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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TOWERS, TRANSFERABLE DEVELOPMENT RIGHTS AND UNCERTAINTY
TOWER BUILDINGS IN MUMBAI BLISS OR BANE Mumbai was a peaceful place, with sophisticated and cool roads. Tall towers are now new skylines in Mumbai. Jam-packed traffic, roads on ventilators, metro, and coastal roads adorn the site of Mumbai city. Redevelopment of the old building is a booming business now. They are given TDR and additional FSI. But what if this tower falls or collapses? What if the SRA building collapsed and became unsafe? Is there any provision? How such towers will be constructed? What are the rights of flatholders and member’s? Will Insurance save the flat holders’ future? Before answering so many questions let us see the inter-alia relevant provisions of newly framed Development Control Rules for Greater Mumbai. Provisions relating to underdevelopment Control and Promotion Regulation 2034 [ DCPR 2034]. 33(6) Reconstruction of buildings destroyed by fire, or which have collapsed, or which have been demolished under lawful order Reconstruction of buildings that existed on or after 10th June 1977 and have ceased to exist for reasons cited above, shall be allowed to be reconstructed with FSI as per the Regulation No 30(C). Provided that if the area covered under a staircase/lift has not been claimed free of FSI as per the then prevailing Regulation as per the occupation plan, the area covered under staircases/lifts shall be considered while arriving at protected BUA in such cases the premium for entire staircase lift area in the proposed building as per these Regulations shall be recovered. This FSI will be subject to the following conditions: Reconstruction of the new building on the plot should conform to provisions of DP and these Regulations. Reconstruction will be subject to an agreement executed by at least 70 percent of the landlords and occupants each in the original building, within the meaning of the Mumbai Rents, Hotel and Lodging House Rates Control Act, 1947, and such the agreement shall make a provision for accommodation and re-accommodate the said landlord/all occupants in the new building on agreed terms and a certificate from a practicing advocate having a minimum of 10 years’ experience, is submitted confirming that on the date of application, reconstruction, agreements are executed by at least 70% of the landlords and occupants each in the original building with the developer/owner. The Advocate shall also certify that the agreements with occupants are valid and subsisting on the date of application. The Carpet area of residential/non-residential premises may be altered with the consent of occupants. Reconstruction shall be disallowed on set-back areas or areas required for road-widening and such areas shall be handed over to the Corporation. These provisions shall not apply to buildings wholly occupied by warehouses and godowns. If the building is reconstructed with existing FSI/BUA prior to its collapse/demolition, then the requirements of front & marginal open spaces shall be as per the Regulation No.41(5) of these Regulations. Provisions of R.No.41(5) is as under: Provisions in open spaces for plots in Reconstruction/Redevelopment Schemes under the Maharashtra Housing and Area Development Authority Act, 1976, Slum Rehabilitation Authority and Redevelopment Scheme of municipal tenanted properties; in case of DCR 3(5),33(6),33(7),33(7)(A),33(7)(B),33(9),33(9)(A),33(9)(B),33(10), 33(10)(A),33(11),33(15)and 33(20)(A): The following […]
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HIGHLIGHTS OF GUIDELINES RELATING TO REDEVELOPMENT OF CO-OPERATIVE HOUSING SOCIETIES IN MUMBAI
State Government of Maharashtra received several complaints from the Housing Societies, Housing Federations and individual members regarding the mismanagement of Co-operative Societies which are in the midst of re-development. By and large, the nature of complaints received in the matter of re-development of Co-operative Housing Societies is as follows: – Not taking members in confidence in the Re-development process; Non-transparency in the Tendering Process; Arbitrary appointment of contractors; Conducting business in violation of the Co-operative Law, Rules and Byelaws; Lack of co-ordination in the work to be done by the Architects and project Consultants; Non-Planning of Re-development Project Report; Not adopting a fair procedure for the finalisation of tenders; Non-Parity in the Agreements to be executed with Developers. Considering the gravity of issues government of Maharashtra is supersession of the Government Resolution dt.3rd January, 2009, issued Revised Guidelines for Redevelopment of Co-operative Society Buildings in Maharashtra- G.R. dated 4th July, 2019 and gave following directions under Section 79(a) of the Maharashtra Co-operative Societies Act, 1960. Government Resolution: – If any Competent Authority has declared the building of a co-operative housing society as ruinous or dilapidated or dangerous for inhabitation or as posing danger to the passers-by or any structure or place in the neighbourhood and the society is eligible to redevelop the building under the Development Control Regulations, then such society in its General Meeting can take a decision regarding re-development of the building. These directions shall apply to all kinds of Redevelopment such as Re-development carried out by a developer under an agreement, Self-redevelopment, cluster redevelopment in Federal Societies, re-development by a group of societies etc. All the procedure prescribed for the appointment of a developer shall apply to all the afore stated kinds of re-development, the appointment of a contractor or the development carried out under an agreement. The decision regarding re-development of the buildings of housing societies shall be taken in the Special General Meeting of the society held as per the registered byelaws of such society in accordance with the procedure prescribed by these guidelines. The Authorised Officer/Administrator appointed by the Registrar cannot take the decision regarding re-development of the buildings of co-operative housing societies. Convening Special General Meeting for the Re-development of Society Building: –It will be essential that not less than 1/5th members of the co-operative housing society whose buildings are to be re-developed should submit an application addressed to the Secretary of the Managing Committee of the society duly elected and constituted as per the bye-laws of the society and under the law for convening the Special General Meeting for deciding the policy in the matter of re-development of buildings belonging to the society, together with their schemes and suggestions regarding re-development of such buildings. The Managing Committee shall take note of such application within 8 days of the receipt thereof and the Secretary of the society shall convene a Special General Meeting of all members of the society within 2 months. Agenda of this Meeting should be circulated to each member of the society 14 days in advance and the acknowledgment thereof should be maintained in the record of the society. Before […]
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