Nomination in Housing Societies in Maharashtra

a) SUBJECT to Cooperative Societies and LIMITED to Maharashtra State Jurisdiction, only. (REFER Section 30 r/w Rule 25 r/w “model” bye-law no. 32 to 37, under the “Maharashtra Cooperative Societies Act & Rules” (MCS Act).

b) Contents of this Article applicable to “Tenant Ownership” type-Housing-Society registered under Section 2(16) r/w Rule 10(5)(a).

1. KEY-POINTS:

a) A immovable property “registered in the names of individuals” (means a Title-Owner/s), CANNOT be Sold .OR. Rented /Leased .OR. Alienated .OR. Transferred .OR. Whatever, on the basis of any Nomination Form (means “nomination form” as prescribed under model bye-laws, under the MCS Act).

b) A Nominee has no legal right to Sell .OR. Rent /Lease .OR. Alienate .OR. Transfer .OR. Whatever, the immovable property of the deceased.

c) A Society, registered under MCS Act, CANNOT Add /Replace the name of the Nominee by deleting /removing the deceased members name from its registers, on the basis of any Nomination Form.

d) It will be a gross legal faux pas, on part of a Society, to allow any “nominee” person, to be included on board of the Managing Committee. This means that a person in the capacity, as a “nominee”, is not eligible to become a member of the Society and /or contest Mg.Committee elections and /or be on board of the Mg.Committee.

e) “Capital Property of a Society“, means the amount of Share money of the Society Share Certificate. This does not mean the “Property of the Title-Owner aka member“.  The Society can NEVER be the owner of the Flat, in anyway, whatsoever, more so specifically in a “Tenant Ownership” type-Housing-Society  registered under MCS Rule 10(5)(a).

f) Nomination Form, is NEVER a Testamentary Document (Will) and CANNOT be taken as the last Testamentary Wish of the Deceased, irrespective of any criteria. There is no concept of “Nomination” under the Succession laws (at least in India, as yet).

g) Property of Deceased, CANNOT be bequeathed by using a Nomination Form, irrespective of any criteria. AND further the property of the deceased CANNOT be succeeded /usurped on the strength of any Nomination Form. As a Nominee, a NOMINEE is NOT a SUCCESSOR.

2. WHO CAN BE A MEMBER OF A SOCIETY :

a) ONLY a Title-Owner(s), with a registered Sale-Deed, can be “DULY admitted” as a member of a Society (i.e. in a “Tenant Ownership” type-Society (under MCS Rule 10(5)(a) ).

b) “DULY admitted” means: A Society can DULY admit a member ONLY if the member holds Title-Ownership of a Flat, via a “Title-Ownership” document, which means a Registered Sale-Deed .OR. a Gift Deed .OR.  a Court Decree.  A Nominee never has a “registered Sale-Deed” in his name, HENCE a Nominee CANNOT be a Title-Owner .OR. a member of the Society.

c) In a “Tenant Ownership” type-Society, persons who are named in the Flat-Purchase Agreement, “ONLY” can be Sole /Joint member(s) of the Society and ONLY such names can be recorded on the Share Certificate (section 2(19)(a & b) r/w section 27(2) ) and in the “I” & “J” and “Share Register” and other Records and Registers, AFTER following “due procedure of law”.

3. TYPES OF MEMBERSHIP IN A SOCIETY:

The Rule of Law, by virtue of Section 2(19) (MCS Act) defines “Member” of a Society,  as follows:

a) Ordinary Member (as Primary Member, means 1st member),

b) Associate Member (as 2nd or 3rd or 4th member) (means ALL Joint member/s)

c) Nominal Member

d) Sympathizer Member

e) Active Member

NOTE:  There is no Law or Rule, under the MCS Act, to classify a “nominee aka trustee aka caretaker” as any type of member.

a) ORDINARY Member : Means FIRST Title-Owner, who has purchased /acquired ownership of a Flat in a CHS, via a Registered Sale-Deed .OR. a Gift Deed .OR. a Court Decree.  FIRST Title-Owner means whose name stands FIRST in the Registered Sale-Deed .OR. a Gift Deed  .OR. a Court Decree.  Ordinary member (as Primary member) has ALL the privileges & rights, granted to a registered member.  Ordinary member’s name shall stand FIRST on the Society’s Share Certificate.

b) ASSOCIATE Member : Means SECOND Title-Owner, who has “JOINTLY” & duly purchased a Flat, alongwith the “FIRST Title-Owner”.  The SECOND Title-Owner means whose name stands SECOND in the Registered Sale-Deed .OR. a Gift Deed  .OR. a Court Decree. Here the “associate member” is a JOINT-Title-Owner, of the Flat.  Associate member’s name shall stand SECOND on the Society’s Share Certificate.

NOTE:  In a “Tenant Ownership” type-Society, the Associate Member is a “Joint Member” and such “associate member” name must “lawfully and mandatorily” be recorded  in the Registered Sale-Deed .OR. a Gift Deed  .OR.  a Court Decree.  IF the “associate member” name is NOT recorded  in the Registered Sale-Deed .OR. a Gift Deed  .OR.  a Court Decree, THEN such person CANNOT be termed as a “associate member”,  .AND.  such persons name CANNOT be recorded in the Share Certicate, for any legal purposes, whatsoever.

c) NOMINAL Member : Who has been nominated via a prescribed Model Bye-Law “Nomination Form” (Form no. 14), .OR. via bye-law Form no. 11 or 27 (Leave License Tenant),  .OR. Representative of any Corporate /Juristic body.  Nominal member has NO privileges & rights, as granted to a registered member (Ordinary (Primary) & Associate member), to the exception of a select few.

NOTE:  A “nominal member aka Nominee” lawfully shall never have any “Title-Ownership” rights, of whatsoever nature, simply because a Nominee never has a “registered Title-Ownership Sale-Deed” in his name.

d) SYMPATHISER Member : (deleted and NOT applicable w.e.f. 14th February 2013)

e) ACTIVE Member : (added u/s 2(19(a1)) and applicable w.e.f. 14th February 2013)

The concept of “active member” is not applicable to a CHS,  WHICH is registered as a “Tenant Ownership” type-Society, under Rule 10(5)(a), wherein every member is “mandatorily” a “Flat-Owner” and is ALWAYS a active member, by legal default, in view of the consistent & continues utilization of “common amenities & services” being provided by the Society u/s 2(16).   It is immaterial as to IF the Flat-Owner aka Member, is defaulter of Society dues.  Here the “ORDINARY /Primary” member is always the “ACTIVE member” and would NEVER be a “Non-Active Member”, as MUST mandatorily be evident from the Society’s “I” & “J” and “Share Register” which is prepared, AFTER following “due procedure of law”.

NOTE: 

i. In a Housing Society (CHS), lawfully, there is NO other type of membership, to the exception of above mentioned.

ii. IF above mentioned documents (Registered Sale-Deed .OR. a Gift Deed  .OR.  a Court Decree), are NOT available, THEN the Society lawfully CANNOT grant any-type of membership to any person, which includes a Nominee.

iii. Under the MCS Act & Rules, there is NO provision for “Nominee Membership”.

4. WHO “CAN”  NOMINATE :

a) ONLY a living mentally fit “individual person”, who is above the age of 18 years, can file Nomination Form.

b) ONLY a Title-Owner (Society’s Primary & Joint Members) are legally permitted /eligible to make Nominations, while still being alive.

c) It is NOT necessary to take consent or inform the proposed Nominee, “before” .OR.  “after” Nominating the Nominee person, more so since the “nominated” person is NOT any kind of “legal beneficiary”, for any lawful purposes,

d) A Legally eligible Guardian .OR. Custodian .OR. a Care-Taker can also “duly” file Nomination Form, on behalf of a Minor .OR. Mentally /Physically disabled person.

e) A Nomination Form becomes legally “null & void”, IF received from “anybody” AFTER the date of demise of its member (Title-Owner),

f) ONLY & ONLY a clear Title-Owner of the property is legally eligible to file Nomination Form, for his own share-ratio of his own Title-Ownership property,

g) A Nominee CANNOT re-nominate or file Nomination Form. IF a “nominee” further “re-nominates” anybody, THEN it would mean that Nominee is nominating for somebody else’s property, more so since a Nominee is never the “Title-Owner” of the deceased’s property.

h) A “General” Power of Attorney (POA) holder CANNOT nominate (or file Nomination Form). However a “SPECIFIC” Power of Attorney holder, with the specific purpose related clause, CAN file Nomination Form, by annexing the Specific purpose Power of Attorney document.  ONLY a duly Stamp Duty paid and Registered POA, is legal and valid, for any and all legal purposes.

i) A member (Title-Owner), is lawfully entitled to execute Nomination Form, and send the same to the Society BY “Post /Courier /any person”, provided such Nomination Form is duly Notarized .OR. Attested by the Foreign Consulate (as applicable).

j) Nomination Form can be revoked /cancelled and fresh Nomination Form can be executed /refiled with the Society, without any permission or reference to the Nominee .OR. ANYBODY.  This can be done many times during the life-time of the member (Title-Owner).  (The Model bye-law no. 32,  under the MCS Act, prescribes a fee of Rs. 100/- for every subsequently filed Nomination Form)

WHO “CANNOT”  NOMINATE :

A property “registered in the names of non-individuals” (means a registered Legal Entity (Juristic person),  CANNOT nominate, in any manner AND such property CANNOT be Sold .OR. Rented /Leased .OR. Alienated .OR. Transferred .OR. whatever, on the basis of any Nomination Form.

a) A Proprietary Firm “cannot” file Nomination Form,

b) A Partnership Firm “cannot” file Nomination Form,

c) A “Limited Liability Partnership” (LLP) “cannot” file Nomination Form,

d) A “One Person Company” (OPC) “cannot” file Nomination Form,

e) A Private Limited Company “cannot” file Nomination Form,

f) A Public Limited Company “cannot” file Nomination Form,

g) A Trust (which-so-ever type),  “cannot” file Nomination Form,

h) A HUF (which-so-ever type), “cannot” file Nomination Form,

i) A NGO (which-so-ever type), “cannot” file Nomination Form,

j) A Society (which-so-ever type), “cannot” file Nomination Form,

k) A Minor (person below age 18 years) “cannot” file Nomination Form,

l) A Title-Owner of a property in a Society BUT who has chosen /opted not to be a “member of the Society”, “cannot” file Nomination Form,

m) A Nominee CANNOT “re-nominate” or file Nomination Form. This will be a Criminal offence, at the hands of known /unknown Legal Heirs and/or Legal Beneficiaries. IF a “nominee” further “re-nominates” anybody, THEN it would mean that Nominee is nominating for somebody else’s property, more so since a Nominee is never the “Title-Owner” of the deceased’s property.

NOTE: 

a) A registered Legal Entity (Juristic person) NEVER dies /expires. Hence a registered Legal Entity (Juristic person),  CANNOT nominate, in any manner.

b) The property of a registered Legal Entity (Juristic person), can be legally disposed off on dissolution /de-registration, by following due procedure of law, according to the constitution /objectives /laws, applicable to such Legal Entity.

c) Succession Law’s are NOT applicable to any registered Legal Entity (Juristic person).

6. WHO CAN  BE NOMINATED .OR. WHO CAN BE A NOMINEE:

ANY bonafide Indian citizen can be Nominated, BUT  “ONLY” by a Title-Owner of the property.

a) A Legal Heir /Beneficiary, can be Nominated,

b) A Non-Individual person (means a registered Legal Entity /Juristic person), can be Nominated.

c) A Non-Legal heir /beneficiary .OR. a Non-Relative, can be Nominated.

d) A Minor /Mentally /Physically disabled person, can be Nominated.

e) A local Paan’wala, a local Bhaji’wala, a Leper, a AIDS patient, can be Nominated.

f) A “unknown” BUT existing person, can be Nominated.

7. WHO “CANNOT”  BE NOMINATED :

a) A deceased person, “cannot” be Nominated.

b) A Non-Indian citizen, “cannot” be Nominated.

c) A Nominee “cannot” Nominate himself or anybody.

8. WHEN CAN SOCIETY REGISTER A NOMINATION FORM:

Society has to “Compulsorily & Mandatorily” register a duly eligible & legible Nomination Form, when received only from:

a) A Living “individual” Person.

b) A clear Title-Owner, who “MUST” also be a bonafide Society member.

c) A Society CANNOT register a Nomination form received from “anybody” AFTER the date of demise of its member (Title-Owner).

d) It would be a collective Criminal offence by ALL the Mg.Committee member/s, IF the Society registers a Nomination form received from “anybody” AFTER the date of demise of its member (Title-Owner).

e) A Society CANNOT register a Nomination form received from a Nominee (“even if” the Nominee is a Legal Heir /Beneficiary).

f) It would be a collective Criminal offence by ALL the Managing Committee member/s, “IF” the Society registers and “further” Transfers membership, on any application /document given by the Nominee.

g) It would be a collective Criminal offence by ALL the Managing Committee member/s, “IF” the Society provides any type of “No Objection Certificate” (NOC), to a Nominee, for change of name or transfer of Electricity meter, Gas meter, Sale /Rent, Passport, Ration Card, and so on …. This would be akin to giving NOC favoring the Security Guard /Watchman, for transfer of Society’s Electricity meter, Gas meter, Sale /Rent /etc….

9. MODEL BYE-LAW PRESCRIBED (STEP-BY-STEP) PROCEDURE FOR RECORDING NOMINATION FORM :

a) Receive Three (3) ORIGINAL copies of Nomination Forms, (Model Bye-Law prescribed Form no. 14) “duly” filled in, ONLY from its registered member.

b) The word “DULY”  expressly implies (not deemed) that the Nomination forms, importantly of the “latest date”, should be complete in all respects, with signatures of Two attesting witness.

c) Society Secretary /Manager immediately acknowledges receipt of first Two Nomination Forms (Original & Duplicate) and returns back the Third (Triplicate) copy of the Nomination Form after due Society’s rubber-stamp + Date + Secretary /Manager signature acknowledgements.

d) In the next forthcoming mandatory Mg.Committee meeting, the Secretary /Committee members “MUST” deliberate & check the Nomination Form, for any irregularities, and ONLY THEN approve & record Nomination Form in the Mg.Committee Minute Book.

e) Subsequently within Seven (7) days and based on the approved resolution recorded in the Mg.Committee Minute Book, the Secretary /Manager then further records the Nomination Form data in the MANDATORY Nomination Register under “continuing” and “unique Serial number”, under the Secretary Sign and Society’s rubber-stamp. Here, the Manager is not permitted to Sign.

f) IF the “continuing” and “unique Serial number” of the Nomination Register, is manipulated in any manner, by the Society Mg.Committee, THEN it would mean “material alteration” amounting to Criminal Fraud, Forgery, Cheating, Breach of Trust, etc….

g) Society Secretary /Manager then further records the “continuing” and “unique Serial number” of the Nomination Register, on the First and Second copy of the original Nomination Form. Here, the Manager is not permitted to Sign.

h) Society Secretary /Manager then further records the resolution number and the date, from Mg.Committee Minute Book PLUS Society’s rubber-stamp + Secretary Signature, on the First and Second copy of the original Nomination Form. Here, the Manager is not permitted to Sign.

i) Subsequently, Secretary /Manager then obtains the members signature on the FIRST original Nomination Form and returns the SECOND original Nomination Form to the member (who made Nomination), for his record /preservation purposes.

j) Secretary /Manager then preserves the FIRST original Nomination Form, on Society’s record, permanently for future reference purposes and in utmost Confidence.

k) ALL the above procedure has to be completed within two months, failure of which the Society and the Secretary becomes liable for Negligence and Deficiency under the “Consumer Protection Act” and further ALL the Mg.Committee members further collectively becomes liable under the Criminal Laws.

NOTE:

1) The Nomination Register and the Original Nomination Form, should be preserved life-long in the Society’s records, failure of which would imply and invite Criminal prosecutions, subject to certain parameters.

2) The Nomination Register and Nomination Form shall .NOT. be mutilated /altered /modified, under any circumstances, without the written approval of the ward cooperative registrar, that too after following due procedure of law.

3) The Photo Copy of the Original Nomination (of Society’s record) shall not be given to “anybody” under any circumstances, failure of which would imply and invite Criminal prosecutions, subject to certain parameters.

10. WHAT THE SOCIETY SHOULD NOT DO :

The Society in all manner is BOUND to preserve and protect the interests of its members, without any exceptions. Pertaining to the Deceased member, the Society must NOT make any changes in the:

a) The “I” and the “J” and the “Share Register” in the Society Records & Registers,

b) The Society Bill of the deceased member.

c) Not to give “ANY” type of NOC to any Nominee.

d) Not to record name of Nominee/s by replacing name of deceased member, on Society Records and Registers.

e) Not to allow Nominee on Board of Mg.Committee.

f) Not to allow Nominee to Contest /Vote at Society Elections.

i) Not to allow Nominee to Attend /Propose /Second resolutions, in the Society’s General Body meetings (AGM /SGM).

NOTE:  The bye-law no. 32 to 37, pertaining to “Nomination”,  of the Model Bye-Laws are legally null & void ab initio. The bye-laws, are only suggestive and persuasive in nature and  have no “capacity and/or capability” to transfer “Title-Ownership” of any property “TO ANYBODY”   in the Society, more so since the bye-laws have no legislative mandate nor has any legally enforceable value.  The said bye-laws circumvent and are violative of the “Transfer of Property Act”, and the “Stamp Duty Act”, and the “Registration Act”, and the “Income Tax Act”, and the “Succession Act/s” and the “Benami Transaction Act”.

11. WHAT HAPPENS “IF” THE “NOMINEE”  IS  MADE A MEMBER OF THE SOCIETY :

a) Legally, this is very² crucial aspect, for a Cooperative Housing Society, more so since, as a “Nominee”, the nominee has no rights in the deceased’s Property and cannot have any right in the Administrative or Management functions of the Society.

b) Legally, a Nominee can very² easily refuse to “exercise his rights /duties /responsibilities as a Nominee” (today, tomorrow or whenever). This is more so, since a bonafide Title-Owner aka Society member, is NOT legally liable to “take consent”   .OR.  “Inform”  the proposed-Nominee, “before”  .OR.  “after” Nominating the Nominee person, more so since the “nominated” person in the capacity of a “nominee aka care-taker”  is NOT any kind of “legal beneficiary /successor”, for “any” purposes.

c) There is no written “privity of contract”, between the deceased “Title-Owner aka Society member” and the “Nominated person/s”, HENCE EVEN IF the “nominee” agrees to “exercise his rights /duties /responsibilities as a “Trustee aka Nominee”, as of  “today”  THEN “tomorrow”  the “Trustee aka Nominee” may simply & legally “Relinquish” .OR. “Resign” his Trustee-Nominee rights .OR. “Refuse” to exercise his nominee rights, without any legal liability to him, whatsoever.  This would permanently leave the Society into a legal lurch.

d) A Nominee has NO “Title-Ownership” right over the deceased Title-Owner aka Members Property (Flat), HENCE is NOT liable “in ANY possible manner”, for any civil liability or claim or auction or attachment proceedings, whatsoever.

e) IF a Nominee is made a “Primary /Associate” member of the Society then the Nominee could falsely exercise all rights of a regular member of the Society, which hallucinating’ly includes, as follows :

f) Derive hallucinated & illegal rights to Sell .OR. to Rent .OR. to Gift .OR. to Alienate .OR. to Mortgage .OR. to Take Loan or whatever, over the Deceased’s property. This is currently & grossly & ignorantly prevalent in many Society’s in Mumbai.

g) Derive hallucinated & illegal  rights of  making a “will” .AND /OR. further file “nomination” of the deceased Title-Owners property, THUS ultimately depriving, violating and junking down the hierarchical rights of the known /unknown legal heirs and other beneficiaries.

h) Attend any General Body meetings (AGM /SGM /…. ) and “Propose” .OR. “Second”, any General Body resolutions.

i) Become a Mg.Committee member, and “Propose” .OR. “Second”, any  Committee resolutions.

j) Contest and Vote at Society elections, and further “Propose” .AND. “Second”  .AND. nominate any electoral candidate.

k) Sign any Redevelopment Agreement of the Society.

l) Conduct himself as a Chairman /Secretary /Treasurer, of a Mg.Committee, can do all administrative and management functions, which includes signing cheques and withdrawing amounts, in collusion with other like-nominees (who have become Chairman /Secretary /Treasurer).

m) Cause misfeasance and misappropriate Society funds .OR. cause loss to the Society in umpteen manners.

n) IF a “Nominee” causes gross misfeasance and misappropriate Society funds .OR. causes loss to the Society in umpteen manners, THEN the Society as a legal entity, CANNOT enforce any liability .OR. Attachment .OR.  Recovery .OR. Auction on the said “nominee”, simply because the “nominee” has no Title-Ownership property in the Society.  The Nominee was simply a “Trustee aka Watchman aka Care Taker” over the deceased members property.  The nominee could just simply vanish into the oblivion, more so since a Nominee could be a local Paan’wala, a local Bhaji’wala, a unknown person, anybody.

o) The Title-Ownership, in the revenue records, would still be in the name of the Deceased-Owner aka member AND the Society just simply CANNOT enforce any liability .OR. Attachment .OR. Recovery .OR.  Auction on the deceased’s property, for any malicious  acts of the Nominee aka watchman.

p) The “nominee” having no tri-party “privity of contract” with the Deceased member and the Society, can just simply & legally “Relinquish” .OR. “Resign” his Trustee-Nominee rights .OR. “Refuse” his nominee rights, without any liability to him, whatsoever, to the exception of various “criminal liability” and prosecutions.

q) FURTHER “after” grant of Society membership, AND after any malicious acts of the Nominee aka watchman, the said “nominee aka watchman” would just simply disappear to his remote gaon (village), since he has no liability whatsoever .OR. he owns no property. Such act of the Nominee, would leave the Society reeling under heavy legal liability AND also further Criminal prosecution by the known /unknown legal heirs /beneficiaries.

r) The Mg.Committee members, individually and severally, would be legally liable for Civil and Criminal prosecutions, for any malicious acts of the Nominee aka watchman.

12. NOMINATION BY JOINT-OWNERS aka JOINT-MEMBERS :

A single Nomination Form executed by Joint-Holders (Members), under Joint-Signatories, is null & void, and legally not enforceable.

a) EACH Joint-Title-Owner must file a separate Nomination Form, for his own share-ratio.

b) IF there are Two Joint-Title-Owner’s (each holding 50% share-ratio /ownership of the property), THEN each Joint-Title-Owner, should file separate Nomination Form, for his own share-ratio.

c) A Nomination Form can be executed fully and NOT partly. Hence “IF” a single Nomination Form is executed by Joint-Holders, THEN the Nomination Form can be executed ONLY after death of “both” Joint-Holders.  IF one of the Joint-Holders expires, THEN the Nomination Form cannot be partly executed.

d) Similarly, single Nomination Form executed by Joint-Holders, CANNOT be changed or refiled, by a “single” Title-Owner (if required).

SOME EXAMPLES, FOR INTROSPECTION :

SCENARIO-1 :  Ram and Sita, are Two Joint Title-Owners, of a Flat.

i. Ram’s holding is 50% of the Flat, Hence Ram can nominate for his ratio of the 50% of the Flat.

ii. Sita’s holding is 50% of the Flat, Hence Sita can nominate for her ratio of the 50% of the Flat.

iii. EACH can nominate to whomsoever they wish (even to you).

iv. First Nomination Form, of Ram, to be recorded, by Society, without any Fees.

v. Second Nomination Form of Sita, to be recorded, by Society, with 100/- per Nomination Form as Nomination Fees.

vi. On death of any one member, the deceased member’s own Nomination Form can be activated, upto the extent of his OWN ratio of the 50% of the Flat, in the SAME sequence appearing on the Share Certificate.

SCENARIO-2 :  Ram and Sita, are Two Joint Title-Owners, of a Flat.

i. Ram & Sita, make joint nomination using ONE Nomination Form, with their joint signatures.

ii. Any one of them expires. Nomination Form CANNOT be activated or made effective.

iii. Both of them have to die, to make the Nomination effective.

iv. IN the event of ANY differences of choice, Nominee can be changed /cancelled BUT ONLY WITH JOINT SIGNATURES.

13. WHEN & HOW CAN SOCIETY CANCEL A NOMINATION FORM :

The Mg.Committee being the lawfully bound Administrative & Management Authority of the Society (under the parameters of Section 73(1) of the MCS Act), may suo-moto (on its own accord) may cancel a Nomination Form, in the following circumstances and manner:

a) IF Nomination form is received from non-bonafide member/s.

b) IF Nomination form is received from a Nominee.

c) IF Nomination form is received AFTER the date of demise of its member (Title-Owner).

d) IF Nomination form is received from non-individuals (means a registered Legal Entity /Juristic person) (REFER point no. 05, above).

NOTE:

1) The Mg.Committee (MC) may simply call a MC meeting vide a proper due Notice with appropriate MC Agenda for the purposes, simply deliberate, simply pass resolution with the consent of majority of the attendee MC members, which should be duly Proposed & Seconded and passed unanimously & recorded.

2) Thereafter make corrections in the Nomination Register under the signature of the Secretary & Society stamp.

3) Thereafter officially write to the concerned person (member) about the null & void Nomination form and the cancellation of the Nomination form, from the Society records.

4) The above action is lawfully legitimate enough u/s 77 of the MCS Act, without any further reference to anybody, including the Coop. Registrar.

14. PURPOSE OF NOMINATION, IN A SOCIETY :

a) Under Section 30 read with Rule 25, the “sole purpose” of making Nomination is to determine the person with whom the Society shall deal with the “share or interest of the DECEASED member in the capital property of a Society”.

b) “Capital Property of a Society“, means the amount of Share money (Rs. 250/- or Rs. 500/- or whatever), as recorded in the Society Share Certificate.

c) “Capital Property of a Society” does NOT mean the “Property /Flat of the Title-Owner aka member”.

d) It also means that the Society has to decide as to who shall be liable for payment of the Society dues etc…. (means liabilities of its registered member), on demise of its member.

NOTE: This has been upheld umpteen number of times by the relevant Courts, via Judicial Judgements.

15. WHAT IS “RE-NOMINATION” :

IRRESPECTIVE of whether the Nominee is a Legal Heir /Beneficiary:

Many times an innocent /ignorant Nominee starts aggressively hallucinating that via (falsely) Transfer of Society’s Membership, the Nominee becomes the “Owner” of the property.  In such circumstances and under the guise /claim of  “Owner” of the property,  the Nominee executes a Nomination Form, for his non-existent Title-Ownership rights.

a) A Nominee filing a Nomination Form is termed as “RE-NOMINATION”. This is illegal.  This is legally not tenable, for any purposes, whatsoever.

b) IF a Nominee further Nominates a Third party (anybody /whosoever is immaterial) THEN it would mean that Nominee is Nominating for somebody else’s property.  This would be a Criminal Breach of Trust by the Nominee to the original deceased owner and his legal heirs. Lawfully such re-nomination by the Nominee shall be Null & Void, ab initio.

c) In the event, EVEN “IF”  RE-Nomination is valid by a Nominee  AND IF the original Nominee now re-nominates a Third party say a local Paan-wala (who is not a legal Heir /Beneficiary),  THEN the heir-at-law rights (under the Hindu Succession Act)  of the legal heir of the original deceased owner is lost forever, which in turn means violations of the provisions of the Hindu Succession Act and other related Personal laws.

d) This also circumvents and are violative of the “Transfer of Property Act”, and the “Stamp Duty Act”, and the “Registration Act”, and the “Income Tax Act”, and the “Succession Act” and the “Benami Transaction Act”.

16. RIGHTS OF NOMINEE “IN A SOCIETY” :

SIMPLY UNDERSTANDING:  As a “Nominee”, the Nominee has NO rights, whatsoever and/or which-so-ever.

a) Nominee CANNOT be a regular member in a Society.

b) Nominee CANNOT be a “primary member” .OR. a “Associate /Joint member” .OR. a “Active member” of the society, BUT the Nominee CAN be only a “Nominal member” of the Society.

c) Nominee CANNOT attend any General Body meetings (AGM /SGM /.. ).

d) Nominee CANNOT become a Mg.Committee member.

e) Nominee CANNOT Propose or Second, any General Body resolutions.

f) Nominee CANNOT Propose or Second, any Mg.Committee resolutions.

g) Nominee CANNOT contest Society elections and/or “Vote” in a Society election, in whatever guise, may it be.

h) Nominee CANNOT “Propose /Second” and nominate any electoral candidate.

i) Nominee CANNOT “Sign” any Redevelopment Agreement of the Society.

17. CAN NOMINEE MAKE A “WILL” OF THE DECEASED’S PROPERTY:

SIMPLY UNDERSTANDING:  As a “Nominee”, the nominee has no legal authority /jurisdiction to make any Will /Nomination of the Deceased’s property, even if the Nominee is a legal heir.

a) ONLY a “Title-Owner”, (as recorded in Revenue Records) can make a Will.

b) Nominee is NEVER a Title-Owner, since his name is not recorded in Revenue Records.

c) Nominee is NEVER a Title-Owner, since the Nominee does not possess any “registered Sale-Deed” in his name.

d) Nominee is SIMPLY a “Trustee /Watchman /Guard /Care-Taker” of the Deceased’s Property. IF the nominee “as a Nominee”, makes a Nomination /Will of the Deceased’s Property THEN it would be a Criminal Offence.

18. RIGHTS OF A NOMINEE (A LEGAL FICTION) :

A Nominee has “NO” rights, “WHATSOVER”,  over the deceased’s property.

a) Nominee as a “nominee” will remain a Nominee, EVEN IF the Nominee is a Legal Heir /Beneficiary, of the Deceased Title-Owner.

b) Nominee has “NO” legal rights to create a WILL .OR. to Sell .OR. to Rent .OR.  to Nominate .OR. to Gift .OR. to Alienate .OR. to Mortgage .OR. to Take Loan .OR. whatever, over the Deceased’s property.  PERIOD.

c) Nominee is just simply a “security guard” delegated /authorized by the Deceased, to act as “care-taker” for the maintenance and upkeep of the property, till proper due procedure of succession is conducted, by the Legal Heirs /Beneficiaries.

d) Nominee, even though is a “Trustee” BUT still CANNOT be classified as a “Authorized Representative”, since a “Authorized Representative”,  can function ONLY if the authority giver is alive.  Since the Title-Owner aka Member is deceased, the authority of the “Authorized Representative”, legally lapses and becomes null & void, for all legal purposes.

e) “IF” the Nominee tries to Sell /Rent / Nominate /Alienate /Take Loan, the Deceased’s property, without conducting “due procedure of law”, THEN the Nominee becomes liable for Criminal prosecution, at the hands of the known /unknown Legal Heirs /Beneficiaries.

f) IF a “nominee” further “re-nominates” anybody, THEN it would mean that Nominee is nominating for somebody else’s property, which would be illegal.

g) Nominee CANNOT claim regular membership of the Society, based on any Nomination Form. However Nominee can claim “Nominal membership” of the Society, by following due procedure of law.

h) Nominee CANNOT appoint “Associate member”.

i) Nominee CANNOT sign any Redevelopment Agreement of any Property, that is Nominated to him (PERIOD).

19. WHAT “MUST” A NOMINEE DO .OR.  NOT DO :

a) Nominee is “ONLY” a holding Trustee (a Care Taker)  for the projected Legal Heirs.  BEYOND THIS NOTHING ELSE.  “ANYBODY” can be nominated, including minors.  The nominations can be legally made in favour of relatives, friends, neighbors, a local paan-wala.  Like-wise it ALSO means that it is not mandatory under the law (as yet), to nominate only the Legal Heirs /Beneficiaries /Successors.

b) Nominee holds the property as a Trustee (caretaker), which is possible only “till” the legal heirs are untraceable.  It is the lawful duty of the Nominee to HOLD ON TO THE PROPERTY  “TILL” BENEFICIARIES (legal heir) ARE LOCATED  AND “WHEN” LOCATED THE NOMINEE HAS TO DULY RELIQUISH THE PROPERTY TO THE LEGAL HEIRS, by following due procedure of law.

c) It also lawfully means, that the Nominee cannot indefinitely continue holding the property, as a Nominee, IF valid legal heirs are traced /available, any day after the nomination. This amounts to Criminal Breach of Trust + Criminal Misrepresentation + Fraud with bias, with an ulterior motive, to usurp the property by not handing over property to the legal heirs of the deceased.

d) A Nominee does not derive any rights to enjoy the rights of the Title-Owner’s property or derive any benefits of the property, for himself, since Nominee is holding the property as a Trustee. As a “nominee” the Nominee CAN NEVER EVER Sell /Rent the nominated property.

e) IF the nominee is not aware of existence of legal heir around him, THEN the Nominee can sell the Deceased’s property ONLY with the permission of Court and subsequently deposit the Sale-Proceeds with the State Govt. Treasury, by following due-procedure-of-law.

f) IF the Nominee is the sole or one of the Legal Heirs, and wishes to obtain Title-Ownership (sale’able rights) of the Deceased’s property, THEN the Nominee has to either obtain “Letter of Administration (LA)” or “Probate” (as may be applicable) from the Testamentary Division of the State High Court, by following due-procedure-of-law.

g) The Nominee “must” legally arrange to Transfer the deceased owners property to the Legal Heirs, by following due procedure of law. IF the Nominee deliberately & maliciously fails to do so, THEN the Nominee deemed’ly & illegally & maliciously usurps the property.

h) It is immaterial IF the Nominee is also one of the legal Heir /Beneficiary. What is legally important is that the Nominee as a Nominee is ONLY & ONLY a Nominee (Trustee /Care Taker) and nothing else.  Here the Nominee as a Nominee NEVER  becomes the “owner” of the Nominated property of the Deceased Owner, even if the Nominee is  one of the legal heir /beneficiary of the Deceased Owner.

i) The Nominee, AT ANY TIME, can simply & legally “Relinquish” .OR. “Resign” his Trustee-Nominee rights .OR. “Refuse” to exercise his Nominee rights, without any legal liability to him, whatsoever.

j) The Nominee in the capacity as a “nominee” NEVER becomes the “successor” of the Nominated property of the Deceased Owner, even if the Nominee is  one of the legal heir /beneficiary of the Deceased Owner.  This is more so specifically, since a Nominee can be a non-legal-heir, such as a local Paan’wala.

20. WHAT IS THE LEGAL DUTY OF A NOMINEE :

a) IF the Title-Ownership property of the deceased is nominated to say “SURESH”, THEN Suresh has to trace the legal heirs /beneficiaries and initiate procedures to transfer /handover the property to the legal heirs /beneficiaries. IF legal heirs /beneficiaries are not traceable, THEN Suresh has to publicly publish notices inviting the legal heirs /beneficiaries of the deceased.  IF no legal heirs /beneficiaries respond to Notice, THEN Suresh is legally bound to handover custody of property to the State Government.  IF Suresh holds on and sells off the property, THEN Suresh can be criminally prosecuted for Breach of Trust and Cheating, by any of the subsequently surfaced known /unknown legitimate legal heirs /beneficiaries.

b) IF Suresh refuses to transfer /handover the property to the legal heirs /beneficiaries THEN Suresh can be criminally prosecuted for Breach of Trust and Cheating, by any of the legal heirs /beneficiaries.

NOTE: Plain paper consent .OR.  Notarized copy of Consent, by legal heirs /beneficiaries, have no legal value.

21. LAWFUL DUTIES & MANDATORY OF A “NOMINEE”, WHO IS A “LEGAL HEIR” :

a) “IF” the Nominee IS a legal heir (means: wife, son, daughter, any other relative …. ) THEN the nominee must put all the “Legal Heirs” of the Deceased person, to proper legal-notice AND AFTER following “due procedure of law”, MUST duly hand over /transfer the deceased’s property to the “Legal Heirs” of the Deceased person.

b) IT shall be illegal and a criminal intention, on part of the Nominee, to keep retaining the deceased’s property, despite knowing the whereabouts of the  “Legal Heirs” of the Deceased person.

c) By NOT performing the lawful duty, the Nominee is deemed to have usurped the deceased’s property, irrespective of and even if the nominee is also one of the legal heir /beneficiary.

22. LAWFUL & MANDATORY DUTIES OF A “NOMINEE”, WHO IS “NOT” A “LEGAL HEIR” :

a) “IF” the Nominee is NOT a legal heir (means: a local Paan’wala, Chai’wala …. ) THEN the nominee must trace the “Legal Heirs” of the Deceased person AND AFTER following “due procedure of law”, MUST duly hand over /transfer the deceased’s property to the “Legal Heirs” of the Deceased person.

b) IT shall be illegal and a criminal intention, on part of the Nominee, to keep retaining the deceased’s property, despite knowing the whereabouts of the  “Legal Heirs” of the Deceased person.

c) By NOT performing the lawful duty, the Nominee is deemed to have usurped the deceased’s property, irrespective of and even if the nominee is also one of the legal heir /beneficiary.

23. WHAT SHOULD A “NOMINEE” (aka Legal Heir) DO “IF” THE DECEASED OWNER-MEMBER HAS “ALSO” LEFT A WILL FAVOURING THE “NOMINEE” (aka Legal Heir) :

In case IF the Deceased Owner-Member has “ALSO” left a “WILL” (testamentary document), in favour of the Nominee, THEN the Nominee should conduct the following procedure :

a) Nominee must .NOT. apply to the Society, for transfer of Society Membership, on basis of the “Nomination Form”, that “was” executed by the Deceased Owner-Member.

b) IF the Nominee applies for transfer of Society Membership, on basis of the “Nomination Form”, THEN the Society is legally bound to grant “ONLY” “Nominal Membership” to the Nominee.  Such Nominee aka Nominal member, has no rights, whatsoever, in the Society, as if of a regular member.

c) The Nominee aka Legal Heir, must duly apply for “Probate” of the will (or for a “Letter of Administration” [as applicable] ), before the State High Court (Testamentary Division).

NOTE:  “Probate” of the will, is .NOT. mandatory, IF the immovable property is “outside” the jurisdiction limit of Bombay, Calcutta, Madras.

d) Based on the above “Probate” of the Will (or “Letter of Administration” ), the Nominee “MUST” apply for Membership of Society, by enclosing the Notary-Certified copy of the Will and the “Probate” of the will (or “Letter of Administration” ) plus Model Bye-Law prescribed Membership Transfer Forms (Form no. 4 & 23) plus 500/- as Membership Transfer Fee plus 100/- as Membership Entrance Fee. (PERIOD).

e) Based on above, the Society is “legally” bound to affect Transfer of Membership (which includes any & all membership rights) and make necessary endorsements in the “I” & “J” and “Share Register” and other Records and Registers, AFTER following “due procedure of law”. (PERIOD).

f) CONSEQUENT to above, the Nominee aka Legal Heir, should declare the Transfer of Property, in his Income Tax returns, for any & all legitimate purposes and further to claim benefits, as prescribed under the various Taxation laws.

g) CONSEQUENT to above, the Nominee aka Legal Heir, CAN now legally exercise all rights as a Member of the Society and further Sell /Gift /Transfer /Nominate /Will the Property, in favour of ANYBODY, without any further reference to any person.

h) ALL the above is possible ONLY if the Nominee obtains a “Probate” of the will (or “Letter of Administration” [as applicable] )

i) ALL the above is NOT possible if the Nominee claims ANYTHNG, based on a “Nomination Form”, executed by the deceased owner-member.

24. SHOULD A THIRD-PARTY BUY A DECEASED’S PROPERTY FROM A NOMINEE :

NO and NEVER.

a) IF a Third-Party purchases a Deceased’s property from a Nominee, THEN it will be fraught with faulty and non-saleable Title-Ownership.

b) The Third-Party (property purchaser) shall always be liable for legal disputes relating to the property, to the Legal Heirs /Beneficiaries.

c) The Third-Party (property purchaser) shall always find it difficult to raise Loan or Mortgage the said deceased’s property .OR.  to find new buyers of the property.

25. CAN NOMINEE SELL THE PROPERTY OF THE DECEASED OWNER :

Nominee is not the Title-Owner, hence Nominee CANNOT sell the property of the Deceased Owner.

a) ONLY a “Title-Owner”, (as recorded in Revenue Records) can SELL his Property.

b) Nominee is “ONLY & ONLY” a Trustee /Caretaker, of the deceased’s property.

c) Nominee is not a “Title-Owner”, hence CANNOT execute any Sale Deed.

d) IF Nominee makes a Sale-Deed of the deceased’s property, THEN the nominee can be criminally prosecuted for Cheating & Misrepresentation, even if the Nominee is one of the Legal Heir /Beneficiary.

26. IS THERE ANY OTHER WAY WHERE THE NOMINEE MAY SELL DECEASED’S PROPERTY :

YES.  This can be legally possible, IF the “nominee” is a blood-relation or a relation as defined under Class-I of the Hindu Succession Act, THEN the “nominee” can sell the Deceased’s Property, BUT SUBJECT TO THE FOLLOWING:

a) Making a “Family Settlement Deed” with appropriate strategic clauses, and taking signatures of “ALL” the legal heirs of the Deceased, before the area Registrar of Sub-Assurances. This procedure attains “Legal Finality” and becomes legally non-disputable.

b) The “Family Settlement Deed” MUST mandatorily be duly registered with the area Registrar of Sub-Assurances, AFTER payment of the relevant applicable Stamp Duty.

c) An Non-Registered “Family Settlement Deed”, is lawfully good for nothing.

d) Based on this Registered “Family Settlement Deed”, the deceased’s property can consequently be legally sold /gifted /transferred to anybody.

27. IS THERE “YET” ANY OTHER WAY WHERE NOMINEE MAY SELL DECEASED’S PROPERTY:

The Nominee may sell the Deceased’s Property with mutual consent of the legal heirs of the Deceased.

a) IF the “nominee” is a NOT a blood-relation or a relation as defined under Class-I of the Hindu Succession Act, EVEN THEN the “nominee” can sell the Deceased’s Property, BUT SUBJECT TO THE FOLLOWING:

b) Making a “Sale-Deed” with appropriate & strategic clauses, and taking signatures of “ALL” the legal heirs of the Deceased, before the area Registrar of Sub-Assurances. This procedure attains “Legal Finality” and becomes legally non-disputable.

c) The “Sale-Deed” MUST mandatorily be duly registered with the area Registrar of Sub-Assurances, AFTER payment of the relevant applicable Stamp Duty.

d) An Non-Registered “Sale-Deed”, is lawfully good for nothing.

28. CAN NOMINEE MAKE FURTHER “NOMINATION” OF THE DECEASED’S PROPERTY:

A Nominee CANNOT further make Nomination of the Deceased’s Property, in any manner.

a) ONLY a “Title-Owner”, (as recorded in Revenue Records) can make a Nomination.

b) Nominee is “ONLY & ONLY” a Security Guard of the deceased’s property.

c) Nominee is not a “Title-Owner”, hence CANNOT execute any Nomination document.

d) IF Nominee makes further Nomination of the deceased’s property, THEN the nominee can be criminally prosecuted for Cheating & Misrepresentation & Breach of Trust, at the hands of known /unknown legal heirs.

29. CAN NOMINEE MAKE “GIFT DEED” OF THE DECEASED’S PROPERTY :

Nominee is only a Trustee /Caretaker of the deceased’s property and CANNOT make Gift deed of the deceased’s property.

a) ONLY a “Title-Owner”, (as recorded in Revenue Records) can make a Gift Deed.

b) Nominee is “ONLY & ONLY” a Security Guard of the deceased’s property.

c) Nominee is not a “Title-Owner”, hence CANNOT execute any Gift Deed.

d) IF Nominee makes a Gift Deed of the deceased’s property, THEN the nominee can be criminally prosecuted for Cheating & Misrepresentation & Breach of Trust, at the hands of known /unknown legal heirs.

30. CAN NOMINEE RENT or LEASE THE DECEASED’S PROPERTY :

Nominee not being the Owner of the Deceased’s property CANNOT execute any Rent /Lease deed of the Deceased’s Property.

a) ONLY a “Title-Owner”, (as recorded in Revenue Records) can execute a Rent /Lease Deed.

b) Nominee is “ONLY & ONLY” a Security Guard of the deceased’s property.

c) Nominee is not a “Title-Owner”, hence CANNOT execute any Rent /Lease Deed.

d) IF Nominee makes a Rent /Lease Deed of the deceased’s property, THEN the nominee can be criminally prosecuted for Cheating & Misrepresentation & Breach of Trust, at the hands of known /unknown legal heirs.

31. IS THERE ANY OTHER WAY WHERE THE NOMINEE MAY RENT or LEASE THE DECEASED’S PROPERTY :

YES.  It is possible, subject to the following:

a) The Nominee “MAY” Rent or Lease the Deceased’s Property, by taking a proper registered “Power of Attorney”, of the Legal Heirs /Beneficiaries of the Deceased.

b) However the Nominee derives NO legal right to use the Rent or Lease amount for himself. The Rent or Lease amount should be duly handed over .OR. accounted to the Legal Heirs /Beneficiaries of the Deceased.

c) IF the Nominee uses the Rent or Lease amount for himself, THEN it would amount to usurping the said Rent or Lease amount, even if the nominee is also one of the legal heir /beneficiary.

d) A Nominee may also Rent /Lease the deceased’s Property, AFTER taking signatures of all the legal heirs of the Deceased, on the said Rent or Lease Deed, before the local Registrar of Sub-Assurances.

32. IS NOMINEE A “CONSTITUTED ATTORNEY” .OR. A “POWER-OF-ATTORNEY” HOLDER  .OR.  “AUTHORISED REPRESENTATIVE” OF THE DECEASED:

a) Nominee is “ONLY & ONLY” a nominated “Trustee /Care-Taker”, of the deceased’s property.

b) Nominee could be a “Power of Attorney (POA)” holder. However this POA would automatically, by legal default,  becomes invalid (null & void) immediately on demise of the POA-maker (deceased owner).

c) EVEN “IF” the Nominee had any POA in his favor, THEN the POA would legally lapse and would become infructuous, immediately AFTER the demise of the POA-maker. Hence a Nominee can NEVER exercise any right as a “constituted attorney” .or. a POA holder of the Deceased.

d) The authority of the “Authorized Representative” (AR) would legally lapse and would become infructuous, immediately AFTER the demise of the AR-giver.  Hence a Nominee can NEVER exercise any right as a “Authorized Representative” of the Deceased.

33. TAXATION :

A Nominee who clandestinely sells off the Deceased property, becomes liable to pay Income Tax at full value of the Property, more so since :

a) Flat sold by Nominee holder is firstly “illegal & unauthorized” and without any documentary Title-Rights,

b) Nomination Document is NOT any kind of Will /Testamentary document or a Court Decree,

c) Nomination Document is NOT any kind of Deed (Sale /Gift /Settlement /Transfer /whatsoever),

d) The Nominee is only a Trustee, Care-Taker, of the Deceased’s property,

e) The Nominee is NOT entitled to sell the property, as he does not inherit the Deceased Property, under any Testamentary document or a Court Decree,

f) The Nominee has received the Sale-Proceeds without any purchase price indexation.

i) The Nominee also becomes liable under the Benami Transactions Act, subject to various parameters.

34. HOW TO DETERMINE A “TITLE-OWNER” :

Clear Title-Ownership of a Immovable Property,  is lawfully decided ONLY on the basis of :

a) Duly registered Title-Ownership Deed (Sale Deed /Gift Deed), OR

b) Court Decree, OR

c) Duly probated “WILL” (Testamentary document), OR

d) Letter of Administration (LA) issued by the Testamentary division of the State High Court or any other eligible jurisdiction Court.

e) Adverse Possession of ANY number of years, does not give Title-Ownership of a Immovable Property, in any manner, whatsoever. In “adverse possession”, the “Title-Ownership” will perpetually remain defective, and can be rectified, ONLY by due procedure of law.

NOTE: A Non-Registered immovable-property agreement /document has no legally enforceable value and is null & void, for any & all purposes.

35. GENERAL RELATED POINTS :

1) A Title-Owner of immovable /movable property may Nominate “ANY” (Legal heir /Known /Unknown /who-so-ever) person, ANY TIME (including modifying Nominations several times), during his life-time, without any restrictions and without any reference to other family members.

2) IMMOVABLE Property means Land, Flat, Building, Well, Hill and so on ….

3) MOVABLE Property means Share Certificate, Dmat a/c, Bank a/c, Mutual Fund, Jewelry, Cash, Antiques, and so on ….

4) All Companies /Society’s /Associations /Holding Co’s, /Mutual Fund /Banks /Post Offices and so on …. ARE MANDATORILY BOUND BY LAW, TO RECORD REGISTRATION OF “Nomination” (New, Modified or whatever), in their records, AT ANY TIME.  This cannot be refused.  “IF” refused,  THEN would in turn mean punishable for “Criminal Breach of Trust”.

5) A “WILL” (Testamentary document) “IF”  duly registered safeguards the Legal Heir /Beneficiaries of the Will-Maker.  This ultimately proves to be a Title-Deed for CLEAR “Title-Ownership”, for the immovable /movable property, at the hands of the Legal Heir /Beneficiaries.  A WILL may be duly  executed & registered, anywhere in India or Abroad, for any property, in any location, in India.  A Registered WILL  lawfully, “supersedes”  Nomination Form/s,  in all respects.

6) Nomination is a “Legal Fiction” and sort of a “legal consolation”, having literally “no legal value”, as far as “immovable property” is concerned. Hence nomination for “immovable property” is legally infructuous AND can easily be refused to be legally honored, by any authority.

7) Nomination Facility is usually abused by “free booters” and multiple “patiala /ambala” peg drinkers.

8) Nomination Facility is usually relied by those Innocent Ignorants AND Apathetic holy cows, who do not have the iron in them to get up and get a Will prepared and have it Registered, forcing & leaving the Legal Heir /Beneficiaries to miserably squabble and bicker endlessly, thus leading the family relations, down the sewage drain.

9) A “LAST” Registered Will, is a supreme document and supersedes all other documents (including all  Pre & Post Nomination), irrespective of whatever and has to be mandatorily honored, legally, from view point of courts of law.    A “Registered Will” has to be mandatorily PROBATED, for immovable properties located inside Three Metropolitan cities (Presidency Towns: Bombay, Madras & Calcutta).  For other locations, a “Registered Will” need not be probated, and must be mandatorily be honored, “SUBJECT” to there being no documentary dispute between the Legal Heir /Beneficiaries.

10) ANY “unregistered will” prepared AFTER the DATE of a “Registered Will”,  shall legally remain null & void, in courts of law, for “any or all” purposes, BUT subject to various “IF’s  & BUT’s” parameters.   A “Registered Will”,  can be superseded ONLY & ONLY  “AFTER” a duly executed NEW “Registered Will” is registered, with any “constitutional authority”.

11) A last “WILL” can be registered before the “constitutional authority” (means the Registrar of Sub-Assurances /Consulate) AFTER due procedures.  This authority and procedure is legally FINAL FOR ALL PURPOSES, thereby truncating out literally all challenges to the Will.

12) An “unregistered” WILL, can be “manufactured and/or fabricated” anytime and multiple times, and has limited .OR.  literally no legal value, in times of disputes at the hands of the legal heirs /beneficiaries.

13) For Apathetic people /Very Senior citizens, a “WILL” can be registered at the comfort of his own  death-bed (home /hospital /hotel /), by summoning the Registrar of Sub-Assurances) AFTER due procedures and payment of the relevant fees.

14) A Nominee is only a custodian (Trustee /Care-Taker /Watch-Dog) of a Nominated property and shall never have Title-Ownership of the immovable property. Hence Nominee is lawfully NOT entitled to Sell /Rent /Mortgage /whatever,  any immovable property.  FURTHER a nominee is lawfully NOT entitled to further nominate a immovable property.  It is the legal duty of a Nominee to arrange to transfer the Nominated property, under proper legal procedures, to the legal heirs /beneficiaries of the deceased, failure of which a Nominee can be successfully prosecuted for offences like Criminal Breach of Trust, Cheating and so on ….

36. PREMATURE & HALLUCINATED RIGHTS OF NOMINATION:

Some people are under the false notion /arguments, that the Courts have decided that Nominee is the Owner of the Deceased’s property.  HOWEVER, in matter of CIVIL APPEAL No.4646 OF 2006   (Supreme Court) (INDRANI WAHI vs REGISTRAR OF COOP. SOCIETIES), it was held that Nominee can have legally enforceable “right of Possession” of the Deceased’s property.

a) The abovementioned Judgement, is applicable “ONLY & ONLY” for issue specifically under the “West Bengal Cooperative Societies Act”, which has a specific provision built-in, as recorded in the said Judgement.

b) Here too the said judgement DOES NOT give absolute Title-Ownership Rights to the Nominee BUT only Property possession, with liberty to the Legal Heirs to activate the Succession laws, to claim Title of the property.

c) The judgement is NOT applicable for/under the Maharashtra Coop. Societies Act.

CONCLUSION:

Executing Nomination Form/s, in Coop. Societies are of no legal help, as far as passing on of Title-Ownership of the Deceased’s Property, to ANYBODY, whosoever.

AUTHOR: Hemant Agarwal, Email: [email protected]

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Disclaimer: The contents of this article are for information purposes only and do not constitute an advice or a legal opinion and are personal views of the author. It is based upon relevant law and/or facts available at that point of time and prepared with due accuracy & reliability. Readers are requested to check and refer relevant provisions of statute, latest judicial pronouncements, circulars, clarifications etc before acting on the basis of the above write up.  The possibility of other views on the subject matter cannot be ruled out. By the use of the said information, you agree that Author / TaxGuru is not responsible or liable in any manner for the authenticity, accuracy, completeness, errors or any kind of omissions in this piece of information for any action taken thereof. This is not any kind of advertisement or solicitation of work by a professional.