Can Society insist on Succession Certificate for Transfer and Sale of a Flat and Share Certificate attached thereto?

Can Society insist on Succession Certificate for Transfer and Sale of a Flat and Share Certificate attached thereto?

Is it mandatory for the daughters of Hindu deceased died intestate to obtain Succession Certificate?

Ans: Negative

  • What is the status of nominee who is now member of the Society in absence of Succession Certificate?

Ans: Legal Heir and Property vest in them immediately on death of testator.

The facts:

  1. One deceased  was Hindu Female and member of Co-operative Housing Society Limited, situate in Mumbai. The said deceased was holding Share Certificate alongwith 5 fully paid up shares and pursuant thereto she was allotted Flat in the said Society. The said deceased had filed Form of Nomination under Rule 25 of the Maharashtra Co-operative Societies Rules 1961, whereby the said deceased nominated 4 daughters as her nominee as per the share of each nominee percentage described in the said Form filed with the Society.

  • The said nomination was registered by the Society. The said Member died leaving behind 4 daughters as the only heirs and legal representatives. The daughters after the demise of the said member being their mother jointly applied to the Society to enter their names as members. As per the directions of the Society, the heirs and legal representatives invited adverse claim by giving Public Notice and  Advocate issued a legal opinion for transfer of flat to the nominees and opined that since there is no adverse claim on the shares, the same can be transmitted and transferred to the legal heirs of the deceased. In the meantime, subject to opinion the Society transferred the said Share Certificate. The nominees also executed Indemnity cum Declaration Bond to the Society. Hence, all the legal formalities for transfer of the said Share Certificate in the name of the nominee was complied in accordance with law. Thereafter, as the daughters became regular members of the Society they gave notice to the Society for sale of the said Share Certificate giving first preference of purchase to the current existing members. One of the existing members agreed to purchase the said flat. However, the Society insisted on obtaining Succession Certificate. The question now arise is whether in absence of Will of a Hindu deceased is it mandatory for Hindu daughters to obtain Letters of Administration or Succession Certificate.

  • Writer would like to draw your attention to the legal provisions of Indian Succession Act Part VIII under Chapter heading ‘Representative title to property of deceased on succession’. Sections 211 and 212 of the Indian Succession Act 1925 thus, read as under:-

“211.  Character and property of executor or administrator as such. – (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2)      When the deceased was a Hindu, Muhammadan, Buddhist, [Sikh, Jaina or Parsi] or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise or administrator any property of the deceased person which would otherwise have passed the survivorship to some other person.

212.    Right to intestate’s property. – (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.

(2)      This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi]”

  • We now explain the said provision with the assistance of various judgments of the Hon’ble Court of India. In Adarsh Rattan and others Vs State Bank of India reported in 1987(2) ALL IBLJ 363. Quoting the said provisions of law, the Punjab and Haryana High Court relying upon the Judgment in Ashutosh Ghosh Vs Pratapchandra Banerjee reported in (1937) ILR 1 Cal. 433 recorded in paragraph No.14 that the Estate of the Hindu deceased could not be given to his heir without obtaining Letters of Administration. That was the case in which a Hindu had purchased a policy of insurance there was a specific term therein that the person or persons to whom the sums assured are payable are his executors, administrators or assigns. The heirs were neither administrators nor the executors nor the assigns. In this context the Calcutta High Court ruled that there was no jurisdiction for reading the work “Administrator” in the policies as including those who are relieved of the necessity of taking out Letters of Administration by reason of provision of Section 212. In paragraph No.16 of the said Judgment, His Lordship directed to furnish Indemnity Bond and observed that “one does not have to coin unnecessary reasons for denying the heirs the estate of their parents”.

  • In 1968 BCI 38, Special Land Acquisition Officer Vs Natwarlal Jamnadas Moni, it is observed that succession does not remain in abeyance, no sooner testator dies his heirs or rather his sole heir became at once entitled to his / her property. The title devolves on the heirs no sooner in the present case, the mother died, but since the deceased was a Hindu no such representation is necessary in view of Section 212. In this case, Bombay High Court went ahead to opine that “As, in my opinion, Natverlal, became of the death of Jamnadas having occurred before the date of the award, became entitled to the immovable property itself, the relevant the relevant provision of the Indian Succession Act is that contained under section 212 and not the one under Section 214. By reason of his title to the immovable property which he acquired before the Award, Natverlal is, as a matter of a necessary consequence following from it, entitled to the amount of compensation. What he has to establish on the facts of this case is not merely that he is entitled to the amount of compensation by also that he was entitled to the immovable property itself before the date of the award. That is what he has established and it is therefore not necessary for me to consider whether the amount of compensation is or is not a debt within the meaning of section 214 of the Indian Succession Act. I therefore hold that Natverlal is entitled to receive the amount of compensation in respect of the acquisition in this Reference.

  • Sections 5, 6 and 10 of the Hindu Succession Act 1956 thus, read as under:

Section 6 in The Hindu Succession Act, 1956

[6 Devolution of interest in coparcenary property. —

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great­-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:— “6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

Section 5 in The Hindu Succession Act, 1956

5. Act not to apply to certain properties.—This Act shall not apply to—

(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in section 21 of the Special Marriage Act, 1954;

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin. State amendment

(a) Kerala State has passed an Act for the partition of the valiamma Thampuran Kovilegam Estate and the Palace Fund: Kerala Act 16 of 1961, sec. 10. “10. Amendment of the Hindu Succession Act, 1956.—Clause (iii) of section 5 of the Hindu Succession Act, 1956 (Central Act 30 of 1956), shall be omitted with effect on and from the date of execution of the partition deed under section 6.”

Section 10 in The Hindu Succession Act, 1956

10. Distribution of property among heirs in class I of the Schedule.—The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:— Rule 1.— The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.— The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.— The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. Rule 4.— The distribution of the share referred to in Rule 3—

(i) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.”

  • When a Hindu dies intestate without leaving a Will above law of Hindu Succession Act applies. When a person makes a Will and dies, then Indian Succession Act applies. In the given case, the deceased was a Hindu died intestate, even if there is no nomination, according to law the heirs and legal representatives the daughters became at once entitled to the said flat. The title of the flat and the shares devolved upon the nominees immediately on death of mother. The facility of nomination is created by law to accommodate the relations and administration of the Society between the deceased member trustee and the Society so that there is no default in managing the affairs of the Society like payment of taxes outgoings of the Society, electricity bills etc. However, in the given case, the heirs themselves were nominees, all the legal procedure is complied with and they are regular members of the Society. Under the circumstances, it is now irrelevant for the Society to demand Succession Certificate because there is no challenge to their title. The heirs and the legal representatives before obtaining membership of the Society have given Undertaking an Indemnity Bond indemnifying the Society against all adverse claims which will absolve the Society from any other liabilities.

  •  Considering the law and the compliances, the Society can issue No Objection Certificate and register the transfer of the said flat subject to the other procedure and provisions of the bye-laws of the Society.

Dated this     9th day of April 2018

                                                                                          Shruti Desai

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