A nominee is only the trustee of true legal heirs of a flat

What are the rules regarding nomination and Will with respect to a flat in a cooperative housing society?
Nomination is a facility provided to member to enable him to nominate a person to become a member in place of the deceased member upon his death. Testate succession is decided by a valid Will, whereas in the absence of a valid Will, the intestate succession is decided by the applicable law of succession. Nomination does not create a separate rule of succession, unless the law under which nomination has been made provides so. It is not compulsory to make nomination.

However, it is advisable to make a nomination, because in the absence of valid nomination, one will be required to undergo avoidable hardships including public notice in newspaper, execution of indemnity bond and convincing the managing committee of the society about his entitlement for membership in place of the deceased. It is also desirable that one makes a Will and the contents of the Will and the nomination are in co-ordination.

Upon death of a member, the society will have to give effect to nomination. The nominee will not become owner of the share certificate or the flat, but he will be only the trustee of true legal heirs. In many cases, it happens that nominee is also one of the legal heirs. In any case, it is beyond the purview of the society to determine succession rights. A society has to record nomination in the nomination register. After filing nomination, a member is entitled to change the same. When more than one nomination forms are filed, the subsequent nomination revokes the previous one. Nomination can be made in one name or in favour of more nominees. It is not necessary that nominee has to be a relative of the member. No reasons are to be stated for stating one a nominees.

How does one reconcile model bye- laws provided for purchase of car parking by a flat purchaser?
The bye -law recognising purchase of a car parking space from a builder / developer is against the provision of MOFA, 1963 and is not tenable in law. When it is decided position of law that a builder, developer or promoter cannot sell car parking space, how can a flat purchaser claim that he has purchased the same? Bye- laws do not have force of law. Sale of car parking attracts stamp duty.

Tarun Ghia is a chartered accountant and can be reached at ghiatarun@rediffmail.com. Pradnya Vairale is an advocate and can be reached at advpradnyag@gmail.com