A succession certificate is a legally binding document required to support any claim on the estate of someone who passed away intestate (without a Will). The district court issues such a certificate and a comprehensive inquiry is carried out to verify the claimants' credentials before it may be issued. 
 
The managing committee of a cooperative housing society (CHS) may sometimes insist on a legal heir certificate or a succession certificate to ensure the authenticity of the claim before transferring ownership or shares. However, in most cases, a succession certificate is not required and alternative documents can be submitted to avoid a lengthy and expensive process. 
 
This week, we will look at a case where a sole-nominated daughter has been asked to present a succession certificate to verify her claim in her deceased mother's flat. We will also examine the legality of recovering dues from the common owner of jointly owned and co-joined adjacent apartments in a housing society. I will also share a relatively simple solution to a problem where the builder has illegally sold open space in a residential complex as parking. 
 
Society Insisting on Succession Certificate
 
Question: My mother had made a nomination in my favour of her flat in a CHS in Mumbai without registering a Will. She expired in 2021 and I am her only daughter. The flat is registered in my mother's name with my nomination at the registrar's office and the share certificate was issued by MHADA office is in my mother's name. Our Society has asked for a legal succession certificate for the transfer of shares/flat in my name, but that process is very expensive. 
 
The Society is not accepting just the nomination for transfer of share certificate. It want a legal succession heir certificate to be kept on record. Can you please advise on an alternate solution?
 
Answer: You have not mentioned whether your father is still alive in your query. Hence, I am giving you two possible solutions in case your father is alive or if both of your parents are deceased.
 
(1) As you are the only child of your parents and your father is alive, and your mother, the flat-owner, is deceased, then to transfer this flat in your sole name, you and your father should together make a release deed (RD) on an Rs500 non-judicial stamp paper. This RD will allow your father to give up his legal right to your mother's flat to you, making you the sole owner. It should be witnessed by two adults and registered with the sub-registrar of assurances office. 
 
You will then give the sub-registrar of assurances a certified copy of the RD and its Index-2 to your Society to transfer your mother's flat in your name as it's sole owner. 
 
(2) If both of your parents are deceased, then you will buy a Rs500 non-judicial stamp in your name and make a confirmation deed (CD) duly witnessed by two adults. It should be registered with sub-registrar of assurances office. 
 
You will then give the copy of your CD certified by the sub-registrar of assurances and its Index-2 to your Society to transfer your mother's flat in your name as its sole owner.
 
In either of the cases mentioned above, an RD or CD has the same legal value as a succession certificate to be obtained from a competent judicial court.
 
Getting the succession certificate is time-consuming and you will need a minimum Rs1.5 lakh court fee and advocate's fee to get that document in at least six months.
 
The contents of a RD or CD should say that the flat belongs to your late mother, who expired without making a Will, and you are her only daughter. You and your father (if he is alive) are the only legatees of your late mother's flat, and your father is releasing his right in your favour. If both of your parents are deceased, as you are the only legatee of your parents, you should do a CD to claim the full right on your mother's flat.
 
If you find any difficulties in doing either RD or CD, then please come to Moneylife Foundation's Office on Thursday evening 3pm to 6pm, to get free guidance after taking an appointment on landline phone no 022-2444 1058/9.    
 
Illegal Sale of Open Space as Parking
 
Question: I reside in a Society in Pune and there are a total of four wings. There are 82 flats in total. All have hydraulic parking available and have been allotted by the builder. There is open space available and the builder is trying to sell that as a parking place to a few of the flat-owners. We have asked them not to buy this parking space, but they are still going ahead with the purchase. Society is yet to be formed because two of the four wings have received OC, while the other two are yet to receive it. Can we oppose or challenge this allotment right now or  after the formation of Society? Please guide.
 
Answer: An area of the building which does not use the floor space index (FSI) of the building, like open space around the building, terrace and common corridors, cannot be sold.
Since a Society has not been formed, kindly hire the services of an honest and expert advocate and bring a stay order against the builder for selling the open space of the building. Also, make Pune Municipal Corporation a party to the court case for the stay order.
 
After you get the stay order, you have to make a civil case against the builder by making Pune Municipal Corporation party to it, in which you will argue that open space, which does not consume FSI of the building, cannot be sold by the builder. Within six months (during the period of stay order) hearing's judgment will come and the builder will not be able to sell the open space of your Society. 
 
Let me make it very clear that you should get an expert and honest advocate for this case to fight in a competent court in Pune only. 
 
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question 
 
Recovery of Dues in Co-joined Adjacent Flats
 
Question: I am a joint owner of a flat with my mother. My mother owns the adjacent flat with my brother. Both the flats are co-joined, as a single flat on the same floor. I pay maintenance charges regularly for my flat, whereas my brother has not paid for the last three years. 
 
Now, the Society has decided to refund fixed deposits held by them to the members of the Society in proportion to their area. However, the Society is adjusting my receivables against the old dues of my brother since there is one common co-owner, my mother, in both flats. Is this legally tenable?
 
Answer: Society is correct in recovering its dues if your mother's name stands first in joint ownership of both flats.
 
If your mother's name stands second, either in one or both of the flats, then Society cannot adjust the deposit against your flat's deposit to recover your brother's flat dues.
 
Also, your Society is at fault, for keeping quiet for such a long time of three years, about your brother's dues. As per law, if dues are pending for more than three months, then the dues recovery process should be started by your Society against your brother. 
 
(Shirish Shanbhag has an MSc in Organic Chemistry, Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)