• My name on my flat after my father's death

My Father expired in 2001 and he nominated my brother for the flat .I had read bye-laws of hsg co op society in which it is mentioned that nominee is only trusty.I have not given any NOC to my brother.I had written to society and after no response I had written to dy registrar of hsg co op society Bnadra.Dy registrar rejected my application.Please guide any other lagal options to add my name in my fathers flat
Asked 2 years ago in Property Law from Present pune, Maharashtra
Hello,
Being a nominee does not entitle someone for right in the property as nomination does not give the right away.As you rightly said the nominee is only a trustee. What you need to do is talk to your brother and apply for joint membership in the Hsg. society.

You being the legal heir of your father have one equal share with any other heirs.If your brother is not willing to give the share in your father's property your remedy is to approach a civil court and file a suit for partition.
Shares and membership in the Hsg.Society can be transferred only with the consent of all the legal heirs.
The procedure as you know is by applying for the membership as per the Society bye laws in the prescribed format, by obtaining NOC from all legal heirs.In your case if you and your brother alone are the legal heirs, you need his NOC to get the membership and shares transferred in your name.

In case you need further assistance you can call or contact me.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1)i presume your father died intestate and did not leave any will . 

2) on your father death your mother , your elder brother and siblings have equal share in the flat . 

3) what you ought to have done is to issue legal notice to the society not to transfer flat in name of nominee . 

4) society would have then directed your brother to obtain succession certificate from court . 

5) you merely wrote letter to society not to transfer and society ignored your letter . 

6)please clarify whether transfer of share in favour of your brother was approved by MC and ratified by AGM 

7) issue legal notice to your brother claiming share in said flat . 

8) if brother refuses to give you any share file suit for partition  and obtain an injunction restraining your brother from creating third party rights in respect of flat . 

9) please note that for sale of flat consent of all legal heirs is necessary as your brother is merely a trustee  .
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
1) society will transfer flat in favour of nominee on death of flat owner . 

2) society obtains an indemnity bond from nominee to protect its interests 

3) Dy registrar rejected your request as society has transferred flat on basis of nomination  received from deceased member . only civil court can decide the share of legal heirs of the property

4) court will not reject your suit for partition . in fact court will grant injunction restraining your brother from selling the flat
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
1. as  ur father did not left any will and therefore, all LRS have equal share in said flat

2. file partition suit in civil court to get ur share as per order of court.

3.also file injunction application with said partition suit to get stay order against ur brother from creating third party rights in said flat.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
On death of the owner all heirs have equal right nominee is not care taker and no right is devolved on nominee.you can get his death certificate apply for legal heir certificate and ask to mutate in the name of heirs and ask society to add your name
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1. Since your brother has been declared as Nominee of your father's flat by your father, the Society will consider him as next owner in absence of any Court order,

2. File a Partition Suit immediately before the Court alongwith an application under order 39 rule 1 & 2 praying for an injunction restraining your brother in selling the flat or creating any third party interest on it till disposal of your partition suit.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. Nomination does not entitle the nominee to claim exclusive ownership of the property. The position of a nominee is no better than a trustee. When tested on this touchstone your brother has no right greater than your right in the flat.

2. If your father died without making a will during his lifetime then all his children have an equal share int he property. None of the children can claim to be the exclusive owner of the parental property in the absence of a will made by the concerned parent. As such, your share is equal to the share of your brother and other siblings (if any).

3. You should have issued a lawyer's notice to the society to restrain it from transferring the share certificate to your brother. Writing letters in such cases does not produce the desired result, a lawyer's notice does.

4. Your only legal remedy now is to move to court and file a case for partition of property against your brother to cull out your lawful share in the flat of your deceased father in respect of which he left no will. Also seek a stay against the sale of the property by your brother as he may now attempt to sell it in view of the fact that the share certificate has been transferred to him.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1. You have an equal share in the flat of your deceased father as he left no will in respect thereof. So court will not dismiss your case.

2. Move to court and file for partition of the property and also seek a stay on the sale of the property by your brother lest he succeeds in selling the flat.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
Hi, as you and your brother has equal right in the property you have to file a suit for partition for your share in the property.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
You can choose any lawyer from this site in Mumbai and get in touch with them to conduct the case.you can get contact details by opting  for consultation fee depends on the lawyer and differs from each lawyer it may take about a year to complete you need to appear for hearing and evidence
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) you will have to first issue legal notice to your brother to claim your 50%share in flat . if he refuses to settle then only you have to file suit  for partition . you will have to pay court fees as per market value of your share of the  flat . 

2) suit will take around 15 years to be disposed of . but you can obtain injunction restraining your brother from selling the flat   within a month . 

3) you dont have to appear in court on each date . you will have to appear for giving evidence when suit reaches final hearing . 

4) legal fees vary
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
1.you can  find lawyer from this site

2.you can find his contact details from this site.

3.expenses vary.

4.no one predict about time.

5.you will have to appear in court only at the time of ur evidence.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1. You may contact Mr.Ajay Sethi, esteemed legal expert from Mumbai on this site.

2. The legal fee and expenditure can be disclosed by your advocate alone.

3. You will not have to appear in the court except on the date of your deposition as a witness.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
1. Contact Adv Ajay Sethi expert of this site who practices at Mumbai,

2. partition suit takes very longtime,

3. Must file application under Order 39 Rule 1 & 2  praying for an order restraining your brother in creating any third party interest on the said flat till the disposal of the partition suit as suggested in my earlier post,

4. Since the partition suit will run for around 2 years and your brother will not be able to sell the same till then, he will come out for a settlement with you which you may accept at that time.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. Succession certificate is not required in your case. Your grievance is that the society has transferred the share certificate to your brother on the basis of the nomination made in his favour by your deceased father, whereas you have an equal share in the property. This grievance can be addressed only through filing a partition suit in the court and also seeking a stay on the creation of third party rights by your brother. 

2. If either of you die then your legal heirs can step in your shoes and continue the proceedings.
Ashish Davessar
Advocate, Jaipur
18264 Answers
450 Consultations
5.0 on 5.0
You can apply for either legal heir certificate or sucession certificate. It will take around 6 months if all procedures go on correct.on getting the same file a writ in the high court against the same and asking to add your name too in the society.also file a partition suit claiming your share in the same
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1.it takes only 6 months to get succession certificate from court and after getting it society will enter ur name on flat.

2.If either of you die then your legal heirs can be added in case and  the proceedings will continue.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1)succession certificate takes around 6months time . 

2) society has already transferred flat in your brother name . it is doubtful whether society will transfer flat in joint names without court orders . 

3) since your brother is refusing to give you share in flat partition suit would have to be filed by you . 

4) in the event of your demise your legal heirs can be added as party and suit proceedings would continue .
Ajay Sethi
Advocate, Mumbai
23392 Answers
1229 Consultations
5.0 on 5.0
1. Succession Certificate is required for claiming moveable property like bank balance, whereas Legal Heir Certificate to be issued by Tehshilder is required for claiming share on immoveable property,

2. Collect Legal Heir Certificate and file a partition suit claiming share of the flat with direction upon the Registrar to cancel the said registration and upon the Society to register the same in both of your name jointly,

3. Must also file an application under Order 39 Rule 1 & 2  praying for an order restraining your brother in creating any third party interest on the said flat till the disposal of the said partition suit as suggested in my earlier posts.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. You can also find out from the Societry as to under which Act they have registered the flat in your brother's name despite your claim,

2. This will help you in finding out the lagal pitfalls of the society to place before the Court during the hearing of your partition suit.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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