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Siddique (OWNER)     15 May 2014

Transfer / transmission of a chs property

A CHS flat in Mumbai in late sister + late brother's name. Late sister left no nominee. Late brother’s 2 sons are nominees. We the surviving brothers are the legal heirs.

Legal opinion from society's advocate:

A) nominees have a right to transfer flat in their names;

B) legal heirs of deceased sister should get court’s succession certificate.

Our comments on A): Bye law 35, section 17(a) & 19 requires society to inform nominees within 15 days and it allows 6 months from death of nominator for nominees to apply for membership; 6 years have passed; brother's nominees have not applied for membership nor society has informed them so far;

comments on B): sister died 20 yrs ago; no claimant/legal heir of sister or brother has lodged any claim with society; keeping legality aside, it does stand to reason, beyond reasonable doubt, that we are the only surviving brothers of the deceased sister.

Now the surviving brothers intend to apply for transmission of flat. Some of our queries are:

Q1: Can society legally insist on nominees to get flat transferred in their name even now?

Q2: Whose legal responsibility to write to the nominees now; society’s or legal heir’s?

Q3:  How should society proceed if nominees do not reply to society or legal heirs’ request for NOC even now? Treat nomination as redundant (after allowing them say 15 days for reply)?

Q4:  Will the society be violating any bye law if, upon legal heirs’ application for transmission, instead of expecting succession certificate from them, it directly proceeds to display/insert public notices inviting other claimants/legal heirs, if any, thereby establishing “the need or no need” for succession certificate?

Q5: After all, what is the difference between a petition in court and a similar legal heirs’ application to society; this application also will enclose essential proofs of immovable property, death certificates, notarized affidavit of blood relationship of legal heirs vs. sister, etc.?

Q6: Shouldn’t the legal heirs’ indemnity bond be enough to put at rest committee members’ hypothetical risk perception? What else should the legal heirs offer to satisfy society?

Q7:  Society wants the nominees to present themselves personally before the committee members. Instead of this, we feel,   notarized and registered affidavit from the nominees should do equally well.

Saleem Shaikh

saleemshaikh702@gmail.com



Learning

 8 Replies

T. Kalaiselvan, Advocate (Advocate)     17 May 2014

Nominees cannot get the flat transferred on their name just on the basis of nomination.

A succession certificate to succeed the estate of deceased sister through a court of law for immovable property is a mandatory requirement as per law.

Now to your further questions:

1: Can society legally insist on nominees to get flat transferred in their name even now?

It is not the problem of the society to ask the nominees to the flat transferred on their names, the nominees, upon the death of their father have to apply for membership on their name, however besides the nominees, if there are other legal heirs  to the deceased, their consent to obtained before the property is transferred on the nominees name, because the nomination under such act is merely a trust on behalf of the legal heirs of the property of the deceased.

Q2: Whose legal responsibility to write to the nominees now; society’s or legal heir’s?

What is society's interest in it?

Q3:  How should society proceed if nominees do not reply to society or legal heirs’ request for NOC even now? Treat nomination as redundant (after allowing them say 15 days for reply)?

First let the nominees make a written application to the society.

Q4:  Will the society be violating any bye law if, upon legal heirs’ application for transmission, instead of expecting succession certificate from them, it directly proceeds to display/insert public notices inviting other claimants/legal heirs, if any, thereby establishing “the need or no need” for succession certificate?

The society has to insist on a succession certificate from a court of law, without which the society cannot ascertain the legal heirs/successors to the deceased property/flat owners.

Q5: After all, what is the difference between a petition in court and a similar legal heirs’ application to society; this application also will enclose essential proofs of immovable property, death certificates, notarized affidavit of blood relationship of legal heirs vs. sister, etc.?

It is better to approach a local lawyer and file an application seeking succession certificate from court of law, you will understand the procedures once you are into the issue.

Q6: Shouldn’t the legal heirs’ indemnity bond be enough to put at rest committee members’ hypothetical risk perception? What else should the legal heirs offer to satisfy society?

It is no valid as per law.  The society cannot take a decision that way, the society is bound by the laws meant for it and it cannot dance to tunes of some vested interests.

Q7:  Society wants the nominees to present themselves personally before the committee members. Instead of this, we feel,   notarized and registered affidavit from the nominees should do equally well.

The society's demand at this belated stage is very much justified.

Lastly, look for amicable solution instead of picking up quarrel over petty issues.

Usharma (Lawyer)     18 May 2014

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Saleem (management consultant)     19 May 2014

T. Kalaiselvan, Advocate: Hello! Very pleased indeed with your specific replies to our queries.An important point still remains. If nominees do not respond to our mails, shouldn't society proceed with public notices as per bye law 35 section 17(a),19?. In such a case,this bye law directs society to insert public notices which safeguards society from any future eventuality from any claimant whatever his status (nominee,heir,lender)with respect to flat, may be.But many many thanks all the same.Keep up the good work and God Bless.

K.Vishwanathan (Retired)     29 June 2014

Our house has been duly registered in my name and my and daughters by way of release,gift from my brothers and sister.consideration has been paid to my brothers for release of their share in our late fathers propery.

does this constitue transmission or does this become transfer, as a consideration has been paid, for the purposes of charge of transfer fee by the co-op society

T. Kalaiselvan, Advocate (Advocate)     29 June 2014

@ Mr. Viswanathan: You have clearly stated that your brother and sister after receiving the consideration amount have executed a release deed (registered or unregistered?) in your favor, now since the property is already in your name meaning thereby that the rights of the erstwhile owners have extinguished, now what is your concern about transmission or transfer, you know the meaning of transmission as well as the transfer(?)  Once the property has been transferred by observing the necessary legal formalities, you should not  be  concerned anymore about other issues, hope you had taken a opinion from a local lawyer already?

K.Vishwanathan (Retired)     29 June 2014

The gift deed and release deeds are duly registered.

the matter pertains to the c.h.society which seems to think that this is a case of transfer and therefore wants me to pay the transfer charges for entering our names n the share certificate which is in the name of my late father.

i believe that this is case of inheritance and the property has come to me by way of transmission within the family for which no transfer fee is payable.

this is the point on which I want to be enlightened.

Rajender (propriter)     01 July 2014

My father purchase a cooperative group housing society flat on GPA in DELHI, he expired in 1996 without any will and leaving behind four legal heirs.  I have transfer the property (mutation) in Municipal Corporation Delhi record after having NOC from other heirs.

Now I want this flat from lease hold to free hold from Delhi Development Authority, for this DDA needs mutation of this flat before moving for free hold to this flat.

Kindly advise :

Mutation procedure to be complete before applying for free hold of this flat to DDA and mutation means relinquishment deed and indemnity bond to be registered with sub-registrar and then submit to DDA and wait for approval of mutation.   Am I Correct ??

Both mutation and free hold are two different system.???

Please guide for procedure..//

Siddique (OWNER)     22 January 2015

K.Vishwanathan  &  @ Rajender  : Why hijack my thread ?

Anyways, any more expert opinions w.r.t. to my original post ?

Thanks


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