Co-operative society byelaws on ownership of property

Querist : Anonymous (Querist) 16 April 2020 This query is : Resolved
I am owner of 1/2 undivided portion of a residential plot in a Co-Operative Housing Society at Pune.

Some time back the society amended its bye-laws such that the plot can be owned only by members of family. The purpose was to prevent influx of builders & construction of flats on plots. It is not clear as whether such amendment is consistent with MCS Act.

I intend to sell my share in the property to a third party, since my brother is neither willing to give me a fair compensation. At the same time he is also not willing sell his share to me at a fair market value. The property is in possession of my brother.

Some parties have evinced interest in acquiring my share of the property. But as per existing bye-law, the society will not allow membership of the society to any person/entity.

What could be a practical & a possible solution.

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KISHAN DUTT KALASKAR (Expert) 16 April 2020
Dear Sir,
Such bye law seems to be illegal.
Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds , does not stand in the way of the interest of a co-owner.

Raj Kumar Makkad (Expert) 16 April 2020
This is your repeated query whereas the previous query has properly been dealt by the experts.

Raj Kumar Makkad (Expert) 16 April 2020
You have already been replied that such term contained in the bye-laws of the society are against the basic provisions of the constitution hence the same can be got set aside by filing a writ petition against the registrar of societies if he do not declare such term as ultra-virus of the constitution/Society Registration Act. make a representation before the registrar and failing which move ahead as advised.

P. Venu (Expert) 17 April 2020
Yes, such conditions and bye-laws have no force of law. It is a well settled principle that a person cannot be prevented from doing what the ordinary law allows him to do unless there is a legislative enactment laying down such a restriction.

Dr J C Vashista (Expert) 17 April 2020
Instead of repeating same story time and again it is advisable to consult a local prudent lawyer for professional guidance and necessary proceeding

Rajendra K Goyal (Expert) 17 April 2020
Discussed in your previous query at
https://www.lawyersclubindia.com/experts/Obtaining-possession-of-undivided-portion-of-property-718236.asp

However, as advised in your previous query on this subject, please discuss in detail with your lawyer. He has dealt your case for 22 years.

Raj Kumar Makkad (Expert) 17 April 2020
It is better to confine to your previous post so as to facilitate the experts to pay due heed to your problem.

Querist : Anonymous (Querist) 18 April 2020
Thanks to all the experts for advice.

Rajendra K Goyal (Expert) 18 April 2020
You are welcome, may revert in case of any new development.

Raj Kumar Makkad (Expert) 21 April 2020
You are most welcome Mr. author at any time of legal advice in future.