Legal Corner » Mumbai

Whether it requires to make dastavej in favor of a buyer from developer or one can directly sale a co-operative society flat?

atoneplace — Sat, 01 Oct 2011 05:49:33 +0000

Question asked by Mr. Kirtikumar Parekh from Mumbai, India:
Dear Mam, We are holding a flat in Mumbai in co-operative society from: 1992 on allotment basis: Developers have made agreement with us & also co-operative society has issued share certificates in favor of us. i.e.: on allotment basis. So now reply whether it requires making dastavej in favor of us from developer or we can directly sale it to other parties while making dastavej in favor of party? Please reply me soon.
Thanks
Kirtikumar Parekh

Veena Answers:
A transfer deed can be executed and registered before the sub registrar by annexing the share certificate. Thereafter, the society will give effect to the change in ownership and issue a share certificate in the name of the purchaser.
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Can the car parking space be claimed if the transfer of the same is not specified in the gift deed made for a flat?

atoneplace — Fri, 30 Sep 2011 05:37:07 +0000

Question asked by Mr. Hiten from Mumbai, India:
Hello, I am staying in Cooperative Housing Society in Mumbai. We had purchased two flats namely flat number 101 and 102 during year 1982. One of the flat was purchased in name of my father and other in favour of my uncle. Being joint family, we removed the common wall and made single flat instead of two. The both flats were alloted one open car paking space at the time of purchase from builder. Thus, we have two car parking space in a total. Before few years we bought another two flats namely flat number 301 and 302 in very same building but without car parking. After mutual understanding, we had transfered the flat number 102 in favour of my uncle by way of gift deed. But, no where on gift deed it is specified that parking has been transfered in favour of my uncle along with flat. In such a case, how can I claim our right for car paking space ? Can I simply take declaration from my uncle on plain paper that he has no objection if society is willing to transfer parking space to us or do we need to make any agreement on stamp paper ?
I look forward to receive your quick response.
Thanking you.
Hiten

Veena Answers:
We are of the view that mere declaration on a plain paper is not sufficient but a tripartite agreement between yourself, your uncle and the society to the effect that the car parking space is your sole and absolute property and no one else has any right over the same. The other option available is to execute a release deed between yourself and your uncle wherein your uncle releases all his right, title and interest over the car parking space.
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Can a new owner of the flat become a member of the Co-operative Housing Society?

atoneplace — Fri, 04 Mar 2011 10:30:48 +0000

Question asked by Mr. Ankur Pathak from Mumbai, India:
I have a question regarding the above as follows:
In a newly formed Cooperative Housing Society (CHS), where share certificates have not been issued to any flat owner, a flat owner registers his agreement with the builder after the CHS registration date.
He then sells the flat to another individual after a couple of months. As Share certificates have not been issued by the CHS to any members yet, can the new owner of the flat become a member of the CHS (despite the previous owner not owning the flat for a period of at least one year)?
Request your valuable advice on this matter.
Thanks
Ankur Pathak
Vatsala Answers:
I see no problem in this. However a local advocate may be consulted to see if there is anything that I am overlooking.
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Is there any Rule in By-Laws of the Maharashtra co-op housing society when mother wants to transfer his flat to son through a Gift-Deed ?

atoneplace — Fri, 04 Mar 2011 10:23:34 +0000

Question asked by Mr. Shailendra Patole from Mumbai, India:
I am from Mumbai; my query is regarding Gift-Deed. I am staying along with my mother in co-op housing soc in Mumbai. The flat owner is my mother; recently my mother gifted me the said flat to me by Registering the Gift-deed in Chembur, Mumbai Registrar office (By paying Stamp-duty & Registration fees). She has submitted the copy of Deed to the Society Chairman & Secretary for further Transfer of Flat to my Name.
But the society committee is saying to pay Transfer Premium of Rs.25000 & Donation (separate amount) to the society for completing this request. In this regard I want to know, Is there any Rule in By-Laws of the Maharashtra co-op housing society when mother wants to transfer his flat to son through a Gift-Deed ?
What By-law says?
Thanks
Shailendra Patole
Vatsala Answers:
Normally the society will be governed in such matters by the byelaws of the society itself, a copy of which should be available to all members.
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What can be done if the builder is demanding extra money in case of absence of an agreement?

atoneplace — Fri, 04 Mar 2011 10:10:27 +0000

Question asked by Ms. Priya Wadhwa from Mumbai, India:
I have bought commercial property in Mumbai, but neither the agreement was prepared nor the registration was done by a reputed builder who constructed the property few years ago. I am having possession letter and receipts for payment made. Builder is demanding extra money. Kindly guide
Thanks
Priya Wadhwa
Vatsala Answers:
As the terms of the transaction have not been recorded in an agreement, you should rely on other ways to prove that you have paid the agreed to amount. A lot more facts about what was agreed upon, what the extra charges towards taxes are, etc., should be looked into before coming to a conclusion about the merits of your case.
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Can one relocate a flat allocated in a redeveloped co-operative housing society?

atoneplace — Thu, 03 Mar 2011 06:16:24 +0000

Question asked by Mr. Alwyn Pinto from Mumbai, India:
Dear Sir,
I own a flat in Andheri East Mumbai for the last 20 years. The building has gone for redevelopment and the buildings are in the process of completion. The new buildings are built within our property without vacating our flats as there is a lot of vacant place. As per AGM it was decided to allot the flats as per serial numbers. Now the society committee has sent letters by allotting as per their wish and preferences saying that they had sent letters requesting the preference of flats required by keeping the cream flats to the committee members. The committee has placed a family above my allotted flat. I have already 3 N.C.’s against this family on assault on us. Individual agreements are not yet signed due to the allotment. Can anything be done to relocate the flats as be new by laws (if any bylaws are set by co-op society act)
Thanking you,
Yours faithfully
Alwyn Pinto
Vatsala Answers:
The allotment should have been done at a duly constituted meeting with sufficient quorum and majority vote as prescribed by the by-laws. If there is sufficient grounds and reasonable apprehension in your mind about the hardship caused by allotting certain flat to people who have assaulted you, you can call for a meeting (S.G.M. if necessary) where you can voice this and try to get majority vote and change your allotted flat.
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What should be done if the builder is demanding extra money for an apartment?

atoneplace — Tue, 27 Oct 2009 10:34:42 +0000

Question asked by Mr. Siddharth from Mumbai, India:
Hi, I need your guidance.
I had booked a flat 2.5 years back from a reputed builder in Mumbai. Even though I have already paid all the amounts as agreed and mentioned in the registration document, the builder is not giving possession of the flat. He wants additional Rs.15000 which is a new demand from him (since May, 2008) and not a part of the registration document, even the demand note from him that I got in April 08 had any mention about it.
I have been writing letters to him for last 4 months but he doesn’t reply and their sales office says that whatever you do, you have to pay this amount without which you won’t get the possession. Those who paid that amount, they got the possession in May, 2008 itself.
My point is that I have paid everything that was part of registration document. How can you hold the possession for something which is not a legal demand? If this demand of Rs. 15000 is legal, please give this to me in writing that you won’t give possession till I pay this money. They refuse to reply to my letters in writing and also refuse to give the possession.
I am already incurring almost Rs. 35000 as interest cost per month on the flat amount. With every passing day, I am incurring additional cost but at the same time, I don’t want to agree to his unreasonable demands. I am mentally harassed as well as financially losing the money.
He doesn’t give the possession date in writing. Even in registration document, he had forced me to sign even without a possession date. I understand he did that to everyone. His point was that sign or else cancel your booking, choice is yours. I had already spend more than Rs. 5.0 Lakhs in booking this flat in 2005 itself and had lost more than 1 years because his building got stuck in environmental clearance after 26th July 2006 rain in Mumbai. So, after waiting for 1 year, I didn’t want to cancel the booking.
What is the recourse I have? I will certainly go to Consumer Court but settling the case will take more than a year or so and there is no guarantee that I will get the justice and win the case. Till that time, I can’t afford to lose the money on my flat.
Can I pay the money that he is demanding and take the possession of the flat and then file a case in Consumer forum? What should be the process? I know, if I file a complaint/case first, he won’t give me the possession at all till the case is heard & closed. In the process I may lose more than even 1 year, knowing the judiciary system of our country for a common man.
Please advice. I will be highly obliged.
Best regards,
Siddharth
Vatsala Answers:
There is no mention in your letter as to why the builder is demanding the extra money, i.e. towards what category? It seems to me that you should either fight it out in the consumer forum or pay up and take possession. If you go to the forum, you should take your chances there. The third option is to pay the sum now, and seek a refund later. You can allege that there was delay and lapses in getting possession and seek compensation for illegal demands of extra money and compensation for it.Vatsala
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What Does It Legally Mean When One’s Name Is Shown As A Nominee On The Property Documents?

atoneplace — Fri, 06 Mar 2009 03:29:53 +0000

Question asked by Ms. Yamini Mehta :
Dear Sir/Madam, I saw your real estate property advertisement in the news paper. I will very much appreciate your immediate reply in the following matter. I have following questions about Indian property – real estate and family or any other applicable laws and procedures in the state of Maharashtra (Mumbai), India.
If a married son owns a flat (apartment) in a Co-operative Housing Society in Mumbai and his motherâ€™s name is shown as a â€œnomineeâ€ on the property ownership documents then what kind of legal ownership rights does the mother has in case of sonâ€™s death?
What does it legally mean when oneâ€™s name is shown as a â€œnomineeâ€ on the property documents? In this case, what kind of legal rights to the property ownership does the wife of the son has? (specially, if son is dead)?
If the son has a â€œWillâ€ indicating that the ownership of the flat should go to the mother after his demise, can son’s wife still claim the ownership of the flat and get the legal ownership of the flat after husband’s demise? Or whatever is on the Will, will prevail over the property and any other applicable laws?
In other instance, if mother’s name is listed as a co-owner of the property (flat) along with son’s name, (that is, if mother and son are joint owners of the flat) and son dies; does the mother become the sole owner of that flat automatically? Or in this case, son’s wife can claim the ownership of the partial property (flat) which is on her husband’s name and can become the part owner of the flat? In the above matter, what is the best legal way to secure property on mother’s name (who is in ill health), so the property (flat) cannot go to son’s wife as an owner or part owner after son’s demise. Please reply soon this is an urgent matter.
Thanks.
Sincerely,
Yamini Mehta
Vatsala Answers:
The apartments in Mumbai are owned by virtue of owning shares. Shares can be transferred to the person who is shown as nominee on the share certificate, by virtue of which the title to the apartment also changes. However in one judgment, the Supreme Court has held that the nominee can act only as a trustee and should distribute the property to all the legal heirs in case of
death without a will. If there is a will, it will prevail over all other legal rights. In the case of joint ownership of a flat, the half belonging to deceased husband will devolve equally on all his legal heirs in the
absence of a will. A will can be executed by the ailing mother now to whomever she wishes. The Maharashtra Co-Operative Societies Act should also be looked into and consultation with a local lawyer is advised who can check the precedents in the state.Vatsala
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What Should Be Done If The Documentation Between Original Land Owner And Erstwhile Seller Is Missing?

atoneplace — Wed, 04 Mar 2009 01:53:21 +0000

Question asked by Ms. Megha Nandkumar Belwalkar from Mumbai:

Sir/Ma’am, I have like a house at 1st Floor in a chwal structure at Malavani Village, Malad (West), Mumbai. It is a chwal system Ground + 1. They call that area as ‘Gavthan’. When I demanded papers to check they have given me following documents:
1) 7 x 12 extracts (Showing agricultural land)
2) Agreement between erstwhile seller & recent owner
3) Power of Attorney executed by erstwhile seller in favor of recent owner
My question is – if 7 x 12 is showing the original land owner name and agricultural land and there is no documentation between original land owner and 1st purchaser and 1st purchaser and erstwhile seller;
If any structure is constructed before 1990s and BMC is charging property tax for the property in the name of recent owner.
Can I pay stamp duty and register my house document. Is it possible to convert land into Nonagricultural. (if not converted).
After purchase and occupation of house, is there any possibility that any authority (govt./non Govt. and/or Political) will come and show it as illegal and can demolish the same.
Please give me OPINION on the above matter.
Thanking You.
MEGHA N B

Vatsala Answers:

I understand that you want to purchase the property and have been given a few documents. You should get the same verified by a reputed local lawyer who will guide you. If is unwise to proceed without doing this. There are many issues which might have to be looked into in a case like this by a local lawyer.Vatsala

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Repatriation by an NRI of All Proceeds from Sale of Residential Real Property in India, Purchased With Foreign Exchange

atoneplace — Tue, 19 Feb 2008 03:20:46 +0000

QuestionÂ asked by MrÂ Suphal Agrawal from USA:Â

Gentlemen, I was referred to your site by one of my relatives in India.
I am a male of Indian origin, now a U.S. Citizen for several years. I am interested in purchasing residential real property near Mumbai with a goal to sell it later on (time not definite yet, but could be anytime after a year or so, depending upon the local market situation and my own financial plans) and then buy something else, but eventually I intend to repatriate all proceeds — my original investment and all gains — back into the U.S. Based on my extensive search on this topic, here is what I understand:
1) I am classified as an NRI due to having held an Indian passport previously, and due to both my parents being Indian
2) As such, I can buy residential real property in India without any specific permissions; I can pay for it via wire transfer from my US bank to the seller’s bank in India; later, I can sell it to an Indian citizen or another NRI but must hold it for at least three years after my last payment (or three years after registration, if paying all cash) — language is confusing on this three-year-hold point; through an NRO account, I can have the seller repatriate proceeds to my US bank, but ONLY in an amount not to exceed my original payment for the property
3) As an NRI, I can only do a maximum of two such sales and repatriations (principal investment only) in my lifetime
Specifically, my key concerns are: 1) Can I repatriate all gains and all investments from the sale of residential real property purchased by paying for it in forex? 2) Can I do it as and when I choose? And, 3) Does my registration as a People of Indian Origin — PIO — have any impact on my ability to do these things?
I would very much appreciate your time in helping me with the above specific questions (particularly, repatriation of all proceeds from the sale of real residential property), and I will be especially grateful if you could reply at your earliest. My contact information is noted below. Thanks again.
Sincerely,
Mr. Suphal Agrawal, USA

Vatsala Answers:Â

1. You can very well purchase residential properties in India out of foreign remittance from abroad without any prior permission of the RBI.
2. However, the repatriation of sale proceeds of residential properties is restricted only to two properties.
3. There is no lock in holding period for sale and repatriation.
4. The amount repatriable will be restricted to the amount brought in by way of foreign currency. If it was acquired out of balances in FCNR/NRE account, it will be restricted to the value of foreign currency equivalent of the Indian Rupee used for acquisition on the respective dates on which the Indian rupees were paid for purchase of the properties.
5. The repatriation option is further subject to the condition of the applicable capital gains tax on the property having been paid already. Vatsala

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