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OP Trigunait (Sr. Exec)     12 March 2010

Transfer of Society Shares on death of Co-owner


We are recently formed Housing Society in Pune. We got one case here to resolve.

One flat was co-owned by two ladies and the first co-owner (whose name appear first in agreement) died after a Will in favor of second co-owner's husband. Now second co-owner wants to issue the shares in her sole name. Nomination was not done by deceased.

Kindly suggest the available options with Society so that we can proceed further. 


 12 Replies

adv. rajeev ( rajoo ) (practicing advocate)     12 March 2010

Property was jointly owned by the two ladies.  Ist lady died exeucting the will in favour of second co-owner's husband.  It is not clear in your question tha whether will contains anything in respect of the property jointly owned by her.

If in the will in respect of this property on the basis of the will 2nd co-owner's husband will have share in the property.  And so on shares.

OP Trigunait (Sr. Exec)     12 March 2010

Thanks a lot!

The Will covers all wealth and properties belong to deceased lady. So your assumption is correct,

Thanks again for your response.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     12 March 2010

1. The society has no jurisdiction to delete the name of the first member (first co-owner), at the instance of the 2nd co-owner or for that matter anybody. The society has to maintain status-quo in the share certificate. 2. The beneficiary of the Will (husband of 2nd owner), has to apply to the CHS for substituting his name in place of the first member (first co-owner) after appropriate documentation (or even probating the will). After all the documentation, the CHS will substitute the husbands name in place of the 1st owner AND NOT in the second place. 3. The 2nd owner (member) CAN NEVER EVER become the first owner or first named member in the CHS nor there is any automatic derivable right after death of joint owner. The inheritance rights & legal heir are separate for both owners. 4. When a "will" is available, then nomination has no legal value. Keep Smiling .... Hemant Agarwal

OP Trigunait (Sr. Exec)     12 March 2010

Thanks Hemant for detailed response.

BTW one legal professional advised that share certificates can be issued in the name of 2nd co-owner as co-owner has complete right on property as first co-owner if legal heir has no objection on this.

any comment on this?

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     13 March 2010

1.  In a CHS, the first named member derives all the right of doing anything in the society,  which includes sale of property.  The 2nd named member in a CHS share certificate, does not have ANY rights to do what-ever.  Such rights are dependant on the Consent of the First named member (co-owner issue is immaterial in a CHS).

That is if the 2nd member (2nd co-owner)  wishes to attend AGM or contest elections or selling or  whatever, then he has to obtain written consent from the 1st member and have it approved by the mg.committee, before deriving any rights whatsoever.
The 2nd named member in the CHS share certificate is  ONLY for conveience purpose and does not confer any ownership rights to the 2nd owner. 


2.  There is no such thing as  "1st owner"  or  "2nd owner"  in a CHS, specially so under the Maharashtsra Coop Societies  Act (MCS Act).  The act defines only membership. That is 1st member and 2nd member.  The 1st member status is defined as the 1st named owner in the sale-agreement (and not agreement of sale).



3.  The sale agreement defines the exact ownership ratio status.  The sale agreement may have defined that the 1st owner has 90% ownership title and the 2nd owner has 10% ownership title.   The CHS share certificate does not define the ownership status.

In the above event,  if the 1st owner dies,  the 2nd owner  CANNOT & CAN NEVER claim 90% ownership title of the 1st owner.



4.  The legal heir of the 1st owner are entitled by law to have complete title of the 90% share of the 1st owner.
By the above logic,  the 2nd owner does not derive any ownership title, on death of 1st owner.  The 2nd co-owner remains the 2nd co-owner for life and further still he remains the 2nd named member in the CHS for life.  AND the 2nd co-owner CAN NEVER become the 1st named member of the CHS.



5.  If the 2nd co-owner manages to get his name in place of the 1st owner,  then it will be a fraud on the legal heirs of the 1st owner.  The 2nd co-owner cannot sell the property of the 1st co-owner.  AT the most the 2nd co-owner  may relinquish or gift his ownership title on his share of 10% of the property, that too via a registered relinquishment deed or a gift deed.  Based on this deeds, the CHS may substitute the name of the 2nd member with a new name.



6.  Under the H.S.Act,  there is no question of  "no-objection" by the legal heir.  That right is automatic and by legal default and CANNOT BE TAKEN AWAY.   In order to have no objection from the legal heirs,  the legal heirs will have to prepare a registered relinquishment deed or a gift deed in favour of the 2nd co-owner for the rest of the 90% share ratio of the property as defined in the sale  deed.  BUT this too is challengable in future by future legal heirs.



Keep Smiling .... Hemant Agarwal

OP Trigunait (Sr. Exec)     13 March 2010

Got it!

Thanks Hemant and everybody for clearing the doubts.



We have a case where there are two joint owners of a flat a Mother and son duo. The Mother who was the first owner died before the share transfer could take place. There is a will left by the deceased but it does not mention the above property. There are other legal heirs of the deceased other than the 2nd owner.Now the 2nd owner the son wants us to transfer the shares in his name. Pls advice.

Audry Fernandes (nil)     23 June 2010

Thanks Hemant for your clear explanation.

In oru Society we have been allowing the 2nd name in the share certificate to attend meetings in place of the first holder. By what you state, this is wrong?

Also I am the Chairperson now and have found the earlier committee has added the name of the son to the share certificate.  I know this is wrong. The mother got the share certificate in her name after the death of her husband after they gave an indemnity bond in the name of all the children (who were minors at that time). Some time in 1992 I have found an entry in the transfer boiok adding one son's name. I know this is wrong.Am I correct. I feel they should have got NOC from other heirs and also stamp duty is payable.

Also in the indemnity bond given at the time of transfer in the mother's name, the eldest daughter's namje was not given. She had married against the mother's wishes. No one knew of her existence.Now they have patched up after 30 years. Is the bond legal, now that we know of the existence of one more heir?


Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     04 July 2010

for : Audry Fernandes :

1.  Right to attend AGM, Contest elections etc.... vests ONLY with the first named mamber.  However any one joint-members may attend AGM & Contest elections,  with the written consent of the First member,  which may be approved & recorded by the MC of the CHS.

2.  There is no question of  "Stamp Duty",  when name is added / substituted  via a Nomination  .OR.  a  via  "name substitution"  at the discretion of the MC,  BUT all this things can be done  if the legal heir / Nominee,  provides  an  notarised  "Indemnity Bond", signed by all the legal heirs and any other existing  joint-members.  The MC may approve it via a MC resolution and get it further ratified in the General Body via a AGM / SGM ....

3.  Stamp Duty is payable  ONLY,  if a  "DEED" of whatever type, is executed.    Indemnity Bond, not being a deed,  may be executed on a 100/- rupees stamp paper or franked, depending on State Govt.rules.

4.  In the present instance,  a fresh "Indemnity Bond",  AND  a declaration,  may be taken from all the known legal heirs and their names may be incorporated in the Share Certificate.  The validity of the "Indemnity Bond" is limitless,  unless there is a Time-Limit clause in the Bond.

5.  IF there is no question of the genuiness of the legal heirs,  THEN  presently,  it is best to  "regularise"  & close the said matter, via the above procedure,  ELSE all the legal heir have to approach the competent court to obtain a LA,  which is time + money consuming, for both the legal heirs as well as the CHS.

Of course, there are various other parameters to be considered,  IF there is a scope of dispute over the property.

Keep Smiling .... Hemant Agarwal

Audry Fernandes (nil)     05 July 2010

Thanks Hemant for point 1.

2. In this case  the flat stands in the name of the mother. She is still living. In 1992 the name of one of her sons' was added. This is not nomination nor substitution. He is one of the joint signees of the indemnity bond., giving the mother right to be a member upon the death of her husband. I think 3 were minors at that time and the eldest daughter's name was not put.

Is this addition legal and can he sign jointly with his mother? His wife has signed some document writing "POA" but not enclosing the POA. Can the second named give POA and can both sign or is signing authority with the first member only? 

They want 2 car parkings and are troubling the Society. 20 years back people have been refused space for parking a 2nd car. These people are troubling us and if we allow, others who were refused eariier will fight.

Tejpal Shah (Manager)     04 November 2013

My Mother's name is First on our Hsg.Scty. share Certificate and my father's name is 2nd.  My father died

without  making a will, leaving a family of  my mother, two Brothers and two sisters (married ). Though he

could not make a will, we ( father, mother and us two Bro.) had agreed/ decided to transfer Ownership of

flat in equal part to us two brothers only  amongst our family.  How do we do it ?  (1) can we simply ask 

our Scty. to remove name of our father  and let our Mother be the sole member/owner  - as our mother

has made will in our favour ( while my father was alive) giving  50% i.e. equal % ownership of  the flat to us 2 Bro.)  (pls,. inform procedure to 

remove name of father, Payment for flat is considered to have been made by Mother 100%)  -- And /

OR .. Pls. suggest  correct way so that  us two Bothers get the  Ownership of the flat.  (Rahul)

Vinod Upadhyaya (self)     02 August 2015

Hi Mr. Hemant Agarwal, In my society the reverse has happened the second person on the share certificate has passed away who was also the joint owner in the sale agreement of the shop. the widow of the deceased has requested for her name to added in the share certificate in place of her late husband as the second name. kindly guide us in this matter.

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