Opinion Of Eminent Legal Luminaries On Controversial Issues

Co -Operative Housing Society – Will would prevail over nomination

QUERY: When my father was alive not only he prepared the will & bequeathed the residential flat to me exclusively, but also added my name in the share certificate of the society. So on his death the society deleted his name and my name which was second became first. After few days I added my wife's name as second and then both of us nominated our only child (i.e. married daughter), Now in above situation on my death who will become owner of the flat?

ANSWER: When your father added your name in share certificate along with him, you were admitted by the Housing Society as "associate member". Now on his death you became the "member" as per his Will.
So, now your wife along with you is "associate member" and both of you have nominated your married daughter. There is difference between assignment and nomination. From the fact it is clear that you have nominated your daughter but you have not assigned your flat to your daughter.
To avoid any complication in future, it would be advisable that you should make a "Will" clarifying your intention. On your death "Will' would prevail over your nomination [see Sarbati Devi v. Usha Devi (55 Comp Cases 214 (SC)] and Vishin Khanchandani v. Vidya Khanchandani [246 ITR 396 (SC)]

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Credit: Several of the queries and answers are reproduced with permission from the AIFTP Journal. We thank AIFTP for generously allowing us to host their research material.
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