Cooperative housing society (CHS/the Society) members often face a mix of procedural and legal questions arising from everyday transactions and larger decisions, such as redevelopment. Whether it is updating ownership records after a registered gift deed, assessing the validity of redevelopment agreements presented to members, or addressing succession and voting rights after the death of joint-holders, clarity on the rules and processes is essential. This week’s queries highlight these situations and outline the appropriate steps members should take to safeguard their rights and ensure compliance with the Society's bye-laws.
Gift Deed Transfer: Procedure To Update Society Records
Question: I have registered a gift deed for an apartment in a CHS at Dahisar West, Mumbai. It has been registered with the sub-registrar’s office by paying applicable duties and 1% metro cess as stamp duty. This gift deed is for the transfer of my father’s share (secondary holder) to me, the first holder. Is this transfer valid and what is the procedure to update the Society records?
Answer: Your gift deed executed by your father in your favour for your jointly owned flat is in proper order. Now you are the sole owner of the flat.
Give a copy of the gift deed and its Index-II to your Society, along with the following forms from the Society’s bye-laws book, to record you as the sole owner of the flat. Submit all the forms and documents in a file with a covering letter addressed to the secretary of your Society:
- Membership form in Appendix-2 (in two copies, printed on ledger paper)
- Undertaking on ₹500 non-judicial stamp paper in Appendix-3, to use the flat for residential purposes only
- If you do not have any income source, then any family member should execute an undertaking on ₹500 non-judicial stamp paper as per Appendix-4
- Nomination form in Appendix-14, in three copies
- Copy of the gift deed and its Index-II
- Original share certificate of the jointly owned flat
After transferring the shares in your sole name on the share certificate, it will be returned to you within 30 to 45 days. You will need to pay ₹100 as a membership application fee and ₹500 as a membership fee by a crossed cheque in the name of the Society. Ensure that all dues are paid up to the date of submission of the application.
Redevelopment Agreements: Can a ‘Partial’ Development Agreement Be Approved?
Question: Our Society in Andheri West, Mumbai, is undergoing redevelopment. A developer was selected by a majority of more than 51% in the presence of representatives of the sub-registrar about a year ago.
A partial draft development agreement (DA), without properly listed annexures and a conceptual plan showing the allocation of new flats in the redeveloped building, was neither given to nor approved by the members.
How can a partial DA be approved without these documents in an special general meeting (SGM) called by the managing committee? What is the authenticity of this partial DA? Is 51% approval sufficient for approval of such a partial DA?
Answer: There is generally no provision for approval of a partial development agreement for the redevelopment of a building. A complete agreement covering saleable flats and all existing flats in the old building should be placed before members for approval.
Only after the building plan is approved and the permanent alternate accommodation agreements (PAAA) are executed by the builder should existing members vacate the building.
If deemed conveyance of the old building and its land has not been completed, it is advisable to complete it before proceeding with redevelopment.
Approval by majority members is required, but such approval should be based on a complete development agreement with all relevant documents placed before the members.
Death of Joint Members: How Is Ownership and Membership Updated in a Society?
Question: This query is regarding the transfer of ownership of a flat in a cooperative housing society. On the share certificate, there are five names. The first and second-named members are deceased.
Do the third, fourth or fifth named members automatically become members after the death of the first and second named members? Can the third, fourth or fifth named members cast votes or be counted for quorum? Do the legal heirs have to apply to the Society for the transfer of the flat in their name? Kindly guide.
Answer: On the death of the first and second-named members, the surviving joint-holders (third, fourth and fifth-named members) continue as members of the Society. They can exercise rights such as voting, subject to the Society’s bye-laws (one unit (flat/shop), one vote).
However, the share of the deceased members does not automatically pass to the surviving joint-holders. The legal heirs of the deceased members have to apply to the Society for the transfer of the flat in their names.
For this, the surviving joint-members, along with the legal heirs of the deceased members, may execute appropriate documents, such as a declaration or indemnity, and submit the required papers to the Society.
Based on these documents, the Society will update the share certificate by replacing the names of the deceased members with the names of their legal heirs.
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
(Shirish Shanbhag has an MSc in Organic Chemistry, a Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)
