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The column Legal Counsel appears in The Times of India's Property Plus Supplement.
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A Minor Has A Right To Admission In A Society
A member of our society sold his flat to a family of four on March 6th 2012 by entering into a legal agreement and completing all the legal formalities. The family purchasing the flat comprises four members. A - the father who is 39 years, B – the mother 36 years, C - daughter 13 years and D the 2nd daughter who’s seven years old. Flat is purchased in the names of two minor daughters C & D through Natural Guardians A father & B mother.
a) Natural guardian has submitted an application along with other society papers to transfer the share certificate in the names of these two minor children
b) There is no photo or the signatures of the minor children’s in the agreement papers.
c) As per the available oral information (from the relatives) there is divorce litigation among the natural guardians in the family court.
d) Society had issued the NOC to the seller to sell the flat to ‘A’.

Our queries are:
i) Whether the Management Committee of the Society can transfer the shares in the name of the Minor Daughter’s C & D?
ii) If so what are the documents other than those mentioned in the Model By laws are to be demanded from the Natural guardians A & B?
iii) Whether it is necessary to take Indemnity & undertaking from the NG, A & B?
iv) Can we transfer the share certificate in the names of these two minor daughters,
What are the other additional precautions, documents, the MC of the society has to take. 
- V. T. Kshirsagar

Bye-law No 17 clearly lays down the rules for eligibility of individuals for membership of the society:
a) No individual shall be admitted as a member of a society except for the following that is to say –

(1) Who is competent to contract under Indian Contract Act, 1872; So, for all practical purposes, a minor being unable to contract under the law can be represented by a legal guardian or legal representative.

The law however lays down the mode by which where eligibility of a minor or a person of unsound mind for membership of the society is concerned in subsection b)

b) A minor or a person of unsound mind, inheriting shares and/or interest of the deceased member in the capital/property of the society, or if the nominated may be eligible for admission to membership of the society through his guardian or legal representative on an application in the prescribed form, along with undertakings/declarations, in the prescribed forms, mentioned in the application.

Apart from the usual paperwork as laid down in the byelaws, the society could protect its interest by procuring an indemnity bond by the natural guardians, indemnifying the society against any losses suffered through contention or litigation in this regard. Also, an affidavit detailing their claims of representing the minors’ interest till their age of majority and processing all paperwork through legal means could be in place.

The admission of the minors through their natural guardians through the procedure as laid down by the model bye laws should also be endorsed in the next general body meeting of the society.



Documents Needed To Effect Transfer Of Flat
My father had purchased a flat in Ghatkopar in 2003 but as the society had not been formed then, no nomination was made. My father passed away in 2006. A will was made in the few days before he passed away. What is the procedure due to be completed for the transfer of the flat with due regard to his will and in the absence of a nomination?
- Name Withheld

In these cases, it is preferable to draft a will stating his wishes and registering it. In these cases, either party can do without paying stamp duty. The benefit of the flat passes on to the heir who may be a beneficiary only after the demise of the person making the will. After the demise of any member, his\her legal heir or heirs who want to have the flat transferred in their name should submit some relevant documents to the society so that it can transfer the flat from the name of the deceased member to the name of his heir.

Before beginning the procedure, the heirs should find out whether the deceased member has filed a nomination. In cases of no nominations, the applicant should issue a public notice in two local newspapers at his own expense.

Only after doing so, an applicant should start the proceedings to transfer the flat in his / her name.
The applicant should submit the following documents to the society:
(a) Along with an entrance fee, an application for membership in the prescribed form;
(b) A certified true copy of the deceased member’s death certificate.
(c) The original share certificate.
(d) An undertaking from the applicant that s/he will use flats only for the purpose for which it has been allotted and no further change of user will be made unless he procures a writer permission of the managing committee.
(e) An indemnity bond claiming to indemnifying the Society and its office bearers against any claim / suit or other legal proceeding by any other lawful and equitable heir/heirs of the deceased member of the society.

It is permissible in these cases for a society to insist on a list of legal heirs as well as an affidavit from the applicant which states that other legal heirs do not object to the transfer of the flat in the name of the applicant.



Investigate Title, Property Clearances Before Investing
I’m from Delhi and am looking to buy a house in Mumbai. While, at first, I was looking for a purchase directly from the builder but am even open to resale properties. What do I do to ensure that the project has the requisite clearances from the BMC?
- Rajiv Khanna

For a potential home-owner, buying a home is an all-important decision. A lot of effort, hard work, sacrifices and hope go into a family’s dream of buying a new home. But all of this can go for nought if you are unlucky enough to come across unscrupulous builders, sellers and agents. This is why all prospective buyers need to be quite cautious when it comes to purchasing property.

For instance, when buying a flat directly from the builder, buyers should first ensure that the builder has the necessary permission from the BMC to build a structure in the said location. You should also make sure that he has obtained the occupation certificate from the BMC. If possible arrange for a certificate from the builder that clearly states that he has been authorised to construct on the said piece of land by the person who legally owns the land.

Prospective buyers will save themselves a lot of trouble in the future if they ensure that the title of the property with the seller is clear and marketable and the builder has authority to sell the premises.
Relevant IOD copies should be checked before buying any flat. Purchasers should properly investigate the property and make sure that it is not located in the Collector’s Land i.e. B-I category which requires the permission of the collector before construction.

Prospective buyers can help protect their interests better if they take help of professionals who specialise in dealing with property-related matters such as lawyers.

When dealing with property related matters, you should be aware that the stakes are always high. Get a Title Clearance Certificate from an advocate before proceeding with the buying transaction.



Can’t Stop Essential Service Without Cause
Can a society withdraw power supply to a defaulter’s premises by itself?
- Saurin Ved

No person, who is a promoter or a management in-charge or connected with the management of a block or building of flats, whether as member of a managing committee, director, secretary or otherwise or is responsible for the maintenance thereof (hereinafter this section referred to as “the manager”), shall, without just and sufficient cause, either by himself or through any person, cut off, withhold, or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken or agreed to be taken by him. The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provision of sub-section (1), make an application to the Court for a direction to restore such supply or service.

On enquiry, if the Court finds the application or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without “just and sufficient cause,” the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.

The manager who fails to restore the supply or service before the date so specified shall, for each day during which the default continues thereafter, be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees. Any manager who contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months, or with fine or with both. The offence under sub-section (6) shall be cognisable, and shall not be triable by any Court inferior to that of a (Metropolitan Magistrate, or a Judicial Magistrate of the First Class.

For the purpose of this section, essential supply or service includes the supply of water, electricity, lights in passages and on staircases and lifts and conservancy or sanitary service.



Contempt Is Punishable
Can any person commit contempt of court, particularly so of a cooperative court, and what is the punishment for it?
- Ram S

According the Maharashtra Cooperative Societies Act 1960 and Rules 1961, if any person:
(a) When ordered by a Cooperative Court or the Cooperative Appellate Court to produce or deliver any document or to furnish information being legally bound to do so, intentionally omits to do so; or

(b) When required by any such court to bind himself by an oath or affirmation to state the truth, refuses to do so; or

(c) Being legally bound to state the truth on any subject to any such court, refuses to answer any such question that is demanded of him that touches the subject by the court; or

(d) Intentionally offers any insult or causes any interruption to any such court at any such stage of its judicial proceeding:

He shall, on conviction, be punished with imprisonment for a term, which may extend to six months, or with a fine which may extend to Rs,1,000, or with both.

2) If any person refuses to sign any statement made by him, when required to do so by a Cooperative Court or the Cooperative Appellate Court, he shall, on conviction, be punished with imprisonment for a term, which may extend to three months, or with fine, which may extend to Rs.500, or with both.

3) If any offence under sub-section (1) and (2) is committed in the view or presence of a court concerned, the said court may, after recording the facts constituting the offence and the statement of the accused as provided in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having the jurisdiction to try the same, and may require security to be given or the appearance of the accused person before such Magistrate or, if sufficient security is not given, shall forward such person in custody to such Magistrate. The Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused person in the manner provided in the Code of Criminal Procedure, 1973.

4) If any person commits any act or publishes any writing which is calculated to improperly influence a Cooperative Court or the Cooperative Appellate Court to bring any such court or a member thereof into disrepute or contempt or to lower its or his authority, or to interfere with the lawful process of the said authorities, such person shall be deemed to be guilty of contempt of the said authorities.

5) In the case of contempt of itself, the Cooperative Appellate Court shall record the facts constituting such contempt, and make a report in that behalf to the High Court.

6) In the case of contempt of a Cooperative Court, the Cooperative Court shall record the facts of such contempt, and make a report in that behalf to the Cooperative Appellate Court, and thereupon, that court may, if it considers it expedient to do so, forward the report to the High Court.

7) When any intimation or report in respect of any contempt is received by the High Court under sub-section (5) and (6), the High Court shall deal with such contempt as if it were contempt of itself, and shall have and exercise in respect of it the same jurisdiction, powers and authority in accordance with the same procedure and practise as it has and exercises in respect of contempt of itself.



Easy For Flat-Owners To Form Own CHS
How can flat purchasers initiate a procedure to form a Cooperative Housing Society? How much is the builder involved in the process?
- Amit Joglekar

Very often many flat purchasers don’t receive any cooperation from their respective builders to help them begin the procedures towards the formation of a registered cooperative housing society. In such situations, flat purchasers should take the initiative and initiate procedures to form a cooperative housing society themselves.

Before submitting a registration proposal without any cooperation from the builder, flat purchasers should first draft a letter to the builder indicating their intention to form a cooperative housing society.

A copy of such a letter should also be addressed to the Deputy or Assistant Registrar of Cooperative Societies of the Ward where such a building is located.

The copy should include a request to call upon the concerned builder to furbish an explanation regarding his failure to comply with the provisions of the Maharashtra Ownership Flat Act, (MOFA) 1963.

The chief promoter then has to submit a number of documents, statements, undertakings etc., along with the registration proposal. The registration authority should be satisfied:

a) The proposed society has complied with the provisions of the Maharashtra Cooperative Societies Act, 1960, the Maharashtra Cooperative Societies Rules, 1961 and any other laws that are in force for the time being;

b) The proposed society has complied with the policy directions issued by the state government under section 4;

c) The bye-laws being proposed are not contrary to the Act or Rules.

Once the proposal procedures are complete and the registration authorities are satisfied, the registering officer is under an obligation under section 59(1) of the MOFA to register such proposed societies within two months of the lodging of the application with the registering authority. If the registration is not completed within two months, then within fifteen days from the expiration of the time limit, the registration authority is under an obligation to forward the proposal for registration to the government for further action.