1. My father Mr. Mohammed Abdul Gafoor Parkar aged about 81 years was the owner of flat bearing B-306, on 3rd floor, and was member of Rukaiya Palace CHS Ltd. Near Masjid, Somwar Bazar, Malad (West), Mumbai – 400 064. He has gifted the aforesaid flat to me vide registered gift deed dated 09/09/2015 bearing registration receipt no. 10318 dated 11/09/2015 duly stamped and registered at Borivali-5. He is the sole owner of the flat and it is his self-acquired property. 2. Along with covering letter dated 15/09/2015 addressed to the society I have applied for the membership of the Respondent society and submitted the copy of registered gift dated 09/09/2015, all forms, requisite fees vide cheques and original share certificate for transfer of flat in my name. 3. Further the limitation period of 90 days is also completed. However the society did not act and therefore the I sent a reminder letter on 22/12/2015 to the society regarding the transmission/ transfer of flat pursuant to the gift deed in my name and admit me as the member in place of my father Mr. Mohammed Abdul Gafoor Parkar, but the Respondent Society once again failed to act and or rather neglected to reply to my letter dated 15/09/2015 and 22/12/2015. 4. In view of the above I have left with no option and therefore approached honorable Deputy Registrar P ward under Section 22 (2) & 23 of the MCS Act 1960, for necessary orders, directions to the Respondent Society. 5. The respondent society submitted their say to deputy registrar as under: 1. The gift deed does not contain any reference of Mohammed Parkar’s other family members who are alive and also immediate beneficiary of flat No.B 306. It seems that the gift deed is not genuine rather forced gift deed. 2. There is ongoing dispute on the flat ownership however the family members living in their native place and are unaware of this gift deed. 3. The doctor’s certificate is misleading. The doctor has certified that Mr. Mohammed Parkar who is now 81 years old is in good health. However we are aware that Mr. Parkar is terribly ill since he suffered a heart attack few years ago leading to paralyses and he is not in mental state to speak, understand and read what is written. 4. From appearance of signature on the agreement of Mr. Mohammed Parkar are not authentic as he cannot hold pen, leave aside signing the documents. 5. We suggest that Mr. Mohammed A. Parkar be asked to personally remain present in the registrar’s office along with the transfer documents for verification. My rejoinder to the reply of respondent herein as under:- 1. At the very outset I state that the submissions & allegations made by the respondent in their reply are false, baseless, without any standing of law and hence not maintainable. 2. At the outset, I repeat and reiterate what is stated in my application and deny what is stated contrary in the reply filed by the respondent. 3. With reference to para no 1 of the reply filed by the respondent to I state that there is no need or requirement to specify or mention the names of other family members who are alive and also immediate beneficiary of the property of the donor in the gift deed. As per under section 122 of the Transfer of Property Act, 1882, the flat ownership is transferred by the donor in favour of the donee without any exchange of money and further the gift deed dated 09/09/2015 is duly stamped and registered at the sub-registrar office which is mandatory as per section 17 of the Registration Act, 1908, and as per section 123 of the Transfer of Property Act. I further state that the gift deed is genuine as the donor personally remained present and have duly signed the same before the sub-registrar officer and his photo also has been clicked by the Government office. In view of the said flat it cannot be said by the respondent that the gift deed is not genuine but rather a “forced gift deed”. 4. With reference to para no 2 of the reply filed by the respondent, I state that there is no internal family ongoing dispute amongst the family of donor or donee and all the members are staying at both the places as per their convenience. I further state that it is beyond my knowledge that how the society is concerned with any internal dispute in the family of any donor. The respondent is only concerned with complying of all the legal formalities and documentation furnish to them for transfer of the flat. 5. With reference to para no 3 of the reply filed by the respondent, I state that it is surprising that the respondent is challenging a practicing professional like a doctor (Physician M.D) on his medical certificate saying that it is misleading. Further the respondent is trying to stand over and above a medical practitioner and give their illogical and unwarranted opinion. 6. With reference to para no 4 of the reply filed by the respondent, I state that I once again repeat and reiterate that the gift deed dated 09/09/2015 is signed by the donor personally remaining present before the sub-registrar, thus it cannot be said that the signature of the donor is unauthentic as alleged by the respondent. 7. With reference to para no 5 of the reply filed by the respondent, I state that it is absolutely not necessary and the requirement of a law for a donor to remain personally present before any court of law once he gives a gift by way of registered document and the same is accepted by the donee and moreover when he is in possession of an immovable property like a flat. In view of the said flat this honorable court shall not direct the donor to remain personally present before your honor. 8. In view of the above I humbly and respectfully pray before this honorable court that the prayers of my application be accepted and granted after rejecting the submissions made in the reply by the respondent in limen and with heavy cost. Final order from registrar is yet come. Unfortunately my father died on 02.03.2016. After submission of our rejoinder the managing committee called a special general body meeting on 26.03.2016. This is what mentioned in minutes of SGM held on 26.03.2016. The registrar’s office after three hearings concluded that they have not considered our point of view correct and considered a registered gift deed as genuine. The registrar’s office usually does not verify or challenge a registered gift deed and passed order in favour of the beneficiary. Following resolutions were passed In SGM regarding transfer of my flat. a) Mr. Aslam Parkar is requested to submit NOC from his brother and sister. b) In case order of transfer of flat are passed by the registrar’s office, a revision challenging the order to be filed to the relevant authorities. c) In view of his father’s death his mother be asked to remain present in society meeting to confirm the genuineness of the gift deed. d) B 306 be asked to pay all expenses incurred by managing committee and the lawyer fees on this matter. e) A police complaint be filed in the name of Mr. Aslam Parkar for submitting forged property documents. f) It was pointed out by the members that, if the society is given orders to transfer the flat to Mr. Aslam Parkar, the society can also revoke the transfer of flat if the society receives objection from other heirs at later date. I am waiting for verdict from Hon’ble Deputy registrar. So far I have not responded to these resolutions passed in SGM held on 26.03.2016. My reply to this would be as follows. 1. Ownership of the property and Membership of the society are two different issues. Ownership can be obtained by any registered instrument I.e. Agreement for sale, Gift deed or Lease deed etc. Once these documents are executed and duly stamped and registered with competent authorities immediately thereafter title of the property is transferred and the transferee becomes absolute owner of the property. Agreements for sale, Gift deed or Lease deed etc are documents of ownership. 2. When a person becomes owner of the property he applies for membership of the society which is mandatory as per circular No. SAGRUYO-2011/PRA.KRA. 360/14-SA.dated 15.10.2011. To obtain membership of the society there is specific procedure laid down in bye laws of the society. After submission of required documents the society is bound to grant membership to the applicant and endorse his name on the share certificate and other records of the society. And issue monthly maintenance bill in the name of the member. Share certificate is a document of membership. 3. Further, I would like to draw your attention to resolutions passed in Special General Body Meeting held on 26.03.2016 regarding transfer of my flat. 4. With reference to resolution no (a) of the members. I state that there is no need or requirement to submit consent / NOC from my brother, sister, mother or any of family members is not required. My father late Mr. Mohammed Abdul Gafoor Parkar i.e. the donor being the sole owner of the flat and it is his self-acquired property he can give in gift to any person he wishes during his life and no person can challenge the same, including his legal heirs, so there is no question of the Society to interfere in this issue. For your reference extract from Hon’ble Supreme Court of India Judgment Naramadaben Maganlal Thakker vs Pranjivandas Maganlal Thakker & ... on 10 September, 1996 “The execution of a registered gift deed, acceptance of the gift and delivery / possession of the property, together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes the absolute owner of the property”. As per section 122 of the Transfer of Property Act, 1882, the flat ownership is transferred by the donor late Mr. Mohammed Abdul Gafoor Parkar in favour of the donee Mr. Aslam Mohammed Parkar vide registered gift deed dated 09.09.2015. 5. With reference to resolution no (b) of the members. Society has liberty to file revision application challenging Hon’ble Deputy Registrars order but chances of success are very poor as society does not have adequate explanation for refusing membership and sufficient legal ground for challenging registrars order. As per section 23(3) MCS Act 1960: The decision of the Registrar in appeal shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof. 6. With reference to resolution no (c) of the members. As you have mentioned in minutes that the registrar’s office consider a registered gift deed as genuine and your allegations of forged and unauthentic signatures of my late father and forged documents are rejected. So, it is absolutely not necessary and the requirement of a law for my mother to remain personally present in general body meeting to prove genuineness of the gift deed. It is a registered gift deed and Registration of document evidences that the document is genuine. 7. With reference to resolution no (d) of the members. So far, there is no provision in the MCS Act & Rules to recover legal and other expenses incurred in fighting or defending the society with the members, even if such resolution is passed by the majority in a General Body Meeting. The General Body cannot pass such "illegal and invalid" resolutions to recover any such costs from the members. The rule of supremacy of majority in Society’s affairs should prevail only if it is in accordance with law. Only Hon’ble Court can direct the respondent society to recover legal expenses as cost from the applicant member. No other body has the jurisdiction. For your knowledge enclosing herewith order issued by deputy registrar K (east) ward and opinion of learned Advocate Rajiv Wagh published in Maharashtra Times. 8. With reference to resolution no (e) of the members. Dictatorial approaches and bullying tactics have become a common practice with most of the unscrupulous and autocratic managing committees to discourage and stop members from filing any cases against the Society and to force the members to withdraw the existing ones, if any. I have submitted documents on 15.09.2015 for transfer of my flat and if, the documents are forged then why managing committee is still waiting to lodged a police complaint against me? 9. With reference to resolution no (f) of the members. All societies are registered under and governed by Maharashtra cooperative societies Act 1960 and Rule 1961. There are certain rules to obtain and to revoke membership of the society. As it is said in minutes “Society can revoke transfer of flat / membership of its member after receiving objection from other heirs later on” This reason is not mentioned in any law of the society. My Query: is there scope for any of legal heirs of my father to raise sustainable objection in this regards. Or they can claim there right in this property. I am not a lawyer, Please correct me if I am wrong. It will help me to update my knowledge. Thanks a lot. Aslam Parkar
First answer received in 30 minutes.
Lawyers are available now to answer your questions.
1) your replies are well drafted
2) once gift deed is executed you are absolute owner of the flat
3) your father legal heirs can move court to claim share in the flat if gift deed was executed under coercion or undue influence or if father was not of sound mind
4) burden of proof is upon said legal heirs
5) society ought to transfer flat in your name .it is for court to decide whether father signatures are forged or not .
HI
In your case Society seems to have usurped the powers of the courts which is per se illegal.
the other legal heirs if they have any objection should only raise their objections in the court.
The society should have effected the transfer of membership on 15/09/2015 when you had applied to the society.
Your society cannot dictate terms now and ask NOC from other legal heirs that too when the question of transfer pertains to a Gift deed of a muslim property, duly registered in the Sub-Registrar office after payment of stamp duty, registration fees and also signed by two witnesses.
Your society seems to create unwarranted disputes in your property by behaving arbitrarily and unilaterally and also trying to play the role of the Courts. Your society is functioning like a Khap Panchayat. File suits against your society and the its members for usurping powers of the court.
Q. is there scope for any of legal heirs of my father to raise sustainable objection in this regards. Or they can claim there right in this property.
A.
1. according to the facts given, gift deed is valid and no one can claim against it.
2. when gift is executed and donee accepted it in the lifetime of donor without ant dispute then a legal presumption of its genuineness will be taken by the court in favour of donee.
3. dispute may be arises that donor was not in fit state of mint at the time of its execution but it can be rebutted by producing evidence about his health and averments of witness of gift that donor was in fit state of mind.
4. witness is necessary for execution of gift deed because he authenticates the signature of donor and his mental condition and his evidence is admissible u/s 103/104 evidence act.
By Law No.40: The Transferee shall be eligible to exercise the rights of Membership on receipt of the letter in the prescribed form from the Society or order under section 22 or 23 of the Act from the Registrar; subject to the provisions of the MCS Act 1960 rules and bye laws. My question is: If the society file revision petition to divisional Joint Registrar challenging Deputy Registrar’s order under section 22 or 23 of the Act declaring me as a member of the society. Can I exercise the rights of Membership i.e. to inspect free of cost books, registers documents etc. as provided in Section 32 (1)of the Act and get copies of the documents as provided under Section 32 (2) of the Act. or shall I wait till disposal of revision petition.
1) you would be entitled to exercise rights of membership as per orders passed by deputy registrar admitting you as member
Hi
Yes. Technically, you are eligible to exercise the rights of membership as the order of the Registrar is currently in force.
The Society first needs to appeal against the order and ask for a stay of Registrar. So as long as there is no Stay you are eligible to exercise the rights of membership(i.e to inspect free of cost books, registers documents etc. as provided in Section 32 (1)of the Act and get copies of the documents as provided under Section 32 (2) of the Act).
It is the society that needs to go on appeal against the order of registrar. So they might even decide to drop the appeal. So kindly go ahead and exercise your membership.
If order comes in your favour then you will be treated as member of society then you can enjoy all rights it does not matter that revision application is pending.
1. The scope of raising a sustainable objection is always there.
2. You have the right to inspect books and documents without cost. The pendency of revision petition does not extinguish this right.
My sister intervened the petition filed by me u/s 22 MCS Act 1960 with the deputy registrar making the falls allegations of fabricated gift deed and unsound mental condition of our late father at the time of execution of the gift deed and bogus documents submitted by me etc. without providing any documentary evidence in support of her allegations just like our society. She raised her objection against transfer of the said flat in my name. My petition for membership of the society is still pending with Deputy Registrar. How can she make such foolish comments and baseless allegations? The donor and the donee personally remained present and have duly signed the gift deed before the sub-registrar officer and their photos also have been clicked by the Government office. It is attested by two witnesses and the registering officer who authenticates the signature of donor and his mental condition. Their evidence is admissible under section 103 & 104 The Indian Evidence Act 1872. As per under section 122 of the Transfer of Property Act, 1882, the flat ownership is transferred by the donor Mr. Mohammed Abdulgafoor Parkar in favour of the donee Mr. Aslam Mohammed Parkar without any exchange of money and further the gift deed dated 09/09/2015 is duly stamped and registered at the sub-registrar office at Borivali 5 which is mandatory as per section 17 of the Registration Act, 1908, and as per section 123 of the Transfer of Property Act. Moreover the donee has accepted the gift in life time of the donor and he is in possession of the said flat. On 23.05.2016 my sister sent 60 days legal notice u/s 164 MCS Act 1960 & u/s 80 the civil procedure code through advocate before filing law suit for declaration, cancelation and injunction against us. 1. Aslam Parkar defendant no.1 2. The Deputy Registrar defendant no.2 (who accept my application u/s 22 MCS Act1960) 3. The sub registrar Borivali 5 defendant no.3 (who registered the gift deed) 4. Rukaiya Palace CHS defendant no.4 (who refused to transfer flat in my name) 5. Dr. Patel defendant no.5.(who issued medical certificate) Neither society nor my sister has any documentary evidence to prove their allegations. In fact my sister and the office bearers of the society have joined hands under the glows. She will file a law suit against defendant no.1 to 5 with the prayer (the extract from her layers notice) as follows. a. That a decree be passed by Hon’ble Court to declare the said gift deed dated 9thb September 2015 is obtained by fraud, is bogus, sham, fabricated and manipulated document. b. That the original gift deed which is in possession of you no.1 be directed to be deposited in the appropriate court of law and after examining its validity and authenticity, the same should be revoked and cancelled. c. A permanent injunction not to transfer the share certificate in favour of Mr. Aslam Mohammed Parkar, pending the hearing and final disposal of suit against you no.4. d. Interim and ad-interim reliefs in terms of prayer above. Of course I will also hire a lawyer latter on but for the time being my questions are: 1. Is it necessary for my sister to submit documentary evidence to support her allegations of manipulated or fabricated gift deed or forged signatures of my father, unsound mental condition of our father etc. at the time of filing petition or the court will admit her petition without providing any evidence on assurance that she will submit evidence latter on? 2. My father was a retired Principle. He was living with me and I was his caretaker. My sister never bothered about him. He was treated at Bhaktivedanta Hospital & research Institute Mira Road (E) by Dr. Patel and other doctors as and whenever required. On our request Dr. Patel issued the said certificate as he is main physician. The Seal of the aforesaid hospital with address along with stamp of Dr. Patel is endorsed on the said certificate. It is surprising that my sister is challenging a practicing professional doctor on his medical certificate just saying that it is manipulated and fabricated document without providing any evidence. Further she is trying to stand over and above a medical practitioner and give her illogical and unwarranted opinion. My father was suffering from Left side paralysis; Liver cirrhoses, enlarged prostate gland, hernia etc. Usually medical reports determine the physical & mental condition of any person. Hospital OPD cards, Medical reports and treatment track record of our late father did not show any diagnose or treatment for mental disorder or unsound mental condition. It established the fact that our father was in sound state of mind and was able to read, write, understand what is said and express his views independently till his last breath. Thus the certificate issued by the doctor is genuine not manipulated and allegations made by my sister and the respondent society, are false, baseless and prejudiced. Previously society has raised the issue of mental state of my late father in their illegal and invalid letter addressed to me dated 15.06.2015 terminating my associate membership. Doctor’s certificate was obtained to clear their misunderstanding regarding mental condition of my father. It is neither required nor a part of gift deed. Can Dr. Patel be made party in this suit making falls allegation that he issued bogus medical certificate? 3. What are the Consequences of False Accusation made by my sister and the society? What action can be taken against them for harassing me? 4. What are the penalties for false accusation and harassment? 5. The Deputy Registrar defendant no.2, The sub registrar Borivali 5 defendant no.3, Rukaiya Palace CHS defendant no.4 are legal entities. They are only concerned with the documents furnished to them. Once the documents submitted to them are in accordance with law they are bound to accept it or reject with sufficient cause. How they can be made parties in this suit? 6. In fact, Rukaiya palace CHS refused to transfer the said flat in my name and asking for the NOC from my brother & sister, this is what my sister wants. Then how can she file a suit against the society? 7. Managing committee members as well as neighbors were not present at the time of execution and registration of the said gift deed. Is their witness admissible evidence in this matter? 8. This is a legal notice informing me that my sister is going file petition against me. Her lawyer did not seek any reply from me. Shall I respond this notice or wait till I receive notice from court to submit my say.
1) since yiur wife has filed suit to challenge the gift deed executed by your father court would direct maintenance of status quo pending hearing and final disposal of the petition
2) during trial wife has to prove the allegations made by her
3) you will have to examine Dr Patel who isiued medical certificate regarding your father mental condition
4) Dr Patel wpuld not be party to the suit
5) if it is proved your sister made false allegations you can sue her for damages
6) registrar is formal , proper party to the suit as gift deed was regd in sub registrar office
7) society is necessary party to the suit
8) you can submitted detailed reply to the suit filed by your sister . You should reply to legal notice
My Query: is there scope for any of legal heirs of my father to raise sustainable objection in this regards. Or they can claim there right in this property.
The legal heirs of your father basically have no rights in the property especially when it is a self acquired property and the owner who is the donor has absolute and marketable title in and has executed a registered transfer i.e.by a gift deed. This registerd gift is absolutely valid and cannot be questioned by anyone more so by the society which has no business to interfere in this matter between the donor and the donee. In any case the other legal heirs of your father canotrais any objection to this and even if they do, it will not maintainable in law.
I am not a lawyer, Please correct me if I am wrong. It will help me to update my knowledge.
Though you are not a lawyer, you have pointed out the illegality of the society more than a lawyer with reference to law of the land and has approached correct forum to get your grievances redressed and in a proper way.
My question is: If the society file revision petition to divisional Joint Registrar challenging Deputy Registrar’s order under section 22 or 23 of the Act declaring me as a member of the society. Can I exercise the rights of Membership i.e. to inspect free of cost books, registers documents etc. as provided in Section 32 (1)of the Act and get copies of the documents as provided under Section 32 (2) of the Act. or shall I wait till disposal of revision petition.
You may await the decision in revision petition before the reversionary authority.
How can she make such foolish comments and baseless allegations?
You cannot question that how can she, you have to think of the plan to counter her allegations and nullify them.
1. Is it necessary for my sister to submit documentary evidence to support her allegations of manipulated or fabricated gift deed or forged signatures of my father, unsound mental condition of our father etc. at the time of filing petition or the court will admit her petition without providing any evidence on assurance that she will submit evidence latter on?
The evidence can be submitted by her during trial of the case.
Can Dr. Patel be made party in this suit making falls allegation that he issued bogus medical certificate?
Since she wants to harass everyone who supported you to be harassed, she is trying all these tricks, let the doctor defend himself.
3. What are the Consequences of False Accusation made by my sister and the society? What action can be taken against them for harassing me?
Let the trial and the case be concluded you can think about that afterwards.
The Deputy Registrar defendant no.2, The sub registrar Borivali 5 defendant no.3, Rukaiya Palace CHS defendant no.4 are legal entities. They are only concerned with the documents furnished to them. Once the documents submitted to them are in accordance with law they are bound to accept it or reject with sufficient cause. How they can be made parties in this suit?
The authorities have their own government lawyer to defend the cases against them by name government pleader.
In fact, Rukaiya palace CHS refused to transfer the said flat in my name and asking for the NOC from my brother & sister, this is what my sister wants. Then how can she file a suit against the society?
Let the society answer this, you confine only to your case and concentrate on the trial pertaining tio your relief and defence.
Managing committee members as well as neighbors were not present at the time of execution and registration of the said gift deed. Is their witness admissible evidence in this matter?
This is a matter of trial.
This is a legal notice informing me that my sister is going file petition against me. Her lawyer did not seek any reply from me. Shall I respond this notice or wait till I receive notice from court to submit my say.
It becomes your duty to give reply to any legal notice received by you or else chances are there for the cases to turn agaisnt you.