Monday, September 27, 2010

Transfer Of Shares And Interest In The Capital/Society

Part 4

v     Transfer in case of nomination

In cases where there is nomination [Bye-law No. 36]

(1)  Where there is a single nominee
      
(a)    The nominee named in the nomination made by the deceased member should give an application for membership of the society in the form prescribed for membership of a nominee. Bye-law No. 34.

(b)   The application for membership of a nominee should accompany an attested copy of the death certificate in respect of the nominator deceased member, and the original share certificate in the  name of the deceased member

(c)    The nominee has to pay all the dues outstanding against the deceased member along with the application for membership/Entrance fees of Rs. 100/-.

(d)   The nominee should give a declaration in the prescribed form regarding non-holding of any vacant land or land with a building in any urban agglomeration, specified under the Urban Land ( Ceiling and Regulation) Act, 1976, exceeding 500 sq. meters.

(2)    Action in cases where there are more nominees than one

(a)    All the nominees will have to decide amongst themselves as to who should become the member of the society.

(b)   After arriving at a decision, the nominees should make an affidavit to that effect.

(c)    The nominee named in the affidavit should make an application for membership in the manner indicated above. In addition, he should enclose a copy of the affidavit along with the application for membership.

(d)   He should comply with the requirements mentioned above.

(3)    Action in cases where a member dies without making nomination or no nominee comes forward for transfer (As per Bye-law No. 35).

(a)    The society shall invite the legal heir or representative of the deceased member within one month from the information of the member’s death, by giving a public Notice, in the prescribed form. The same must be exhibited on the notice board of the society. The society shall also publish such notice in at least two local news papers having wide circulation at the cost of the would be valid claimant.

(b)   After taking into consideration the claims or objections received in response to the said notice and after making such inquiries as the committee considers proper in the circumstances prevailing, the committee shall decide as to the person, who in its opinion is the heir or legal representative of the deceased member. Such person will be eligible to be a member of the society subject to the provisions of Bye-law No. 17(a) or 19.  He has to give an indemnity Bond along with his application for membership in the prescribed form.

(c)    If  there are more claimants than one they shall be asked to make an affidavit as to who should become a member of the society and such person named in the affidavit shall furnish the indemnity Bond as indicated above along with application for membership referred to above. If the Committee is not in position to decide as to the heir/legal representative or if claimants do not come to an agreement as to who should become a member of the society, the committee shall then call upon the claimant/s to produce the succession certificate from competent court.

(d)   If there are no claimants, the shares and interest of the deceased member in the capital/property of the society shall vest in the society.

 Case Law:

Om Siddharaj Co-op Housing Society Ltd. v. The State of Maharashtra, 1998 (4) Bom. C.R. 506; 2000 Mh. Co-op. J 888


v     Right of Heir or Legal Representative : Death of Member of Society

When a member of the society dies, even though Sec. 25 of MCOS Act does not speak about the right of heirs or legal representatives of the deceased member it does not mean that the right of the heir or legal representative to claim membership or value of share or interest is taken away. Sec. 25 deals with extinguishments of right of a member who is not alive. Once the Statute ensures the right of the heir or the legal representative to claim membership and/or the value of the shares or interest of deceased member, at the option of the such share or legal representative the transfer of the membership or the share is not permissible otherwise than as provided under the provision of law and in accordance with the procedure prescribed under Rule 25 of MCOS Rules, 1961. [Virendra Bhanaji Rathod   v.  Anand Vihar Co-op.  Soc., Mumbai, 2004(1) Mh.L.J.656: 2003 (4) All MR 843]

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