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Ryan Pereira (SM)     08 December 2011

Transfer of share

I am planning to buy a flat in a cooperative society in Mumbai. The case details are as below

a) The flat was in the name of a member who expired in 2009

b) Nomination exists in the favour of 2 children with equal share

c) The nominees have made an application to the society to transfer the flat in their respective names in March 2011

d) The flat is now up for sale but now the society is saying that the current owner cannot sell the flat till November 1st 2011 citing Section 29 (2) of Maharashtra Co-operative Societies Act, 1960 (MCS Act) :


A member shall not transfer any share held by him or his interest in the capital or property of any society, or any part thereof, unless -

(a) he has held such share or interest for not less than one year

 

Pls advise if I can enter into the deal basis any legal document as mitigant to safeguard ny interests

 

Thanks

 



Learning

 4 Replies

Adv Akhtar Ali Sheikh (Property Law Consultant)     09 December 2011

Dear Ryan Pereira,

Beware the Nomination does not confer absolute title on the nominees.

Strictly and legally speaking other legal heirs too would have share in it, nominees just act like trustees of the Nominator. Generally it does not happen but other legal heirs, say any remaining sibling or the spouse of the deceased can claim their share despite the nomination.

Society's stand is correct but you can still purchase the flat if all the legal heirs sign the transfer deed and register it.

Ryan Pereira (SM)     09 December 2011

Thank you sir for your response.However my bigger concern is the time period from the time of transfer to the nominees is less than 1 year ( transfer request is March 2011) before which the sale of the flat is happening and hence even the Bank is not willing to sanction the loan.

Thanks

V R SHROFF (Sr. ADVOCATE Bombay High Court Mob: 9892432152)     09 December 2011

 

 

Dear Ryan Pereira,

 

I agree with Mr.  Sheikh ,

Nominee is only a Care taker, to pay Maintenance and to do needful in case of death of the Member, till the Legal heirs claim and transfer the Flat on their name. 

care taker/ Nominees atr not the Owner, nor a member of Society. 

However, SC judgment protects the Purchaser, That Even Nominee can sell the Flat, subject to  any claim of legal heir. 

Beware, Children's Property  cannot be sold  without Court Order, Minor's Property need  Court Order, even their  own parents cannot sell it w/o Court Order. 


As far as One year Limitation is concern, you can purchase the Flat and possess it, use it, or deal with it as you like (e.g. Give on LL Basis  etc)

Only, the transfer on Share Certificate will be on completion of One Year of previous member. 

 it only delay transfer. 

Adv Shroff

09-12-2011

Ryan Pereira (SM)     09 December 2011

Thank you all for your response


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