No Nomination! No Will! What to do?
It is a question often asked by the members of the Managing Committee of the Cooperative Housing Societies.
In accordance to the society bye-laws, it’s the responsibility of the managing committee to transfer the property in the name of legal heir / nominee / as per will. However, it is observed that members do not take this activity of filling their nominations and or preparing the will. This creates serious legal complications for the surviving members.
In absence of the Nomination / Will, the only option for the Managing Committee is to obtain the “Probate” or “Succession Certificate” from High Court.
Beside the legal hassle, this is an expensive procedure as the members will be required to pay the court fee which depends on market value of the property but maximum to the extent of Rs. 75000/- (Seventy Five Thousand). However, after 2006 Judgement of the Taxing Master of the Bombay High Court, the staggering fees has been reduced to zero, which is a big relief for the family members of the deceased.
In a landmark order, the HC Taxing Master ruled that legal heirs seeking transfer of a flat in a Cooperative Housing Society after the death of the owner need to pay court fees on the value of the share in society the member holds and not the market value of the flat. Rule 23 of the Maharashtra Cooperatives Societies Rules, which states that where a person is allotted a share by a society the payment required to be made shall not exceed the face value of the share. As per the society bye laws each flat owner / member is issued 05 shares valued at Rs 50 each i.e. the total value of Rs. 250/- max.
This order benefits persons applying for a succession certificate for a flat in a cooperative Society till now, they were required to pay a court fees calculated as a percentage of the market value of the flat.
In accordance with the Indian Succession Act the court fees for succession certificate is calculated basis the market value of the asset as per below:
|Less than Rs. 1000 /-||0|
|Rs 1,001 – Rs 50, 000/-||2%|
|Rs 50,001 – Rs 2 ,00,000/-||4%|
|Rs.2,00,000 – Rs.3,00,000/-||6%|
|Above Rs. 3,00,000||7.5%|
Subject to a maximum ceiling of Rs 75,000/-
So in case of there is no exchange of money and only the share were being transferred to the family members after the death of the member, then the face value of the shares is just Rs. 250/- which is less than Rs. 1000/- and hence will not attract any court fee.
Though its very clear for the Maharashtra, this judgement needs to be applied to the other states and interpreted in line with the prescribed limits of the shares the members have in the Cooperative Housing Society.