Procedure for transfer of flat to legal heirs in housing society

384 votes

As per the Muslim personal law in India, the property of a deceased Muslim man is divided among his legal heirs based on the rules of inheritance prescribed in the Quran. The distribution of property is determined by the relationship of the heirs to the deceased and the presence or absence of other legal heirs.

1. A legal heir certificate is a document issued by the government that certifies the identity of the legal heirs of a deceased person. This certificate is often required for various legal purposes, such as claiming inheritance, accessing bank accounts, or transferring property.
   
   In the case of a Muslim man who has lost his father, a legal heir certificate would help establish his status as a legal heir and his entitlement to any property or assets left behind by his father. This certificate would also be necessary to reflect the change in revenue records, such as updating the land or property records in the name of the legal heirs. The process of obtaining a legal heir certificate may vary depending on the state and local laws, but generally involves submitting an application along with relevant documents such as the death certificate of the deceased person, proof of relationship to the deceased, and other supporting documents as required by the local authority. 
    

2. If a Muslim man has a son, a daughter, and a deceased son, the division of his property would depend on whether the deceased son left behind any children (i.e. grandchildren of the deceased man).
   
   If the deceased son left behind children, then his share in the property would be divided equally among his children (i.e. the grandchildren of the deceased man). The remaining property would then be divided among the surviving son and daughter. In this case, the son would receive double the share of the daughter.
   
   If the deceased son did not leave behind any children, then his share in the property would be divided equally among the surviving son and daughter. In this case, the son would again receive double the share of the daughter.
    

3. After receiving his share in the property from your grandfather, your father can transfer that share to your mother by way of a gift deed. To gift property to his wife, the Muslim man would need to execute a valid gift deed. A gift deed is a legal document that transfers the ownership of the property from the donor (the Muslim man) to the donee (his wife) without any exchange of money. The gift deed should clearly state the intention of the donor to make a gift, the details of the property being gifted, and the acceptance of the gift by the donee.
   Once the gift deed is executed, it must be registered with the relevant authorities as per the applicable laws. Registration of a gift deed is mandatory to make the gift valid and enforceable in law.
   
   Alternatively, a Muslim man can also make a declaration of gift in the presence of two witnesses, which is known as Hiba-bil-Iwaz. This means that he can gift the property to his wife without any exchange of money, but with a condition that she would pay a certain amount to him or someone else as a consideration for the gift.

LawRato LawRato

517 votes

The procedure for nomination by a member of co-operative society is provided in bye laws of the cooperative Housing society, bye law no. 32, which runs as under:

“A member of the society may by writing under his hand in the prescribed form, nominate a person or persons to who the whole or part of the shares and /or interest of the members in the capital/property of the society shall be transferred in the event of his/her death.”

Further no fees shall be charged for recording the first nomination.
A members may revoke or vary his nomination, at any time, by making an application, in writing under his hand to the to the secretary of the society.
Every nomination made, shall be recorded in register of nomination “within 7 clear days’’ from the date on which resolution to accept the nomination was recorded in minutes of managing committee.
Every fresh nomination shall be changed a fee of Rs100
Transfer of shares/of interest on event of death of member to a nominee:
It is clearly provided in section 30 of the Maharashtra co-operative societies act, 1960 (Act no. XXIV of 1961 Mah) that, on the death of a member of society, the society shall transfer the share or interest of the deceased member to person or persons nominated in accordance with the rules and byelaws.

Analysis of section 30
A nominee comes into picture only on death of the member. The society shall transfer the shares of the deceased member to nominated person.

Whether it is advisable to make a nominee in case of joint ownership of flats?
The object behind nomination is to avoid confusion in case there are disputes between the heirs and legal representatives and to obviate the necessity of obtaining legal representation and to avoid uncertainties as to with whom the society should deal to get proper discharge. Nomination does not create a new rule of succession.

Therefore, it is highly advisable to make a nomination in case of joint ownership of a flat. In case of a simultaneous death of both the joint owners, the flat is rendered intestate. The due process of law has to be followed to transmit such a flat in the name of the legatee. An appointed nominee and a will (of a joint owner bequeathing his/her ownership in the name of the other joint owner) can go a long way in avoiding unnecessary confusion and ambiguities. In a case where both nomination and Will is prepared, the Will will prevail over the nomination paper.

Procedure to follow for transmission when nomination is made by the flat owner
(1) The form of application for membership in Appendix-15, by the nominee/ nominees [ under Bye-law No. 34] with Rs100 entrance fee.
(2) If nominee has no independent income source, an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-5 will be furnished by a person who is a close relative and an earning member and who is ready to discharge the liabilities of the prospective nominee-member to the Society. [ under Bye-law No.19(A) (v)]
(3) If there are more than one nominee, an indemnity on Rs200 Non-Judicial Stamp Paper is to be submitted by the prospective nominee-member, in Appendix-18. [ under Bye-law No.34 ]
(Note: This indemnity is to be given, only if one of the nominees become member of the society. If first named nominee becomes a member of the Society and all other nominees become joint associate members, this indemnity need not be given.)
(4) Undertaking on Rs100 Non-Judicial Stamp Paper to be submitted by the prospective nominee-member, in Appendix-4. [ under Bye-law No.17(b) and 19(A)(iv) ]
(5) Copy of the Nomination Form in Appendix-14, of the deceased member. [ under Bye-law no.34 ]
(6) Attested Xerox copy of the Death Certificate of the deceased member. [ under Bye-law no.34 ]
(7) Xerox copy of the Share Certificate of the deceased member, with undertaking on the Xerox copy, that original share certificate will be produced by the member, as and when asked by the Secretary for making the name change by the Society.
(8) If nominee-member wants to make one of his relatives an associate member, simultaneously with him, he needs to apply by filling the form in Appendix-8, with Rs100 entrance fee for the Associate Member. [ under Bye-law No. 19(B) ]
(9) If the nominee already possesses another flat in the same society, then to hold an additional flat, an application in Appendix-28, has to be made by the nominee-member. [ under Bye-law No. 62 ]
(10) Nomination to be made by the nominee-member, in Appendix-14, in triplicate. [ under Bye-law No.32 ]

(NOTE: This is also applicable, to the case, when no nomination is made, as given below...
(1) All forms and papers as stated above are to be submitted in a file to the Society's office.
(2) All dues of the Society and the deceased member in arrears and also future dues for the following six months have to be paid by the nominator member at the time of submitting the membership application.
(3) All stamp papers are to be purchased in user's name.
(4) Entrance fees, as in Sr. No.(1) and (8) have to be paid along with dues, at the time of submitting of the forms to the society.
(5) If the Society does not inform you of any objection within 90 days of submitting of your application for your membership, then under Section 22(2) of Maharashtra Co-operative Societies Act, 1960, you become a deemed member of the Society. To confirm your deemed membership, you have to make an appeal to your Deputy Registrar, to take a hearing and pass an order under section 22(2), to confirm your membership by the society.)

Procedure to follow for transmission when no nomination is made by the flat owner or when no nominee is ready to accept the membership of the society
In such a case, if there is a dispute among the relatives of the deceased, the Society will demand Succession Certificate from the the relatives of the deceased. Negligible Court Fee has to be paid for the same, in the light of judgement delivered by the Bombay High Court, in case of Testamentary Petition No595 of 2005, Yallappagauda Shankar Rao v/s Smt. Yallappagauda Manjunatha Rao.

When there is no dispute, following papers are to be submitted:
(1) Application for membership by an heir of the deceased member, in Appendix-17, with Rs100 entrance fee. [under Bye-law No.35]
(2) If the heir does not have an independent source of income, an undertaking by an earning member and relative of the heir, who is ready to pay all Society's due of the heir has to be made on Rs100 Non-judicial Stamp Paper.
(2) The heir has to give an indemnity on Rs200 Non-Judicial Stamp Paper, in Appendix-19. [ under Bye-law no.35 ]
(3) The heir has to give an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-4. [under the bye-law no. 17(b) and 19(A)(iv) ]
(4) CHS will display the notice in Appendix-16 in its notice board, send a copy to every member of the Society and will publish it in two local news papers having wide publicity, one in local language and one in English. Any claim from the public has to come within a period of 15 days from the date of publication of the notice. [ under Bye-law no.35 ]
(5) Follow points (6) to (10) as mentioned above in the case where nomination is made.

(Note: The heir has to take a Xerox copy of the notice published in all the news papers as proof of publication in the newspapers and among the members of the said CHS. These are to be submitted to the Society, as a proof of publication in the papers.)

He will then submit his papers to CHS, only after the period stated in the newspaper has expired.

Advocate Siddhant Sharma LawRato

141 votes

On the death of the owner, the legal heir will inherit the flat and not the nominee. A nominee is not the owner but a trustee of the assets. The nominee holds the property in trust and is legally bound to pass it on to the legal heirs named in the will.

Advocate Chikirsha Mohanty LawRato