• Transfer of property in a Housing Co-op

Dear Sir,

My father being member of a housing co-op socy under the West Bengal Co-operative Socy Act had obtained a sub-lease on a plot of land via a deed of conveyance in the year 1978, the sub-lease was for a period of 99 years.
In 2003, my father wanted to sell his house and applied for permission for transfer of lease-hold rights and membership to his tenant.

Socy took my fathers letter as resignation(even though he never used that word) and took resolution to transfer his sub-lease plot with constructed house in favour of tenant.

Socy got permission from registrar and gave membership to our tenant. My father entered into an agreement for sale to his tenant, however the property was never sold and the transfer also could not be completed. The tenant never paid full consideration money to buy the property. The tenant is in possession of the property.

Now, Father  died in 2009 and present situation is that we have inherited the property and the co-op claims that our tenant is the member.

It is a strange situation.

My question is:- Can a Co-operative Housing Socy. in West Bengal transfer the Sub-lease to our tenant when the sub-lease has already been conveyed to my late father for 99 years(as per earlier deed)? Particularly when the property has not been sold yet and the original member has not transferred his property.

Regards
Sumit Basu
Asked 1 year ago in Property Law from Kolkata, West Bengal
Religion: Hindu
1) if transfer in favour of tenant was not completed although registered agreement for sale had been entered into your father should have filed suit for specific performance . 

2) the fact that your father remained silent for so many years and did not take any legal proceedings for period of  6 years is detrimental to your interests .

3) the agreement for sale entered into , payments made correspondence entered into with society  have to be perused to advice . 

4) if society had admitted tenant as member without full consideration having been paid your father should have moved court to challenge decision of society .

5) issue legal notice to society ./ tenant and file suit challenging decision of society to transfer sub lease in favour of tenant . 

6) also file suit for eviction of tenant . 

7) the delay in moving court for 13 years will have to be explained by you 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
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1) you have not stated these facts when you raised your original query . 

2) you have to mention complete details when you raise a query . 

3) based on additional facts mentioned by you your father is the owner of plot of land . 

3) enclose copy of certified copy of said order and write to society to delete name of tenant as member . mention fact that full consideration has not been paid by tenant as per agreement for sale 

4) also file suit for eviction of tenant . what happened to part consideration paid  by tenant to your father ? have you returned said money?
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1) you have to wait for disposal of appeal by tenant for deletion of tenant name as member

2) further you have to challenge order passed by arbitrator treating your father letter as resignation

3) you have  good case on merits
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1. The dispute herei is on the point that as per you  "your father wanted to sell his house and applied for permission for transfer of lease-hold rights and membership to his tenant" whereas as per the society your father resigned from the membership of the society and  transfered his sub-lease plot with constructed house in favour of the tenant,

2. Without perusing the copy of the  letter/application submitted by your father and the resolution passed by the   Society, it is not possible to comment on the matter properly.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1. Even if your father has been considered to have resigned from the membership of the society, on what authority the Society could transfer the membership/share of the societyi in the name of the tenant without clear instruction from your father? The act of the society is bad at law,

2. You can now file an application before the Registrar of the Society against the said illegal action of your society seeking direction upon your society to cancell the shares illegally issued to the said Tenant and recognise the shares of the Society still lying in the name of your father as valid and the lagal heirs of your father can apply for the transfer of the said shares in their names,

3.   If you do not get any result after filing the said application before the Registrar of Societies, file a W.P. before the High court against inaction of the Registrar of Society also making your society and the Tenant as a parties.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1. As I have posted in my first post, the letter of your father to the Society is very important in this matter and is required to be perused to properly comment on it,

2. However, you can move the matter before the Tiribunal and also before the High Court if you find yourself agrieved with the order of the tribunal,

3. The fact that the declaratory suit filed by the Tenant was dismissed by the court in 2011 on grounds that possession without title has no meaning and that there is no suit for specific performance of contract on behalf of the tenant and that your father being the valid holder of conveyance deed was the member and that the plaintiff remained to be a tenant, will be of great help for your getting favourable judgement from the High court. 
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1) you have good case on merits since tenant failed to pay full consideration and your father cancelled agreement for sale

2) court order mentions tenant has no title to properly and is mere tenant 

3) your father never resigned from society only asked soc to transfer his membership 
4) it is surprising  that without receipt of full consideration your father wrote to society to transfer membership 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1. The following request made in your father's letter stating "Therefore you are requested to do the needful for transfer of membership and for the sale/transfer of my said house and oblige" has created the problem,

2. The society will now argue that  your father has requested them for transfer of his membership and it is implied that he has resigned since without resignation membership can not be transfered,

3. You have your own arguments stating that your father did not resign and the Court will decide about the matter on merit,

4. However, move the matter before the Tiribunal and also before the High Court if you do not get favourable order.
 
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1) court has upheld  that your father has title to said property and that tenant by being I possession does not become owner

2).  it  appears that society was had in glove with tenant and the changes in records have been made subsequent to cancellation of deal 

3) did your father inform society of cancellation of deal with tenant 

4) the fact that your father never surrendered his share certificate to society is significant,.without original Share certificates society could not have accepted application for transfer of share certificate
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
you have rightly challenged award passed by arbitrator before the Tribunal . dont loose hope . 

it is doubtful that in appeal filed by tenant he would be granted any relief by court since full consideration was never paid and agreement was duly cancelled by your father . 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1. There are arguments which can be forwarded from both the sides,

2. However, the fact is that the Agreement for Sale fell flat and was cancelled,

3. There has also been a Court decision dismissing the  declaratory suit filed by the Tenant  on grounds that possession without title has no meaning and that there is no suit for specific performance of contract on behalf of the tenant and that your father being the valid holder of conveyance deed was the member and that the plaintiff remained to be a tenant conclusively ends the dispute,

4. File a W.P. against the arbitrary action taken by the Assistant Registrar. 
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1. Your father was required to surrender his ahare certificate to enable the Society to issue the share afresh in favour of the new member in whoce name the property has ben transferred,

2. The Society is not required to refund the share value since the share is transferred by the old member vto the new member,

3. There was a resolution passed in Mar'2003 to change the membership id enough and the audit report may be treated as error,

4. The main point herein is that the agreement for sale has been cancelled and the Tenant does not have the Title of the propery,

5. So, the allocation of membership, even if issued erroneously,  has to be cancelled.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1) the judgement cited by you is relevant and squarely applicable to facts of your case . 

2) the registrar has deliberately ignored said judgement 

3) the said judgement specifically mentions that audit reports is prima facie evidence of membership 

4) further judgement mentions that whether any resignations are on record have to be considered by registrar 

5) in appeal rely upon said judgement and specifically plead that said judgement was placed on record but registrar refused to consider SC judgement
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
1. I have gone through the quoted Judgement of the Apex court,

2. The basic question in your case is whther your father had resigned or not and whether his resignation was accepted or not,

3. Another question is that membership of a housing society is given to the flat owners only and in your case the Tenant can not show any document to prove that he is the owner of the flat he is living in,

4. So, you have a valid reason to agitate and appeal against the order passed by the Arbitrator/Assistant Registrar.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1)if tenant has not paid rental since 2005 issue legal notice for recovery of arrears of tent and file suit for eviction 

2) you have already  filed appeal against the arboreal award . You have good case on merits
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
File eviction suit immediately on the ground of non payment of rent otherwise it will be contrued or argued that you have accepted his status as buyer of the flat,

Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0

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