My mother executed a registered Gift Deed wherein she gifted her apartment to me and my brother in equal share. My name appears first on the Gift Deed only because I am the older brother and out of habit. I reside out of India and so it was decided that my brother's name should be listed FIRST on the Society Share Certificate and my name SECOND. Accordingly we filled the Form of Application for Membership at Appendix – 23 wherein my brother signed as First Applicant and me as Second Applicant. My mother also submitted Form of Application for Transfer (Appendix – 21) wherein our names are listed in same order as our Application in Appendix 23. Society is refusing to issue the Share Certificate in the Order as desired by us and is insisting that it is the Gift Deed that they will issue the certificate. There is no written law/rule anywhere that they could show me to support their claim. Is their stand justified? I have explained to them that Gift Deed and Membership Application Form are two completely different documents. Gift Deed is primarily concerned with transfer of ownership whereas Application for Membership is signed by the owners in as per the order that they desire their names to be listed in Society records/share certificate. Am I correct?
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since your name appears first in the gift deed and your brother name appears as second society has in share certificate transferred mother share and admitted you as members in the same order
2) you are not correct
3) frankly it doe not make difference as both are co owners of flat . in your absence brother can attend AGM based on your written authorisation
Thank you for your extremely quick reply Mr Sethi 1. Can you please provide me with any rule/law/citation relevant to your reply? 2. I completely understand that we are both co owners (as covered in the Gift Deed). I am also aware that he can attend/vote at Meetings in my absence (stated under the bye laws). However I feel it does make a difference - so as to mitigate any future issues that might arise. For example, many societies blindly consider the second named member as an "Associate Member" or someone "not at par" with the First Named member. A difficult Committee could give my brother a hard time if he wanted to stand for elections. They would insist on a written NOC from me if my brother decided to file a nomination. God forbid, they could insist on NOCs for any trivial issues if they could so desire. Most pertinently, we applied for membership is the order WE chose to. Should our choice not be considered? What would be the point of listing out names in the Application Form if the Gift Deed is the only document that matters?
gift deed confers title to the property
2) your mother has in her wisdom gifted flat to you and your brother equally and your name is mentioned first and brother name is mentioned second
3) society will follow the same format in entering names in the share certificate
4) since share certificate mentions both names your brother can based on your written authorisation stand for elections , attend meetings etc
5) even the society maintenance bills would be raised in your joint names
few definitions and provisions under the Maharashtra Co-operative societies act, 1960, need to be considered in order to answer your query:
Chapter 13B [XIIIB] pertaining to co-operative housing societies is relevant.
Section 154B-1 - Definitions:
In this Chapter, unless the context otherwise requires,--
(18) "Member" means a person joining in an application for the registration of a housing society which is subsequently registered, or a person duly admitted to Membership of a society after its registration and includes associate or joint or provisional Member;
(a) "Associate Member" means husband, wife, father, mother, brother, sister, son, daughter, son-in-law, daughter-in-law, nephew, niece a person duly admitted to Membership of a housing society on written recommendation of a Member to exercise his rights and duties with his written prior consent and whose name does not stand in the share certificate;
(b) "Joint Member" means a person joining in an application for the registration of a housing society jointly, which is subsequently registered or a person who is duly admitted to Membership after its registration and who holds share, right, title and interest in the flat jointly but whose name does not stand first in the share certificate;
(c) "provisional Member" means a person who is duly admitted as a Member of a society temporarily after death of a Member on the basis of nomination till the admission of legal heir or heirs as the Member of the society in place of deceased Member;
[154B-4. Associate, Joint or provisional Member.
(1) Notwithstanding anything contained in section 22, the society may admit any person as an associate, joint or provisional Member.
(2) Right to vote and contest the election shall be subject to the provisions of sub-sections (2), (3) and (4) of section 154B-11.
154B-11. Voting rights of Member.
(1) No Member of society shall have more than one vote in its affairs:
Provided that, every right to vote shall be exercised personally:
Provided further that, in the case of an equality of votes, the Chairman shall have a casting vote in the meeting of a society.
(2) The Associate Member shall have right to vote with prior written consent of a Member.
(3) The provisional Member shall have right to vote.
(4) In case of joint Member the person whose name stands first in the share certificate, shall have right to vote. In his absence, the person whose name stands second, and in the absence of both, the person whose name stands next and likewise, who is present and who is not a minor, shall have right to vote.
(5) In case of Association of society, authorised Member of member society shall have right to vote.
(6) In case of company or firm or any other body corporate or local authority or any legal body constituted under any law for the time being in force, the authorised director or person or any one of the partners as appointed by the firm, shall have right to vote.
Section 22 and section 23 sub-sections 1 to 3 have been made applicable to co-operative housing societies by virtue of s.154B(1)
Section 22 - Person who may become member
(1 ) Subject to the provisions of section 24, no person shall be admitted as a member of a society except the following, that is to say--
(a) an individual, who is competent to contract under the Indian Contract Act, 1872;
(b) a firm, company or any other body corporate constituted under any law for the time being in force, or a society registered under the societies Registration Act, 1860;
(c) a society registered, or deemed to be registered, under this Act;
1 [(d) the State Government or the Central Government;]
(e) a local authority;
(f) as public trust registered under any law for the time being in force for the registration of such trusts;
8[(g) the depositor or the financial service user] :
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(2 ) Where a person is refused admission as a member of a society, the decision (with the reasons therefore) shall be communicated to that person within fifteen days of the date of the decision, or within three months 5 [from the date of receipt of the application for admission, whichever is earlier. If the society does not communicate any decision to the applicant within three months from the date of receipt of such application the applicant shall be deemed to have been [admitted] as a member of the society.] 7 [If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties.]
Section 23 - Open membership
(1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its by-laws.
(2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar 5[within a period of sixty days from the date of the decision of the society]. 3[Every such appeal, as far, as possible, be disposed of by the Registrar within a period of three months from the date of its receipt:
Provided that, where such appeal is not so disposed of within the said period of three months, the Registrar shall record the reasons for the delay.]
(3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his decision to the parties within fifteen days from the date thereof.
Thus s.154B-1 clause (b) defines who is a Joint Member. It only says that the joint member has share right title and interest in the flat jointly. It nowhere says that the order of names has to be the same as in the instrument of transfer. Thus the only requirement is that the joint member should have a share right etc in the flat jointly with another.
u/s 154B-4(1) the society can admit ANY person as the joint member. It does not state that only the person whose name stands second in the instrument of transfer [in your case the gift deed] can be admitted as a joint member
the voting rights of joint members are also provided in s. 154B-11 (4)
thus if the society has communicated its reasons against transfer of membership to the joint names in the order desired by you, then you will have to appeal to the registrar u/s 23(2)
and if there is no communication by the society about its refusal to admit the joint members as stated in the application then they would be deemed to become the members of the society by virtue of s.22(2) after the expiry of the statutory period stated therein
Dear Client,
Under the Maharashtra Cooperative Societies Act, 1960 and relevant bye-laws, it is the Gift Deed alone that forms the primary document for ownership transfer in a cooperative society which records legal transfer of title. It can be deemed justifiable as the very suggestion by the society to issue the share certificate as mentioned in the Gift Deed is a reflection of the legal status of ownership. The order of the names in the Gift Deed is what reflects the intention of the transferor, and in updating their records, the law compels the society to oblige by the same.
While the application form (Appendix 23) allows you to specify the priority of members for listing purposes, for all legal purposes, including ownership, the Gift Deed is paramount. Under the laws governing cooperative housing societies, both are coowners who hold their shares equally, regardless of which one is first and which second on the application form. If the society misreads the application and labels the second-named member as an "Associate Member," they are, in fact, full members with equal rights.
If you are still facing problems at any point in the future, remedy may be available through consulting the society registrar or Rule 56 of the Maharashtra Cooperative Societies Rules, dealing with voting rights, co-members' rights, and election procedures. Your option filled in your application form is also important for administrative reasons, though it will not supersede the legal order of ownership established under the Gift Deed.
Thank you.Hope this answers your query.
The association is right in mentioning that they will record the names in the order of the registered title deed (gift deed), therefore there should not be any issue to dispute the action of the association.
As you cannot change the order of names in the gift deed now, it would be better that you accept the law of the association.
Whether or not, you both are entitled to a share in the property equally as a right by the virtue of the registered gift deed on both the names.
In the event of attending the AGM or participating in an election you may authorize him to act on your behalf.
you can refer to the provisions of MCS Act, 1960 in which the position of primary member, associate member, provisional member, joint member are given clearly.
In your case, there is no legal infirmity in the association insisting that your name should appear first in the share certificate and then your brother's name as an associate member because it is based on the registered title deed produced before the association.
but this will not dis-entitle your brother for a membership, he will; remain as an associate member.
"Associate Member" means husband, wife, father, mother, brother, sister, son, daughter, son-in-law, daughter-in-law, nephew, niece a person duly admitted to Membership of a housing society on written recommendation of a Member to exercise his rights and duties with his written prior consent and whose name does not stand in the share certificate;
You can have a choice but the member can only be the person with ownership rights
THANK YOU ALL FOR YOUR REPLIES Mr Miu, I have gone through the MCS Act 1960 and the latest model bye-laws but could not find any reference to a Gift Deed alone being the primary document to be considered for ownership transfer by a coop hsg society. The MCS Act simply states at Sec 154B-12: A Member may transfer his share, right, title and interest of his property in the society by way of registered document by following the due procedure as provided in the rules or bye-laws. Correspondingly, the Model Bye Laws simply state that the "Registered Agreement with Stamp Duty Paid" is to be attached when applying for membership. There is no dispute that the Registered Agreement (Gift Deed in this case) has transferred ownership of the property to me and my brother equally. Now, my brother and me, the new owners, are applying for membership to a society as "Joint Members" in the order we choose. This act should "debatably" not concern the previous owner of the property. If however it is the "intention of the transferor" that must be factored, then the same has been made clear by the transferor in "Appendix 20(1) A Form of Notice of "Intention of a Member" to Transfer His Shares and Interest in the Capital/Property of the Society" wherein my mother listed my brother FIRST and me SECOND. Importantly, I have consented to this listing in "Appendix 20(2)-A Form of the "Letter of Consent" of the Proposed Transferee for the Transfer of the Shares and Interest of the Member (Transferor) to him (Transferee)" Both Notices were presented to the Society in advance. The "intention of the transferor" is again reiterated in "Appendix 21 Form of Application for Transfer of Shares and Interest in the Capital/Property of the Society by the Transferor" wherein my mother has again named my brother FIRST and me SECOND. The order has been ratified by me in the accompanying "Appendix 23 Form of Application for Membership" Gratefully looking forward to your/anyone else's thoughts on this.
if you are aggrieved by decision of society to consider order of names in the share certificate as per Appendix 20(1) (2) you are at liberty to approach cooperative court for necessary reliefs .
2) however as mentioned earlier society will consider order of names in the gift deed for transfer in the share certificate
3) i do not find any infirmity in the decision of the housing society as gift deed confers clear and marketable title to the flat
Whether it's AB or BA, the intention of the transferor is immaterial as to which entity , whether AB or BA, she intends to transfer her shares and her interest in the property of the society (ie the flat)
The transferees are tenants in common and NOT joint tenants
The two concepts are different
In the case of joint tenants, AB and BA are 2 different entities
Whereas in the case of tenants in common, AB and BA are the same since both hold equal undivided share in the property
So when the tenants in common apply to the society to transfer the shares to their joint names in the order of BA , which is different from the order of names stated in the gift deed , which is AB, it would not be proper for the society to require the membership application to be made in the order of AB only and not in the order of BA.
Check rule 20(1) of the 1961 Rules
Whether your name comes first of second in the share certificate, is it going to deprive your rights in the property?
If you are not accepting the bylaws of the society, then you can very well sue the society stating that it is contrary to the law of land and you may be permitted to have your name first in the share certificate instead of your brother because of the reason that you may rely upon.
You can discuss with a local lawyer and proceed wit the proposed case if the society is not accepting your request
- As per law, the Gift Deed establishes ownership rights, while the Membership Application declares how those rights are recorded within the society.
- Further, A society is bound with its own by-laws and rules for the issuance of share certificates and membership, and if their by-laws specify that the order of names on the Gift Deed must be reflected in the share certificate, then they have follow the same.
- Further, if your intention to have your names listed in a specific order is important. and if the society is not acknowledging this and is following the Gift Deed without consideration for the membership application, this may be seen as unreasonable, and you have right to raise this issues.
- You can send a legal notice for getting the same.
