Source Courtesy: Advocate Sanjeev Kanchan
Transfer of Shares in Co-operative Housing Society: Maharashtra CHS Act
Can Society transfer the Share Certificate in the name of the nominee in spite of objections from legal heirs ?
By Advocate Sanjeev Kanchan
Posted on 10th July 2002 ( Provisions still Valid )
I would like to deal with the above query in detail, since similar problems are faced in many co-operative societies.
For instance, a person has been nominated as a legal nominee by the deceased member in the records of a co-operative housing society. The said deceased husband died in Bombay in 1999, leaving behind him his wife and his two adult sons. The sons have filed their objection with the society and requested them not to transfer the share certificate in the name of their mother, although she is the nominee of the flat as per the records of the society.
Section 30 of the Maharashtra Co-operative Societies Act 1960 deals with the provision of transfer of interest which is as under :-
Section 30 (1) : On the death of a member of a Society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules. Or if no person has been so nominated, to such person as may appear to the committee to be the heir or legal representative of the deceased member. Provided that such nominee, heir or legal representative, as the case may be duly admitted as a member of the Society.
All transfer and payments duly made by a society in accordance with the provisions of Section 30(4) shall be valid and effectual against any demand made upon the society by any other person. Rule 25, for the purpose of transfer of his share or interest under sub-section (1) of Section 30, a member of a Society may by a document signed by him, or by making a statement in any book kept for the purpose by the society, nominate any person or persons. Where the nomination is made by document, such document shall be deposited with the society during the members life-time and, where the nomination is made by statement it shall be signed by the member and attested by one witness.
MCS Rule 25 – Section 3
Where a member of a society has not made any nomination, the society shall on the member’s death by a public notice exhibited at the office of the society, invite claims or objections for the proposed transfer of the share or interest of the deceased within the time specified in the notice.
After taking into consideration the claim or objections received in reply to the notice or otherwise, and after making such inquiries as committee considers proper in the circumstances prevailing, the committee shall decide as to the person who in its opinion is the heir or the Legal Representatives of the deceased member and proceed to take action under Section 30.
However, what is important is the section and not the rules and bye- laws in as much as the rules and bye laws cannot provide everything contrary to the section. It is very clear on the plain reading of the section that the intention and purpose of Section 30 of the Maharashtra Co-operative Societies Act 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 to make certain that the person with whom the society has to deal on the death of a member. The society has to deal with the legal nominee who has been nominated by the deceased member on the records of the society. The purpose of this section is to avoid confusion in case there are dispute between the heirs and legal representatives and to avoid uncertainties as to with whom the society should deal to get proper discharge.
The society is not concerned with any kinds of dispute raised by any person whosoever, so for the transfer of membership of deceased member to his nominee is concerned. Nevertheless all the persons entitled to the estate of the deceased as per succession law applicable to them do not lose their right to the same, even after transfer of the shares in the name of the deceased member.
It is pertinent to note that transfer of any property including share of the society is not governed by the ordinary law but by the provisions of the Maharashtra Co-operative Societies Act, and the rules and bye-laws framed by the Society. However, the right of society to admit a person of its choice as a member cannot be exercised arbitrarily and so as to deprive person of his/her right to the shares or property of a deceased member.
The law does not give a right to the society to refuse membership to a person who is entitled to become a member. To repeat, a society has the right to admit a nominee of a deceased member of an heir or legal representative of deceased member as chosen by the society as a member. A member of the society will have to obtain relief in the normal court against such person and have his rights ascertained and declared, and thereafter apply to the society on the basis of the Court Judgement to make him a member of the society.
Whether nomination is will
From the requirements for making a nomination, one may feel that nomination is Will. But is reality the Nomination is not a Will. Will as nomination filed in accordance with the provisions of rule and bye laws in the prescribed form and general intention (which is must in the Will) is not to provide for succession after death of a member.
Status of a Nominee
The provisions of nomination is found in various Acts, for example, L.I.C., Provident Fund, Gratuity, but the nomination does not create any title or interest in favour of the nominee. In a recent case under the Insurance Act, the Supreme Court in SMT SARBATI DEVI versus SMT USHA DEVI reported in A.I.R. 1984 SC, 346 held that it does not confer any beneficial interest in the nominee and the other heirs can claim the amount in accordance with the law of succession governing them. Therefore as a principal as can very well say that nominee is mere trustee with whom society can initially or prima facie deal with and after the death of a member, all the heirs of the deceased member will have a right of succession to the property, and the nominee cannot exclude other heirs. In other words the provisions of ordinary succession law will not be affected by nomination.
In view of aforesaid facts and the judgement, it is simply clear that the society will have to transfer the shares in the name of the nominee, irrespective of any objection being raised by any other person unless and until the aid objections obtain relief in the normal court against the nominee and society. In my opinion the society has no alternative except to transfer the shares in the name of the nominee.