Jiger 20 April 2019

Transfer of flat to legal heirs who are also nominees

Hello, My Father had made me(Son), my sister and my brother as nominees in our flat in Borivali, Mumbai were we have been staying together for the last 25 years. My mother passed away in 2013 and my father passed away on 15 Jan 2017. Being the nominees and Legal Heirs, we applied for transfer of shares & interest in the flat to all 3 of us(me, sister, brother) by submitting the following: 1. Cover Letter - informing about the death of my father and informing about we being the sole legal heir + nominees and thus to transfer the ownership & shares and interest to us. 2. Copy of Accepted & Acknowledged Nomination Form having our names in it as proof. 3. Copy of Dad's death certificate 4. Appendix 18 (Indemnity Bond) - though not requires as all nominees were to be jointly added as members but still gave it as society legal advisor forced us to give. 5. Appendix 15 - Form for transfer of share & interest. 6. Copy of Share Certificate Thereafter after a lot of time, society in it Managing Committee meeting & AGM endorsed our 3 names into the Share Certificate + made entries into membership and other registers for the same. This will be around april-may 2017. Now in April 2019, suddenly the secretary told us that your transfer is invalid as you 3 are merely nominees and nominees are only trustees and not owners in property so your transfer is invalid and there is some court procedure + fees to be paid to get ownership. We explained to him about the fact that we are also sole legal heirs of our father as per Hindu Personal Law + Income Tax Act, etc and we had also provided indemnity bond to protect the society against any claims to our property. Now if Nominee & Legal Heir are the same set of people, how can we transfer the property to our selves? So the transfer that society had done in AGM is legally valid and it was as per procedure given by Society's legal expert and also vetted by him. But he is adamant and also said that incase you want to sell this property then he will not sign on the transfer forms. This attitude is creating a lot of issues and mental tension for us. Kindly guide us what should we do as MCS Act is not very clear on what is the procedure for transfer/transmission of flat incase Nominees & Legal Heir are the same. How can we sustain our right of ownership in our dad's flat legally. Awaiting your reply, Jiger.

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Nikita Parekh 20 April 2019

Ask the Secretary of your building to raise all his objections in respect of your flat / premises to you in writing under the seal of society

Jiger 21 April 2019

Thanks but do you also think that we have followed the right procedure and nothing more is required to be done by us? Is there some Court orders esp. from Supreme Court, Bombay HC giving clarity on this subject? I also asked our society's new legal advisor and he also told that this is all that needs to be done in our case. He told that previously you had to get some Succession Certificate or Legal Heir Court order etc which incl. lawyer fees and cost etc comes to around 2L or more thus people did not go for it. He mentioned that recently Taxing Master of Bombay HC has held that a petitioner for a Succession Certificate is liable to pay court fees on the face value of the shares in a co-op. hou. soci. and not on market value. But he also added that it is not GR yet so until then the process of documents you have followed which were by the way also affixed by Stamps and Notorized is correct BUT the secretary is trying to avenge some personal jelously as he often says that you have not paid any money to buy the flat, it was paid by your parents so how you can become owners of the flat and become equivalent to us. I will appreciate if some senior lawyer experienced in property transfers share his/her view on the matter. I will anyways ask for written statement from him with sign by Chairman, Secretary & Treasurer.

Nikita Parekh 21 April 2019

Difficult to advise any further without persual of all documents on record

Jiger 21 April 2019

Hi, I have mentioned the documents we had submitted to society for transfering ownership to us. Listing them once again: 1. Cover Letter - informing about the death of my father and informing about we being the sole legal heir + nominees and thus to transfer the ownership & shares and interest to us. 2. Copy of Accepted & Acknowledged Nomination Form having our names in it as proof. 3. Copy of Dad's death certificate 4. Appendix 18 (Indemnity Bond Under Bye-Law No. 34 of MCS Act) - though not required as all nominees were to be jointly added as members but still gave it as society legal advisor forced us to give. 5. Appendix 15 - (Under the Bye-law no. 34 of MCS Act). The Form of application for membership by the Nominee / Nominees 6. Copy of Share Certificate. Like I had mentioned in my original post, the transfer is already affected in the Share Certificate but now secretary is raising issue and is stuck on "Nominees are only caretakers and not owners" so your transfer is invalid but we are also Legal Heirs is not being considered. Please let me know if you need more details.