Some Important Questions and Answers regarding transfer of plot or house or apartment

Important Questions and Answers

Q. Whether a cooperative housing society’s member in whose favour a plot of land or a house or apartment, as the case may be, may transfer such a plot of land or a house or apartment? If yes, under what circumstances it can be done?

Ans. Yes, he can do as per the terms of Rule 138(2) of the WBCS Rules, 2011 provided he has been allotted a plot of land, house apartment, by the housing society. But in terms of Rule 138(1) of the WBCS Rules, 2011, written consent of the society shall be required in all cases of transfer of land/house/apartment by way of sale or usufructuary mortgage as defined in the Transfer of Property Act, 1882( 4 of 1882).

The grounds on which a member may transfer by way of sale or usufructuary mortgage as defined in the Transfer of Property Act, 1882 (4 of 1882 ) as follows:—

1. that the member is involved in debts and such transfer is required to pay of his creditors;

2. that the member is bound to shift from the locality due to unavoidable circumstances beyond the control of the member;

3. that the member is in extreme need of urgent money to meet the expenses of marriage or of education of his children, or that the member is in urgent need of money to meet the medical expenses of any of the members of his family or any person fully dependent on him;

4. Such other grounds analogous to those mentioned from 1 to 3.

Q. What are the formalities required to be observed by the (1) transferer member; (2) transferee ( intending purchaser/applicant for membership ) ; (3) concerned co-operative society; and (4) Registrar of Co-operative Societies ?

Dos of a transferring member:

1. The transferring member should initiate the transfer process by submitting an application to the cooperative society. This application should request the society’s written consent for the transfer of their plot, house, or apartment to another individual. The application should include essential details such as the name, address, and occupation of the intended transferee, along with reasons for the transfer. This application is done as per instructions provided in Sub-Rule (1) of Rule 138 of the West Bengal Cooperative Societies (WBCS) Rules, 2011.
2. Along with the application, the transferring member must attach certain documents to support their request. These documents include a photocopy of the housing allotment letter issued by the society, as per Rule 149 of the WBCS Rules, 2011. Additionally, a copy of the registered deed in favor of the transferor should be provided. Furthermore, a photocopy of the share certificate issued by the society must also be submitted.
3. It’s crucial to note that if the cooperative society refuses or fails to provide consent for the transfer, it must record the reasons for such refusal in writing. This communication should be sent to the member within one month from the date of receiving the transferer member’s application. In such cases, the member retains the right to appeal to the Registrar against the refusal or failure within thirty days from the date of receiving the refusal communication or within sixty days from the date of the society’s receipt of the transfer proposal. This ensures transparency and accountability in the transfer process and provides avenues for dispute resolution if needed.

Dos of a transferee:

1. To initiate the process of becoming a member of the housing society, the transferee must submit an application for membership. This application, in Form No. XXVIII, should be addressed to the Secretary of the housing society. It should include a statement indicating that the transferee has entered into a bipartite agreement with the transferer member regarding the purchase of a specific flat, house, or apartment within the society. This application is crucial for seeking approval for membership from the date of the lawful transfer, as per the provisions of the West Bengal Cooperative Societies (WBCS) Act & Rules, in conjunction with the Transfer of Property Act, 1882.
2. Along with the membership application, certain documents must be submitted to support the transferee’s request. These documents include two recent passport-size photographs of the transferee, which help in identification and record-keeping purposes. Additionally, a salary certificate or a copy of the latest Form-16 reflecting deductions for professional tax should be provided. Alternatively, if applicable, a copy of the professional tax registration, enrolment, or clearance certificate can be submitted.
3. A crucial document to be included is a copy of the agreement of sale, duly attested by both the transferer and the transferee. This agreement serves as legal evidence of the property transfer and outlines the terms and conditions agreed upon by both parties. Furthermore, the transferee must provide a declaration stating their intention to submit a certified copy of the sale deed after the property transfer. This declaration ensures compliance with the Transfer of Property Act, 1882, and facilitates the society in transferring shares along with interest to the transferee.
4. Finally, the transferee must furnish a self-declaration in the prescribed format, as per Format XXVIIIA [Enc: A]. This declaration may include additional information or assurances required by the housing society or regulatory authorities. By adhering to these steps and submitting the necessary documents, the transferee can streamline the membership approval process and ensure compliance with legal requirements governing property transfers and cooperative societies.

Dos for the society:

A.   Upon receiving an application from the transferer member seeking consent for the transfer and an application for membership from the transferee, the Secretary or Chairman of the society must promptly convene a meeting of the Board of Directors (BODs). This meeting should preferably take place within 15 days of receiving the applications, demonstrating the society’s commitment to efficient processing.

B.   During the BODs meeting, the society will thoroughly examine the transfer proposal in accordance with Sub Rule (2) of Rule 138. Additionally, the eligibility of the transferee for membership will be assessed based on the documents submitted, as per Rule 131(3)(a) of the WBCS Rules, 2011. If both the transfer proposal and the transferee’s eligibility are found favorable, a resolution will be adopted by the BODs. The resolution will outline the society’s decision after detailed discussion and examination of the prayers and related documents. It will state that the transfer of the plot, house, or apartment from the transferer member to the transferee aligns with the WBCS Act, Rules, and Bye-Laws of the society. Furthermore, it will declare the transferee eligible for membership and specify the process for induction as a member. In case of refusal, the society must communicate the reasons for such refusal to the transferer within thirty days from the date of receipt of the transferer’s application, as per Rule 138(2)(vi) of WBCS Rules, 2011.

C.   If the society refuses to provide written consent for the transfer, the transferer member has the right to appeal within 30 days from the date of receiving the refusal communication. This appeal should be addressed to the Registrar, as per Rule 138(2)(vii) of WBCS Rules, 2011. This process ensures transparency and accountability in the decision-making process of the society regarding membership transfers, thereby upholding the principles of cooperative governance and fairness.

NOTE: a resolution should be taken in the following manner-

“After detailed discussion and examination of prayers along with their related submitted documents in the light of relevant provisions of the WBCCS Act & Rules particularly Sub Rule (2) of Rule 138 and Sub Rule ( 3) (a) of Rule 131 it is resolved that the prayer of Sri /Smt —————-. (Transferer member) dated —- seeking transfer of his / her plot no./house/apartment no. — for —————- ( record reasons of such transfer ) by way of sale to Sri / Smt ————- is in conformity with the WBCS Act, Rules and Bye-Laws of the Society. Further resolved that Sri /Smt ———, transferee is eligible to become a member of the society and he / she will be inducted as a member of the society in place of Sri / Smt ———, transferer member{ as and when a copy of the sale /purchase deed will be submitted by the transferee member to the society} with transfer of share of Sri /Smt —————, erstwhile member in favour of Sri /Smt ————— , newly inducted member.”

Dos for Registrar of Cooperatives:

The Registrar oversees the actions of the cooperative society concerning transfer requests initiated by the transferer-member. Upon receiving an appeal from the transferer-member and examining the reasons provided by the cooperative society for refusal of transfer, the Registrar’s responsibility is to thoroughly review the submitted documents and assess the situation in accordance with the relevant provisions.

The review process ensures that all aspects of the transfer request are carefully considered and evaluated. After examining the appeal and hearing both the applicant and the cooperative society, the Registrar is required to make a decision within a specified timeframe. As per Rule 138(2)(viii) of WBCS Rules, 2011, the Registrar must dispose of the appeal within 30 days from the date of its submission.

The timeframe is crucial for ensuring timely resolution and providing clarity to all parties involved in the transfer process. By complying with these procedures and timelines, the Registrar contributes to maintaining transparency, fairness, and accountability in the transfer process. His action and impartial decision-making help uphold the principles of cooperative governance and ensure that the rights and interests of all stakeholders are protected.