CAN SOCIETY REFUSE TO TRANSFER A FLAT ON AN UNREGISTERED AGREEMENT?
CAUTIONARY The Committee of Society should not use the law for harassment but for betterment. We have a question before us. Let us analyze There was a leading case of Kalpita Enclave vs Kiran Builders. This was under Section 7 of the Maharashtra Ownership Flats Act,1963. In this case, two flat purchasers had filed suit under Section 7 of said MOFA, which was objected by the builders. Subsequently, MOFA Section 4 was amended and 4A was inserted. 1[4A Where an agreement for sale entered into under sub-section (1) of Effect of section 4, whether entered into before or after the commencement of the Maharashtra Ownership Flats (Regulation of the promotion of construction, registration sale, Management and transfer) (Amendment and Validating Provisions) Act 1983, remains unregistered for any reason, then notwithstanding anything required to contained in any law for the time being in force, or in any judgment, decree be or order of any Court, it may be received as evidence of a contract in a suit registered for specific performance under Chapter II of the Specific Relief Act, 1963, or of as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral 1882. transaction not required to be affected by registered instrument.]. Subsequently, Maharashtra Textile and Co-operation Ministry came out with a Circular dated 16th October 1991 not to effect transfer by the Society till Stamp Duty and Registration charges are paid. However the unregistered document is not invalid and can be received in evidence as per Section 4A of the MOFA Act,1963. The market value concept came into force on 1st January 1986 and all documents prior thereto are out of the purview of the market value. Concluding Remarks: In current times society is bound to transfer flat upon payment of stamp duty and registration charges. But old documents are out of the scope of the valuation. Documents which are executed up to 31st December 1985 are not liable for market value. Even documents prior to 1986 and subsequent which is unregistered are not invalidated by their non-registration. SHRUTI DESAI 7th September,2022
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SUCCESSION, TRANSFER, AND TRANSMISSION OF SHARES IN SOCIETY DIED INTESTATE BUT LEFT NOMINATION
SUCCESSION, TRANSFER, AND TRANSMISSION OF SHARES IN SOCIETY A peculiar case came up. The deceased a Hindu was a sole member of society. It was his self-acquired property. He dies suddenly without leaving a WILL. But the wife is a nominee. Out of wedlock, they have only one daughter who is major and unmarried. Wife applies for transmission of shares as per nomination. Shares are transferred by the society without any endorsement that it’s transferred in trust as a nominee or get succession certificate. Now this widow, gifts 50% share to her daughter. This happens when parties prepare documents without consulting a lawyer to save money on professional charges. I am saying this because the daughter has by succession 50% right in the property as a member died intestate without leaving a WILL. There was no need of executing the Deed of Gift. The twist is the case comes now, she applies for endorsement and transfer of 50% share ( which is otherwise there under the law) to the society. After several years Society takes opinion and now seeks a Succession Certificate. How far society is justified? We must first refer to bye-laws If there is a single nominee and if he demands payment of the value of Shares and interest of the deceased Member, in the capital/property of the Society, the Society shall acquire the same and pay him the value thereof as provided under the bye-law No.63. If, however, there are more nominees than one and if they demand payment of the value of the shares and interest of the deceased Member in the capital/property of the Society, the Society shall acquire the same and pay them value thereof as provided under the bye-law referred to above in the proportion mentioned in the nomination form. If no proportion is mentioned in the nomination form, the payment shall be in equal proportion. Bye-law 135 (v). The managing committee of the Society shall take necessary precautions to see that no injustice is done to any widow in the cooperative housing Society after the death of a Member before transferring the flat in her name. In such cases, Society shall verify the nomination form duly submitted by the deceased Member or succession certificate /heirship certificate obtained from the Civil Court under the Indian Succession Act 1925 or Will of the deceased Member duly probated by the Civil Court through the executor of the will. After verifying and taking legal guidance Society then only can take appropriate action within the time limit to avoid further legal complications. This procedure can be followed in all cases after the death of a Society Member Section 30 of Maharashtra Cooperative Societies Act, 1960 provides that: Section 30 – Transfer of interest on the death of a member (1) On the death of a member of a society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules, or, if no person has been so nominated to such person as may appear to the committee to be the heir or legal representative of […]
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TRANSFER AND TRANSMISSION OF SHARES IN A COOPERATIVE HOUSING SOCIETY.
Today we are going to discuss unique issues relating to a housing society. Human beings when getting even a little bit of power, behave like King-Queen. This is normal psychology. Taking into consideration this psychology and jurisprudence every law is enacted. Now we shall deal with the questions individually WHAT ARE THE PROVISIONS AND REQUIREMENTS FOR THE TRANSFER/TRANSMISSION OF SHARES UNDER MAHARASHTRA CO-OPERATIVE HOUSING SOCIETY LAWS? ( MAHARASHTRA) Following are the relevant provisions of the Maharashtra Housing Society for transfer and transmission of shares and interest in the society. Open membership.— (1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefore under the provisions of this Act and its bye-laws. (1-A) Where a society refuses to accept the application from an eligible person for admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties. (2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar. Every such appeal, as far as possible, be disposed of by the Registrar within a period of three months from the date of its receipt: Provided that, where such appeal is not so disposed of within the said period of three months, the Registrar shall record the reasons for the delay. (3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof: (4) Without prejudice to the foregoing provisions of this section, in the case of agro-processing societies or any other society for which a definite zone or an area of operation is allotted by the State Government or the Registrar, it shall be obligatory on the part of such society to admit, on an application made to it, every eligible person from that zone or the area of operation, as the case may be, as a member of such society, unless such person is already registered as a member of any other such society, into the same zone or the area of operation. Restrictions on transfer or charge on share or interest.— (1) Subject to the provisions of the last preceding section as to the maximum holding of shares and to any rules made in this behalf, a transfer of, or charge on, […]
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CONFLICT OF LAWS: CAN ARBITRATION OVERRULE RERA?
This is an important issue especially when the same tribunal namely MahaRERA has passed two controversial Orders on this issue. Let us see what is the provision of the Arbitration Act and what is an Arbitration proceeding. Arbitration Act : Power to refer parties to arbitration where there is an arbitration agreement.— (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to the arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made. Jurisdiction of RERA Now let us see provisions of The Real Estate (Regulation and Development) Act, 2016.( RERA) Application of other laws not barred.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Act to have overriding effect.—The provisions of this Act shall have an effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Judicial pronouncements: Booz-Allen & Hamilton Inc vs Sbi Home Finance Ltd. & Ors on 15 April 2011 Arbitral tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public fora constituted under the laws of the country. Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication. Adjudication of certain categories of proceedings is reserved by the Legislature exclusively for public fora as a matter of public policy. Certain other categories of cases, though not expressly reserved for adjudication by public fora (courts and Tribunals), may by necessary implication stand excluded from the purview of private fora. Consequently, where the cause/dispute is arbitrable, the court where a suit is pending will refuse to refer the parties to arbitration, under section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well-recognized examples of non-arbitrable disputes are (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offenses; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. It may be noticed that the […]
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DOES THE INVESTOR HAVE A REMEDY AGAINST ERRING BUILDERS UNDER REAL ESTATE AND REGULATION ACT ,2016 ( RERA) ?
To answer this query let us understand the provisions of RERA,2016 2(d) “allottee” in relation to a real estate project means the person to whom a plot, apartment or building, as ,he case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent. FILING OF COMPLAINTS WITH THE AUTHORITY OR THE ADJUDICATING OFFICER (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the Rules and Regulations made thereunder against any promoter allottee or real estate agent as the case may be. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. (2) The form, manner, and fees for filing a complaint under sub-section (1) shall be such as may be specified by regulations. The first of such complaint was filed before Maharashtra RERA authority in COMPLAINT NO: CC006000000000789 Mahesh Parian vs Monarch Solitaire Facts: The Complainant has invested some amount in the residential Project known as ‘monarch Solitaire’ and reserved four apartments in the said Project in 2014. The said project is registered under MahaRERA registration No. P51700012008. The Complainant stated that after reservation of four apartments, Respondent neither gave his invested money back with interest nor is giving the possession of the apartments earmarked for him. Therefore, he prayed that MahaRERA pass an appropriate order for recovery of the principal amount with interest. Observation: documents entered into between parties Tribunal observed that the Complainant and Respondent have signed a ‘Memorandum of Understanding’ on 12s March 2014 from which it is seen that the Complainant is an investor in the said Project and not an allottee. The ‘Memorandum of Understanding’ mentions that when the complainant sells his apartments in the market then the profit from such a sale will be shared between the complainant and respondent in the ratio of 70:3O”. It means that the Complainant has the status of a ‘Co-promoter’ of the Project, as clarified in MahaRERA circular. NOTE: As per records of Maha-RERA this matter was subsequently withdrawn before Appellate Authority. Can draw a hypothesis that it was settled. Next came was M/s. Srushti Sangam Developers Pvt. Ltd vs Sarvapriya Leasing (P) Ltd. APPEAL NO. 000600000001 0557 Facts: The Promoter was developing a project namely Maulick Enclave at Chembur, Mumbai. lt is a redevelopment project consisting of residential premises and shops and offices. promoter and owner of the land had executed registered agreements of redevelopment in the year 2003. As the project was incomplete on 11 May 2017 i.e. on the day of application of RERA Act 2016. promoter has registered a project with [MahaRERA and it bears registration No. P518000J2986.] The investor cum allottee had paid a total sum of Rs.4,53,71,1001 […]
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