TRANSFER OF INTEREST ON DEATH OF MEMBER

It Is Settled Principle Of Law That A Nomination To A Share Or Interest In A Co-Operative Society Is Meant To Provide An Arrangement Between The Death Of The Original Member And Full Administration Of The Estate. 

Maharashtra Co-Operative Societies Act S. 30 – Transfer Of Share Or Interest Of Deceased Member To A Nominee Or To An Heir Or Legal Representative Recognized By Society  Does Not Create Interest In Such Person To Exclusion Of Other Heirs – He Only Holds Share And Interest Of Deceased For Disposal Of The Same In Accordance With Law 

Section 30 Of The Maharashtra Co-Operative Societies Act, 1960 Reads :

On The Death Of A Member Of A Society, The Society Shall Transfer The Share Or Interest Of The Deceased Member To A Person Or Persons Nominated In Accordance With The Rules Or, If No Person Has Been So Nominated In Accordance With The Rules Or, If No Person Has Been So Nominated, To Such Person As May Appear To The Committee To Be The Heir Or Legal Representative Of The Deceased Member :

However What Is Important Is The Section And Not The Rules And Bye-Laws In As Much As The Rules And Bye-Laws Cannot Provide Anything Contrary To The Section. It Is Very Clear On The Plain Reading Of The Section That The Intention Of The Section Is To Provide For Who Has To Deal With The Society On The Death Of A Member And Not To Create A New Rule Of Succession. The Purpose Of The Nomination Is To Make Certain The Person With Whom The Society Has To Deal, And Not To Create Interest In The Nominee To The Exclusion Of Those Who In Law Will Be Entitled To The Estate. The Purpose Is To Avoid Confusion In Case There Are Disputes Between The Heirs And Legal Representation And To Avoid Uncertainties As To With Whom The Society Should Deal To Get Proper Discharge. Though In Law, The Society Has No Power To Determine As To Who Are Heirs Or Legal Representatives, With A View To Obviate Similar Difficulty And Confusion, The Section Confers On The Society To Determine Who Is The Heir Or Legal Representative Of A Deceased Member And Provides For Transfer Of The Shares And Interest Of The Deceased Member’s Property To Such Heir Or Legal Representative. Nevertheless, The Persons Entitled To The Estate Of The Deceased Do Not Lose Their Right To The Same. It Therefore Follows That The Provision For Transferring A Share And Interest To A Nominee Or To The Heir Or Legal Representative As Will Be Decided By The Society Is Only Meant To Provide For Interregnum Between The Death And The Full Administration Of The Estate And Not For The Purpose Of Conferring Any Permanent Right On Such A Person To A Property Forming Part Of The Estate Of The Deceased.  The Idea Of Having This Section Is To Provide For A Proper Discharge To The Society Without Involving The Society Into Unnecessary Litigation Which May Take Place As A Result Of Dispute Between The Heirs Or Uncertainty As To Who Are Legal Heirs Or Representatives. Even When A Person Is Nominated Or Even When A Person Is Recognized As An Heir Or A Legal Representative Of The Deceased Member, The Rights Of The Persons Who Are Entitled To The Estate Of The Interest Of The Deceased Member By Virtue Of Law Governing Succession Are Not Lost And The Nominee Or The Heir Or The Legal Representative Recognized By The Society, As The Case May Be Holds The Share And Interest Of The Deceased For Disposal Of The Same In Accordance With Law. It Is Only As Between The Society And The Nominee Or Heir Or Legal Representative That The Relationship Of The Society And Its Member Is Created And This Relationship Continues And Subsists Only Till The Estate Is Administered Either By The Person Entitled To Administer The Same Or By The Court Or The Rights Of The Heirs Or Persons Entitled To The Estate Are Decided In A Court Of Law. Therefore The Society Will Be Bound To Follow Such Decision.

According To  Advocate Madhuri Gaikwad(Legal  Support For Landguruz) She Feels A Legal Advisor Should Always Work To Ensure Safeguarding & Making The Mumbaikars UnderstandThe Legal Rights Of Redevelopment. She Feels If Adhered To Ethics By Members And Legal Aids

Then It Is The Victory & Respect To SATYAMEV JAYATEY.

Think Before You Decide

IS YOUR SOCIETY PLANNING TO GO INTO

REDEVELOPMENT ???

Think Before You Decide !!!

           Know Before You Decide !!!

v              Is Your Project Technically Feasible & Commercially Viable?

v              What Is The Maximum Benefit To All Society Members?

v              What Should Be The Realistic Extra Area And Corpus Each Member Should Get?

v              Do You Know When To Vacate Your Home?

v              Do You Think Taking Post Dated Cheques For Rent Is A Safe Option?

v              Do You Know The Procedure For Selection Of A Developer?

v              Can You Judge The Credentials Of The Developer?

v              Can You Supervise The Entire Construction Work?

v              Can You Ensure The Timely Completion Of Your Project?

Bombay HC Rules That Nominee’s, Not Legal Heirs Get Ownership Rights of Shares

A 20th April Judgement Of The Bombay High Court Has Overturned Established Practice In The Matter Of Transmission Of Shares By Giving All Ownership Rights To The Nominee Rather Than The Legal Heirs.

This Means That Anyone Who Has Nominated Persons Other Than Their Chosen Or Legal Heirs In Their Demat Accounts Would Do Well To Make Appropriate Changes.

In The Verdict, Justice Roshan Dalvi Struck Down A Petition Filed By Harsha Nitin Kokate, Who Was Seeking Permission To Sell Some Shares Held By Her Late Husband. The Court Noted That As She Was Not The Nominee, She Had No Ownership Rights Over The Shares.

Ms Kokate’s Lawyer Had Argued That as She Was the Heir of Her Husband Who Had Died Intestate (Without A Will), She Should Have Ownership Rights Of The Shares, And Be Able To Do Anything With Them As She Wished. In This Case, Ms Kokate’s Husband Had Nominated His Nephew In Favour Of the Shares.

Ms Kokate’s Lawyer Went On To Claim That the Nominee Had No Legal Ownership Rights over Shares, And Was Merely Entitled to Hold the Shares in Trust for the Estate of the Deceased. He Pointed Out Similar Cases Under The Insurance Act With Respect To Life Insurance Where Although The Policy Is Paid To The Nominee Of The Deceased Policy Holder, It Is Only Held By Them In Trust For The Estate, As The Act Provides No Other Provision For Any Other Rights Of The Nominee. He Also Pointed Out That Under The Maharashtra Co-Operative Societies Act, While The Shares In The Society Are Transferred To The Nominee, It Does Not Result In The Flat Being Transferred To The Nominee. He Again Acts As A Trustee For The Estate Of The Deceased And The Society Is Not Concerned With Any Disputes Between The Heirs Over The Property.

Justice Dalvi However Noted That Under The Provisions Of The Companies Act And The Depositories Act, Acts Which Govern The Transfer Of Shares, The Role Of A Nominee Was Different.

“A Reading Of Section 109(A) Of The Companies Act And 9.11 Of The Depositories Act Makes It Abundantly Clear That The Intent Of The Nomination Is To Vest The Property In The Shares Which Includes The Ownership Rights There Under In The Nominee Upon Nomination Validly Made As Per The Procedure Prescribed, As Has Been Done In This Case.”

This Excerpt From The Judgement Makes It Clear That Since The Nomination Was Done In The Proper And Prescribed Manner, The Nomination Was Valid, And The Nominee Was Entitled To Ownership Rights Of The Shares, To The Exclusion Of The Legal Heir.

“The Court Has Reemphasised And Clarified The Position In Law Both In Regard To Nomination As Far As Shares In Companies, As Well As Nomination As Under The Maharashtra Co-Operative Societies Act Which Has An Analogous Provision, And Therefore The Ambiguity That Used To Exist In The Minds Of Legal Descendents Should Now Be Put To Rest,” Said Advocate Jamshed Mistry Of The Bombay High Court.

“In Light Of This Judgement, It Would Be Prudent For Legal Descendents To Get Themselves Nominated Rather Than Wait For The Law To Take Its Course, In Which Case The Person Who Has Been Nominated Will Get The Shares,” Said Advocate Dipesh Siroya Of The Bombay High Court.

Ms Kokate Can Now Appeal To The Supreme Court, And If The Apex Court Delivers A Contradicting Judgement, The High Court’s Judgment Will Be Null And Void.

The Notice Of Motion Was No. 2351 Of 2008, In Suit No. 1972 Of 2008
AK Maheshwari Had Appeared For Ms Kokate, While Shyama Parkar And HS Shreepad Murthy Appeared On Behalf Of The Defendants.

Repair Permissions (MCGM Jurisdiction)

Many A Time It Is Seen That Essential Repairs To The Building And/Or To Individual

Premises Are Delayed Due To Conflict between Management Of Society And

Individual Member/S, On Personal Grounds.

This Tendency Is Harmful For the Life Of The Building

All Parties Are expected to co-operate In The Matters Of undertaking Timely Repairs Of The Society Structure To Enhance The Life Of The Building.

It Is Paramount Responsibility Of All Members To Keep The Building In Excellent

Conditions.

  It Is Necessary To Ascertain The Exact Nature Of Repairs To Be Carried Out And Its Necessary Permissions Form The Local Civic Authority. One Should Under-

Stand That Only Timely Repairs Can Increase Longevity Of The Structure. It Is Seen

By And Large That The Repairs Are Ignored And /Or Delayed For Some Reasons,

Or Some Time Due To Abnormal Delay In Granting Of Permissions By The Local

Municipal Authority. Such Permissions Are Based On The Nature Of Repairs. It Is

Also Noticed That, At Times Members Carry Out The Work Of Additions & Alterations

Under The Disguise Of Repairs And Ultimately Land In To Trouble.

  Repairs Amounting To Structural Changes Or Additions Or Alterations Require

Permissions Form Civic Authority. However It Is To Be Noticed That Certain Type

 Of Repairs Do Not Require Permissions From The Municipal Corporation. The

Nature Of Repairs And Its Permissions Are Described Below. The Municipal

Corporation Of Greater Mumbai (MCGM) Has Prepared Following Guide Line

For The Information Of Public.

Mainly The Repairs Are Classified In Three Categories:-

1)    Repairs Where Permission Is NOT Required Form MCGM.

2)    Repairs PROHIBITED.

3)    Repairs Which REQUIRE Permissions Form MCGM.

1)    Repairs Not Requiring Permission Form MCGM.

Following Repairs Do Not Require Permission from MCGM:-

1)    Providing Guniting to Walls.

2)    Plastering, Pointing and Painting.

3)    Changing Of Floor Tiles.

4)    Repairing Of W C, Bath, Toilets and Washing Places.

5)    Repairing Or Replacing Of Drainage Pipes, Joints, Taps, Manholes And Other

Sanitary Fittings.

6)    Repairing or Replacing Of Sanitary/Water, Plumbing And Electrical Service Lines.

7)    Repairing or Replacing Of Roof with Same Material, Without Altering Floor Height.

 

2)    Repairs Prohibited Without Prior Permission From MCGM

Certain Repairs Are Prohibited Which Are Detrimental To The Structural Stability

Of The Building. So, Never Attempt Following, Repairs Unless Same Is Permitted By

The Municipal Authority.

1)      Lowering Of Plinth.

2)     Removal Of Load Bearing Walls.

3)     Constructions Of Lofts/Mezzanine Floors Supported On Partition Wall

Which Are Not Provided As Load Bearing Walls.

          Repairs Involving The Removal, Alteration Or Re-Erection Of Any Part Of The

      Building Covered Under Section 342 Of MMC Act, Permission Form MCGM Is

      Required To Be Taken, Such As For:-

1) Changes In Horizontal And Vertical Existing Dimensions Of The Structure And Thereby Increasing Built Up Area.

2) Replacement Of Any Structural RCC Member Such As Columns, Beam Etc And

    Load Bearing Walls.

3) Construction/Extension Of Mezzanine Floor/Loft.

4) Flattening Of Sloping Roof In RCC Or Repairing And Replacing Of Existing Roof With  

  Different Materials, Including Alteration In Floor Height, If Any.

5) Enclosure Of Balcony.  

Shri Behram Siodia Is An IIT Gold Medalist From IIT Chennai & Looks After The Structural Aspects Of Buildings Since Last 25 Years.

He Says That Especially In A Climate Like Of Mumbai, Which Lies On The Coastal Line, The Building Structure Is More Prone To Corrosion In RCC Members And Hence Timely Maintenance & repairs Are Absolutely Essential To maintain Strength & Durability Of The Building. It Is With this Aim That MCGM Has Made It Mandatory To Carry Out Structural Audit Of Buildings Periodically to Assess Structural Conditions Of The Building And Ascertain Whether Repairs Or Redevelopment Is Recommended from The Point Of View Of Safety & Stability Of The Structure.

Cluster development sounds good on paper, but where is the space in Mumbai?

Does Mumbai have enough space to accommodate incentive FSI development granted by the government for cluster developments? The numbers just don’t add up

The government of Maharashtra has granted different percentages of incentive floor space index (FSI) for various ranges of amalgamated plots that will be used for cluster development. Cluster development allows redevelopment of old cessed buildings which have been constructed prior to 30 September 1969 and which have a built-up area of up to 2,000 sq mt. There’s an FSI of 4 for cluster development of amalgamated plots.

According to Section 37(2) of the Maharashtra Regional & Town Planning Act, 1966, these incentive FSI numbers will be granted for cluster development for the following size of amalgamated plots:

• Where the total area of amalgamated plot is between 4,000 sq mt-8,000 sq mt, the incentive FSI admissible will be 55%
• Where the total area of amalgamated plot is between 8,001 sq mt-12,000 sq mt, the incentive FSI admissible will be 65%
• Where the total area of amalgamated plot is between 12,001 sq mt-16,000 sq mt, the incentive FSI admissible will be 70%
• Where the total area of amalgamated plot is between 16,001 sq mt-20,000 sq mt, the incentive FSI admissible will be 55%
• Where the total area of amalgamated plot is more than 20,000 sq mt, the incentive FSI admissible will be 80%.

There are 16,000 cessed buildings in Mumbai and the government is targeting 20 years to complete the re-development of these structures. “You have to develop 800 buildings per year to meet the target. Each re-development takes at least three years-four years for completion. Around 2,500 buildings have to be re-developed at one time which will create chaos,” said Pranay Vakil, chairman, Knight Frank (India) Pvt Ltd.

Most of these cessed buildings which have been earmarked for re-development are located in the congested southern part of the city where there is hardly any place to park an automobile. The government has allowed incentive FSI in those areas which are already crowded—like Bhuleshwar and Kalbadevi in south Mumbai.

Problems Of Deforestation

Transfer Fees Paid Above Rs. 25 Thosand Not Refundable

In A Land Mark Judgment Bombay High Court Had Said That You Cannot Ask For A Refund Unless You Prove You Were Forced To Pay The Sum Over And Above The Limit Of Rs. 25000/-.

  The Court Has Held That Members Of A Co-Operative Housing Society Cannot Seek A Fund Of Transfer Fees Paid For Transferring Shares In His Or Her Name Unless They Prove That The Amount Was Paid Under Coercion. This Is Because The Society Act In Maharashtra States Charging More Than Rs. 25000 As Transfer Fees Is Illegal.

Mr. Justice Roshan Dalvi Reversed The Order Of A Co-Operative Appellate Court Which Had Directed Bhartiya Bhavan Co-Operative Housing Society Ltd. At Marin Drive To Refund Rs.9.63 Lac To Its Members Krishna Bajaj.