Nominee is no longer the owner of the flat, testamentary document is a must!!
Succession, Probate or Legal Heirship Certificate a compulsory document for transfer of flat in Co-operative Housing Society
About the Laws:
Amendment to The Maharashtra Co-operative Societies Act, 1960
Law relating to nomination, testamentary succession and transfer of shares in Co-operative Housing Society.
It has been experienced and seen that law relating to nomination and succession in Housing Societies has been interpreted vide plethora of judicial decisions. One of such recent judgments on section 30 MCS ACT was by the Bombay High Court in Shakti Yezdani and Ors. v. Jayanand Jayant Salgaonkar and Ors. 2017(1)BomCR319 where under paragraph No. 20 it was clarified that:
“ Notwithstanding the provision of Section 80 of the West Bengal Act of 1983 which mandates that on the death of a member of a Cooperative Society, his share or interest shall be transferred to nominee, the Apex Court (in Indrani Wahi case) did not hold that nomination supersedes the succession or inheritance in accordance with law. ”
Amendment : The Maharashtra Co-operative Societies Act, 2019
But recently the controversy revolving around law of nomination under co-operative housing societies has finally been settled by the state legislature under the Maharashtra Co-operative Societies (Amendment) Act, 2019 effective from 9th March, 2019.
The Maharashtra Co-operative Societies Act, 1960 has been amended to include a new Chapter XIII-B which deals with provisions exclusively applicable to housing societies.
As per the newly introduced Section 154B-13 of the Maharashtra Co-operative Societies Act, 1960 (which overrides section 30 mentioned above), a society can transfer the interest of the deceased member in the flat only when testamentary documents or succession certificate or heirship certificate or document of family arrangement has being produced by the legal heirs of the deceased member or person/s entitled to the flat.
The first proviso under this section further clarify and clear the clouds of doubts that a nominee shall only be admitted as a provisional member in place of the deceased member till the time legal heirs or person/s entitled to the flat are admitted as member/s.
The concept of “provisional member” has been newly incorporated and the term has been defined under section 154B-1(18) as a person who is duly admitted as a member of a society temporarily after death of a member on the basis of nomination till the admission of legal heir/s as the member of the society in place of deceased member.
In light of the recent Maharashtra Co-operative Societies (Amendment) Act, 2019 the long standing controversy of nomination vs. succession has been put to rest once and for all.