I am from navi mumbai and a prospective buyer of a CIDCO flat; the flat's original owner, (CIDCO allottee) has nominated one of his sons (by submitting a nomination form to the society which forwared the same to CIDCO) and the same has been accepted by CIDCO; but, the son has not transferred utility bills, property tax or water bill in his name; Nor the flat has not been registered /transferred in the sub-registrar office. Meanwhile some of the building owners in which the flat is located, had a dispute over maintenance with the original society and this buliding (out of the 9 buildings forming the original society) has formed a separate society!
He wants to sell the flat, and the documents have been seen by two different lawyers; both have different opinions; the first one advised me saying that nomination is only to assist the society to deal with issues regarding the flat and doesnot allow the son to sell the flat.; also that the other sons will have a share inspite the nomination form.
The second lawyer says that the nomination is a valid one as the flat is not a free-hold but leasehold from CIDCO and cidco has accepted the nomination. His suggestion is that, since there is no change in the records as far as property tax is concerned (The navimumbai municipal corporation property taxpaper is in the dead father's name), there will be double registration fees and the stamp duty will be accordingly double. He also advised that the other sons should be informed that the nominee is selling the flat.
I am surprised that there is no clear outcome from my consultation with two different lawyers; my questions are:
1) is nomination sufficient for authorising the son to sell the flat? can he sign for the sale deed?
2) will there be double registration (stamp duty) for the transfer?
3) can other sons question the sale and file suit? in such cases what is the preventive remedy? will a paper advertisement is sufficient or should there be a notice to other sons?
4) the seller (the son) says there was no will; should i ask for the heirship or succession certificate?
I will be highly obliged with a detailed reply
regards
neelakantan
PS: there have been conflicting judegments as seen in these links:
1. https://articles.timesofindia.indiatimes.com/2009-05-06/mumbai/28198543_1_heir-property-nominee
(year 2009: A nominee of a property in a housing society does not automatically become the absolute owner of the property after the death of the original owner, the Bombay High Court has ruled in an important order.
Delivering the verdict in a legal battle that has dragged on for over 29 years, Justice A P Deshpande said it would be the personal law of an individual that would determine the successor to the property and not the nomination under the Cooperative Societies Act.)
2. https://www.hindustantimes.com/India-news/Mumbai/Nominees-don-t-have-sole-rights-to-flats-high-court/Article1-846262.aspx
(year 2012: Mere nomination to the co-operative housing society does not give the nominee exclusive rights of ownership to the flat – and neither are the rights of other legal heirs lost by such nomination, the Bombay high court held last week.
“Even if a person is nominated in the records of (co-operative housing) society, right of the other legal heirs or legal representatives entitled to the estate of the deceased member is not lost,” justice RD Dhanuka observed.)
3) https://www.moneylife.in/article/bombay-hc-rules-that-nominees-not-legal-heirs-get-ownership-rights-of-shares/5297.html
(year 2010: A 20th April judgement of the Bombay High Court has overturned established practice in the matter of transmission of shares by giving all ownership rights to the nominee rather than the legal heirs.
This means that anyone who has nominated persons other than their chosen or legal heirs in their demat accounts would do well to make appropriate changes.
In the verdict, Justice Roshan Dalvi struck down a petition filed by Harsha Nitin Kokate, who was seeking permission to sell some shares held by her late husband. The Court noted that as she was not the nominee, she had no ownership rights over the shares.
“A reading of Section 109(A) of the Companies Act and 9.11 of the Depositories Act makes it abundantly clear that the intent of the nomination is to vest the property in the shares which includes the ownership rights thereunder in the nominee upon nomination validly made as per the procedure prescribed, as has been done in this case.”
This excerpt from the judgement makes it clear that since the nomination was done in the proper and prescribed manner, the nomination was valid, and the nominee was entitled to ownership rights of the shares, to the exclusion of the legal heir.)
