The Maharashtra Apartment Ownership Act, 1970 was enacted to provide for “the ownership of an individual apartment in a building and to make such apartment heritable and transferable property.’ Unlike the Maharashtra Co-operative Societies Act, 1960 that provides for nomination, the Maharashtra Apartment Ownership Act, 1970 (“the Act”) and the rules framed thereunder do not provide for nomination. A question that naturally arises is what happens to the apartment on the demise of the apartment owner.
Section 4 of the Maharashtra Apartment Ownership Act, 1970 states that an apartment owner may transfer his apartment together with the percentage of undivided interest in the common areas and facilities appurtenant to such apartment by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever or by way of bequest (Will).
Exhibit B of the Maharashtra Apartment Ownership Rules, 1972 sets out the model bye-laws. Clause 3 of Model Bye-Law 5 reads as under –
“3. On the death of an apartment owner, his apartment shall be transferred to the person or persons to whom he bequeaths the same by his will, or to the legal representatives of his estate, in case he has not made any specific bequest of the apartment. The name of the legatee or the names of the legal representatives jointly shall be entered in the register of apartment owners maintained by the Secretary for the purposes of administration of the _____ Condominium as apartment owner or joint apartment owners. When any legatee is a minor, the apartment owner shall be entitled to appoint a guardian of such minor.”
From a conjoint reading of Section 4 and Model Bye-Law 5, what emerges is that an apartment owner may either gift his apartment in his lifetime or make a Will bequeathing his apartment. In the absence of a gift or Will, the apartment shall devolve upon the legal representative(s) of the apartment owner on his demise.
It would not be out of place to mention that the courts have consistently held that nominees are merely trustees and hold the property in their capacity as trustees till such time as the legal heirs are determined. By providing for gifts, bequests (Wills) and in the absence of gifts and bequests, transfer of the apartment in favour of the legal representatives of the apartment owner, the Maharashtra Apartment Ownership Act, 1970 has provided for all legally recognised modes of transfer/transmission and taken away the scope for ambiguity created by nominations.
Author Bio
