• Sale of property in coopers society when owner is mentally incapacitated

Hello sir, I have a question. My mother is the owner of a cooperative society flat in Kolkata. It was purchased recently. I am the nominee as her son. I have heard that the flat can be sold or transferred only after 1 year of new membership. Is this correct ?

Also she is becoming more mentally incompetent and my worry is some of my relatives will take advantage of this and make her sign some papers to transfer the property to them. How can I stop this ?
Asked 4 years ago in Property Law
Religion: Hindu

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19 Answers

You can acquire ownership of immovable property in the following 5 popular ways;

1) By purchasing the Property

2) Through GIFTS

3) Through SETTLEMENT (Or) Partition of Properties

4) Through relinquishment of ownership in a property (or)

5) Through inheritance or WILL

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

It is true that flat can be sold only after period of one year of membership

2) apply to court for being appointed as her guardian

3) enclose her medical report that she is mentally unfit

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Hi,

you may get the things published in newspaper and also inform the concerend registrar's office in writing.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. The property stands in her name as of now.

2. She has not yet been proved to be mentally incompetent to register a deed of conveyance.

3. So, she can convey the title of her said flat in favour of anybody she feels like or change the name of the nominee of her said flat for which you can not agitate legally.

4. It will be prudent on your part to at least get a POA registered in your name to ensure that you can register a gift deed in your favour to transfer to transfer the title of the said flat in your favour as soon as one year is completed after the ate of purchase of the flat and she becomes more incompetent to register any document legally.

5. For getting the POA registered in your name, you shall have to get the signed POA sent to you to enable you to get your signature appended on it notarised by th appropriate office of your local Indian consulate for returning the said POA to your lawyer at Kolkata to enable him to get the same registered before the Registrar.

6. Once the POA is registered in your favour, your risk of ;loosing the said flat will still be there from the date of completion of one year of purchase till you register the gift deed in your favour.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

If you apprehend that your mother will be enticed by your relatives to grab the property utilising her mental conditions, you may either get a registered GPA executed in your favor in respect of this proeprty or can get a registered gift deed executed ion your favor.

This will help you mitigate your fears on this.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Its better you call your mom to the US to allay your fears

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

hello

The Mental Health Act, 1987, makes provisions with respect to taking care of the estate of a person who is mentally challenged - someone who needs treatment for his or her mental disorder. It is important to clarify here that a mentally ill person does not in any way mean or include a mentally retarded person.

Where an alleged mentally challenged person owns the property, any of his relatives may come forward with an application to the district court for holding an inquiry regarding his mental condition for the appointment of someone to manage his or her property. On the receipt of such an application, the concerned district court within the local limits of whose jurisdiction the mentally ill person resides takes appropriate steps for initiating a judicial inquiry regarding the mental condition of the alleged mentally challenged person.

After conducting such an investigation, in case the district court or the collector of the district confirms that the person is mentally challenged and incapable of managing the properties, it can appoint a suitable person as a manager for the property in question.

The manager appointed has the same powers with regard to the management of the property of the mentally challenged owner would have enjoyed. The manager has the power to execute conveyance on behalf of the owner after obtaining prior permission of the court. In case the manager wishes to execute mortgage or lease of such property for more than five years, then he has to obtain an order from the court before signing the mortgage deed/lease deed in lieu of the mentally ill person.

In a situation, where a person enters into a contract to sell the property owned by him and is later unable to fulfil the contract owing to his mental illness; the court may direct the appointed manager to do fulfil such incomplete contract. The manager is bound to act according to the directions of the court that appointed him. However, a manager can only manage the individual property of the mentally challenged person and can't be appointed for the joint family property.

To sum up, any sale of property which belongs to a person who has a mental illness is per se illegal. The mentally infirm person is unable to understand it and is incapable of forming a rational judgement about how it would affect his interest. Any contract with respect to such a property can be entered into by the manager who has been duly appointed and given directions by the district court for the same. It is mandatory to obtain the order of the concerned district court before anyone enters into any contract with respect to the property owned by a person suffering from mental illness.

regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Hello,

Yes it is correct.

However you can ask your mother to give you the power of attorney to handle the same .

Regards

Swarupananda Neogi
Advocate, Kolkata
2941 Answers
6 Consultations

4.7 on 5.0

1. The only way to stop this is to persuade her to execute a will before she loses the soundness of her mind.

2. If other relatives get the will executed by her under undue influence then you will have to file a civil suit to declare that will is void and illegal wherein you will have to prove that she was not of sound mind which will be difficult. So stay vigilant now.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Yes if the society has such bye law, but in that case the property can be sold to the buyer, the sale deed can be prepared, possession can be given to the purchaser he can further take the membership transfer from society in the next year.

You can ask your mother to gift you the said property or make and register a will in your favour or further if see is not mentally competent take a doctor certificate and keep it for record. in case by chance relatives get such document signed the court shall not consider same as she is not mentally competent further in event of her demise you are the legal heir and you shall get the flat

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes original documents are necessary not only for further transactions but also to file under this act.

Regards

Rahul Mishra
Advocate, Lucknow
13760 Answers
65 Consultations

5.0 on 5.0

Society woukd insist on production of original share certificate/ sale deed before transferring flat on your name

2) if they are lost your mother should file FIR about loss of original documents, issue public notice

3) apply to sub registrar office for certified copy of sale deed

4) apply to society for issue of duplicate share certificate

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

See the documents are though important but the transaction can though happen without them also as far as documents are concerned the certified copy.of.deed.can be obtained.from.the sub registrar.office so.you need to take care that no such transaction is recorded.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Original documents are no doubt necessary for transactions related to immovable property.

However if she obtains certified copy on the basis of reported loss of documents, she can very well proceed with the certified copies too.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Hi,

The certified copy of the sale deed and and share certificate can be obtained from registrar's office too.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1. They are required as without the original documents the society would not transfer the share certificate.

2. FIR should be filed if these are lost and newspaper publication should also be made and thereafter certified copy can be obtained.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

yes when property is transferred, the original documents will have to be given to the buyer

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

1. Ask Mother to execute a duly Stamp Duty paid and Registered GIFT DEED, in your favor, by duly inviting the registrar of sub-assurances to your residence (on payment of his fees), by following due procedures of law.

2. Once the Gift Deed is executed and registered, THEN the property gets transferred to you, immediately and there is nothing anybody can do to usurp the property.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. Original Deed is not required for transferring the title of the property by your mother.

2. However, the Society can ask for submission of the original share certificate for changing the name of the share holder but your mother shall be able to over come this hurdle by submitting a missing police diary reporting that the said original share certificate has been lost/misplaced by her .

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

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