nominated me in the co-operative housing society and also bequeath the flat solely to me as per her will (citing reasons that I took care of her, I am in need, etc.). After her death, I applied to co-operative society and as per my nomination I have been made a member of the co-operative. Share certificate of the flat has been issued in my name. Will has been registered but not probated as yet.
My queries to respected members:
1) By becoming a member of the co-operative society, am I the sole owner of the flat? Is will irrelevant? 2) Do I still need to probate the will to become the sole owner of the flat? 3) Can the will be challenged? How to defend? 4) If my brother forcibly comes to stay in the said flat (being the son) and I do not want him to, what should I do?
28 November 2010
It has been held by the Bombay High Court that nomination under cooperative societies Act is meant to provide for the parties with whom the Society must deal in the event of death of the member and not to create a rule of succession. Succession to the estate of the deceased should take its course in accordance with the law of succession governing the deceased and his heirs. (Madhukar Vishnu Ghatnekar Vs. Gopi Vishnu Ghatnekar. decision dt.06-10-2000) Hence, in your case since your mother made a will bequeathing the flat exclusively to your, the flat will devolve on you only. Relying on the nomination alone would not legally protect your right. you willhave to rely on the Will to perfect your exclusive title to the flat. Hence, it would be necessary for you to get the will probated at the earliest. In case your brother challenges the will, you will have to prove the Will in the court. Better get the will probated at the earliest. I think the legal position mentioned above holds good in west Bengal also, as almost all the cooperative laws are on similar lines.