Is a succession certificate or other legal documents needed even if there is only one legal heir succeeding the deceased member? Can the nominee act upon the power of attorney given to him by the deceased? Can a provisional member create a third-party right and let out the flat if he is the sole legal heir of the deceased? What if there are more than one legal heirs?
HN Swami, Chembur
Nomination is a facility to identify a point of contact in the event of death of the member. It is a settled position that the nominee holds the property in trust for the benefit of the ultimate legal heir. A person ceases to be a member on death. However, the interest, right and title pass to his legal heir/s in accordance with the procedure mentioned in the MCS Act, rules and bye laws. Legal heirs have to make an application for seeking membership. Any power of attorney given to the nominee shall be infructuous on the death of the principal and will not be operative. Provisional member is a person who is duly admitted as a member of a society temporarily after death of a member on the basis of nomination till the admission of legal heir or heir as the member of the society in place of the deceased member.
Nominee is holding in trust of the ultimate legal heir and as such though he is admitted as a provisional member, he does not have any right to create third party rights. The MCS Act provides certain rights to the provisional member to attend the meeting, to vote thereat and to contest the election but since his membership is of a temporary nature with an objective to be a contact person till such time the legal heir of the deceased files his membership application in accordance with any testamentary document like will, or legal heirship certificate of succession certificate or any family arrangement document as mentioned in the 2019 amendment to the MCS Act. Provisional members may thus not be able to create any third party right nor put the said flat on rent. Going by the definition of the provisional member, legal heirs have to obtain the succession certificate or heirship certificate and that there would be no exception for a sole legal heir.
I filed a complaint before the registrar that was decided in my favour. The registrar ordered the society to give me a copy of the minutes of the meetings of the general body held in the previous three financial years. The order was given to the secretary for implementation, but till date it has not been implemented. How can I get the order executed?
Chintan Sabharwal, Khar
Section 154B-27 of the MCS Act, casts an obligation on the society to take the action for performance of its obligations, including execution of the orders issued by the state government or the registrar. If such orders are not executed, you may file an application with the registrar to have his order executed.
Can a dispute filed in the cooperative court be settled through mediation in accordance with the newly -enacted Mediation Act?
Purabi Biswas, Powai
As regards the Mediation Act, the rules under it are yet to be notified. However you may avail of the mediation facility through the MCS Act. Section 93 (3) of the MCS Act provides that in case the cooperative court feels that there exist elements of settlement that may be acceptable to the parties, it may formulate the terms of settlement and give them to the parties. The court may affect compromise between the parties and shall follow the Civil Procedure Mediation Rules.
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