• Redevelopment of Co-Op Society, Rights of nominees and legal heir

Sir,
My question is related to Maharashtra Co-op Soc.Act., and Indian Succession Act.
Location of property: Mumbai city
Myself: Nominee in the flat, Legal heir of the deceased and beneficiary in the Will.

Background: We are 3 sons. My late father (died in 2001) own a flat in Mumbai (he is member of society and made 3 nominations with shares like 

20%, 40%, 40% to my elder brother, me and my younger brother respectively). He also made a Will (in year 2000) and gave 50% equal share to 2 

sons, that is, me and my younger brother. Our elder brother did not get any share. Me and my younger brother submitted copy of Will to society and 

asked them to make us both the members. While my younger brother submitted NOC to society for our membership in the society. Society asked 

me to get Probate of Will through court. I filed a petition in Bombay HC in year 2003. Since no executor was named in Will, we converted it to petition 

of Letters of Administration. The petition is still pending for hearing. Meanwhile my younger brother occupied the whole flat in 2004 with intention of 

grabbing the entire property. Since then he started to create obstructions in the petition by taking objections. In year 2015, he took objection that the 

said Will is forged and fake. (Note: He himself got 50% share, still he does not wants to honor the last wishes of our father). His sole intention is that, 

the said petition will go into the suit and I will get frustrated to fight it in court for next 15-20 years or I will just give up!

Now in 2014-2015: Society plans to redevelop the building and is appointing the Builder. Since my petition of Letters of Administration is in Court, 

society says that I and my younger brother (who are beneficiaries of the Will) should Jointly approach the society to sign the redevelopment contract. 

Now the builder is giving almost double the current sq.ft. area, so greed of my brother has increased, and he is not willing to go further in the letters of 

admin petition, neither shows interest to come as joint-members of the flat.

In this situation, our society says: the Chairman of society will sign the redevelopment contract with the builder and will give the new flat as-it-is to the 

occupant (currently my younger brother).


My Question is: 
1) If we both brothers (jointly) don't approach the society for redevelopment contract, then can society ask its Chairman to sign redevelopment 

contract with builder on behalf of us or our late father who is member of the said flat? 

2) Can nominees (here: I and my younger brother) - legally approach society to make builder sign contract with us as a nominee? (here also my 

younger brother will not be willing to come forward).

3) If I take-back my letters of administration petition from the court, then as the legal heirs can I, and my elder brother ask Society to give us share 

certificates? 

4) Do we need to have Succession certificate shown to the Society if I remove the Will petition from the court?

5) How can I and my elder brother as legal heirs, remove my younger brother from the flat he is occupying the flat through legal means? Is there any 

provision? He is just occupying the flat from 2003 to 2015 and enjoying it, while harassing me from 2003. 

Problem before me is: If my younger brother objects/files a caveat then this suit will take much much more years. I'm now financially unable to run 

such suit. Since I'm senior citizen, health-wise can't afford travel to mumbai now and then for the court procedure. What If i take down the Will 

petition from court and just go with legal heirs (succession) option? 

Kindly give your advice on the matter. thank you.
Asked 12 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) society cannot give redeveloped flat to your younger brother . redevelopment agreement has to be signed by both the legal heirs . chairman cannot sign on your behalf 

2) you should not with draw the letters of administration from court . as senior citizen you can move chief justice for expedited hearing as you are a senior citizen . 

3) you will have to  file suit  to appoint court receiver in respect of the said flat . the rentals received from the flat be deposited in court . 

4) also obtain orders to direct society and builder not to deliver vacant possession of flat to the occupant on redevelopment of society .
Ajay Sethi
Advocate, Mumbai
23346 Answers
1221 Consultations
5.0 on 5.0
1) society could have  transferred  flat in name of legal heirs on basis of will of the father . 

2) since you and your brother had jointly approached society for transfer of flat society could have taken an indemnity bond and transferred flat in joint names 

3) society has to jointly transfer flat in your name and that of brother and not issue you only half certificate 

4) since the matter is sub judice now society will not transfer shares pending hearing and final disposal of your testamentary suit 

5) you have applied for LA as you have 50 per cent share as per will you dont need succession certificate 
Ajay Sethi
Advocate, Mumbai
23346 Answers
1221 Consultations
5.0 on 5.0
1) If we both brothers (jointly) don't approach the society for redevelopment contract, then can society ask its Chairman to sign redevelopment contract with builder on behalf of us or our late father who is member of the said flat? 
The present owners can enter into redevelopment contract or even the society can enter on the basis of authorisation.


2) Can nominees (here: I and my younger brother) - legally approach society to make builder sign contract with us as a nominee? (here also my younger brother will not be willing to come forward).
It has to be a joint effort, if your brother is unwilling to join you then you dont have any option than to approach court for this. 




3) If I take-back my letters of administration petition from the court, then as the legal heirs can I, and my elder brother ask Society to give us share certificates? 
In that case your elder brother who has not been included in the bequest will also be required to sign the papers as a legal heir, how do you think yo can solve this problem?



4) Do we need to have Succession certificate shown to the Society if I remove the Will petition from the court?
At Least legal heirship certificate will be required. All the legal heirs to your father may have to give their consent.



5) How can I and my elder brother as legal heirs, remove my younger brother from the flat he is occupying the flat through legal means? Is there any provision? He is just occupying the flat from 2003 to 2015 and enjoying it, while harassing me from 2003. 
You have to file a partition suit and seek your share as separate possession. Since he is a share holder he cannot be dispossessed forcibly, except due process of law. 


 
Problem before me is: If my younger brother objects/files a caveat then this suit will take much much more years. I'm now financially unable to run such suit. Since I'm senior citizen, health-wise can't afford travel to mumbai now and then for the court procedure. What If i take down the Will petition from court and just go with legal heirs (succession) option? 
This cannot make him vacate the property and this will take more time than the partition suit will take. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
 Now since my brother is not wiling, Can society give me my half share by issuing share certificate before the redevelopment agreement??
No since the property is a single unit, the society cannot give you 50% share, moreover the the bequest of the Will is yet to be confirmed through court of law hence the society cannot unilaterally make any such decision. 




 Do society need to make us a member of society before asking us to sign the redevelopment agreement?
Yes, the society can make you members and allow your property for redevelopment.



 Also what is the procedure to claim myself as legal heir? Shall i take succession certificate? Or is their any other procedure for it? (Note: I've already given copy of Will to society in 2001 itself, society never completed the nomination procedure by issuing share certificates to any of us.)
You cannot get a legal heirship certificate for yourself alone especially when there are other legal heirs to your deceased father.  You have to apply for it mentioning all the legal heirs.  The society cannot decide on the matter that is subjudice now. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1.The Society might have passed a resolution in a AGM authorising the Chairman to act and sign for and on behalf of all the flat owners,

2. If the AGM has already passed the above stated resolution then the builder will not sign the agreement with you,

3. Your elder brother and you can ask the society to give you share certificates in the said proportion of your nomination or one share certificate issued in three names mentioning the shares as per the nomination,

4. You have already been nominated by your deceased father. So, you need not show them succession certificate,

5. You can not remove him since he is also the legal heir of your father. You can file a partition suit of the said flat and claim your share from the Court,

6.Filing of Caveat  by him means you will not able able to get any order against his interest without him being heard,

7. You can file a partition suit after obtaining the legal heir certificate.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. The chairman has no right to sign the redevelopment agreement on behalf of the heirs except if they execute a GPA in his favour to authorize him to do so.

2. Society may not give the share certificate if you withdraw letters of administration from the court. Succession certificate is not required, what you require is the probate of the will. 

3. You and your elder brother are required to file a lawsuit for eviction against him to evict him. You can individually also file the lawsuit.

4. You are not required to appear in the court except for your witness deposition.

5. You should apply to the High Court to expedite the hearing of the case as you are a senior citizen. 
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
1. Your father has already given nomination to his three sons at 20:40:40: ratio,

2. He has further executed a will which has not yet been probated,

3. So, as per the nomination, all the three brothers will have shares in same ration in  the share certificate to be issued for the flat,

4. The Society can not give 50% share to each to the two brothers without probate of the will been granted,

5. File a partition suit for the flat submitting the legal heir certificate,

6. Legal heir Certificate is obtained from the local councillor or chairman of the Municipal Corporation. 
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0

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