Property transfer through nomination in housing societies is a crucial mechanism for ensuring the smooth transfer of property rights upon the death of a member.

Property Transfer through Nomination in Housing Societies

Nomination in housing societies is a crucial mechanism for ensuring the smooth transfer of property rights upon the death of a member. This article delves into the intricacies of the nomination process, membership dynamics, legal implications, and best practices for ensuring clarity and continuity in property transfer within housing societies.

Nomination under Section 76 of West Bengal Co-operative Societies Act, 2006

Section 76 of the West Bengal Co-operative Societies  (WBCS) Act, 2006 provides a legal framework for members of cooperative housing societies to nominate an individual to inherit their shares or interests upon their death. This provision aims to ensure a smooth transition of ownership and mitigate potential disputes by allowing members to specify their successors within the cooperative society’s regulations.

Section 76 of the West Bengal Co-operative Societies Act, 2006 states that a member of a cooperative society has the right to nominate a person who will inherit their share or interest in the society upon their death. This process of property transfer through nomination in housing societies is subject to the by-laws of the cooperative society and must follow the rules set forth by the society. The purpose of this provision is to ensure that there is a clear and designated beneficiary who will receive the member’s share or interest in the cooperative upon their demise.

This framework is pivotal in facilitating the property transfer through nomination in housing societies in West Bengal, ensuring that a member’s intended beneficiary is clearly designated within the society’s legal context.

Nomination of Transferee in Housing Societies in West Bengal

WBCS Rules, 2011 explicitly states that according to Section 76 of the West Bengal Co-operative Societies Act, 2006, a member of a co-operative society has the right to nominate a person from their family who will receive their share or interest in the society upon their death. This nomination must be made in writing using Form XXVIIIB and can be revoked or updated as desired by the member. If a member has no family, they may nominate any person as their transferee.

The co-operative society is responsible for maintaining a register of all nominated individuals. In the event that the nominee passes away, the member must inform the society and make a fresh nomination if necessary. It should be noted that for this rule, “family” includes major sons and daughters regardless of marital status, as defined in the Explanation to sub-section (3) of section 16 of the Act.

Purpose and Importance of Property Transfer through Nomination in Housing Societies

The primary purpose of the process of property transfer through nomination in housing societies is to provide clarity and security regarding the transfer of property rights. By nominating an individual, a member can ensure that their intended legacy is preserved, and their assets are transferred without complications. This process is governed by the society’s by-laws, which include specific rules to ensure fairness and consistency. Property transfer through nomination in housing societies acts as an administrative tool, facilitating the property nomination transfer and the transfer of membership and rights, but does not necessarily confer ownership of the property, which is determined by succession laws.

Membership Dynamics in Housing Societies

Understanding the different types of memberships is essential for navigating the process of property transfer through nomination in housing societies. The Original Member is the primary owner of the share certificate, holding significant legal control and rights over the property. An Associate Member is a secondary title owner who shares legal rights over the property with the Original Member. A Nominal Member, on the other hand, is nominated by either the Original or Associate Member and does not hold ownership rights but is included for specific purposes defined by the society’s by-laws.

These distinctions are critical in ensuring that the process of property transfer through nomination in housing societies aligns with the society’s legal and operational framework, particularly for property transfer nomination in housing society in West Bengal.

Steps of Property Transfer through Nomination in Housing Societies

The nomination process begins with the member submitting a nomination form to the housing society. The secretary acknowledges receipt of the nomination form, ensuring formal recognition and transparency. The society’s committee then reviews and approves the nomination, ensuring compliance with by-laws, after which the nomination is officially registered. The entire process, from submission to approval, must be completed within two months. Upon the member’s death, property rights are officially transferred to the nominated individual, ensuring a clear and efficient transition. This streamlined process is designed to facilitate the nomination transfer in West Bengal.

FORM XXVIII-B Application for Nomination [Section 76]

Below is the format for the Nomination of members in a Co-operative Society in West Bengal under section Section 76 of the West Bengal Co-operative Societies Act:

To,

The Secretary

{Name} Co-operative Housing Society Ltd.

Post Office- New Town

District- North 24 Parganas

Pin- 700156

Dear Sir/Madam

In terms of section 76 of the West Bengal Co-operative Societies Act, 2006 read with the relevant provision of the Bye-laws of the Society I do hereby nominate my wife/ son/ daughter Smt./ Sri/ Kumari ………………………… as my nominee and to request you to dispose of my share with all interest in favour of my nominee in the event of my death.

The bio-data of my nominee are detailed below for your perusal and taking necessary action at your end in terms of the relevant provision of the society.

Name of the Nominee (Block Capital) …………………………………………………..

Date of Birth of the Nominee: ……………………………………………………

Identification Mark, if any of the Nominee: ……………………………………………………

                                   Yours faithfully,

  Member

Date :       

Place :                                                                                                    

Eligibility Criteria for Property Transfer through Nomination in Housing Societies

Members eligible to make a nomination must be mentally fit individuals over 18 years of age, and they must hold either Primary or Associate Membership in the housing society. Those who cannot make a nomination include minors and corporate entities such as partnership firms, LLPs, private/public companies, trusts, NGOs, HUFs, and societies. Eligible nominees can be legal heirs, relatives, or beneficiaries, as well as non-legal heirs or other individuals deemed fit by the primary and associate members. However, deceased individuals and non-Indian citizens cannot be nominated. Nominees cannot nominate themselves which is an important consideration in the context of property nomination transfer.

Legal Considerations: Nomination vs. Actual Inheritance

While nomination facilitates the administrative transfer of property rights, it does not supersede legal inheritance laws. The Indian Succession Act, 1925, and other personal laws determine the rightful heirs. Thus, the nominee acts as a custodian or representative on behalf of the legal heirs until the inheritance is settled. The nomination is intended for administrative convenience and does not override the legal heirs’ rights. The nominee cannot sell or claim ownership of the property beyond acting in a custodial capacity. Importantly, a valid will takes precedence over a nomination in determining the distribution of the deceased’s property, ensuring that the member’s broader estate planning intentions are honoured.

Consulting an experienced property lawyer in Kolkata can provide valuable guidance in these situations.

Best Practices for Property Transfer through Nomination in Housing Societies

To initiate the process of property transfer through nomination in housing societies properly, members submit a carefully crafted application. The society’s secretary acknowledges this application, ensuring formal recognition and transparency. Members are encouraged to consider their choices carefully, as the first nomination is free, but subsequent changes incur a nominal fee. The committee is responsible for reviewing and registering nominations, ensuring thorough scrutiny and accountability throughout the process.

The entire procedure of property transfer through nomination in housing societies is designed to be completed within two months, ensuring swift and clear property transfers. These practices ensure that the process of property transfer through nomination in housing societies is conducted efficiently and transparently, preserving the integrity of the society’s operations and the intentions of its members. For detailed advice, especially in complex cases, it is advisable to consult an experienced housing society property lawyer in Kolkata.

Relevant Case Laws

1. In the case of Indrani Wahi vs. Registrar of Cooperative Societies, addressed a significant issue concerning property nomination in housing societies. The case arose when Biswa Ranjan Sengupta, a member of the Sarbar View Cooperative Housing Society in Salt Lake City, Kolkata, nominated his daughter, Indrani Wahi, to inherit his flat upon his death. Following Sengupta’s demise, Wahi sought to have the flat transferred to her name, which was initially agreed upon by the housing society. However, a dispute emerged when her brother, Dhruba Jyoti Sengupta, contested the nomination, claiming the flat should be transferred to their mother, Parul Sengupta, instead.

The Supreme Court’s judgment, authored by Justice Jagdish Singh Khehar, upheld Indrani Wahi’s nomination and provided a detailed interpretation of the relevant legal provisions. The Court emphasized that Section 79 of the West Bengal Cooperative Societies Act, 1983, requires cooperative society members to nominate a person to whom their shares or interests would be transferred upon their death. Furthermore, Rule 127 of the West Bengal Cooperative Societies Rules, 1987, clarifies that such nominations should be honoured by the cooperative society.

The Court ruled that the Deputy Registrar’s refusal to transfer the flat to Wahi on the grounds of her marital status was incorrect. It reiterated that the nominee, regardless of being a married daughter, has the right to have the property transferred to her name without necessitating a succession certificate or letter of administration, as mandated by the 1983 Act and the 1987 Rules. This judgment reinforces the legal standing of nominees in cooperative societies and clarifies that marital status does not impact a nominee’s right to inherit.

2. The case of Dr. Dhrubes Biswas vs the State of West Bengal & Ors., is regarding a grey area in the West Bengal Co-operative Societies Act, 2006. The petitioner, Dr. Dhrubes Biswas, alleges that he was denied membership and access to his flat unit in a housing society despite being named as a nominee along with his mother by the original allottee.

The State argues that the nomination of both the petitioner and his mother is illegal. The Calcutta High Court (Appellate Side) ruled that Section 76 of the West Bengal Co-operative Societies Act, 2006 should be interpreted to include more than one person as nominees, and orders that both the petitioner and his mother be deemed as nominees with equal rights to the flat unit.

3. The case of Dr. Sudipta Lodh (Shome) vs Registrar Of Co-Operative Societies & Ors., involves Dr. Sudipta Lodh’s application to be admitted as a member of a co-operative society after her father’s death, as she was his nominee. The Calcutta High Court (Appellate Side)  found that under Section 76 of the West Bengal Co-operative Societies Act, 2006, Dr. Sudipta Lodh should have been admitted as a member and directed the society to transfer the deceased member’s share or interest in her name.

However, the court clarified that the role of a nominee is limited to holding and managing the property until issues of title are resolved. The court allowed Dr. Sudipta Lodh to continue occupying and enjoying all benefits of membership while awaiting the outcome of pending civil suits and probate proceedings related to her father’s will.

4. The case of Kallol Co-Operative Housing Society vs Steel Authority Of India Limited & Ors., involves a dispute between the Kallol Co-Operative Housing Society and the Steel Authority of India Limited regarding charges imposed on transfers and other transactions related to the property. The society argued that as per Section 76 of the West Bengal Co-operative Societies Act, 2006 it is obligated to admit nominees of deceased members and transfer their shares accordingly.

However, the Calcutta High Court (Appellate Side) upheld the charges imposed by the steel plant, stating that as per lease agreements, all rates, taxes, charges, and service fees are to be paid by the lessees. The judgment relied on a Supreme Court ruling in which it was held that if there is an increase in market value or profit during a transfer of land, a reasonable portion of this unearned increase can be charged by the original owner. Therefore, it was concluded that the charges imposed by Steel Authority of India were valid.

5. The case of Pranab Kumar Bhattacharya & Anr. vs Steel Authority Of India Limited & Ors. involved an appeal against the dismissal of a writ petition filed by six cooperative housing societies challenging the imposition of charges by Steel Authority of India Limited (SAIL). The court upheld SAIL’s decision to impose charges for various services, including the co-option of new members and granting no objection for mortgaging leasehold plots. The court considered factors such as the appreciation in land value and the need for revenue generation. It also referred to Section 76 of the West Bengal Cooperative Societies Act, 2006 which allows members to nominate a person for disposing of their share or interest upon their death.

The court found that SAIL’s decision to impose charges was reasonable and did not violate any statutory provisions.

Nomination Transfer in Housing Societies

Understanding the nomination procedures involved in the process of property transfer through nomination in housing societies is vital for ensuring that property rights are transferred smoothly and legally. By adhering to the outlined steps and considering the legal implications, members can safeguard their legacy and prevent disputes. The nomination process, while straightforward, requires careful attention to legal details and society by-laws to ensure that members’ wishes are respected and upheld. For complex situations, consulting an experienced property lawyer in Kolkata can provide additional clarity and ensure all legal requirements are met. For further guidance on property transfer through nomination in housing societies, click here.