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Devrishi Vijan (--)     02 July 2010

Flat gifted to one of legal heirs from a nominee


1. The owner(O) of the flat expired in 1995 leaving his wife(W) as nominee and legal heir alongwith his four children(A&B-->sons and rest two daughters). Amd A as the associate member.

2. The flat was transferred to the nominee in 2001 in the managing Committee meet in which A was present as an invitee. And in 2002, A was made Associate Member to the suit flat by W, and was selected as a Managing Committee member and Treasurer to the said Society in 2004 and resigned due to difference in opinion in 2005.

3. Now W has gifted the flat to B in 2006 in view of a family dispute.

4. The sisters of A&B also being the legal heirs have no objection to this flat gift and transfer. But A has objected to the same in view of his legal right.

5. The managing committee that permitted to this Gift Deed and transfer have not been elected since 1992. And three other new members of this Managing Committee were selected when there was no quorum in the Managing Committee meeting in the presence of a few invitee general body members and only two managing committee members. Therefore during the transfer of suit flat to B, there was no actual quorum.

6. The elections of the current managing committee was held in 2009. And the members of the Managing Committee were same after election as well. This Managing Committee has a grudge against A for objecting against the redevlopment process along with a few like minded members.

7. A is residing in the suit flat since 1973 and has been in exclusive possession and occupancy along with his family since 1993.

8. I filed a suit at Dindoshi against B and Society for not to dispossess with following due procedure of law. But failed to get an order in ad-interm. But the suit is still in Court.

9. I filed another suit against W&B in the High Court, Bombay for the cancellation of the Gift Deed and non-dispossession as in the above suit. And I got a status quo in the ad-interim.

10. The Managing Committee of the Society is conducting General Body meetings with a rule that if the first time there is no quorum then after the meeting resumes no quorum would be considered. Whereas they are including important issues like Redevelopment and audit report of accounts of the Society.


1. A has not challenged the transfer of flat to B. What is the correct forum to appeal and what should be the prayers.

2. Can the point no. 5 of issues help A in some way.

3. What can be done with respect to point no. 10. of issues.

4. Is anything is left out to be done other than the challenging of the transfer. If yes, then please guide me.


 9 Replies

Audry Fernandes (nil)     05 July 2010

I assume you are A

Please clarify point 1 "leaving W as nominee and legal heir"

If W is only a nominee, then the flat goes to the legal heirs i.e W and children

If W is left the flat by will the situation is different.

Associate membership is not real membership and becomes invalid on death of the member giving Associate membership.

Devrishi Vijan (--)     05 July 2010

Well I'm not A, its my father.

W was a nominee & the flat was transferred in 2001 to W in presence of A, W being the oral caretaker.

She gifted the flat in 2006 to B, my uncle.

" Both the cases you have mentioned are different."

Audry Fernandes (nil)     10 July 2010

In point 1 you have stated W is nominee and legal heir.

Please understand nominee is not the legal heir.
A person can becomne legal heir only by way of a will. Otherwise legally W, A. B, & sisters are all legal heirs in shares as per the Hindu Law of succession. Hence A's share cannot be gifted away by W. I do not think flat can be transferred to B w/o NOC from A also.

As to A & family's right to stay in the flat I am not a lawer and cannot say. Will some lawyer please respond?

1 Like

Devrishi Vijan (--)     10 July 2010

Thank you reply but there is no will so W is also an heir as per the law mentioned by you.

But as mentioned I have already challenged the Gift Deed, but what can be done with respect to the transfer of the flat.

vivek dhavalikar (advocate high court.)     24 July 2010

can gift deed be challenged .since if the person giving the deed is competent and if the person receiving is competent. so where is the cause of action.

Devrishi Vijan (--)     25 July 2010

Sir, she has gifted the whole suit premises to the son B whereas she is entitled to only 1/5th share in the undivided shares of the suit flat as the father has died intestate and as per some law and judgement mentioned in times of india a nominee is only a caretaker and not the owner so how can she gift the whole suit flat when she is entitled to only 1/5th share..

vivek dhavalikar (advocate high court.)     25 July 2010

after death of hus wife is owner of the flat. and hence competent to give gift .distribution of shares in the property is governed by say H. act where as transfer or sale by say T. act. both the acts being different .wife can sale it under T .act. . making of gift deed was a legal advice to save expense on stamp at the time of registeration of sale deed. the last part u have challenged.

Devrishi Vijan (--)     26 July 2010

Well A has challenged the Gift Deed to B from W as a High Court Oreder says that a nominee to any property is just a caretaker and not an owner.

vivek dhavalikar (advocate high court.)     26 July 2010

wife is a nominee under H act. as far as ownership of flat is concerned she is . spell the relief prayed before the hon,ble high court . and interim relief obtained so far. then the facts can be understood properly. thanks.

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