“Nearly all men can stand adversity, but if you want to test a men’s character, give him power.” Said Abraham Lincoln
This aptly applies to the Managing Committee of a society. Once the power comes neighbor becomes your Master. There are many incidents where the committee manipulates bills and contracts, and even in redevelopment cases three honorary office bearers Secretary, Chairman, and Treasurer have weightage in the finalization of the deal. We see litigations and stalling of projects of a housing society. Human tendency is such that they think of self-gain, instead of taking care and executing responsibilities that they have taken with utmost care and truthfulness. Corrupt minds see financial benefits in every deal. They forget that while doing this they prejudice the property and interests of other flat members.
- 1 With the new election rules, an election is held similarly to the way in which how elections are held in any Assembly and Parliament. Cartel is formed and elections are won. It has killed the neighborhood’s love, respect, and honor. One family and one flat provision are also violated royally. Even if distant relatives or cousins have a cartel. This creates a monopoly in management.
Suggestion: Like Multi Co-operative society, provide that same member or any other joint member from one flat cannot contest the consecutive election. The flat owners/member must take a break or drop out from the next election to give an opportunity to other flat owners/members. So, after serving for 5 years the said member/flat owner cannot contest election for immediate subsequent another term. This will reduce the monopoly of a few flat owners and their families, and their friends.
For the convenience of the readers and lawmakers reproduced below is the provision of the Multi-State Cooperative Societies Act,2002 below which restricts reelection after two terms.
- Prohibition to hold the office of chairperson or president or vice chairperson or vice president in certain cases
(1) No member of a board shall be eligible to be elected as the chairperson or president or vice-chairperson or vice-president of a multi-state cooperative society if such member is a Minister in the Central Government or a State Government.
(2) No member of a board shall be eligible to be elected as the chairperson or president of a multi-state cooperative society, after he has held the office as such during two consecutive terms, whether full or part:
Provided that a member who has ceased to hold the office of the chairperson or president continuously for one full term shall again be eligible for election to the office as such.
Explanation:- where any member holding the office of the chairperson or president at the commencement of this Act is against elected to that office after such commencement, he shall for the purpose of this section, be deemed to have held office for one term before such election.
Proposed Suggestion :
A similar principle must be applied to the housing society.
A.2 A Managing Committee was disqualified for 5 years, and an administrator was appointed. Managing Committee manages to suppress the facts from members of the society and manages that the order of appointment of an administrator is not implemented. They once again make cartels get elected. What remedy to the members?
The committee members are very notorious.
Debar such members permanently and those who connive with them. Take mandatory bond from contesting members that there is no disqualification order against them. They must file the same with election officer.
B. Transfer and Transmission of Flat:
B.1 If a member dies without making a Will, then in the case of Hindus, the Hindu Law of succession applies. But if a Hindu dies leaving a Will, then the Indian Succession Act applies.
The difference is Hindu Law is very clear about succession. But when it comes to Will it requires to be probated. In India, if one is lucky to have no dispute within the family then it is easy to get probate in a 7-8 months period. But if there is a dispute within the family then the Will, will be challenged and the property may remain in litigation for decades together.
If there is no challenge then also one has to follow the entire process of issuing citations to inviting claims by giving public notice.
But the entire process is at a huge financial cost. Court fees, departmental expenses, and professional charges cost are huge.
Now probate/succession/letters of Administration is not a title document. Nor it is mandatory. It is an application by the executor of the Will to administer and distribute the estate of the deceased as mentioned in the Will.
Will is the only document that operates after the death of the maker. So one has to be careful about the same while drafting.
Is there discrimination amongst religions for obtaining:
This question was answered in negative by Supreme Court in
Clarence Pais & Ors vs Union Of India on 22 February 2001
The differences are not based on any religion but for historical reasons that in British Empire in India, probate was required to prove the right of a legatee or an executor but not in Part B or C States. That position has continued even after the Constitution has come into force. Historical reasons may justify differential treatment of separate geographical regions provided it bears a reason and just relation to the matter in respect of which differential treatment is accorded. Uniformity in law has to be achieved, but that is a long drawn process. Undoubtedly, the States and Union should be alive to this problem. Only on the basis that some differences arise in one or other States in regard to testamentary succession, the law does not become discriminatory so as to be invalid. Such differences are bound to arise in a federal setup.
Mohamed Obedulla Chinoy & Ors And Rasubhai Suleman Chinoy
Whether Muslim Will needs to be attested?
there is nothing which makes it compulsory for Mahomedans to attest to their Wills.
Does probate decide the title to the property?
Mamta Prasad Punekar And Ors vs Bhushan Sharad Punekar And Ors on 31 March, 2022
It is also well settled that a probate proceeding will not determine title whether the testator or testators had title to the property, to begin with. Under Section 57 (read with Section 213) of the Indian Succession Act, probate would be compulsory if the Will (made by a Hindu, etc) is made in one of the specified places (Kolkata, Chennai, Mumbai) or relates to immovable property in one of those places. It is not otherwise compulsory.
There is a provision of Nomination is Byelaws. Which doesn’t insist on obtaining probate.
Why members avoid getting probate is as said earlier proceedings can be misused by a vicious-minded member of the family, lodge a claim, challenge Will/ Letters of Administration/ Succession Certificate. Once that is done Petition will be converted into a suit, which will take 25 years or more to resolve. So, it becomes a tool to extract shares whether legitimate or illegitimate, the wish of the maker of the Will is not fulfilled and the beneficiary under the Will has to settle such claims.
The Government and the Lawmakers must clarify this situation. In Mumbai stakes are high and the cost of getting probate is also high. In such an event, any adverse claim would also have to be compensated. This is adverse to the interest of the legatees and beneficiaries. Even registered Wills are challenged, and property is blocked due to litigation.
As probate is not title to the property in question, property may be administered as per Will, which is the last wishes of the maker of the Will. It is suggested that the claimant as heir of the deceased can challenge probate within a specified period by way of a civil suit. As he is not getting anything under the Will, he cannot misuse the process and be the snatcher of rights which is derived under the Will.
B.2 Different yardsticks in transfer and transmission of shares adopted by Managing Committee:
Society Management uses different yardsticks for different members and these prejudices the interests of members. Especially when a widow and a single woman survived. The shares are not transferred for years together. Sometimes even fees are demanded to transfer/transmit the shares. In such a case Section 23 of the Maharashtra Cooperative Societies Act,1960 needs to be amended with the following suggestions:
It is also suggested that the Competent Authority is formed to monitor the transfer and transmission of shares of the society. Instead of vesting the power to enter a name in the register of members and granting Deemed Membership with the Managing Committee, the society must forward the transfer/transmission application to such competent authority.
- Can Society hold an Annual General Meeting under threat?
In a society, Police are invited to keep rowdy members under control. But under the garb of such impulsive members, society passes resolutions in violation of byelaws. Members are scared to oppose because the police present may take into custody.
Please laid down guidelines for :
- videography of Annual General Meeting (AGM) proceedings sharing of the footage with other members of the society and;
- clarify whether police can remain present at the time of conducting the entire AGM of the Society and what are their powers.
- Can society charge more amount towards maintenance to small flat holders, while larger area owners enjoy lower rates?
This is a misuse of power and a criminal breach of trust. This is also a violation of the contract of the managing committee which they have guaranteed under the byelaws.
This issue is sub-judice too.
Following is the link on the subject
I will quote Abraham Lincoln
“Nearly all men can stand adversity, but if you want to test a men’s character, give him power.”
“I am not bound to win, but I am bound to be true.”