Can nominee sell the flat in a mumbai chs.
Querist :
Anonymous
(Querist) 29 May 2018
This query is : Resolved
A member of the CHS in Mumbai having a self acquired flat expired leaving behind his wife and 2 grown up daughters. There was no will made by the deceased, however he had nominated his wife. The society transferred the flat in the wife's name being the nominee of the flat. The daughters are married and settled abroad and now the mother too has gone abroad to live with them. The flat is locked up for the past few years. They now plan to sell the flat. Can the mother being the nominee sell the flat. As a potential buyer what are the papers that one has to get from them.
Kishor Mehta
(Expert) 29 May 2018
A nominee can not sell the flat. The legal heirs should get Letters of administration from Bombay High Court if they want to sell a CHS Flat in Mumbai.
Ms.Usha Kapoor
(Expert) 30 May 2018
Some times nominee is also LEGAL HEIR.iN SUCH CASES THE FOLLOWING WILL HAPPEN.
According to Section 30 of the Maharashtra Cooperatives Societies Act, for instance, the society is legally allowed to transfer the property in the name of the nominee, in case the owner has submitted the nomination form to the society, in respect of that property. However, such a nominee, who is registered as the owner of the property in the records of the housing society, represents the legal heir/s. It is only the legal heir/s, who have the beneficial ownership rights of the flat, ruled the Bombay High Court, in the celebrated case of Ramdas Shivram Sattur in 2009, which dragged on for 25 years.
In the case of provident fund dues and shares in companies, the law provides that the nominee becomes the legal and beneficial owner of such property. Therefore, in case of shares in a demat account, the nominee shall become its absolute owner, as decided by the Bombay High Court in the case of Saraswat Bank Limited.
What should you do?
Home owners should make nominations for all their assets, wherever such a facility is available. As the nominee/s are also the legal heir/s in most of the cases, the making of such nominations, will help transfer of the asset to the legal heir/s. Even in other cases, it will ensure that that the property does not remain unclaimed or become subject to litigation. While making a nomination for shares and provident fund dues, one needs to remember that the nominee will become the owner of these assets.
In such cases with the consent of other legal heirs nominee or owner can sell off the Flat property. IN the instant case Mother is nominee as well as legal her so with the consent of other legal heirs she can dispose of the flat property of CHS.
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Querist :
Anonymous
(Querist) 30 May 2018
What undertakings (NOCs or POA etc) should the daughters give the mother in order for her to sell the flat.
Querist :
Anonymous
(Querist) 30 May 2018
What undertakings (NOCs or POA etc) should the daughters give the mother in order for her to sell the flat.
SHIRISH PAWAR, 7738990900
(Expert) 30 May 2018
In my view no need for daughter's NOC or POA as the mother is nominated she is capable to sale the flat. Consult with local Advocate.
Guest
(Expert) 30 May 2018
A nominee is well within his right to sell the flat, if inherited through nomination. No law puts ban of selling by the nominee or seeking any noc from anyone.
Querist :
Anonymous
(Querist) 30 May 2018
I am now confused. The 3rd expert states no documents are required while the 1st expert advised to get a Letter of Administration from Bombay High Court and the 2nd expert has stated that Consent from the legal heirs is required.
I thought Letter of Administration is applicable only if a Will is in place and in this case there isn't one. Pls advise.
Guest
(Expert) 30 May 2018
You may request the expert about the legal provisions for taking letter of administration by legal heirs, if required in a nomination case.
P. Venu
(Expert) 30 May 2018
Learned expert Mr. Kishore Mehta is correct in that a Nominee cannot sell the flat; the nomination is confined to the membership of the CHS
Guest
(Expert) 30 May 2018
When, as per the description of the query maker, the flat has already been transferred in the name of wife of the deceased on the basis of nomination, where remains the question of nomination to be restricted for membership only? if nomination is assumed merely for the purpose of membership, as per the opinion of the expert, that denotes illegal transfer of the flat in the name of the wife. One should not forget that membership without flat or flat without membership has no relevance in the case of already developed flats of the society.
Concerned legal experts may like to recheck the legal position about the case.
Kumar Doab
(Expert) 30 May 2018
Pls post with your ID and not as AQ and you can get many replies.
Your ID does not mean your email id or phone number and don’t post these also.
Kumar Doab
(Expert) 30 May 2018
'Buyer Beware' applies to property deals.
It shall be appropriate to get proper legal opinion from a very able LOCAL senior counsel of unshakable repute and integrity specializing in revenue/property/civil/DRT matters and well versed with LOCAL applicable rules/laws and having successful track record…. and worth his/her salt , before signing or making payment.
This may cost some FEE but can defend long term interest and hard earned monies.
Kumar Doab
(Expert) 30 May 2018
If all are Hindu and there is NO other ClassI legal heir than wife and 2 daughters of deceased and all of them are in sync and good relations then;
they can explore perspective of Registered Family settlement deed and sell
They can all get documents of mutual consent that are legal and acceptable to society and sell..
Kumar Doab
(Expert) 30 May 2018
If they are not in god relation say for sale proceeds from flat then you may go thru;
Bombay High Court
Ramdas Shivram Sattur vs Popatlal Shah And Others on 9 April, 2009
Bench: A.P. Deshpande
https://indiankanoon.org/doc/371108/
and
MCS Act; 25, 29(2),30, 34, 62, 92
https://mahapanan.maharashtra.gov.in/Site/Upload/GR/MCS%20Bare%20Act%20and%20Rules.pdf
and let your own counsel advise you and provide with legal opinion in writing...
Kumar Doab
(Expert) 30 May 2018
Your counsel can advise you on all required doc e.g;
Form of application for nominee, undertakings, receipts for Dues paid, copy of share certificate, NO dues certificate, NOC and affidavit from legal heirs, death certificate of deceased owner, declaration of holding another flat or not, copy of agreement, ............etc etc
There are many threads on similar query that you can search in SEARCH option in threads, Articles e.g;
http://www.lawyersclubindia.com/articles/Analysis-on-Nomination-in-housing-society-7787.asp
19;f
25,26,27..
LCI Experts Mr. Hemant Agarwal, Mr. Kishore Mehta, Mr. M.V.gupta, Mr. Madhu are from your state/location and post on such maters and you can benefit from their counsel...
Dr J C Vashista
(Expert) 01 June 2018
There is no ambiguity in the advise of experts, nominee of the deceased husband (wife) steps into the shoes of her husband and becomes shareholder of the Society.
However, she (wife) has become owner (by succession) of 1/3rd share in the flat along with 1/3rd each for daughters.
The daughters are required to relinquish their share in favour of their mother so that she becomes absolute owner and dispose it as she desired.
Contact, consult and engage a local prudent lawyer.
Ms.Usha Kapoor
(Expert) 03 July 2018
I agree with Kumar Doab and Vashista.
Ms.Usha Kapoor
(Expert) 05 July 2018
I agree with Kumar Doab and Vashista.
