Girish Raj
Thank you for your reply. I just wanted to clarify. I am the first name on the share certificate, 2nd was my wife and third is my son. Previously the certificate had only my son and me on it. I added my wife’s name before him on the share certificate list.
Before my wife passed away, I made sure my wife nominated both US citizen daughters for her share and I am looking to do the same for my share so they can have controlling rights on the property.
I want to avoid the situation where my son can sell away the property, My daughters have promised me they will keep the family property forever.
Please advise, if my son who is Indian citizen can cause any issue down the line by objecting to the same. I want to avoid any disputes on the property in future.
Thank you,
I C Naik
Let me put facts sequentially
- You bought the flat and made your son an Associate Member ( ` 100/- Costing).
- Added Wife as first Associate (` 100/ Costing) and Son moved to third position
- Wife nominated two daughters (for what? She had no share in the Property)
- Wife passed way.
So now You are original member and a flat owner(100%). And Your Son Associate. Nominations of daughters has no significance (if your wife had a share in the Flat, they can be made Associate right away.)
YOUR OBJECTIVE:
Your Daughters (based in US) can fulfill a promise given to you that Property is never sold and remains a family property FOR EVER ( i.e. as long as any descent of your three children is living, I guess). You apprehend after your death, your son should not be able to dislodge the promise your daughters gave to you. This is the worry of all flat holders in the cooperative housing society.
So your strategy is to make an arrangement such that, your son should not inherit sole rights to deal with property singly. Under Hindu Succession law all children have equal rights to parent’s property irrespective of gender. So it is assured in nay case. Son has to make the sale under a false affidavit on that he is the sole owner and property had no claimants. You don’t want to take chances and want society management to help your daughters to keep their promise to you.
Membership right includes right to appoint a nominee and Section 30(4) of the M C S Act 1960 insulates management to any hassles of going in to the claim (by any legal successor) to property if it is transferred to a nominee. As per courts such nominee is a trustee of the legal heirs of the deceased member. The Claimants have to sort out in a court of law with no help from the M C S Act 1960.
Nomination process prescribed under the M C S Act 1960 and the M.C.S. Rules 1961 does not recognize member filing a Will on the records of the Society. You can nevertheless make a Will, register it with the Registrar of Property Registration and attach a copy with a fresh nomination with three children having equal rights and Son as the first nominee.
In the Will you can also Provide for a mandate that you son shall make two daughters as Associate members of the Society. It is not that this procedure is a MUST. It is to reduce hassles of your daughters and to make your son aware and conscious of your desire which he is bound to abide by under any circumstances.
Of course your son will occupy the flat for life or if he were to sub-let it the income will accrue to all three. This can be also mentioned in the Will. You can go extra mile and provide that the occupant of the flat shall pay a certain sum to the two by credit to in their bank account India.
This will establish roots of your daughters in India and family binding will be strengthened. he flat transferred in your name as a legal successor. Society should not have any objection as it is better for the management. After that Nominate three of them with equal share and also write a will in their favour. Many possibilities. Have a word with Secretary/Chairman on these lines.
