rajesh kumar shrivastava (col) 01 September 2012

Intestate transfer of flat

1.My father had a self acquired flat in Pune, and he expired in Apr 2012 without a will.

2.My mother expired in 2005.

3.We are 2 brothers and 2 sisters (total 4 siblings).My brother and both the sisters are now US citizens.

4.My father had nominated each of the siblings 25% of the share as per appx 15(2)

5.For transfer of the flat on my name, as per the advice of of one of the local advocates,the following has been done as per 'The Pune District Co-Operative Housing Federation Ltd':-

i) An Indemnity Bond ( form No18) has been signed by all my siblings.

ii) Each of my siblings have made out an affidavit, notarised indepentally at their respective place of

residence in US.( format/ content being that as applicable where there are more than on nominees/ heirs.

6.The advocate of the Society has opined that the transfer of flat in the ibid manner is bad in law and hence tantamount to being ill- legal.In his opinion the transfer of flat in the subject case is legal only if executed by a relinquishment deed or a gift deed by my siblings.

7.Please advice what is legally right/wrong and the further course of action for me, as the Society's advocate is wanting to opine and comment on a written opinion from my advocate as to the legality of transfer of flat

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Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com ) 03 September 2012

Dear Rajesh,

The advice of Society Advocate is correct, to avoid any future complications, it is better u get execution of a release deed in your favour from all other 3 sibilings. so that you have a absolute title over the property.

If it is done as per the local Advocate, you will be entitled to get your name in records as owner for urself and also on behalf of other three sibilings and at any point of there are chances for them to seek for separation of property.

rajesh kumar shrivastava (col) 03 September 2012

Thank you for your kind advice.May i further request just another clarification on the ibid issue, as under;

1. Under the Maharashtra Co-operative Societies Act 1960 and Bye Laws order dated 13-12-2010 of the Commissioner for co-operation and Registrar Co-operative Societies, Maharashtra State, Pune, in the absence of a will, the share certificates of a deceased member’s Flat in a Co-operative Housing Society is transferable to one of the Nominees ( when there are more than one nominee) on the submission of the under mentioned documents specified in the subject Bye Law No 34;

a) Appx -15 under Bye Law No 34-The Form of application for membership by the nominee/nominees

b) Form Of Indemnity Bond ( Form No 18- under Bye Law No 34, to be given where there are more nominees than one) signed by all the nominees.

c) No- Objection Affidavit to transfer the flat to one of the nominees form all remaining nominees.

d) Appx- 4 under Bye law No 19(A)(iv) –The Form of undertaking to be furnished by the Prospective member to use the flat for the purpose for which it is allotted

e) Death certificate in respect of the deceased member/members of the Co-operative Housing Society.

2. The above bye law No 34 is applicable for my case of transfer of flat and it does not mention a release/ relinquishment deed.Hence the query ,that in the existence of the subject provisions by way of Bye Laws No 34, what is the need of a relinquishment/ release deed and moreover what is the need of the society to insist for the same when they are adequately covered by the Indemnity Bond.

Adv. K.S.A.Narasimha Rao (legalquestadvisor@gmail.com ) 03 September 2012

As per the above provisions, the transfer of your name in the society can be made no doubt but after some time your sibilings or their kids can claim their share over the property by saying that those affidavits were only given for the sake of appointing nominee on behalf of them. But when u have release deed or relinquishment deed in your favour from all sibilings as per transfer of property act, no one will have a right to claim that property in future.

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