• Is a co-op society bound to trf property once probate is issued

My son was involved in a company who borrowed from bank and there was a default. Bank got an order from Arbitration Tribunal whic passed order to recover from mov and imm mov prop of Defendants. Neither me or my husband (expired) were defendants in the case. Bank has not executed the Tribunal decree but falsely claims "attachment" though none exists. 
Soc first transferred share certificate to me as nominee and then demanded probate to prove my ownership. My husband has left a will bequeathing the property to me which is probated in Mumbai HC. Probate copy is submitted to bank but they have not filed any case for recovery or opposed grant of Probate to me. Inspite of this scoiety is refusing to allow me to sell. What is my remedy..can I file Contempt petition for implementation of probate ??? or a Writ ???
Asked in Property Law from Mumbai, Maharashtra
Religion: Hindu
1) once probate is obtained and society has transferred fat to you then you would be absolute owner of flat . 

2) you dont need society NOC for sale of flat . 

3) check the bye laws adopted by your society 

4) if bank is claiming attachment of your flat through court order you have to move court to set aside order of attachment 
Ajay Sethi
Advocate, Mumbai
28422 Answers
1542 Consultations

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No contempt is made out. You have the probate with you, so your title is clear. You are at liberty to execute a sale deed in favour of a prospective buyer. Your title flows from the probate whereas the title of the subsequent purchaser will originate from the sale deed executed in his favour by you. Share certificate is not a document of title in your case. 
Ashish Davessar
Advocate, Jaipur
19897 Answers
518 Consultations

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What is my remedy..can I file Contempt petition for implementation of probate ??? or a Writ ???
You may issue a legal notice to the society asking them the reasons for denying permission to sell your property. Let them give any reply, if it is in your favor, you may drop the idea of enforcing the same. or else you may approach the cooperative court and seek remedies for this.
Contempt petition is not tenable.Or maintainable.
T Kalaiselvan
Advocate, Vellore
18636 Answers
176 Consultations

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1) writ is not maintainable 

2) if society refuses to transfer flat in favour of buyer then remedy is to approach Dy registrar . 

3) if bank is claiming attachment on flat society would refuse to transfer flat until attachment order is set side 
Ajay Sethi
Advocate, Mumbai
28422 Answers
1542 Consultations

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The society cannot restrict you from selling your property to a third party.
The society has no rights to do so.
if the society is refusing to register the nomination, it is bound to give you a reason for doing so in writing. 
You can issue a legal notice to the society demanding the reason for refusal. 
The society is not the owner of your property hence it cannot dictate terms ion your property.
The society can issue directive based on the bye-laws about the nomination but is is answerable if it is doing any act on its own without any roper authority to do so.
A declaratory suit in the civil court in this regard will get disposed very expeditiously if approached for relief. 
T Kalaiselvan
Advocate, Vellore
18636 Answers
176 Consultations

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Any buyer who is aware of the factual position of your case will not refuse to buy your house if he has understanding of law. Once the sale deed is executed in favour of the buyer he can sue the society to recover the possession. A writ can also be filed but it has a limited scope and the HC may relegate you to the lower court,
Ashish Davessar
Advocate, Jaipur
19897 Answers
518 Consultations

5.0 on 5.0

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