Elder brother is owner of a flat in a co-op.society in Kolkata (under W.B.Co-operative housing societies acts, Rules) . Elder brother wants to gift his flat to his younger brother( who is a nominee), by registered "GIFT DEED" . Please let us know whether and under which procedure/law, if any, the same can be done or not. N.B.- The society gave a rejection letter to elder brother stating-"section 76 of w.b. co-op. societies act 2006 provides that the share or interest of a member will be disposed of in favour of nominee on his death. As you are alive, neither you nor your nominee can claim for transfer of membership of the society by any kind whatsoever as it contradicts the provision of said act.".
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1. Firstly no restriction on free transfer of property can be made by any law of the land.
2. In the case of co-operative property such share can equally be transferred at will if the tramsferor is holding the share for more than one year.
3. By way of section 78(2) of the Act, the transferer can transfer his share by way of deed of gift.
4. Even without NOC of the Society the flat can be gifted to brother by the owner.
A gift of immovable property amounts to its transfer under the Transfer of Property Act. Hence, through the gift deed the elder brother can gift the property to his younger brother by registered gift deed. The society can not reject your brother's claim of gifting the property to his younger brother through gift deed. Society's action contradicts the provision of transfer of property act.
1) as on date elder brother is absolute owner of the said flat .
2) h e can execute gift deed in favour of younger brother to transfer his right title , interest in the flat . once gift deed is duly stamped and registered donee becomes absolute owner of the flat .
3) no NOC of society is necessary .
4)merely because younger brother is a nominee does not bar the owner from executing gift deed in favour of younger brother .
5) section 76 of WB Act only makes provision on account of death of owner . it does not bar transfer during lifetime .
6) you can challenge the order of rejection of transfer by the society
1. Your elder brother, being the owner of the property, can freely transfer its title through a Deed of Gift to his younger brother,
2. After registering the said Gift Deed, he should write a letter to the secretary of the said Co-Oerative Society to change the name in the share in favour of his younger brother duly elcosing a copy of the Gift Deed.
1. Since absolute ownership lies with the elder brother he is at liberty to transfer the property to his younger brother by making a gift deed in favour of the latter. After the gift deed is stamped and registered in accordance with the law the ownership will be transferred to the younger brother.
2. Society has misinterpreted the law. No NOC is required from the society to transfer the flat in view of the fact that elder brother holds absolute ownership thereof. Nomination of younger brother does not operate as a bar to transferring the flat in his favour.
3. Once the gift deed is made the elder brother may apply to the society to transfer the share certificate in favour of his younger brother. This will complete the process.
A. Your elder brother can Gift the property being absolute owner
B. NOC rejected by Society is highly violated the legal process and fail to interpretation of the meaning of Section 76 of WB Act.
C. Once Gift Deed executed, donee will be the member of the Society in general sense.
