Nomination in cooperative housing societies (CHS or Society) is a relatively simple and straightforward procedure that requires basic form filling from the member and registration by the Society. However, complications are possible if a particular member fails to nominate anyone while alive or if the nominee is not the same as the actual legal heir. Legal disputes are common in such cases. 
 
This week, we are looking at one case where the nominee has presented documentation for transferring a flat in his name. Still, the forms have been witnessed by only one person, as opposed to two witnesses, as stipulated under the CHS bylaws. 
 
We will also look at the procedure for re-appointing a secretary who resigned from the post before the completion of the managing committee's term. 
 
References to the appendix number for respective forms or bylaws in the below answers are in respect to the cooperative housing society bylaws book of 2014.
 
Validity of Nomination with Single Witness Signature
 
Question: Is a nomination form signed with only one witness valid? The nominee is claiming ownership and denying to transfer the flat to legal heirs. A legal heir certificate has not been obtained yet by the legal heirs in this case. 
 
Answer: If the nomination is signed by one witness and if the nominator is alive, then ask him to get a second signature by the second witness.
 
If the nominator is deceased, then get the nominator's signature certified by a bank where the dead nominator has his account, thereby validating the nomination paper. Get the bank's certification on the Society's copy of the nomination paper. This will validate the nomination.
 
A nominee is essentially a trustee. If the nominee wants to claim ownership of the flat, then he/she should get one of the following documents:
 
(1) If the nominee is the sole legal heir of the nominator and the nominator has not made a Will, then the nominee can make a 'confirmation deed' on Rs500 non-judicial stamp paper and register it with sub-registrar of assurances. Then submit a certified copy to the Society to transfer to the flat in the nominator's name as its owner.
 
(2) If the nominator has more than one legatees (like spouse, children and grandchildren), and has not made a will, then all his legatees should make a 'release deed' on Rs500 non-judicial stamp paper in favour of the nominee and register it with the sub-registrar of assurances, and submit a certified copy to the Society, to transfer the flat in nominee's name, as its owner.
 
(3) If the nominator has not made a Will, and the nominator has more than one nominee or legatees, and they all do not agree to make a 'release deed' as stated in above point (2), then the nominee/s has to make a testamentary petition in district court (if flat is located in Mumbai, then in testamentary division of Bombay High Court), to get a succession certificate and put in a request to transfer the flat in the name of the nominee/s, as its owner.
 
(4) If the nominator has more than one legatees, and he has made a will of his flat in favour of his nominee, then the nominee has to make a testamentary petition in district court (if flat is located in Mumbai, then in the testamentary division of Bombay HC), to get probate of the will, to transfer the flat in nominee's name, as its owner.
 
(5) If the nominator's legal heirs do not agree to transfer the flat in the name of the nominee, then they should make a testamentary petition in district court (if flat is located in Mumbai, then in the testamentary division of Bombay HC to get a succession certificate and put in a request to transfer the flat jointly in the names of all the legatees, as its joint owners.
 
NOTE
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Re-appointing a Secretary When Resignation Occurs before the Completion of Term
 
Question: I would like to know the complete legal advice for the appointment of the secretary of our CHS. In our case, a new committee members election was conducted, after which we (the managing committee) decided who would be a chairman and secretary. Everything was fine until a few months ago when the secretary wanted to resign due to personal reasons. So now, as a committee member, I wish to be a secretary, and other committee members have also agreed.
 
Do we need to take an annual general meeting (AGM) or extra-ordinatry general meeting (EGM)? Or is a committee meeting enough, as I am already an elected committee member? Do we need to inform the deputy registrar about the change?
 
Answer: It is not clear whether your secretary is resigning from his post and wants to continue as a managing committee (MC) member or wants to resign from the committee as well.
 
If he is resigning from the secretary post, and wants to continue as an MC member, then call an MC meeting, appoint a new secretary from among other MC members and inform the deputy registrar of cooperative societies accordingly. Also, do the relevant changes in the Society's bank accounts.
 
If secretary is also resigning from MC, and if the committee has completed half of its term (about two years and six months), then one MC member you can co-opt from your secretary for the remaining period of the term.
 
If MC has completed less than half of its term, then with the deputy register's permission, you have to call for a by-election for one MC post.  
 
Type of Commercial Establishments in a Shop Inside a Residential Society
 
Question: I have a commercial shop on the ground floor of a building, where there are residential flats above. Can the Society restrict me from leasing my shop to restaurants, any form of food, coffee, juice joints or coaching classes? Please advise.
 
Answer: Kindly see in the building plan of your Society's building which types of commercial premises are permitted. You can also get the information from your municipal ward office, from the building and factory department.
 
Accordingly, you may rent your shop to a any business allowed by the municipality. There is no need to take a no objection certificate (NOC) from your Society if you are renting your shop to a municipality-permitted business.
 
(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.)