• In a co-operative society can a nominee rent out a flat in case the member has passed away

My father is a member of a WB Housing co operative society. My Mother is the nominee and we had stayed in the flat since 10 years. My father passed away a year ago in a untimely manner, as there was a turmoil and my mother not being able to stay alone, we had decided to rent out the flat as it was difficult to manage. I had searched a family to rent (as per the norms of my society- only married couple allowed). Now they are refusing to hear anything unless transfer of shares are completed and mutation is done under my mother's name. Can my mother not even rent out the flat after my father's death unless all the co-operation(both Govt. and society) legal matters are not completed? I am not asking for selling off the flat, I just to rent it out and parallely go ahead with the documentation
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu

Nominee is only trustee for legal heirs

2) flat has to be transferred in mother name by society approved in AGM

Then only mother can rent out the flat

Ajay Sethi
Advocate, Mumbai
69070 Answers
4155 Consultations

5.0 on 5.0

After your father's demise, this flat has devolved upon you and your mother(since he died intestate), if you two are his only legal heirs. I think you cannot be restricted to let this out only premise that the formalities regarding transfer of share certificates and mutation are incomplete.

Take a legal action against this cooperative society for imposing this embargo on you.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Dear Client,

After father`s death, ownership in the property will inherit in mother and you by equal share.

Society can not put restriction to put property on rent, Mutation is another process which can be proceed in due course, But society cannot bar the owner to resort immediate measure for his/her best interest in respect of property owned. Complain to registrar and also apply for mutation, in both name.

Yogendra Singh Rajawat
Advocate, Jaipur
14624 Answers
19 Consultations

4.6 on 5.0

1. On death of your father all of you including your mother inherit the flat and your mother even if nominee of the flat is not its sole owner.

2. Now any of the co sharers can give the property on rent for which consent of all the co sharers are not required.

3. So to give the flat on rent permission of society is not mandatory nor making your mother sole owner of the property is essential.

Devajyoti Barman
Advocate, Kolkata
18130 Answers
260 Consultations

5.0 on 5.0

The society can not abstract the letting out as you and mother are the natural legal hairs. As you have not transferred the property in your name it will not be valid to do a lease deed which needs ownership to complete the agreement. Please arrange the mutation and lease the property as you wish.

For any problem you may complain to the registrar of societies.

Vimlesh Prasad Mishra
Advocate, Lucknow
5694 Answers
19 Consultations

4.9 on 5.0

Society has no right to compel to complete the mutation in the favour of your mother before letting out the flat. According to the personal law the property of husband is automatically devolved upon his wife immediately after his death. Mutation is not mandatory and the society has no such power to bind the flat owner to mutate the property before letting out the flat. In this condition you should file and application before the society Registrar for passing of appropriate order against the society and preclude the society to do such kind of act.

Shivendra Pratap Singh
Advocate, Lucknow
5108 Answers
78 Consultations

4.9 on 5.0

1. After the demise of owner ie your dad, the nominee appointed by him ie your mom, does not automatically become owner of the flat

2. The nominee only stands as a trustee for all the legal heirs of the deceased owner member

3. In your case your mom alongwith being the nominee is also the legal heir of the deceased member

4. If all the legal heirs of the deceased owner are agreeable for letting out the flat on rent then I don't see any reason why the society has to refuse for the same

5. The society's stand is not in accordance with law and the legal heirs, one of whom is also a nominee, cannot be stopped by the society against giving the flat on rent

Yusuf Rampurawala
Advocate, Mumbai
4673 Answers
28 Consultations

5.0 on 5.0

Hello,

your mother can definitely rent out the flat.

there is no legal impediment in the same.

Ask the society to show some law which bars the wife from renting the premises on the death of the husband.

Regards

Anilesh Tewari
Advocate, New Delhi
17270 Answers
267 Consultations

5.0 on 5.0

Hello, yes sir your mother can legally rent out the flat..It is advisable to file a sucession certificate in court,and obtain the necessary permission from court..

Hemant Chaudhary
Advocate, Gurgaon
4310 Answers
31 Consultations

4.9 on 5.0

Legally speaking the person intending to sell or let the flat on rent should be the owner or a member of the society.

In your mother's case, what prevents her from acquiring the share certificate transferred to her name?

What steps you have taken to transfer the same and what is the society doing to prevent her from transferring the same to her name?

What is that you are awaiting other than the death certificate of your father for this?

For renting out a flat within the premises, the permission of the society is essential as per bye laws of the society, you cannot claim exemption for any sentimental reasons.

Have you applied for transfer of share certificate to her name?, if so what was the reply by the society?, did they give their reply in writing?, if yes, did you consult an advocate in the local to take up the matter legally as per provisions of law?

You can invoke legal provisions if the refusal is unjustified or illegal.

T Kalaiselvan
Advocate, Vellore
58912 Answers
747 Consultations

5.0 on 5.0

The society cannot restrict you from letting out the flat even the transfer is not complete as legally according to Hindu law the legal heirs get right in property on death automatically.

So and your mother both will have equal share on property so with consent of co sharer that is you your mother can give flat on rent.

Give society a notice to same effect and mention that on this malpractice you can complaint to Registrar of society and the court as society cannot restrict your legal right

Shubham Jhajharia
Advocate, Ahmedabad
20926 Answers
81 Consultations

5.0 on 5.0

To give the flat on rent permission of society is not mandatory. Secondly society cannot object or interfere in your internal family matters nor can they restrict you people from letting out premises for rent. If all of you agree to rent out premises its advisable to execute lease agreement keeping all of you as owner.

Swarnarka Chowdhury
Advocate, Mysore
1782 Answers
4 Consultations

5.0 on 5.0

1. The Society has taken the stand that before dealing with the said flat of your late father, the ownership issue shall have to be settled.

2. Renting the flat also falls under the category of dealing with the flat. Hence if she can rent, then she should be able to sell also.

3. There is a Supreme Court decision stating that the nominee shall be treated as the owner of the flat after the demise of its owner, intestate.

4. You can approach the Society stating that all the legal heirs of your father will sign the said rent agreement, if getting the share certificate transferred in favour of your mother takes too much time with the society.

Krishna Kishore Ganguly
Advocate, Kolkata
22781 Answers
613 Consultations

5.0 on 5.0

Sir

Yes the nominee can rent out the flat after the demise of the member. In such case the information to the society is necessary.

Thanks

Shiddhartha Banerjee
Advocate, Calcutta
42 Answers

5.0 on 5.0

She can rent out the flat. You can complete the procedure side by side. They can't stop you. You can complete to Dy Registrar for the same.

Prashant Nayak
Advocate, Mumbai
14541 Answers
25 Consultations

4.6 on 5.0

Hi,

Mother is nominee and she steps in to all rights of father and she can rent out the flat. The paper formalities can be completed parallel.

Ganesh Singh
Advocate, Delhi
3274 Answers
9 Consultations

4.5 on 5.0

Dear Sir,

It is high handedness of the society. You may approach Deputy Registrar of Concerned Office and lodge a complaint. If you want to simplify the things then approach High Court and get an interim order to rent out the flat immediately by your mother is who is no other than nominee of original title holder. Further there is no dispute in respect of title of the property.

Kishan Dutt Kalaskar
Advocate, Bangalore
4694 Answers
134 Consultations

5.0 on 5.0

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