Trtransfer of property upon death
Rashmikant Shah
(Querist) 20 March 2015
This query is : Resolved
my father expired in mumbai. He had a residential flat in co open housinvm society in mumbai where he lived. He has nominated two sons in the society. As per his will, the property is to go to his six children (including two nominees). What is the procedure to be followed? Whether probate is required?
malipeddi jaggarao
(Expert) 20 March 2015
Agreed with Dr.Vashista. Get the will probated by concerned Court. Nomination does not confer any right. The nominee is the guardian for the legal heirs to administer the property. Whatever written in the Will, prevails.
ajay sethi
(Expert) 20 March 2015
in mumbai probate is mandatory
Rajendra K Goyal
(Expert) 20 March 2015
It would be better to get the will probated.
SAINATH DEVALLA
(Expert) 20 March 2015
Yes get the will probated immediately,all the legal heirs will get their proportionate share.
Kumar Doab
(Expert) 20 March 2015
WILL is to be probated in Mumbai.
The society can deal with nominees for the admn. purposes.
The society may be informed of existence of the WILL in writing under proper acknowledgment.
T. Kalaiselvan, Advocate
(Expert) 20 March 2015
Apply for grant of probate on the Will in the jurisdictional court after which a partition or family settlement can be arrived at as per the mutual consent among the beneficiaries.
Adv Akhtar Ali Sheikh
(Expert) 20 March 2015
There are 5 -6 replies above all misleading.
1. no probate is necessary, the flat being in a society - (Probate is necessary in caseof Land or independent building or any structure on a plot of land not being a society)
2. Let the flat be tranferred to the 2 nominees.
3. If one or more of them want to keep the flat others may release their shares to former.
4. If they want to sell all of them can sell it together.
T. Kalaiselvan, Advocate
(Expert) 21 March 2015
Advocate Mr. Akthar Ali, if the probate is not necessary,then the purported Will itself cannot be acted upon in Mumbai where the probate is mandatory, it is not structure wise or property wise. Further the nominee under society cannot be absolute title holder on the death of the owner of the flat, they are mere custodian to receive on behalf of the legal heirs of the deceased, you may visit the nomination actin this regard. There is no question misleading information by experts, you may go through the provisions of law once again and then pass the comments.
SAINATH DEVALLA
(Expert) 21 March 2015
Rightly interpreted by Mr.Kalaiselvan
Adv Akhtar Ali Sheikh
(Expert) 21 March 2015
The question is What should one do when a flat in a co-operative society is willed to be acquired by his six children including two nominees in a co-operative society?
1. In a co-operative society in Maharashtra the land, the building the passage everything is supposed to belong to society.
2. The member of the society has got the right to use and occupy, utilise and realise the proceeds of his right title and interest in the society.
3. Supposing in this particular case Will is probated (by spending 1.5 to 2 lakh rupees or so) and submitted to the society for transfer of their names in the share certificate, what will the society do - it will transfer the flat in the names of six legal heirs including nominees.If they want to sell all six can enter into an agreement or alternately one or two can keep the flat by having release deed from the remaining ones and get it registered.
4. Suppose Will is not probated the names of 2 nominees are put on share certificate who would keep the flat in trust for themselves as well as the other four. If they want to sell all six can sell and if some of them want to keep it the remaining can release their undivided right title and interest in favour of those who want to keep it.
5. As you can see from facts in 3 and 4 above with the probate and without the one the net effect is same so why to advise a person to take a longer course than the one which is less expensive and more practical and purpose is served.
6. The story would be different if adverse claims are raised or there are more legal heirs not provided in the will or some of them are asking for more share (which is absent in the query) in that case they can go for the probate.
7. Mr Kaliesevan saheb and other with due respect I should have restrained myself using the word misleading, I never intended to belittle anybody what i expected that some practical solution should have been provided.
T. Kalaiselvan, Advocate
(Expert) 21 March 2015
It should be noted that law cannot be interpreted according tom one's own convenience. The practical difficulties and hardships will be there in each every situation, it does not means that the law can be deviated to suit one's own taste for getting something in a short cut route or back door. That will be illegal. The society in any state cannot deny the title of the house/flat property to its legitimate owner, so this is again another misinterpretation.
alexander
(Expert) 22 March 2015
A few points for onsideration by the Counsel of the Querist pl:
1. It is understood that the maximum Probation Fee in Mumbai is Rs 75000=00.
2.As oer Sec 30 of Maharashtra Coop Socity Act 1960, on death of a mrmber of a society, the Society shall transfer the property of the deceased member to a person or persons nominated or if no person has been so nominated, then to such person as may be the heir or legal representative of the deceased member.
2 A nominee is but a trustee of the property .
3.Madras High Court in a judgement has stated ... even if will is not probated the title vests with the legatee immediately on the death of the propounder of the Will (2006) i.MLJ 364
4. The Bombay High Court in the Letter Patent appeal No. 100 of 1984 in the case of Madhukar Vishnu Ghatnekar vs Gopal Vishnu GHATNEKAR in the aid case amongst other things has observed as saying this " Will itself effects a disposition of property in favour of the legatee upon the testatoe\'s death 2002 ( 12) LJ soft 132
4. Managing Committee of HousingCoop Society ( in MUMBAI) have no discretion to ask for Probate of the Will / Letter of Administration in every case of transfer of the interest in the share of the deceased member.
5 It is agreed / or at least presumed that there is no dispute amongst the six legal heirs as mentioned in the Will.
The easiest solution that offers itself is that they all meet arrive at a family settlement and have this family settlement Registed at the Registrar's office. A copy of the Will duly signed by all heirs be submitted along with the family settlement arrived at.
7. Second fastest and firm solution could be . The two nominee's file an interpleader suit. All the six legal heirs should just stick to their fair and pre arranged / mutually accepted shares.
3 Third alternativ:.One of the Legal heirs files a suit of the prooperty and suggests the ( previously agreed upon) share of each of the Defendants
8 On the very first hearing the rest of the Defendants should indicate their acceptance of the share of each Defendant.
9. The Judge is bound to issue a Decree accordingly there and then
10 IF THERE IS DIFFERENCE OF OPINION OR EVEN IF THERE IS LIKELY TO BE A DIFFERENCE OF OPINION AMONGST THE SIX HEIRS AT A FUTURE DATE, IT WOULD BE SAFE TO GET THE PROBATE OF THE WILL DONE NOW.
11. In fact as advised by Shri Sethi ji Dr Vashista ji and others if it is mandatory to get the Probate done in Bombay then the problem is completely also simplified in that the safest route is the mandatory route.
But to the best of my knowlege PROBABTE is not Mandatory in NELHI
Alexander
nom de plume
Dr J C Vashista
(Expert) 22 March 2015
I agree with the expert Mr. Alexander it is not mandatory to get a "Will" probated in Delhi.
In the circumstances explained by the author, in Mumbai it is compulsory, whereas it is better to get the same probated in Delhi as well, when there are 6 claimants/LRs of the society flat of deceased.
Very well explained by Mr. Akhtar Ali Shiekh, Advocate qua the property of the Cooperative society. However, I respectfully disagree with him on certain issue(s)involved in the subject matter i.e.,
1. When a particular flat (in society) is allotted/possessed by a member, the society looses its rights, interest, claim and titled over that portion, which cannot be included in the "Common Area" as defined therein the Cooperative Societies Act.
2.The member has all the right, title, claim and interest over the (portion) flat allotted and possessed vis-a-vis the society has neither any right, nor claim nor interest on the flat of the member.
3. The Society has no role in transfer of title to either of the beneficiary/ non-beneficiary of the "Will" executed by deceased. However, transfer of share of the society (share certificate) can be transferred to the nominee, if there is no objection from any of the LR of deceased.
alexander
(Expert) 22 March 2015
Very well explained and
clarified by Dr Vashista ji
Nothing more left to add
Alexander
nom e plume
