Nominal vs associate member in coperative housing society

Your original narration doesn't follow chronology and hence confusing. I understand this way.

A person had a property in a co-perative housing society in Mumbai. He had besides his wife one son and 3 daughters. You are the son. You and your sisters executed a document during the lifetime of your father, a copy of which you have attached, According to the document the 4 of you have reliquished your rights over your father's said property. Your father had nominated your mother as his nominee in the records of the society. After the death of your father your mother claimed the property as his nominee. The Society transferred the property to the name of your mother. Your mother and her 4 children including you were the heirs to the property. But as 4 of you have abandoned the rights, your mother became the sole owner. She can gift the property to her grandson (I think that he is your son).

Now you do not like your mother transferring the property to your son for whatever reason it may be. But you cannot question the transfer because you had abandoned your rights. The only manner in which you can question the gift deed is by disputing your own reliquishment deed on legal grounds. My opinion is that you have to make a try in the court of law. You can try it in the co-operative court.

I am writing this on behalf of my wife who is one of the legal heir. The property has been illegally transferred to my nephew (brother son).

I understand that affidavit is merely an intent whereas a release deed is more legally binding document. The affidavit/consent does not meet the requirement of Section 49 of the Registration Act. Right on property can’t be relinquished on non-registered consent affidavit: Gujarat HC in the matter Roshanben Hajibhai Deraiya W/O ... vs State Of Gujarat on 9 July, 2021. (C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021)

As father died inestate the property shall devolve on all his legal heirs as per the procedures of Hindu Succession Act. The transfer of property by nomination is not legally valid.

Moreover when father took the notarized release deed affidavit none of us had rights in his self acquired property including  mother. The nominee in the society share certificate is actually a trustee to receive the property on behalf of the legal heirs of the deceased owner and this will not confer title over the property to the nominee. If nominee is also one of the shareholders she can transfer her share alone in favour of the person of her choice as a gift deed or sell her undivided share to the prospective buyer. Therefore the transfer of property by registered gift deed in favour of her grandson insofar as the shares of the other legal heirs is concerned, is considered invalid and illegal.

The reliance upon the unregistered affidavit is misconceived. The said affidavit, though notarized, is not a registered relinquishment deed as required under Section 17 of the Registration Act, 1908. It does not operate to transfer, extinguish, or relinquish any legal right or title in immovable property. The affidavit merely conveyed a “no objection” sentiment executed out of love and affection. Hence, it has no legal sanctity.

Moreover, no heirship rights had accrued when the affidavit was taken since the father was alive; hence no relinquishment of a future inheritance could take effect.

Supporting Authorities

- Indrani Wahi v. Registrar of Co-operative Societies, (2016) 6 SCC 440

- Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119

- Thulasidhara v. Narayanappa, (2019) 6 SCC 409

- Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1

Please review.

The transfer of an immovable  property thorugh an affidavit or any unregistered document is not legally valid  hence anyone acting on the basis of the such affidavit or any unregistered document is a clear case of legally invalid act.

Therefore the aggrieved legal heir can file a suit for partition to partition the property and for separate possession of her/his share in the property by a court decree and judgment.

The "Affidavit" says 3 daughters and 1 son. You Tejinder Sethi has been stating "my father". So I thought that you are that 1 son who had also signed the "Affidavit". Now it appears to me that you are the husband of one of the daughters and the property has been gifted to the son of your brother-in-law. If the "Affidavit" is a valid document and your wife is bound by what is stated in the Affidavit, you have no case. If your wife can convince the court that the document signed by her is not valid, you have a chance. Only a court most probably a High Court can answer your question. In the opinion expressed here members do not look at the whole issue. Saying that the nominee has no right is a half-baked statement. If the Affidavit is valid your mother-in-law would become sole-heir. It was only that after her death all those who had renounced would again become heirs. Your mother-in-law would have thought after her death the property should go to her son. As he has renounced the rights, she gifted the property to his son. Notwithstanding all gender equality laws the patriarchial mindset does not go away. The Hindu Succession Act did not confer property rights on girls. It gave property rights to males who dream of father-in-law's property.

I don't agree to your last para about daughters. Hindu Succession (Amendment) Act of 2005 removed gender discriminatory provisions from the 1956 Act, establishing that a daughter is a coparcener by birth, granting her the same rights and liabilities in ancestral property as a son, regardless of her marital status. This amendment made daughters equal partners in the Joint Hindu family, ensuring them an equal share in joint family property and a right to claim it.  

You also have not commented on the decision of the Gujarat HC in the matter Roshanben Hajibhai Deraiya W/O ... vs State Of Gujarat on 9 July, 2021. (C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021). There are many more judgements of the apex court similar to the above.