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LATEST ARTICLE
Property share of Deceased Member
Published By (Y Mohanraj), Date (21 May 2014)

Member dies with Nomination

 

Subject to the provisions of the Section 30 of Maharashtra Co-operative Society Act, 1960 bye-law No. 17A or 19, on the Death of member, the Society shall transfer the share and interest of deceased member in the Capital / Property of the Society to the Nominee/Nominees and in proportion with the shares and interest held by the deceased member, in case property is purchased by member and associate member jointly.

 

In the event of death of the member, Nominee/Nominees shall submit the Application for membership, within six months from the death of a member.

 

If there are more than one Nominee, on the death of the member, such Nominees shall make joint application to the Society and indicate the name of Nominee who should be enrolled as member.  The other nominees shall be enrolled as a Joint/Associate Members unless the nominees indicate otherwise.

 

The Nominees shall also file an indemnity Bond in the prescribed form indemnifying the society against any claims made to the share and interest of the deceased member in the Capital / Property of the society by any of them, incase only one nominees is indicated by the Nominees for membership of the Society.

 

Note: In case of acquiring membership on the basis of nomination, such member shall hold the flat / unit in “Trust” till all the Heirs are brought on record and shall not have the right ownership and shall not create the third party interest. Execution of nominations does not create title in the property.  Example:

 

When one of the son is made a nominee to a flat owned by father and mother and on their death he cannot be said to be in occupation as a trustee for all heirs of deceased, but his occupation can be termed as co-owner and cannot be held as dishonest mis-appropriation of flat within the meaning of section 405 of the Penal code.(Shyam Lachmandas Aiwani Vs. The State of Maharashtra, 1991 Cri.L.J.979)

 

Member dies without making a Nomination

 

Where a member of the Society dies without making a nomination, or no nominee comes forward for transfer, the society shall invite within six months from the information of his death, claims or objections to the proposed transfer of Shares and interest of the deceased member, in the capital / property of the society, by a public notice in the prescribed form, exhibited on the notice board of the society.  It shall also publish such notice in at least 2 local news papers, having wide circulation.  The entire expenses of publication of the notice shall be recoverable from the value of shares and interest of the deceased member in the capital/property of the society.  After taking into consideration of the claims or objections received, in response to the said notice, and after making such prevailing, the committee shall decide as to the person, who in its opinion is the heir or legal representative of the deceased member.  Such a person will be eligible to be a member of the society subject to the provisions of the bye-laws Nos. 17(a) or 19, provided that he gives an Indemnity Bond along with his application of membership in the prescribed form, indemnifying the society against any claims made to the shares and interest of the deceased member in the capital/property of the society, at any time in future, by any person.

 

 

More than one claimants

 

If there are more claimants than one, they shall be asked to make the affidavit as to who should become a member of the society and such person, named in the affidavit shall furnish the indemnity bond as indicated above along with application for membership, referred to above.

 

However, if the committee is not able to decide as to the person who is the heir / legal representative of the deceased member or the claimants do not come to the agreement, as to who should become the member of the society, the Committee shall call upon them to produce succession certificate from the Competent Court.

 

No claimant

 

If there is no claimant, the shares and interest of the deceased member in the capital/property of the Society shall vest in the Society.

 

Note on Section 30

 

It is very clear on the plain reading of the section that the intention of the section is to provide for who has to deal with the society on the death of a member and not to create a new rule of succession.  The purpose of the nomination is to make certain the person with whom the society has to deal and not to create interest in the nominee to the exclusion of those who in law will be entitled to the estate.  The purpose is to avoid confusion in case there are disputes between the heirs and legal representatives and to obviate the necessity of obtaining legal representation and to avoid uncertainties as to with whom the society should deal to get proper discharge.  Though in law, the society has no power to determine as to who are the heirs or legal representatives with a view to obviate the similar difficulty and confusion, the section confers on the society to determine who is the heir or legal representative of a deceased member and provides for transfer of the shares and interest of the deceased member’s property to such heir or legal representative.  Nevertheless, the person entitled to the estate of the deceased do not lose their right to the same.

 

Society has no power, except provisionally and for a limited purpose to determine the disputes about who is the heir, or legal representatives.  It therefore, follows that the provisions for transferring a share and interest to a nominee or to the heir or legal representative as will be decided by the society is only meant to provide for interregnum between the death and the full administration of the estate and not for the purpose of conferring any permanent right of such person to a property forming part of the estate of the deceased.  The idea of having this section is to provide for a proper discharge to the society without involving the society into unnecessary litigation which may take place as a result of dispute between the heirs.

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If the agenda items could not be completed,can the meeting be adjourned to any other suitable date?

What should the notice for the rescheduled general body Meeting notify?
If the agenda items could not be completed, the meeting can be adjourned to any other suitable date not later than 30 days from the date of the meeting, as may be decided by the members present in the meeting.
If the new date is not decided by the members present,then the new date should be decided by the committee & a Separate notice to be given without any agenda.

Specimen of the new notice.

To

All members,

Since all the items on the Agenda of the AGM held on ..........could not be conducted on the same day, the meeting was postponed.

Accordingly, to conduct and conclude the remaining items on the Agenda, the postponed meeting will now be held on ______ at _______ at ____________.

The meeting will start exactly at the time notified above, irrespective of the number of members present. All the members are requested to be present in time.
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How to elect new managing committee OR how to co-opt new committee member?
The state had amended the Maharashtra Co-operative Societies Act, 1960 for the election of Managing Committee of Housing Society. Though the state government has postponed the elections to co-operative societies till the end of 2014, there is no clarity on rules for elections to housing societies. The rules for election to housing societies have to be framed by the State co-operative Election Authority. The election authority will supervise, control and conduct polls to all registered co-operative societies. However, it has not appointed the election authority that is the state co-operative election commissioner so far.

If the Committee is very keen though it may not fit 100% of the required framework, the committee may follow below procedure:

a. In the event of vacancies in the Committee, caused on account of the death, resignation, disqualification or removal of any members of the Committee, by the Registrar, the Committee may fill in such vacancies by co-option on the Committee of any other members eligible to be on the Committee. However, such vacancies by co-option shall not be more than two.

b. The Committee may write to the Deputy Registrar that the tenure of the managing committee ended and seek his guidance to conduct fresh election.

c. In case of resignation of managing committee or the entire committee has been resolved, the committee may write to the Deputy Registrar for their guidance to conduct fresh election. This has got an inherent danger of the Deputy Registrar desolving the committee and appointing an administrator and hence not suitable.
OUR BALANCE SHEET FOR THE YEAR 2012-13 IS ALREADY FINALISED AND ALSO AUDITED.

MANAGING COMMITTEE HAS CALLED AGM ON 26/05/2013 WITH GIVING 14 DAYS CLEAR NOTICE.

ONE SOCIETY MEMBER HAD RANG UP TO RESCHEDULE IT. THIS SOCIETY MEMBER CAN BRING SOME SIGNATURE OF MEMBERS.

WE WANT YOUR GUIDE LINE WHAT IS THE PROVISIONS IN THE BYE LAWS ?

YOUR GUIDE LINE IS EARNESTLY REQUIRED.
Bye_Law No 99:

The Committee shall decide the date, time and place of every general body meeting of the society and the business to be transacted thereat, provided that the business to be transacted at the requisitioned special general body meeting shall be only that mentioned in the requisition. The notice convening the general body meeting shall be issued by the Secretary of the Society accordingly as provided in Bye_Law no 163. On his failure to issue thenotice, the Chairman shall issue it.



It is very clear, that the date, time and venue of the AGM can only be decided by the M C and members do not have a say in it.



Mohanraj
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