Transfer of shares to a nominee
Querist :
Anonymous
(Querist) 03 September 2011
This query is : Resolved
Hi,
My Grandfather had nominated my father as a Single Nominee of his Residencial Flat and also made him an associate member of the Hsg. Soc., while he was still alive. After his demise a month ago my father approched the society and submitted an application along with the copy of death certifcate to transfer the shares in his name. The Society is not ready to do transfer and gives an explaination (verbal) that the other 2 brothers of my father have objected the same.
Please advise on the course of action that can be taken against the society to transfer the shares in the name of my father.
Dr Anil Kumar Singh
(Expert) 03 September 2011
If the flat is ancestral property, your uncles have a right to it and society people are right, else if it was his self owned property the society people can not entertain the objections. They may if your fathers brothers are living in the same flat and your family is HUF.
Querist :
Anonymous
(Querist) 03 September 2011
What is an ancestral property? My Grandfather bought this property in the name of his wife and after her death the property was transfered to his name by the way of approval from all the 3 sons. After the transfer he was the sole owner of this property. None of the brothers are staying in this flat, it is solely in possesion and occupation of my father.
Please suggest.
prabhakar singh
(Expert) 03 September 2011
You are laboring under "mistake of law".
If your statement is correct, then your Grand mother was the owner of the property.On her demise,as she died intestate with out leaving any will,her legal heirs would be ascertained as per Hindu succession Act1956,section 15 which reads"(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;"
From the facts stated i gather that your grand mother had no daughter and on her death she left heirs 1 her husband and 3 sons(including your father)and interest in the house belonging as unit in your grand mother stood spread equally in fractions of 1/4 each.
The fact that mutation in your grand father name was recorded is like head of a JHF ,more or less an act of honorarium unobjectionable to sons but in no case because of that simple mutation,rights and interest of others would be deemed to be barred.Now the share 1/4 of your grand father has stood further fraction-ed to devolve upon his three sons as 1/12 each as your grand father also died intestate without any will leaving 3 sons upon devolution of his share has taken place in accordance with provisions contained in section 8(a)read with schedule I of the said Act which is also being reproduced here for your ready reference "8. General rules of succession in the case of males.
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;"
[Section 8]
HEIRS IN CLASS I
CLASS I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
NOW each of the sons including your father
has 1/3 right in the house in question,mutation of which single name would be possible only when the two agree in one's favor.In history elders brothers were treated by younger brother as Honorable as a father but since then we traveled a lot ahead to discard old values and to adopt newer one unknown to old schooled,hence to get hurt is of no importance now because even if your father name is mutated ,rights of sharing 1/3 each of others two can not be taken away.
Raj Kumar Makkad
(Expert) 03 September 2011
I differ from the views of prabhakar singh on this matter. The property in the hands of deceased father of disputing parties became self acquired when all other legal heirs of his deceased wife released their shares in his favour and he became its absolute owner and during his life-time, he made arrangement (will) in favour of your father by duly mentioning his name as nominee as well as associate member of society.
Though nominee never becomes absolute owner but in the given case, the nomination read with his action of enrolling his one of the sons as co-member is nothing but his will so such one is its absolute owner.
prabhakar singh
(Expert) 04 September 2011
"My Grandfather bought this property in the name of his wife and after her death the property was transfered to his name by the way of approval from all the 3 sons."
These are all the words of questioner.I fail to understand how it can be understood in words of Mr.Makkad as"The property in the hands of deceased father of disputing parties became self acquired when all other legal heirs of his deceased wife released their shares in his favour and he became its absolute owner and during his life-time,"
where comes there a RELEASE? FROM WHOM?? IN WHAT FORM??
AND you are also importing strangely a WILL.
Quite strange!!
Querist :
Anonymous
(Querist) 05 September 2011
I think we are just digressing from the real subject. The real question is whether the society can refrain or reject transfer of shares to a nominee on an objection letter from other heirs even if the nomination was register by the deceased when he was still alive. The question of succession and rights to sell the property is secondary.
Please put some light on this.
prabhakar singh
(Expert) 05 September 2011
then the answer is it should NOT unless there is an injunction order from court to refrain from doing so.
Querist :
Anonymous
(Querist) 05 September 2011
So you are saying that the society has to transfer the shares in my father's name irrespective of any objection raised by his brother's unless they get a injunction order from the court refraining them against it, Am i correct in saying so.
prabhakar singh
(Expert) 05 September 2011
exactly that is my opinion and for that reason only there are nominations.
Querist :
Anonymous
(Querist) 05 September 2011
Thanks,
Another question - Incase the society still does not pay heed to our request of transfer of shares, what action can be taken against them. Is there a time limit within which they need to transfer the shares to the nominee?
Guest
(Expert) 05 September 2011
In fact there are two different issues, not to be intermingled with each other, (1) nomination in favour of son by father as a shareholder of the society; and (2) legal issues on hiership of the property.
So far as transfer of shares is concerned, the society cannot be restrained from acting on the issue of nomination and will be bound to transfer the shares in the name of the nominee.
About the hiership claim of the legal hiers, the society will have no jurisdiction to act as a court to decide shareholding of the legal hiers on the flat. For that purpose proper succession certificate would be needed to be obtained by the legal hiers from the competent court to prefer their claims in the flat for transfer in their name. The society can act only on production of such succession certificate.
prabhakar singh
(Expert) 05 September 2011
Time limit if any can be decided only if it is provided in its internal rules.
If no rule is there a reasonable time can be anticipated which should not be more than 3months in a matter like one before hand.
In case they do not pass favorable order,the matter can be proceeded before deputy /registrar co operative societies of the jurisdiction.
Querist :
Anonymous
(Querist) 05 September 2011
Lets assume the society has transferred the shares in the name of my father, after a year a succession certificate is issued by a competent court and is produced in the society. Will the society have a direct right to transfer shares to the people who have been admitted as the legal heirs of the property or will it be the responsibility of the nominee to do the rightful and instruct the society to do the same.
Guest
(Expert) 05 September 2011
Definitely the society will have to abide by the succession certificate provided there is a specific mention about the society shares and also the particulars of flat or a separate orders are obtained from the court directing the society to transfer the Number of shares and parts of flat in the names of individual hiers, as once transferred in the name of your father on the basis of nomination before any court order, the society can act only on specific orders to bifurcate.
prabhakar singh
(Expert) 05 September 2011
perhaps many of us are not aware what a succession certificate is and for what can it be issued.
so far court order is concerned ,they can seek a declaration of joint owner of flat from court or can seek share they have.Once any court order would be passed ,it would be passed before your father who would be a party and order so passed would be binding on your father where every thing rest now.
Querist :
Anonymous
(Querist) 13 September 2011
Dear Mr. Prabhakar,
We have tried to convince the society by giving all kinds of explanation as given by you, but they are not ready to bend citing the objections held by my uncles. Need your advice on a few things;
1) If we stop making payments for society outgoing to press them to do the transfer does that in any way create a problem for us in future?
2) Will i be rightly doing so?
3) What if the society asks my uncle to pay the outgoings will that create any kind of issues later?
We have also spoken to the registrar and they say we will have to file a case in the city civil court to get an order so that the society transfers the shares in my father's name. So we go ahead with this.
prabhakar singh
(Expert) 13 September 2011
but they are not ready to bend citing the objections held by my uncles.
FALLACIOUS TO LISTEN SO??IT SEEMS THEY HAVE GONE IN COLLUSION OF uncles.
Need advice on a few things!!
1) If we stop making payments for society outgoing to press them to do the transfer does that in any way create a problem for us in future?2) Will i be rightly doing so?
NO!
I DO NOT AGREE OR ADVISE YOU TO STOP ANY PAYMENTS YOU HAVE BEEN MAKING SO FAR TOWARDS CHARGES OF COMMON AREA ETC. BECAUSE THAT IS THE IMPORTANT PIECE OF EVIDENCE OF YOUR POSSESSION WHICH YOU SHOULD CONTINUE TO HAVE.
3) What if the society asks my uncle to pay the outgoings will that create any kind of issues later?
DO NOT ALLOW SUCH A SITUATION TO COME BEFORE YOU.
AS THEY ARE APPARENTLY PRO YOUR UNCLES YOU DO NEED TO GO TO COURT.
Querist :
Anonymous
(Querist) 13 September 2011
Should i approach the court against the society citing conditions that they are not transferring the shares in the name of my father?
M/s. Y-not legal services
(Expert) 04 September 2011
