Committees Are Not Courts: Bombay High Court Draws the Line
STOP PLAYING JUDGE: HOUSING SOCIETIES CANNOT DECIDE TITLE An interesting case came up before the Bombay High Court, where aforesaid issue was argued and decided. Facts of the case are as under: The dispute concerns ownership of Flat No. 31 in a Malad housing society in Mumbai. The flat was purchased around 1969–70 by Ramlal Dhanuka using his own funds but was registered jointly in his name and Pannadevi (wife of his son D. R. Dhanuka). Ramlal had three sons—D. R. Dhanuka, K. R. Dhanuka, and Radheshyam Dhanuka (Respondent No. 4)—who later occupied different flats bought by him. After Ramlal and his wife died in 1989, the sons became legal heirs. In 2007, Pannadevi filed a suit claiming exclusive ownership of the disputed flat and denying any rights of Radheshyam. She died in 2008, and her legal heirs continued the case. Meanwhile, an order was passed restraining the housing society from transferring or dealing with the flat’s membership rights until the suit is decided. Core issue: Whether the flat belongs exclusively to Pannadevi or forms part of the family property. Now let us see the arguments of the Petitioner: the Society argued that Respondent No. 4 wrongly applied for transfer of membership instead of transmission after the member’s death and failed to follow mandatory procedures under Bye-Law 35, including public notice and verification of legal heirs, while also submitting an incomplete application. It also argued that there are disputes among heirs; society further contended that the Divisional Joint Registrar lacked jurisdiction to hear a revision against the Deputy Registrar’s order, but the Court rejected this, holding that cooperative societies only perform limited administrative roles (not deciding ownership, as noted in Usha Jhaveri vs State of Maharashtra) and that revisional authority remains valid despite delegation of powers, thereby upholding the legality of such review. Respondent member argued that: After the earlier suit concerning the flat was unconditionally withdrawn in 2012, clearing disputes over title, Respondent No. 4 applied for membership as a legal heir, but the society failed to decide his application, leading him to seek deemed membership and later file a revision; he argued that the society had effectively recognized him by accepting maintenance charges and that minor defects in the application form should not defeat his substantive claim of succession, while also relying on lack of opposition from key family members, whereas the petitioners contended that multiple heirs existed and the application was invalid due to incorrect form and procedure; the Court, however, emphasized that substance prevails over form, held that the application was essentially for transmission based on inheritance despite technical errors, found that the alleged disputes among heirs were not strong enough to justify inaction, and rejected the jurisdictional objection, thereby supporting the validity of the revisional proceedings and Respondent No. 4’s claim being considered. It was held by the Bombay High Court that: the dispute before the society was not about ownership/title, but merely about recognition of membership after the death of a member, making it an issue of internal administration rather than adjudication of property rights. It emphasized that Section 30 of the Maharashtra Cooperative […]
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“RERA in India: Repeal or Reform?
SHOULD RERA BE REPEALED? Why we are discussing this topic? The Supreme Court in THE STATE OF HIMACHAL PRADESH vs. NARESH SHARMA| SLP(C) No. 005835 – / 2026 CJI Surya Kant said It is high time that all the states should revisit and rethink constituting this authority,” The CJI further remarked that the RERA was not doing any other services except to facilitate builders in default. Let’s study pros and Cons. RERA is useful and effective: The Real Estate (Regulation and Development) Act, 2016 (RERA) brings accountability, transparency, and efficiency to the Indian real estate sector, primarily protecting homebuyers. Key benefits include mandatory project registration, standardized carpet area definitions, 70% of funds kept in an escrow account to prevent diversion, guaranteed timely delivery, and a 5-year defect liability period. Major Positive Points of RERA: Transparency and Disclosure: Promoters must disclose project plans, layout, land title status, and timeline on the RERA website, giving buyers access to verified information. Protection of Funds: Developers are required to deposit 70% of all project funds into a dedicated bank account, ensuring money is only used for that specific project, reducing insolvency risk. Standardized Carpet Area: RERA eliminates confusion by defining “carpet area” clearly, ensuring buyers pay only for the actual usable space, not for common areas or super built-up areas. Builders were selling units/galas/flats even on Super Built Up basis. Timely Delivery and Penalties: Projects must be completed on time. If a developer delays possession, they are liable to pay interest on the amount paid by the buyer, matching the interest rate for buyer default. Defect Liability Period: Builders are responsible for rectifying any structural defects or quality issues reported within 5 years of possession at no extra cost. Reduced Fraud and Misleading Ads: All advertising must adhere to the registered project details. False promises or misleading marketing can lead to penalties. Redressal Mechanism: RERA authorities provide a fast-track, organized, and legal mechanism for settling disputes between buyers, developers, and agents. Consent for Changes: Developers cannot change plans or structure without the consent of two-thirds of the homebuyers. Concluding Notes: RERA has significantly improved buyer confidence, increased project efficiency, and bYes—**before the introduction of RERA in India**, this kind of malpractice was unfortunately quite common in the real estate sector. ROLE OF REAL ESTATE REGULATORY AUTHORITY (INDIA) Before RERA came into force (around 2016–2017), there was no strong centralized regulator, which allowed many builders to exploit buyers. What Used to Happen Before RERA Blank or Incomplete Agreements Builders often made buyers sign blank or partially filled agreements Later, terms were changed without the buyer’s consent. Buyers had little legal protection. Multiple Sales of the Same Flat. Blank document was signed and genuine buyer in possession was not aware of the same. Some builders sold **one flat to 5–10 people** using: Duplicate allotment letters Fake agreements Backdated documents Especially common when buyers paid in cash or instalments. Mix of Investors and Loan Buyers: Builder was taking loans from investors in cash against blank agreement. Such funds were cash. Investors were given early “soft bookings” without registration. Genuine buyers took bank loans […]
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UNTRACEABLE MEMBERS AND PROPERTY RIGHTS IN COOPERATIVE HOUSING SOCIETIES: PROCEDURES AND PRECEDENTS
In the model bye-laws of a cooperative housing society (such as those in Maharashtra), a member is deemed to have ceased membership if their whereabouts are unknown for a continuous period of seven years and their shares and interest in the property are unclaimed by anyone else. This cessation allows the society to take further action regarding the property. Procedures and Provisions While specific actions for handling the property itself require legal procedures beyond just the society’s internal rules, the bye-laws provide a framework for managing the situation and ultimately dealing with the ownership: Cessation of Membership: Bye-law No. 55(f) (in the Maharashtra Model Bye-laws) explicitly states that a person shall cease to be a member if their whereabouts are not known for seven continuous years and no claim is made on their interest in the property. However, the associate member shall not cease to be Associate Member when the First Member ceases to be the member of the society if Associate Member holds title and interest in the property jointly with the member. The Committee shall take further action in the matter as indicated in the Bye-law No. 62. Vesting of Shares/Interest: If, after a member’s death or disappearance, there is no claimant (nominee, heir, or legal representative), their shares and interest in the capital/property of the society will vest in the society itself. Nominations and Legal Heirs: The bye-laws heavily emphasize the importance of nomination (Bye-law No. 32-34). If an owner is untraceable and has no nominee, the committee would typically ask for a legal representative or heir to come forward. Payment of Dues: The untraceable owner’s account would likely accumulate unpaid maintenance charges and other dues, incurring interest (up to 21% per annum in some model bye-laws). These liabilities must typically be cleared before any transfer of interest can occur. Formal Communication: The society uses formal communication methods, such as registered post to the last known address or displaying notices on the society’s notice board, which are considered valid service of notice even if the member is untraceable. The society must maintain records of all sent notices as proof. Committee Action: The managing committee has the power to manage the society’s affairs (Bye-law No. 111), which includes dealing with non-compliance and cessation of membership. They are responsible for initiating the process of addressing the untraceable owner’s status. Registrar and Courts: The final authority in serious disputes or complex situations, such as an untraceable owner with no clear legal path forward, ultimately lies with the Registrar of Cooperative Societies or a Cooperative Court. The society would likely need to approach these legal bodies for formal orders to take control of or dispose of the property. DISCUSSION: A is member and have signed Conveyance. A is not traceable for more than 40 years. Taking advantage of situation widow of promoter applies for membership. It was rejected. During course of arguments she sell the flat. After two decades the flat goes for redevelopment. The purchaser of the flat sells flat to the third party. Society refuses all a membership, In a recent ruling of Supreme Court of India K, Gopi […]
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CRITICAL ROLE OF TITLE CLEARANCE IN REDEVELOPMENT
In a redevelopment project, it is highly recommended to verify and clear the property’s title first before formally deciding on and appointing a builder. While a builder can be tentatively selected (e.g., via a Letter of Intent or a resolution in a Special General Body Meeting), formalizing the development agreement and starting the actual project activities (like demolition or construction) without a clear and marketable title creates significant legal and financial risks. Why Title Clearance is Crucial First Legal Requirement: For a builder to obtain necessary municipal approvals and a Commencement Certificate (CC) to begin construction, the society must generally have a clear and marketable title to the land. This is often achieved through a registered conveyance deed or “deemed conveyance”. Risk Mitigation: Unclear land titles are a common source of delays and litigation in redevelopment projects. Title disputes can halt the project indefinitely, leaving both the builder and the society members in a precarious situation (e.g., displaced and without their new homes). Financial Safeguard: A clear title ensures the project is legally sound and makes it easier for the builder to secure project financing and for future buyers in the free-sale component to get home loans. This financial stability is a key factor in a project’s success. Transparency and Trust: Conducting thorough legal due diligence, including title verification, at an early stage demonstrates transparency and helps build trust between the society members and the chosen developer. Recommended Order of Operations (General Steps) Initial Decisions & Structural Audit: The society discusses redevelopment and conducts a structural audit to determine feasibility. Appoint Professionals: An architect/Project Management Consultant (PMC) and a legal advisor are appointed to guide the process. Title Verification/Conveyance: The society’s legal team conducts comprehensive title verification and works to obtain a clear conveyance deed or deemed conveyance for the property. Builder Selection: Once the title is confirmed, a transparent tendering process is used to select a reputable builder with a proven track record, financial stability, and relevant experience. Formal Agreements: A detailed Development Agreement (DA) and individual Permanent Alternate Accommodation Agreements (PAAA) are meticulously drafted, vetted by legal experts, and registered. Project Commencement: The builder then seeks the required approvals (IOD, CC, etc.) and begins construction. Prioritizing title clearance helps safeguard the interests of all stakeholders and ensures a smoother, legally compliant redevelopment process. HOW FAR A CERTIFICATE OF TITLE BY A SOLICITOR/ ADVOCATE IS SIGNIFICANT? In Ramniklal Tulsidas Kotak And Others vs Varsha Builders And Others on 26 August, 1991 Equivalent citations: AIR1992BOM62, AIR 1992 BOMBAY 62, (1993) MAH LJ 323, (1992) 2 BANKCAS 441, (1992) 2 BOM CR 492 “(1) A Certificate of Title need not necessarily be unconditional or unqualified. It can be qualified to the limited extent of the implied statutory exception contained in Section 3(2)(b) of the Maharashtra Ownerships Flats Act, 1963, as interpreted above. The Format of the Certificate of Title prescribed by the rules is mandatory, subject only to a limited scope for adaptability as explained in the judgment. A qualified certificate of title must furnish all relevant information as set out in paragraph 19 of this judgment. (2) The Promoter must […]
Read moreSELF REDEVELOPMENT
SELF REDEVELOPMENT AUTHORITY PLANNED REDEVELOPMENT – SUGGESTIONSThe government of Maharashtra is actively pursuing the establishment of a dedicated Redevelopment Oversight Authority. This body would function as an independent authority to regulate, streamline, and monitor all types of redevelopment projects across the state, with a specific focus on increasing transparency and resolving disputes.A suggestion was floated by writer of this blog. It is now under consideration.Moving forward what are suggestions? Establishment of a judicial body with judicial powers to monitor and resolve issues including of title of land (which is not with RERA); If government is of the opinion that right of civil court will be ousted, then Development Authority must be empowered to refer the issue to Civil Court. Key Details and Objectives Scope: The proposed authority would have specialized jurisdiction over all redevelopment projects, including those initiated by private developers, self-redevelopment schemes by cooperative housing societies (CHS), cluster redevelopment, and Slum Rehabilitation Authority (SRA) projects. Aims: The primary goals are to accelerate project timelines, enhance accountability, and provide regulatory clarity, addressing common challenges like bureaucratic delays, opaque agreements, and litigation that often stall projects. Functions: Streamlined Approvals: Act as a single-window clearance mechanism to facilitate faster project sanctions. Monitoring and Compliance: Monitor project progress using technology-enabled reporting and enforce penalties for undue delays. Dispute Resolution: Serve as a quasi-judicial body to mediate and resolve conflicts between residents, developers, and planning authorities. Standardization: Standardize procedures for project planning, developer selection, and financial approvals Current StatusThe state government has already established a separate Self Redevelopment Authority (SRA, distinct from the Slum Rehabilitation Authority) to specifically promote and expedite projects undertaken by housing societies themselves, appointing a chairman for the new body. The broader, overarching Redevelopment Oversight Authority for all project types is currently in the planning stage, with high-level committees having submitted reports recommending its formation.This initiative is expected to have a significant impact on urban areas like Mumbai and Pune, where aging buildings and high demand make redevelopment a critical part of the urban growth strategy. Maharashtra’s Self-Redevelopment Rules, guided by Government Resolutions (GRs) from 2019 and subsequent amendments, enable housing societies to redevelop buildings over 30 years old, offering benefits like extra Floor Space Index (FSI) and incentives, requiring society ownership, member consent (typically 70%+), appointing experts (PMC, Architect), and securing loans via banks like MDCC Bank, streamlining approvals with a single-window system for transparency, but necessitate adherence to Maharashtra Cooperative Societies Act rules.Key Eligibility & Requirements: Age: Building must be 30+ years old. Ownership: Society must own the land (Conveyance Deed) or have a valid purchase agreement. Registration: Must be registered under the Maharashtra Cooperative Societies Act, 1960. Consent: At least 70% member consent is generally needed for major decisions. Audit: Societies need ‘A’ or ‘B’ audit class for loans. Benefits & Incentives: Extra FSI/TDR: Societies get 10% more FSI/incentive space than usual. Reduced Costs: Lower premiums, taxes, and charges. Single Window: Streamlined approvals via a nodal agency. Process Overview: Formation: Society decides on self-redevelopment. Appointment: Appoint Project Management Consultant (PMC), Architect, Legal Advisor. Approvals: Secure initial permissions (IOD/LOA) at society cost. Loan: Apply to banks like Mumbai […]
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पुनर्विकास परियोजनाओं के लिए न्यायिक निकाय की आवश्यकता
पुनर्विकास परियोजनाओं के लिए न्यायिक निकाय की आवश्यकता आज हम बात करेंगे एक बहुत क्रिटिकल मुद्दा है रीडवलपमेंट। रीडवलपमेंट फंडामेंटल राइट, आर्टिकल 300 ए, गाइडलाइन 79 ए और मैनेजिंग कमेट। अब हम आगे बढ़ते हैं। उसके पहले मैं आपसे निवेदन करूंगी कि मेरे यह चैनल को लाइक, सब्सक्राइब और शेयर कीजिए क्योंकि यह फ्री ऑफ कॉस्ट है और आपको यह जो है मुद्दे वो आपके जनरल पब्लिक के काम में आते हैं वैसे मुद्दे हैं। चलो आगे बढ़ते हैं हम रीडवलपमेंट में। रीडवलपमेंट एक बहुत हॉट केक है और ये हर एक तीसरा बिल्डिंग रीडवलपमेंट में जा रहा है। सही बात है। जैसे हमारी लाइफ है तो हम यह जैसे हमारे हिंदू शास्त्रों में लिखा है कि हम शरीर छोड़ के हमारा आत्मा नए शरीर में जाता है और नया जन्म लेता है। तो जो इधर है उसको नया जन्म लेना ही पड़ता है। तो वैसे ही अगर बिल्डिंग पुराना हो जाए तो उसको नया बनाना पड़ता है। तो उसके लिए सबसे पहले जो मूवमेंट शुरू हुई थी वो आइलैंड सिटी ऑफ मुंबई से हुई थी क्योंकि सारे के सारे जो पुराने बिल्डिंग्स थे जो चॉल्स थी वो मसून के सीजन में कॉलेज हो जाती थी उसके लिए कोई कानून नहीं थे और मुरली देवरा जो हमारे बहुत वरिष्ठ नेता थे उन्होंने एक कानून लाया और रीडवलपमेंट ऑफ डाई लेपिटेटेड बिल्डिंग्स। तो इसके तहत उन लोगों को काफी सुविधा मिली और यह शुरुआत में जो थी वो सेस बिल्डिंग के लिए थी और वो चर्च गेट्स कुलाबा से लेके बैंड्रा तक एप्लीकेबल थी। धीरे-धीरे 1991 आया जो डीसीआर 1991 डेवलपमेंट कंट्रोल रेगुलेशन 1991 आया और उसके अंदर सारे प्रावधान किए गए। माड़ा की लैंड को रीडवलप कैसे किया जाए? स्लम को कैसे रीडवलप किया जाए? आर्मी वाली जो है पुलिस हेड क्वार्टर्स कैसे डेवलप किया जाए? बीएएमसी की जो प्रॉपर्टीज है उसको कैसे डेवलप किया जाए? और जो हाउसिंग सोसाइटी है उसे कैसे डेवलप किया जाए? यह सारे प्रावधान मैंने अपनी बुक कमेंट्री ऑन डेवलपमेंट कंट्रोल रेगुलेशन 1991 जिसकी 15 एडिशंस आ चुकी है आई थी वो उसके अंदर हमने मैंने डिस्कस किया है। आगे बढ़ते हैं 1991 के बाद क्या हुआ? इसके बाद 2009 के तहत एक 79 ए का गाइडलाइंस आया। यह गाइडलाइंस थी कोऑपरेटिव सोसाइटी क्योंकि मेजरिटी जो रीडवलपमेंट है वह कोऑपरेटिव हाउसिंग सोसाइटी जो अभी लागू होता है पूरे बंबई में और इसके तहत थर्ड जनवरी 2009 में एक गाइडलाइंस आई वो गाइडलाइंस के तहत रीडवलपमेंट के प्रोजेक्ट्स तैयार करने होते थे मैनेजिंग कमेट को इसके अंदर बहुत सारी कंप्लेंट्स आई कि जो मैनेजिंग कमेट है वह रीडवलपमेंट प्रोसेस में मेंबर्स को कॉन्फिडेंस में नहीं लेती। ट्रांसपेरेंसी नहीं है। आर्बिटरी अपॉइंटमेंट्स होती है। बिजनेस जो होता है वह कंडक्टिंग बिजनेस मतलब कि वह चाहे एजीएम हो, एसजीएम हो तो वो लोग सही जवाब नहीं देते हैं। ऐसे करली बिहेव करते हैं जैसे वो लोग जमींदार है और बाकी के जो फ्लैट ओनर्स हैं वो उनके स्लेव्स है, टेनेंट्स हैं। तो ऐसे भी बिहेव करते हैं और वो लोग वीडियो उतारते हैं तो वीडियो वो लोग शेयर नहीं करते हैं मेंबर्स के साथ में क्योंकि वो अपने पास ही रखते हैं। रजिस्ट्रार में जाते हैं तो वो […]
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FORFEITURE AND WITHDRAWAL FROM AGREEMENT TO BUY A FLAT
BLANKET CONSENT An agreement with the builder includes pre-printed clauses that secure the interests of the promoter or builder. In a way it’s a business because the promoter is investing huge sums of money, and he wants its security. Godrej Projects Development Limited vs Anil Karlekar on 3 February, 2025 A question arose in the matter of Godrej Properties at Gurgaon, Haryana. Mr. A books a flat and pays a sum of Rs.51 lakhs approx. But upon issuing letter of allotment, the buyer instead of taking possession of the flat agreed he opted for cancellation of the Agreement. He cited the recession in the real estate industry and sought a full refund of the money. A legal notice was served and subsequently flat buyer filed a consumer complaint. The NCDRC disposed of the Consumer Complaint by directing the Appellant to deduct only 10% of the BSP ( Base Sale Price) only towards cancellation of the Complainants’ Apartment and refund the balance amount Rs.34 lakhs along with simple interest @ 6% per annum from the date of each payment till the date of refund within three months. The standard clause in the purchase agreement was : Agreement entered into between the Parties, which read thus: “2.6 It has been specifically agreed between the Parties that, 20% of the Basic Sale Price, shall be considered and treated as earnest money under this Agreement (“Earnest Money”), to ensure the performance, compliance and fulfillment of the obligations and responsibilities of the Buyer under this Agreement. It has been made clear by the Developer and the Buyer has understood that the Sale Consideration and Statutory Charges as mentioned in Schedule VI hereto have been computed on the basis of Super Built Up Area of the Apartment. The Buyer agrees that the calculation of Super Built Up Area in respect of the Apartment is tentative at this stage and subject to variations till the Completion of Construction. In case such variations are beyond +/- 5%, then the Developer shall take prior consent of the Buyer. 8.4 On and from the date of such termination on account of Buyer’s Event of Default as mentioned above (“Termination Date”), the Parties mutually agree that- (i) The Developer shall, out of the entire amounts paid by the Buyer to the Developer till the Termination Date, forfeit the entire Earnest Money and any other dues payable by the Buyer including interest on delayed payments as specified in this Agreement. (ii) After the said forfeiture, the Developer shall refund the balance amount to the Buyer or to his banker/financial institution, as the case may be, without any interest; (iii) On and from the Termination Date, the Buyer shall be left with no right, title, interest, claim, lien, authority whatsoever either in respect of the Apartment or under this Agreement and the Developer shall be released and discharged of all its liabilities and obligations under this Agreement. (iv) On and from the Termination Date, the Developer shall be entitled, without any claim or interference of the Buyer, to convey, sell, transfer and/or assign the Apartment in favour of third party(ies) or otherwise deal […]
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CONVEYANCE AND ASSIGNMENT THE DISTINCTION
ONCE THERE IS A DEED OF ASSIGNMENT EXECUTED BY THE LESSOR IN FAVOUR OF THE LESSEES CAN THERE BE DEEMED CONVEYANCE? Why am I writing this blog? You must be wondering! No noting without cause. Nowadays, in the name of redevelopment societies are collecting huge funds like 20-30 lakhs for Deemed Conveyance. But I am saying it’s wrong? The answer is this society already had a Deed of Assignment executed and registered in its name way back in 1970s. Now this is connivance or illiteracy of the committee that depends on documentary evidence. But this is no less serious offense. Why? It amounts to embezzlement of society funds by way of misrepresentation and fraud. ANALYSIS Let us analyse the question herein is to ascertain as to whether the deed in question is a deed of assignment of lease hold rights. Article 63 of Schedule 1-B of the Indian Stamp Act or would be an outright sale so as to be termed as ‘Conveyance” and would be covered by Article 23 of Schedule 1-B of the Indian Stamp Act. The word ‘sale’ has not been defined under the Indian Stamp Act, 1899. Section 2 (10) of the Act defines “Conveyance” as including a conveyance on sale and every instrument by which property, whether movable or immovable property is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1-A or Schedule 1-B, as the case may be. Now let us see the difference in common parlance: Deed of Assignment: This document transfers interest in property from one person or entity to another. Purpose: It’s used when someone wants to transfer their interest in a property to someone else, such as in property sales or lease assignments. Nature of Transfer: It involves transferring existing property rights, not creating new ones. The Transfer is conditional subject to the terms of Lease Agreement and in case of breach the Lessor/Owner steps in. Execution: It requires the consent and signature of the person or entity giving up their rights. Stamp Duty and Registration: Depending on local laws, it may or may need to be stamped and registered with the land authority. Deed of Conveyance: This document transfers property ownership from a seller to a buyer. Purpose: Confirming Agreement for Sale to establish the buyer’s legal ownership. Nature of Transfer: It creates new property ownership and rights, transferring everything about the property to the new owner. Execution: Both the seller and the buyer must sign it. Requires to be stamped and registered mandatorily. Registration: It typically needs to be registered to show the change in property ownership. In short, Deeds of Assignment transfer existing property rights, while Deeds of Conveyance create new property rights and prove ownership. The word ‘Sale” has been defined under Section 54 of the Transfer of Property Act, 1882 which reads as under:- “Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.” “Lease” has been defined under Section 105 of the Transfer of Property Act, 1882 and also in sub-section (16) of Section 2 of the Stamp Act, 1899 which […]
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CAN WE TRANSFER A FLAT IN A HOUSING SOCIETY WITHOUT OBTAINING A PROBATE? IF YES HOW?
A person generates wealth for his survival, comfort and luxury. He earns wealth for growth of his family and children. When becomes old same children start talking of inheritance of his wealth while he is living. There are various provisions of law to bequeath property : a. after death of a person, which is WILL or Vasiyat. When you make a WILL your inheritance is governed by Indian Succession Act 1925. This is very common practice and people always make WILL during their lifetime. This WILL or Vasiyat operates or say becomes live after death of make of WILL. This is where entire drawback or lacuna lies. Court even permits registered WILL in a way rewrites last wish of the deceased. Is it correct to do that? Once challenge to the WILL is permitted the Probate application is converted into Suit. Which takes decades to come up for hearing. Resultant the parties to avoid litigation and waste of time settle the claim in most of the matters. The question arises is whether this was the last wish of the deceased? Answer is No. But it happens. b. Next is inheritance governed by personal law. i. For Hindus its Hindu Succession Act 1956. There are two school of thoughts Dayabhaga which is prevalent in West Bengal where son gets inheritance in fathers property only on death of the father. While in rest of India Mitakshara School of Law is followed. In this a child in the womb gets coparcenary rights in the family property. c. Hindu WILL requires to be probated. ii. Islamic Law 1. The Holy Quran 2. The Sunna – that is, the practice of the Prophet 3. The Ijma – that is, the consensus of the learned men of the community on what should be the decision on a particular point 4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God. Muslim law recognizes two types of heirs, Sharers and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuary would take up the share in the property that is left over after the sharers have taken their part. A will executed by a Muslim testator is not subject to the compulsory probate requirements under law. This would be a subject matter of Mohammedan personal law (which differs in its application among Shias and Sunnis). However they do file for probate for transfer of plot of land and other properties in Mumbai. d. In case of a Parsi section 213 (2) of the Indian Succession Act 1925 states that in case of a Parsi dying after the commencement of the Act, a probate is necessary if the WILL in question is made or the property bequeathed under the WILL is situated within the “ordinary original civil jurisdiction” of the Bombay high court. e. For WILL made by a Christian probate is not mandatory under Indian Succession Act 1956. COMMENTS: To obtain probate it takes long-time. Now a days 3-4 years even if not contested. So, […]
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Collectors Land in Mumbai and Transfers
An interesting question was asked on Twitter on collectors’ land. The question was whether it is legal to ask for transfer charges by Collector Mumbai for issuing NOC of flats in Society standing on land belonging to Collector? In Mumbai Collector owns nearly 1282 properties on which development is permitted and sanctioned on Lease. As per the latest data available about 517 properties’ Lease has been expired and in Mumbai leases of about 149 properties have been expired. The government has given this land on meager yearly lease rent. So the Government prescribed a policy for the increase in ground rent on 5th October 1999. Which was challenged and directions were given to give a hearing to those whose lease has been expired and also give an opportunity to convert occupancy to Class II occupants on one-time payments as specified in the Circular. The lease of land for purposes other than Agriculture is granted under provisions inter-alia of the Maharashtra Land Revenue Code, 1966 (“ Said Code” ) and the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971 ( Said “ Rules”) . The Said Rule B-26 -27 empowers Collector to Grant Land for Residential use. It reads as under B. Grant of land for residential use 26. Disposal of building sites :- (1) Except as otherwise provided in these rules, the occupancy rights in building sites shall be disposed of by the Collector under Section 20 read with Section 31 by publication to the highest bidder, unless for reasons to be recorded in writing, the Collector thinks that in any particular case, there is reason for granting the land without auction. (2) Where a building site is to be disposed of without auction under sub-rule(1), the Collector shall dispose of the site in occupancy right under Section 20 read with Section 31 on inalienable tenure [If the occupancy price determined under sub-rule(3) does not exceed Rs. 25,000 and with sanction of the Commissioner, if the occupancy price exceeds Rs. 25,000 but does not exceeds Rs. 1,00,000 and with the sanction of the State Government, in other cases.] (3) The Collector shall determine the occupancy price of the site, regard being had to the following factors that is to say, (a) the sale prices of similar lands in the locality; (b) the situation of the building site; (c) the availability of, and demand for, similar lands; (d) factors which are taken into account in determining the value of land under the Land Acquisition Act, 1894. 27. Grant of land housing schemes :-Building plots may be granted by the State Government for various housing schemes undertaken by any housing board, local authority or co-operative housing society constituted under any law for the time being in force, in occupancy rights under Section 40 on inalienable and impartible tenure on payment of such concessional occupancy price as the State Government may, from time to time fix, regard being had to the nature of the scheme, and in the case of a co-operative housing society, to the income of the members, thereof, such income being ascertained after making such inquiries […]
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