Q. My mother died in 2002 without making a Will. Her legal heirs, including me, are my elder brother and sister. Her flat is in my brother's possession, who is the nominee. Around 10 years ago, the society transferred the share certificate in my brother's name, instead of granting provisional membership. I plan to get a succession certificate from the civil court for my share in the flat, however, my siblings and the society are not cooperating. How do I get my succession certificate? Prashant P Joshi, Pune
A. In the Will's absence, all legal heirs have equal rights in the flat owned by your mother. It is a settled position that the nominee is holding the property in trust for the ultimate beneficiaries. Ideally, the society should have asked for a no objection certificate and indemnity from you and your sister before transferring your mother’s flat in your elder brother's name. The concept of provisional membership was introduced in the Maharashtra Co-operative Societies (MCS) Act in 2019. Hence, such a clause did not exist during the period mentioned by you.
Whether rightly or not, the flat was transferred 10 years ago and to obtain a succession certificate from the civil court now, you may have to challenge the same before the appropriate court. However, provisions of the Indian Limitation Act will be a task to justify the delay and get the same condoned. Instead three of you can settle your differences through mediation – a simple, cost effective and time-saving means to settle the family dispute.
Q. My flat is jointly held with Mr X as the first owner, who recently passed away. His legal heirs never cared for him or his old parents. I took care of them and hence he purchased the flat with me as a joint owner. He nominated me in his flat share and a clause to that effect is mentioned in the purchase agreement. He also made a Will in my favour. I have requested the managing committee (MC) to transfer the share of the first owner in my favour on the basis of nomination in the agreement and the Will. In such circumstances, should I worry about any objection that may come from the legal heirs? What am I required to do to ensure that his share is transferred in my name peacefully? Vishal Kadam, Kandivili
A. The procedure to file nomination is mentioned in bylaw 32 which provides that the prescribed form has to be submitted in triplicate. Such a form shall specify the name/s of the nominee/s to whom the whole or part of the shares and or interest in the capital property shall be transferred in the event of the death of the principal member. No fee is charged for the first nomination, while Rs100 will further be chargeable. The secretary should return one copy as an acknowledgement of the nomination submission and place the form before the MC.
The secretary should enter the details in the nominee register, however, the procedure has not been followed in your case. There is no record of nomination in the society’s record in accordance with the MCS Act. One may argue that the purchase agreement provides for his nomination. It may be noted that such an agreement provides for the rights and obligations of the buyer and the seller, including allotment/transfer of flat ownership as the case may be.
Providing a nomination in the purchase agreement seems to be an ill-advice. You may obtain a probate of Will from the competent court to put an end to your apprehensions. Upon submission of the probate to the society, the MC can strike down his name and you can be the flat's sole owner. (Refer MCS Act's section 154B-13)
The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to fpjchs@gmail.com
