Transfer of flat
Hiren
(Querist) 16 March 2014
This query is : Resolved
I am staying in a flat in a chs married with two daughters since the past more than 25 years paying all the society dues since as many years. The flat is in my mothers name expired more than 30 years ago my father expired 10 years ago. I have one brother and two all married and staying seperately.My brother and one sister have given NOC and relinquised their rights
The society is going for redevelopment. One of my sister wants the whole flat for herself.The society does not take any consent from me for any matter of the society saying I am not a member. Who will take the decision give consent on behalf of my flat and if it is not in my favour how can I oppose it.
Hiren
(Querist) 16 March 2014
Can the new builder solve this issue ?
ajay sethi
(Expert) 16 March 2014
on your mother death and after demise of your father you had 1/4th share in flat . your brother and one sister have issued noc and relinquished their rights in your favour . your sister still has her 1/4th share in flat .
she cannot claim rights on the entire flat . you can buy out her share and make an application for transfer of flat in your name . since you are not a member of the society you dont have the rights of member
Biswanath Roy
(Expert) 16 March 2014
As you had/have been paying all dues to the society in respect of the subject flat for more than 25 years you can request the society for issuance of a declaration ' Liable to pay certificate' in respect of the subject flat which can be used as a claim in future to be a member of the Society. Secondly, your hostile sister can claim 1/4 th. share of the flat but not for the entire flat. Hence you can propose your said sister to sell her share to you.
Rajendra K Goyal
(Expert) 16 March 2014
Since the flat is going for redevelopment, it would be necessary to ensure undisputed share. Have amicable solution with your sister by purchasing her share and try to get the flat transfer in your name.
Biswanath Roy
(Expert) 16 March 2014
@ Learned Goyal ji,
May I request you to go through the query once again.
The main query is "Who will take the decision give consent on behalf of my flat and if it is not in my favor how can I oppose it."
In my opinion since the subject flat is under the control of a society so for redevelopment of the building consent and objections if any is needed from the society members. As the recorded member of the subject flat is dead and querist is one of the legal heir of the deceased member he is unable to oppose the proposed redevelopment of the society building. Therefore the querist being one of the legal heir of the deceased member is seeking legal advice how he can submit his objection? I replied how he can get legal authority to oppose the proposal for redevelopment.
T. Kalaiselvan, Advocate
(Expert) 16 March 2014
Since the author is not a member of the society, he cannot protest/raise objections or can participate in the meetings too. At the most, he has to get the entire property transferred on his name by buying his hostile sister's share also and then can apply for membership, until then he has wait for the legal proceedings to take place appropriately if no consensus arrived between him and his said sister.
Biswanath Roy
(Expert) 16 March 2014
@ Learned Mr. Kalaiselvan,
If the society certify and declare the Author as the person for 'LIABILITY TO PAY' then the author shall be a deemed member of the society and can act as a proxy on behalf of the society member to oppose any of the activity of the society.
R.V.RAO
(Expert) 16 March 2014
agree with sri B.royji.
first establish yourself as a rightful legal owner of 3/4 share, as your brother and one sister ceded the legal rights of their share of property in your favor.
then negotiate with your hostile sister if she is ready to sell out her 1/4 share in the property to you either at current value if you can afford or any negotiated value. project to her your 2 daughters future and your entire family survival.
after establishing your legal ownership over the flat, then you can stake your claim with the society as full fledged and legal owner and ask for mutation in your name.then you can exercise your right of vote for /against redeve.of the society property. good luck.
Hiren
(Querist) 16 March 2014
The final problem is my hostile sister.
she does not want to sell the flat but wants as stated previously the whole flat for herself.
If nothing works out what will the society do about redevelopment ?
1)Who will take the decision on behalf of my flat and worse comes to worst what will be the status of the flat in terms of redevelopment.
2) Can I maintain status quo and get posession of the new flat in the name of my mother after redevelopment with all the benefits of alternate accommodation
corpus fund benefits (since maintaining the flat also will be costlier after redevelopment) etc by courts consent without my sister getting any stay order from the court for builder giving me posession after redevelopment because other-wise I will be homeless
Hiren
(Querist) 16 March 2014
Can the builder solve this issue ?
ajay sethi
(Expert) 16 March 2014
file suit for partition since your sister refuses to negotiate . in the event society goes in for redevelopment after resolution to that effect is passed by 70%of members you will have to vacate the flat . builder will hand over possession to you provided other legal heirs furnish their NOC . in your case your sister wont coperate hence best remedy is to go in for partition suit now
ajay sethi
(Expert) 16 March 2014
builder will hand over rentals for alternate accommodation during period of redevelopment to whom soever court directs . you can also pray that pending hearing and final disposal of suit rentals be deposited in court .
Hiren
(Querist) 16 March 2014
Dear Mr Ajay Sethi,
what is partition suit ?
In such a case why shall I vacate the flat?
What about all the years I have been staying here and paying the maintainence ?
What is adverse posession ? which is applicable after 12 years of posession ?
why should I be the only who suffers after staying all these years in the flat ?
ajay sethi
(Expert) 16 March 2014
you are not the owner of flat . you are only one of the legal heirs of your mother . a partition suit is filed for division of property . merely because you have been staying for many years and paying maintenance does not give you ownership rights for the flat .
if society goes in for redevelopment and majority of members agree for the same you will have to vacate the flat . if you dont vacate builder will obtain court orders to force you to vacate .
anyhow it is your call
Hiren
(Querist) 16 March 2014
Dear mr Ajay
what is adverse posession and when is it applicable ?
ajay sethi
(Expert) 16 March 2014
A method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner ...
adverse possession can be claimed as defence . in your case your sister has never consented to transfer of flat in your name . society has till date not transferred flat in your name on account of failure to fulfil the transfer formalities .
Biswanath Roy
(Expert) 16 March 2014
There are two types of right (1) right of residency viz., using and occupying the property and (2) right of Title and interest in the property. Your right to possession has not been disturbed or challenged as yet but you have no title of the property. To put objection against re-development of the property you need absolute ownership of the flat viz., Title and interest of the property. Hence, you need to file a partition suit against your hostile sister of course if your another sister and brother already relinquished their title interest in your favor by a Deed of relinquishment then they shall not be the parties in the suit but society of the building must be an added party. Parsuent to that suit you can pray for a stay order against the society to refrain from rebuilding the society's property pending the suit.
Hiren
(Querist) 16 March 2014
Thank you Mr B.Roy you have made it simpler
for me to understand that I still have hope in the court of law because I am ready to pay my sister her share but not the whole share as she is demanding.
Hiren
(Querist) 17 March 2014
My sister also suggested that both our names be included in the said flat,Inclusion of both our names makes me a member of the society but if I do that can she ask for part posession after her name is included in the title.
R.V.RAO
(Expert) 17 March 2014
as it is your sister is legally 1/4 owner of the property.
if both of your names are entered in society records as owners, after redev. ,the issue of ownership tussle is carried into future also.
better to settle it now.atleast now you are owner of the property by possession,as you are staying in the flat and paying maintenance all the years.
if you and your sister have any common family friends and well wishers and mutually acceptable family contacts or relatives,give it a last try and ask her to sell 1/4 share to you by paying her.
if this alternative also fails,then as sri Roy ji advised, better file a partition suit right now and make society also a party to prevent society, from going ahead with redev.
Biswanath Roy
(Expert) 17 March 2014
If your sister mutually and amicably wants to settle up the differences by selling her share to you then everything will be O.K. otherwise you shall have to resort to PARTITION SUIT. There is no other way to solve your problem.
ajay sethi
(Expert) 17 March 2014
we have advised you at length . now it is your call .
Hiren
(Querist) 08 April 2014
What documents are to be submitted to the society to prove that I am the legal heir of the deceased member of the society ? i.e my deceased mother in the above case.The bills of maintainence are issued in the name of the legal heirs of (deceased member) since the past more than 25 years and I am paying the same since many years yet the society is asking me to prove with documents that I am the legal heir of the deceased.
Can I give them an affidavit or ration card copy or any other document
R.V.RAO
(Expert) 08 April 2014
if your society accepts your legal heirship, based on your family ration card etc... no problem. go ahead.otherwise if society insist on legal heir certificate,pl. note that a Legal Heir Certificate is issued by a tahsildar. A tahsildar is an officer of the revenue branch of the State.
A tahsildar has no right to decide on disputed issues of title or succession. Prior to the issuance of the Legal Heirship Certificate, a summary enquiry is undertaken by the tahsildar, through his or her functionaries, to ascertain the legal heirs of the deceased, so far as may be possible.
A certificate is issued on the basis thereof.
Hiren
(Querist) 08 April 2014
What is the difference between a Heir and a legal Heir ?
V R SHROFF
(Expert) 08 April 2014
Heir means Legal heir.
?? Who will take the decision give consent on behalf of my flat and if it is not in my favour how can I oppose it. [Ans Society]
Redevelopment will not halt for ur issue, they will carry on.
If ur sister have another residential flat in your area, she cannot become member of this society.. So u being in possession for 25 years, you cannot be evicted. you get stay order from Court in your fvr+ Rental too.
Society will insist on Court Order , as disputed property. Was there no nomination???
Hiren
(Querist) 09 April 2014
How much does it cost to file a suit in the court excluding the lawyers fees
