How to transfer a flat in housing society or CHS?
Shirish S Shanbhag 21 May 2014
Here are the guidelines to follow while transferring a flat in a cooperative housing society- CHS to a legal heir or nominee
 
From the days of “ek bangla bane nyara”, a large part of our society, especially in cities, has come to comfortably adopt a lifestyle based on nuclear families with a rise in the demand and ownership of flats and such property. However, more often than not, due to the sheer complicity and technicalities of our legal system, we find ourselves trampled by a load of complicated questions and even cheating and deception. One such area of concern is 'transmission of flats'. Here, we have the procedure for the same simplified for you.
 
Earlier, flats were generally purchased by an individual, usually the male member of the family, who used to be the earning member. However, with the rise in the prices of property, the trends have undergone a change now. These days we find that flats are usually purchased in the joint name of husband and wife. In such a case, if percentage of share in purchasing the flat is not stated, it is assumed that both of them have equal shares in the ownership of the flat.
 
In the above scenario, a share certificate is issued in the joint name of the husband and wife, as a joint ownership. As per existing Bye-laws, the person whose name does not stand first in the share certificate becomes an 'Associate Member'. In case of death of the person named first in the share certificate, the Associate Member retains the right on his/her flat since his/her name exists in the Sale Deed of the flat as a joint buyer.
 
When flats are bought jointly, the joint owner can make a will bequeathing his/her part of the flat to the other joint owner. Thus, in case of death of anyone of them, the one surviving joint owner will get an absolute right on the jointly owned flat (provided, the due process of the law is followed).
 
Transmission of flats happens in the following two ways:
  1. When the flat owner has made a nomination before death.
  2. When the flat owner has not made any nomination before death.
Nominee:
The word nominee means a person who holds or acquire right, property or any other kind of liability incurred on behalf of others. Nominee means a trustee. A nominee holds a property on behalf of other legal heirs.
 
Thus, the simple meaning derived from above proposition is that a nominee cannot be a real owner but, in fact a trustee who has legal control of property that is kept or invested for another person, company or organization.
 
Procedure for nomination:
The procedure for nomination by a member of co-operative society is provided in bye laws of the cooperative Housing society, bye law no. 32, which runs as under:
 
“A member of the society may by writing under his hand in the prescribed form, nominate a person or persons to who the whole or part of the shares and /or interest of the members in the capital/property of the society shall be transferred in the event of his/her death.”
 
Further no fees shall be charged for recording the first nomination.
  1. A members may revoke or vary his nomination, at any time, by making an application, in writing under his hand to the to the secretary of the society.
  2. Every nomination made, shall be recorded in register of nomination “within 7 clear days’’ from the date on which resolution to accept the nomination was recorded in minutes of managing committee.
  3. Every fresh nomination shall be changed a fee of Rs100
Transfer of shares/of interest on event of death of member to a nominee:
It is clearly provided in section 30 of the Maharashtra co-operative societies act, 1960 (Act no. XXIV of 1961 Mah) that, on the death of a member of society, the society shall transfer the share or interest of the deceased member to person or persons nominated in accordance with the rules and byelaws.
 
Analysis of section 30
A nominee comes into picture only on death of the member. The society shall transfer the shares of the deceased member to nominated person.
 
Whether it is advisable to make a nominee in case of joint ownership of flats? 
The object behind nomination is to avoid confusion in case there are disputes between the heirs and legal representatives and to obviate the necessity of obtaining legal representation and to avoid uncertainties as to with whom the society should deal to get proper discharge. Nomination does not create a new rule of succession.
 
Therefore, it is highly advisable to make a nomination in case of joint ownership of a flat. In case of a simultaneous death of both the joint owners, the flat is rendered intestate. The due process of law has to be followed to transmit such a flat in the name of the legatee. An appointed nominee and a will (of a joint owner bequeathing his/her ownership in the name of the other joint owner) can go a long way in avoiding unnecessary confusion and ambiguities. In a case where both nomination and Will is prepared, the Will will prevail over the nomination paper.
 
Procedure to follow for transmission when nomination is made by the flat owner
(1) The form of application for membership in Appendix-15, by the nominee/ nominees [ under Bye-law No. 34] with Rs100 entrance fee.
(2) If nominee has no independent income source, an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-5 will be furnished by a person who is a close relative and an earning member and who is ready to discharge the liabilities of the prospective nominee-member to the Society. [ under Bye-law No.19(A) (v)]
(3) If there are more than one nominee, an indemnity on Rs200 Non-Judicial Stamp Paper is to be submitted by the prospective nominee-member, in Appendix-18. [ under Bye-law No.34 ]
(Note: This indemnity is to be given, only if one of the nominees become member of the society. If first named nominee becomes a member of the Society and all other nominees become joint associate members, this indemnity need not be given.)
(4) Undertaking on Rs100 Non-Judicial Stamp Paper to be submitted by the prospective nominee-member, in Appendix-4. [ under Bye-law No.17(b) and 19(A)(iv) ]
(5) Copy of the Nomination Form in Appendix-14, of the deceased member. [ under Bye-law no.34 ]
(6) Attested Xerox copy of the Death Certificate of the deceased member. [ under Bye-law no.34 ]
(7) Xerox copy of the Share Certificate of the deceased member, with undertaking on the Xerox copy, that original share certificate will be produced by the member, as and when asked by the Secretary for making the name change by the Society.
(8) If nominee-member wants to make one of his relatives an associate member, simultaneously with him, he needs to apply by filling the form in Appendix-8, with Rs100 entrance fee for the Associate Member. [ under Bye-law No. 19(B) ]
(9) If the nominee already possesses another flat in the same society, then to hold an additional flat, an application in Appendix-28, has to be made by the nominee-member. [ under Bye-law No. 62 ]
(10) Nomination to be made by the nominee-member, in Appendix-14, in triplicate. [ under Bye-law No.32 ]
 
(NOTE: This is also applicable, to the case, when no nomination is made, as given below...
(1) All forms and papers as stated above are to be submitted in a file to the Society's office.
(2) All dues of the Society and the deceased member in arrears and also future dues for the following six months have to be paid by the nominator member at the time of submitting the membership application.
(3) All stamp papers are to be purchased in user's name.
(4) Entrance fees, as in Sr. No.(1) and (8) have to be paid along with dues, at the time of submitting of the forms to the society.
(5) If the Society does not inform you of any objection within 90 days of submitting of your application for your membership, then under Section 22(2) of Maharashtra Co-operative Societies Act, 1960, you become a deemed member of the Society. To confirm your deemed membership, you have to make an appeal to your Deputy Registrar, to take a hearing and pass an order under section 22(2), to confirm your membership by the society.)
 
Procedure to follow for transmission when no nomination is made by the flat owner or when no nominee is ready to accept the membership of the society
In such a case, if there is a dispute among the relatives of the deceased, the Society will demand Succession Certificate from the the relatives of the deceased. Negligible Court Fee has to be paid for the same, in the light of judgement delivered by the Bombay High Court, in case of Testamentary Petition No595 of 2005, Yallappagauda Shankar Rao v/s Smt. Yallappagauda Manjunatha Rao.
 
When there is no dispute, following papers are to be submitted:
(1) Application for membership by an heir of the deceased member, in Appendix-17, with Rs100 entrance fee. [under Bye-law No.35]
(2) If the heir does not have an independent source of income, an undertaking by an earning member and relative of the heir, who is ready to pay all Society's due of the heir has to be made on Rs100 Non-judicial Stamp Paper.
(2) The heir has to give an indemnity on Rs200 Non-Judicial Stamp Paper, in Appendix-19. [ under Bye-law no.35 ]
(3) The heir has to give an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-4. [under the bye-law no. 17(b) and 19(A)(iv) ]
(4) CHS will display the notice in Appendix-16 in its notice board, send a copy to every member of the Society and will publish it in two local news papers having wide publicity, one in local language and one in English. Any claim from the public has to come within a period of 15 days from the date of publication of the notice. [ under Bye-law no.35 ]
(5) Follow points (6) to (10) as mentioned above in the case where nomination is made.
 
(Note: The heir has to take a Xerox copy of the notice published in all the news papers as proof of publication in the newspapers and among the members of the said CHS. These are to be submitted to the Society, as a proof of publication in the papers.)
 
He will then submit his papers to CHS, only after the period stated in the newspaper has expired.
 

What is CHS and Transmission?

 

Cooperative Housing Society (CHS):
According to Section 2(16) of The Maharashtra Cooperative Societies Act “Co-operative Housing Society” means a society the object of which is to provide its members with open plots for housing, dwelling houses or flats; or if open plots, the dwelling houses or flats as already acquired to provide its members common amenities and services. 
 
Transmission:
The right which heirs or legatees may have of passing to their successors the inheritance or legacy to which they were entitled, if the owner happen to die without having exercised their rights. 
 
Transmission of flats:
Transmission in case of flats is possible only for the flats owned by individuals. If flat is held by a body corporate, transmission is impossible, since body corporate has no death. 
 
Body Corporate:
A body corporate means any entity that has its separate legal existence apart from the persons forming it. It enjoys a completely different legal status apart from its members. So, a body corporate shall include: a company, a foreign company, a corporation, a statutory company, a statutory body, an LLP, etc. and such bodies that have separate legal existence.
 
Even after the death of all the partners or directors of a company/firm, the company/firm does not die.
 
NOTE:
Those seeking help or advice on CHS issues can contact Moneylife Foundation’s Legal Resource Centre (LRC) ( http://moneylife.in/lrc.html )

(Shirish S Shanbhag, an MSc and a retired professor with over 32 years of experience, helps draft legal documentation related to co-operative societies, RTI and several other areas.) 

Comments
milindchavan62
2 months ago
My mother had nominated myself and my two sisters for a flat which is duly registered in the nomination register of the society. After her death now, is ot not the duty of the society to transfer the share certificate on our names ? Are there any further documents required ?
sgkamato
11 months ago
Can a flat be transferred in favour of myself if my mother (alive ) has nominated as well as named me in family agreement as heir towards the flat. Further l have obtained NOC from my siblings in my favour.
adelinasuren
1 year ago
I have a query regarding nomination of joint-ownership flats. My mum and I have purchased a flat within the limits of Mumbai Suburban. Can the joint owners fill up separate nomination forms and nominate each other for the share in the flat????
shirish.s
Replied to adelinasuren comment 1 year ago
When a flat is jointly bought by 2 or more joint buyers, then each joint buyer should give a separate nomination form, for his part, in nomination form in Appendix-14, in triplicate, to the society.

As soon as nomination paper set is received by the society, nominator will get acknowledgement by society in its one copy, and society will retain two copies of Nomination forms with itself.

After about a month's time, in monthly Managing Committee (MC) Meeting of the Society, its MC will approve the nomination, and nomination registration number, with date will be put in remaining two copies of the Nomination Papers, and one copy is returned to the nominator member, and second copy will be retained by the Society in nomination paper file, for society's records.

If a flat is bought by two or more persons, each one will make a separate nomination for his/her share in the flat.
Even if all the joint flat buyers want to nominate same person as their nominee, still each joint buyer should make nomination for his part in joint buying of the flat.

If society do not accept nomination papers by co-buyers ( that is, second and subsequent joint buyer of the flat), then under Bye-law No. 174(A)(iv) make a complaint against the society to Deputy Registrar of
Co-operative Societies of your area.
kpalsule1
2 years ago
I need help in the following situation....

Flat is owned jointly by my father in law and mother in law as a member and associate member respectively. Hence share certificate has both names on it.
My father in law is expired recently.
The nomination is on their three daughters name (Mother in law is not included here).
Now we want to transfer the flat on Mother in law's name keeping existing three nominees as it is.

Need to know the procedure to complete this task.
Thanks
sshrikant
2 years ago
Is this advise current as in 2020 Dec also? We have a member who has joint ownership in 2 flats. the names on the flats are in the order AB, BA. A had made a will in 2011. She died in 2019. B is now requesting society to transfer the flats into his name with ref to the will only. B has some siblings. Does the transmission of property as per will take precendence in this case? nomination if submitted by A and B needs to be verified.
what does the society need to ensure in addition to the simple application and copy of will that he has submitted? as we are not technically and legally qualified, to read, understand and interpret byelaws, can you please help revert on this? this is being asked on behalf of office bearers who need to approve this request.
shirish.s
Replied to sshrikant comment 2 years ago
Since A has made the will as per her will, transfer the flat, foe her part 50% in the flat.

If A has registered her will with sub-registrar of Assurances ( the Govt office, where you register your flat's sale deed).

Even if will is not registered, take original will to the Bank, where A was having her bank account, and get the signature verified from the banker in writing.

Also, get a joint affidavit on Rs.100/- Non-Judicial Stamp paper, by two witnesses to the will stating that A has signed her will in their presence.

This Affidavit has to be registered with Sub-Registrar of Assurances Office.

In that Affidavit, witnesses should say that said Affidavit is given to your Society, to testify the signature of the testator of the will.

Original Affidavit will remain with the society. In that Affidavit, copy of the will in which both witnesses have put their signature, xerox copy of their PAN card and Aadhar Card also be attached.

If available, attach both side xerox copy of their Voter's card also.

If you still find that you have to take more precaution, then take a joint Affidavit on Rs.100/- Non_judicial Stamp paper and also an Indemnity on Rs500/- Non-Judicial Stamp Paper, all of them stating that they will have no objection in transferring the flat in the name of legatee stated in the will of A, and all of them willm indemnify the society against any litigation in future, if arises.

With all these documents, trans fer part ownership of late joint owner A.















sshrikant
Replied to shirish.s comment 2 years ago
Thanks for your response sir.
Yesterday it is found that in flat where A-B is holding pattern, the nominee of A is B(son)
but B has not nominated anyone for flat 1.
In the flat where B-A is holding pattern, the nominee of B is his wife,
but A has not nominated anyone or flat 2.

Will states that share of A in both flats to go to B.
Will by A is of dated 2011
A passed away last year 2019.
B has 5 siblings - 1 brother and 5 sisters.

Will of A in 2011 was witnessed by some family members only and they are not present here now.

If the above steps suggested by you are not followed by member and only indemnity bond taken what should the member indemnfy the society of?
society should take 2 indemnity bonds - one for each flat ?

Another issue is that member B wants society to do the transfer of share without consulting any legal opinion from society side.
He says the Will is there and the transfer should happen as per Will.

He is supported by other MC members also who infact say that as B is nominee in 1 flat the shares should go to him without any legal consultation.

B doesn't want to pay the legal consulting charges and demands that society should pay legal consulting charges.

Is it fair that society pays for individual member's legal matters?
Pls advise on these queries. Thanks.
rohand43
2 years ago
My father passed away and has kept me n my mother as nominees for a flat in cooperative society. Now the flat is getting transfer in both of our name. Once flat gets transferred in our name can we immediately sale it or else is there any condition. Please advise.
shirish.s
Replied to rohand43 comment 2 years ago
If income tax benefit and as per MCS Act 1960, you cannot sell that flat before one year after its transfer in your name.
Iffat Oriflame
3 years ago
Hi. My mother passed away keeping me and my brother as nominee in a flat owned by her in CHS. We are the only legal heir to this property. However, she has given my name with my husband which I have officially not changed in my passport. I want share certificate to be transferred in my correct name appearing in passport. I request you to kinldly advise me what is the procedure to be adopted to complete this formality.
V Shenvi
3 years ago
My Grandmother along with my mother are joint owners of a flat in co-operative housing society. My grandmother had prepared a will and bequeathed her share in the flat to me (grand daughter). i had requested the society to include my name in the place of my grandmother as she has now expired. The society is asking for NOC of the all the legal hiers of my grandmother for transferring the flat in my name along with my mother.

1. i want to know whether the noc of all the legal hiers required when the will is cleary in my name. the will is also registered .

2. what affidavit should i give to society for including my name

3. will there be any issues when if in a future date we sale the flat

thanks

DJ Joshi
3 years ago
My father and mother jointly hold an apartment in Mumbai. My father passed away without a will and without nomination filed with society.The only 2 children were we 2 brothers. My elder brother passed away recently and is survived by his wife.
We want to transfer 100% ownership in the flat to my mother.

2 lawyers has given different advice. 1 indicated Transfer of ownership needs to be registered with Registrar of Stamps for which my Mother, myself and my sister-in-law need to be physically present at the sub-registrar office. 2nd lawyer indicated we need to file Letter of Adminstratorship in Mumbai High Court alongwith NOC from me and my sister-in-law appointing my mother as Administrator and then subsequently make my mother file application with society alongwith NOC from me and sister in law to transfer ownership.

1.Please advise clear process to follow
2. How can the process be done from outside of India?
3. Is registration required and stamp duty required?
4. Do we need to be be physically present and sign in front of registrar?
Shirish Sadanand Shanbhag
3 years ago
For any problem in Co-operative Housing Society matters, for free of charge advise kindly come with xerox copy of your documents, to Moneylife Foundation Office, at Dadar west, near Shivaji Park, on Tuesday, between 4 pm and 7 pm, after you fix your appointment with Shanbhag, on Tel. 022 4920 5000, on any working day, 11 am to 3 pm.
shirish.s
Replied to Shirish Sadanand Shanbhag comment 2 years ago
Due to Covid-19 pandemic, we don't have 1 to 1 personal free of charge guidance at Moneylife Foundation's office on Tuesday, from 4pm to 7pm.

However, kindly email your query to Moneylife Foundation on its email ID: [email protected]
you will receive reply free of charge by email within a week.
Ashok Patel
Replied to Shirish Sadanand Shanbhag comment 3 years ago
I reside in Bangalore, so cant come in person Mumbai. My father had purchased house in society in Gujarat. He is 80 and could not find the share certificate or allotment later. He currently lives in that house. In the government record it shows "president of the society" owner. In the property tax records his name is there. What should we do ?
Sheila D'souza
5 years ago
My father purchased a resale flat in CHS jointly with my aunt having 50% shares equally. Nomination form done but not registered with society. Both our parents died 20 years ago since then requesting secretary to register my sister and me ( only legal heir) in place of my father's name. Submitted Affidavits and Indemnity Bond after advertisement in two newspapers. But till today our names are not on record inspite of various correspondence. Meanwhile my aunt occupies the entire flat ( no entry) to us. Also she has not paid dues for many years. The secretary fails to give us the maintenance bills to us . Now without our knowledge she has let the flat for office use.
How do we get our names registered in the society. The original Will is lost but copy is with us. My aunt acknowledges my sister and me as legal heirs as she and her family signed stamp paper made by one buyer in the past.
What must we do when society is not functioning as old bldg and most flats turned commercial. Secretary not replying. ( Aunt is maternally related).
shirish.s
Replied to Sheila D'souza comment 2 years ago
Take up the matter to a competent civil court, against your aunt to get right on your father's part in that flat.
Shirish Sadanand Shanbhag
Replied to Sheila D'souza comment 3 years ago
Kindly come to Moneylife Foundation's Office on Tuesday, 4pm to 7pm, with xerox copy of your all the papers in a file.

Kindly call 022 4920 5000, on working day, to fix your appointment with me, before you come for a free of charge advise from me.
Pooja Khapare
5 years ago
Dear Sir,

I want to purchase flat but the flat owner is dead few year back. His wife and son is nominee both are alive. Please advice procedure and documentation to be cross check before finalization the deal of purchase the said flat.

Please Advice.
shamama13
5 years ago
if anyone can asist me with Mr. Shirish Shanbagh Contact details.
I need few advice pertaining CHS.
Shirish Sadanand Shanbhag
Replied to shamama13 comment 3 years ago
Kindly call 022 4920 5000, on any working day, to fix timings with me on Tuesday, botween 4pm and 7pm, at Moneylife Foundation's Office, at Dadar west, near Shivaji Park.
On your appointment, come wi.th xerox copy of your all the papers in a file, for free of charge advise.
Ajay Kumar
5 years ago
Kindly advice. What procedure do I need to follow to transfer a flat to my name, where flat is in parents name (both expiured), I am 2nd nominee, (brother being first). Another brother an sister are there. Sister is not party to any suits and has no objection to it, but is unable to come to sign any papers, settled abroad. We 3 brothers have reached consent terms in hc, whereby they are agreeable to my getting the flat. Their part of the consent terms are being met. Flat is currently vacant, in possession of 3rd brother. How do I safeguard my interests. What paperwork to be done and formalities to be followed. Do I need to apply to the society, registrar. Will stamp duty be payable. How do I go about the same. Kindly let me know.
Ajay Kumar
5 years ago
Very informative and useful
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