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Main Page  » Articles  » Property share of Deceased Member
Property share of Deceased Member
Published By (Y Mohanraj), Date (21 May 2014)

Member dies with Nomination

 

Subject to the provisions of the Section 30 of Maharashtra Co-operative Society Act, 1960 bye-law No. 17A or 19, on the Death of member, the Society shall transfer the share and interest of deceased member in the Capital / Property of the Society to the Nominee/Nominees and in proportion with the shares and interest held by the deceased member, in case property is purchased by member and associate member jointly.

 

In the event of death of the member, Nominee/Nominees shall submit the Application for membership, within six months from the death of a member.

 

If there are more than one Nominee, on the death of the member, such Nominees shall make joint application to the Society and indicate the name of Nominee who should be enrolled as member.  The other nominees shall be enrolled as a Joint/Associate Members unless the nominees indicate otherwise.

 

The Nominees shall also file an indemnity Bond in the prescribed form indemnifying the society against any claims made to the share and interest of the deceased member in the Capital / Property of the society by any of them, incase only one nominees is indicated by the Nominees for membership of the Society.

 

Note: In case of acquiring membership on the basis of nomination, such member shall hold the flat / unit in “Trust” till all the Heirs are brought on record and shall not have the right ownership and shall not create the third party interest. Execution of nominations does not create title in the property.  Example:

 

When one of the son is made a nominee to a flat owned by father and mother and on their death he cannot be said to be in occupation as a trustee for all heirs of deceased, but his occupation can be termed as co-owner and cannot be held as dishonest mis-appropriation of flat within the meaning of section 405 of the Penal code.(Shyam Lachmandas Aiwani Vs. The State of Maharashtra, 1991 Cri.L.J.979)

 

Member dies without making a Nomination

 

Where a member of the Society dies without making a nomination, or no nominee comes forward for transfer, the society shall invite within six months from the information of his death, claims or objections to the proposed transfer of Shares and interest of the deceased member, in the capital / property of the society, by a public notice in the prescribed form, exhibited on the notice board of the society.  It shall also publish such notice in at least 2 local news papers, having wide circulation.  The entire expenses of publication of the notice shall be recoverable from the value of shares and interest of the deceased member in the capital/property of the society.  After taking into consideration of the claims or objections received, in response to the said notice, and after making such prevailing, the committee shall decide as to the person, who in its opinion is the heir or legal representative of the deceased member.  Such a person will be eligible to be a member of the society subject to the provisions of the bye-laws Nos. 17(a) or 19, provided that he gives an Indemnity Bond along with his application of membership in the prescribed form, indemnifying the society against any claims made to the shares and interest of the deceased member in the capital/property of the society, at any time in future, by any person.

 

 

More than one claimants

 

If there are more claimants than one, they shall be asked to make the affidavit as to who should become a member of the society and such person, named in the affidavit shall furnish the indemnity bond as indicated above along with application for membership, referred to above.

 

However, if the committee is not able to decide as to the person who is the heir / legal representative of the deceased member or the claimants do not come to the agreement, as to who should become the member of the society, the Committee shall call upon them to produce succession certificate from the Competent Court.

 

No claimant

 

If there is no claimant, the shares and interest of the deceased member in the capital/property of the Society shall vest in the Society.

 

Note on Section 30

 

It is very clear on the plain reading of the section that the intention of the section is to provide for who has to deal with the society on the death of a member and not to create a new rule of succession.  The purpose of the nomination is to make certain the person with whom the society has to deal and not to create interest in the nominee to the exclusion of those who in law will be entitled to the estate.  The purpose 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.  Though in law, the society has no power to determine as to who are the heirs or legal representatives with a view to obviate the similar difficulty and confusion, the section confers on the society to determine who is the heir or legal representative of a deceased member and provides for transfer of the shares and interest of the deceased member’s property to such heir or legal representative.  Nevertheless, the person entitled to the estate of the deceased do not lose their right to the same.

 

Society has no power, except provisionally and for a limited purpose to determine the disputes about who is the heir, or legal representatives.  It therefore, follows that the provisions for transferring a share and interest to a nominee or to the heir or legal representative as will be decided by the society is only meant to provide for interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right of such person to a property forming part of the estate of the deceased.  The idea of having this section is to provide for a proper discharge to the society without involving the society into unnecessary litigation which may take place as a result of dispute between the heirs.



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