Co owned residential flat rented without consent....

You will have to file a civil suit for eviction of the tenant and for compensation. CHSs have very little control over the matter. If you are in Maharashtra, due to misuse of power by Managing Committees, there is a law saying that permission of the Society is not required for the letting out of flats by members.

Thank you for your reply🙏

Yes this flat is in Mumbai Malad west.... A humble request also  guide me what is injuction on rental ? And how could this help me and the cost?? And if filed for injuction is there any way that my brother can get this injuction canceled?? 

Am asking coz my younger brother is financially well off and has been acting funny in this pandemic and  treating us and speaking with me in a demeaning way bcoz me and my husband lost our jobs and went in more financial distress and our still trying to get stable.. I have baby too of 3yrs and i have been staying on rental after having a co owned house and i offered him his share of rent and my brother denied it 

And now recently my brother is denying my rights to meet my father... Making all excuses that their not at home when I go to see my dad. Who is currently living with my brother. Also my dad had a stroke few yrs back and has a blood clot in the brain, hence my dad can't remember things if he said or spoke something he might not remember saying it if asked after few days or weeks. And my brother decided bcoz of financial status he has upper hand to not allowing me and my baby to meet my only parent. And also manuplating the monetary aspects.. 

Dear Querist,

Consent of all the co-owners is important to rent a property. According to The transfer of property act Every co-owner has the Right of the entire property.

If a co-owner Rents the property without the consent of the other co-owner then the aggrieved party Can approach court under section 405 of the IPC which states the Criminal breach of The punishment for this action is given under section 406 of the IPC Extending till three years, fine or both.

Regards, 

Palak 

Section 405 of IPC will not apply to this case. All co-owners have equal rights. One co-owner is not the trusty of the other and there is no breach of trust. The property is a CHS flat in Mumbai. When there are 3 joint owners to a CHS flat in Maharashtra one of them will be Member of the CHS and the other two will be Associate Members. The Society will normally deal with the Member only and not with an Associate Member. The Society will ask the Member to pay the dues. How they are to be shared among the Member and Associate Member  or that has to be shared at all, has to decided by co-owners among thmselves. The Society has a charge on the flat for its dues and not on other properties of the Member and Associate Members. Presumably one of the two brothers is Member and the other two are Associate Members. As the Society has a charge on the flat for its dues, it can be reasonably assumed that any income from the flat such as rent paid by tenant has to be first applied for Society's dues and the co-owners can claim share only on the remainder. This is actually a dispute among partners and the best way to settle is for the sister and brothers to sit together and decide. If that does not succeed, the sister can go to court. She can pray to the court to order the tenant to deposit the rent in a court account until the dispute is decided. There are many flats in Mumbai like this. Generally the member will be staying in the flat and the others will be waiting. Most often this happens when a Member dies and his children become owners of the flat.

Thank you for your reply Mr. Ramani and Palak Batra.🙏🙏

Just want to add few details if you could advise further.. 

#The flat was purchased on my mother's name solely. My mother was a housewife. Also she did not make any nominee to this flat. 

# In yr 2006 my mom passed away.. And after a year in 2007 I the elder daughter of the house gave the application for transfer of flat in three names My dady self and younger brother (who was a student at that time) 

# Since 1996 my dad isI am ready to pay his share of rent and asked my dad to move in with us and my brother does not need to provided any financial support.I can take care of my father as I used to  since the age of 16. not or never been employed and I had all the financial responsibility and before doing the transfer of the flat we had only the society maintenance outstanding of 4 lakhs of which I took two loans and the cleard the amount which final around 3lakhs the society worked this amount for us considering the situation. 

#Then neither my father in young days nor my brother did any contributions.. 

# In today day and time my Dad is 72yrs old with health conditions and blood clot bcoz of a stroke. My younger brother is taking undue advantage and exploiting me in related to the house matter. 

# I am ready to pay his share of rent and asked my dad to move in with us and my brother does not need to provided any financial support.I can take care of my father as I used to  since the age of 16.

#My dad has given his NOC in person last year in July that he has no objection if the daughter stays in the flat and there after we were to given a joint notice to vacate the tenant. 

#My brother heard of this and bullied and took my father to stay with him. Since then am not allowed to see my dad or support him as I use to do and even spend time or share my grievances. 

#And when in December 2021 my brother made a new rental agreement without my consent. I went to see my dad. I was forced to meet him inside a van which was parked in lane nr our area. I was with my 3yr old baby, my dad, myself and my younger brother try to have meeting forced by brother on the road. 

And my dad said I don't know you needed a house to stay?? And I was suprrised to this statement...And realized  blood clot or health condition my dad is in .. 

This abousletly not fair that someone financial status takes the rights to meet a parent or my rights as a Elder Daughter, Women to deny or disagree that I don't want to stay on rent in this  pandemic.Also I have been insulted ,spoken in demeaning way.I have made two NC for verbal abuse.Also many times called the police helpline to meet my dad,nit much help.And to add to that before the rental agreement was extended without my consent. My brother has asked me to handover the original papers to him. 

How do I deal with this?? 

Your narration is not clear and in chronological order to enable one to clearly understand and appreciate the problem. You are first saying about 2006 and 2007 and then jumping back to 1996. At first say who all you, family members before 2006 are. The flat was purchased in your mother’s name. Who contributed funds for the purchase of the flat?  At the time of your mother’s death, who were staying in the flat and who were residing outside?  After your mother’s death, who were staying in the flat and who were residing outside?  Your mother had not registered any nomination. In 2007 you gave application to the Society to enter your name, your father’s name and your younger brother’s name to enter as tenant members of the flat and holders of respective shares. What was the order in which the names were entered in the share certificate? The first one is Member, whom the Society will deal with and also issue receipts. The other two are Associate Members and their right to deal in Society matters is only in the absence of the Member and with his/her approval. This does not mean that the legal beneficial rights are lesser for Associate Members than for Members.

Entering of the name or names in Society’s books and share certificate does not necessarily give beneficial ownership of the flat.  Beneficial ownership is always for legal heirs. But the legal heirs have to claim it from the person or persons, whose names are entered in Society’s records. After the names are entered and the legal heirs, if any, who are others, do not contest for 12 years, the flat will belong to the names that were originally entered, under the law of limitation. This is my opinion.

Please tell me from the times of your mother’s deaths, who was and who are staying in the flat? Who among you is acting as de facto “owner” for the purpose of dealing with the Society and letting out to tenants.

I once again say that this is a dispute involving no criminal offence. You will have to fight it out in a court of law, which can be tedious.

Mr.Ramani Once again I appreciate your time and response,thank you                                                                  Sorry about the query was not posted as per order there was no option to edit it after the post which i realized later..

To answer to few of the questions you have asked for clarity..

# The flat was purchased by mother and only was registered only on her name and the fund was contributed by my dad as he was working at that time.

# Me and myyounger brother have been living with our parents since birth and after mom passed away  in 2006 we  continued living in the same house with my dad. Nobody was residing outside or seperatley...

# I have stepped up as a sole bread earner for the family since 1998

# My mother din't make  any nomination for the said flat.

#  In 2007 I got the transfer of agreemet ( in 3 names) legaly processed. And solely cleared the society outstanding dues of Rs 3 lakhs and many other dues which my dad had created .

# The share certificate has three names in the following order my father , my name and my younger brother .And even the monthly society maintenance Bill comes in 3 names.

# Please note there is no sepcific rights given to any one of us to rent the flat on behalf of the two co owners..

# The first time our co owned falt was given on rent it was yr 2018 and I was out of Mumbai and my share of rent was not given to me and when I asked my brother he said he has done many financial favors and took year rent for himself.And the same he is doing in year 2022

#  With all respect Sir . I acknowedlege you have better understanding of the law and regulations..Please dont get me wrong ... The simple fact being that I as a co owner is not allowed to stay in my parental home during these hard times and I do not want to give the flat for rent and move every 11 months to a new hom. How can someone decided whats best for me ? And in the name of blood relation my younger brother has been explotiong me using the funds and adusting it accordingly leaving me vunulerable financialy. I have 3 yr old baby every 11 months I have been relocating in this pandemic and going thru lot of stress and the same has played a toll on my child this not a exagerating point but it has since the age of 1yr my baby has been sensing this stress which I am going thru.

Everytime I try to voice out I have been demeaned , insulted and reminded I am a married woman and my husband is responsible for me .Wether am married or widowed have money or bankrupt how does anyone take my rights to decided for my self or meet my parent. Is this not harrasment ?? 

All co-operative housing societies in Maharashtra have to follow the The Maharashtra Co-operative Societies Act, 1960, The Maharashtra Co-operative Societies Rules, 1961 and the Model Bye-Laws of Co-operative Housing Societies, promulgated the Registrar of Co-operative Societies, Maharashtra. If any society has different laws, they will not be valid.

According to your narration your father, yourself and your younger brother were admitted as members with your three names in that order. Under the Act your father will be Member and you and your younger brother will be Associate Members.

Under the Model Byelaws the Member will have the right to occupy the flat. Byelaw No.25b says as follows:

The Associate Member may have a right to occupy the flat with the consent of the Member and written intimation to the Society, subject to the conditions set out by the General Body Meeting.

Further Byelaw 25 says

No Associate Members shall have any rights or privileges of an active member except as provided under Section 27(2) and the fulfill the conditions of Byelaw 22(a).

Section 27(2) says that an Associate Member will have voting rights in the absence of and with the approval of the Member.

Thus according to the byelaws all the rights of a member including occupation of the flat is with your father. It can be presumed that the right to occupy also includes the right to lease it out. Your brother has no right to lease out the flat.

You ask your father as member to send notices to your brother and the tenant to give vacant possession of the flat and until vacant possession is given ask the tenant  to pay the rent to your father. If they do not comply with your notice, you have no alternative but to go to court. The Society can do little in the matter. Anyway you can send copy of the notice to the Society also.

Thank you for your response... 

Would like to highlight as earlier mentioned...

My dad is 72yrs old and has a medical condition blood clot in the brain, he had earlier a stroke and since then he has slowed down in thought and many times he does not remember what he said... 

For instance July 2021 he came with me to society office and gave a written NOC for me as a daughter to stay in the flat and he too will live with me and visit his son on and off as it's near by.. 

And then my brother pressurized my dad to come and live with him the same night the noc was submitted ...

Then December 2021 when the new lease was renwed 25days prior, I went to meet my dad with great difficulty I got to see him. And dad stated he was not aware I wanted the house for my stay!! 

# Recent times I have tried so many attempts to see my father to check on his health, get to spend time with him and he too can see his grand daughter and to know if he is being pressurized. But my brother keeps making excuses that they are out everytime, even after  informing in advance... What can i do here?? 

#Also I want to know why IPC 405 won't be able applicable in my civil case?? As somebody replied in the above responses... Request a clarity keeping in mind my cas... 

Why Section 405 cannot apply

Section 405 of IPC says "Criminal Breach of Trust

Organisations which are associations of persons such as a Partnership firm, a Company, a Public Trust or even your own Co-operative Housing Society, will have deal with outsiders and outside agencies. It is not possible that all the members of the organisation jointly act with an outsider. Hence by internal arrangement some specific person or persons are entrusted with the task of dealing with outsiders. For example in your Society the Secretary or Chairman along with probably another MC member can only sign cheques. If they issue a cheque which was not to be issued in order to illegally benefit from it, then it is a breach of trust. Among you three there is no written understanding as to who among you can give the flat on rent to a tenant. Hence there is no breach of trust. At worst your brother has exceeded his mandate. In fact there was no mandate given to anybody. So yours is only a dispute.

As regards rights of members (including Associate Members) of a Co-operative Housing Society, the situation in Mumbai is very confused with the CS Act, the Model Byelaws and HC Judgement negating each each other. Added to the confusion is amendments to the Act. 

Originally the flat was in the name of your mother. According to law and High Court judgments after the death of a member only his or her legal heirs have right over the flat. Who are the legal heirs of your mother? Neither the Society nor you can decide the matter. You have to apply for and get a succession certificate from a competent court. Society admitting you as member without succession certificate does not confer on you beneficial rights over the flat. After you get succession certificate the Society will make one of you member and others associate members. As far as dealings with the Society is concerned the member has to deal with them. If the flat is to be given on rent there is no law for that. If you want, you have to come to an understanding among you.

Hi Mr.Ramani,

Hope all well at ur end...

Wanted to know if I enter with my baby  and stay in my co owned flat with the tenant in it . As I have not given consent to the tenant and my name is not in the new rental agreement done by my brother....what can be the repercussions...

I have my property papers to prove I am one of the co owners

Kindly advise...

Thank you for your reply Sarah 🙏

My financial possion is not good at the moment from the church I took help and a lawyer sent a notice to my brother ,to the tenant and society.

But my brother reply to the notice is just waste of time.Hence I am thinking to enter the flat and stay with the tenant ...what action will be taken on me if I do so...

I am in a vulnerable condition with a baby as ,y husband is also acting funny with financial support ...please advise 

Once upon a time I was 23 years old. My parents were more than 60 years.  I was working in a factory and the company had given me quarters.  My parents were residing at our native place, about 3 hours by train, in a house owned by my father. .As I got quarters my parents came to my place to stay with me. They gave the family house on rent to a tenant. After about 3 years some dispute arose with the tenant regarding some repairs related to the property. The tenant arbitrarily adjusted the cost of alleged repairs against rent payable, to which my father did not agree. Afterwards my father wrote to the tenant the he wanted the house back for his own residence. He asked the tenant to vacate.The tenant did not vacate the house. After 2 or 3 months my parents went to our native place. They entered the house and sat in the drawing room. My mother, who was a talkative person, told the tenant that it was their house and tthat they had gone to stay there. The tenant was a police stenographer. He complained to the police. A police constable came to the house and asked my father to vacate. My father also was an influential person. So the policeman went away without taking any action. My parents came away after the incident. Later I went there and requested a lawyer to file a case to evict the tenant. The lawyer (who was of the same caste as the tenant) took out a law book and showed me a section. According to him, as per the section action could not be taken against the tenant, as he was a government servant. I disputed his statement. I straight went to another lawyer of a lower caste than the tenant. He agreed and filed the case. The court ordered the tenant to vacate the house. When I saw what you propose to do, I just remembered this case in the last century.

Does your tenant know about the dispute you have narrated here?  Will it be a surprise for him if you do what you  propose to do?   Suppose one fine morning you have entered the flat with your baby announced or announced. What do you expect the tenant to do?  Agree with you and immediately vacate the flat with family bag and baggage? Alternatively, which is more likely, he will go to the police and report of criminal trespass into the house. The police comes to the house. What will they do? Throw you and the baby out of the house?  No, you will explain to the police all that you have narrated here.  The police will tell you that it is beyond them to give a decision, which only a court can do.  In effect, they will request you to go out and take action though court. What I have said here can happen in a violent or semi-violent manner also.

If the tenant is not already in the loop you write to him first to vacate the house.