Q. My father is 90 years old and unwell. He has expressed his wish to transfer the flat to me and my brother. | live in London and wish to give my share to my brother as he takes care of my father. 1 am in India now and wish to complete the legal formalities. Is an NOC sufficient? Please advise. —MNarayan P, Nerul
A. Giving an NOC will not be sufficient. You can consider executing and registering a release deed in favour of your brather in respect of the said flat or any other property that you wish 1o relinguish your rights upon, Your father can gift the flat to your brother during his lifetime. A gift deed will involve costs with respect to stamp duty and registration fee, Alternately; the three of you can formally execute and register a tamily arrangement document whereby all of you agree to the manner in which your father’s property will be distributed between the two of you. If you do not wish to take vour share, the same can be recorded in the said document, which will be signed by the three of you in the presence of o witness. The option of making a will is also there,
Q. My nine-year-old son was riding a bicycle in the society premises when a senior lady came across and had a fall, sustaining a minor injury. She registered an FIR against my son. The committee members have given statements against him. We approached the Bombay High Court and the FIR was quashed. Now | want to claim compensation from the committee members who gave statement to the police resulting in the filing of the FIR and the trauma me and my family had to go through. Please advise. —Sailesh Venuchallam, Dombivali
A. Whenever the police or other authorities seek information from the society, the committee members are reguired to comply and submit the documents at their disposal, In your case, if the committee members gave any staternent to the police. it was on account of their position. Even society members have to give statements when asked for by the police or any other authority in relation to certain incidents they have witnessed.
Q. Our purchase agreement of 2015 has a clause that the builder can construct buildings / apartments, ete, to utilise the FSl available to him and the purchaser has consented to the same and will not raise any objection in future until the society is formed. The developer wants to construct two additional floors to avail the additional F51 due to the change in the DCPR due to which he has not formed the society since the last three years after handing over the possession to us. He says that the consent of home buyers will not be required as per the said clause in the purchase agreement. Can such a clause in the agreement adversely affect the right of the society as and when formed to avail the FSi for itself which the developer is claiming? —Anil Sakharkar, Goregaon
A. It is the duty of the developer to complete the project, form a society within the stipulated time under MOFA and to covey the property in the name of the society. Once the society is formed and the land fs conveyed, the society can utilise any additional F51. MOFA provides for explicit consent of the home buyers for construction of any additional floors in the building. The Bombay High Court in its judgement of August 22, 2024, in Mahavir Terrace CHS Ltd v/s Shri Govindram K Tibrewala & Ors, considered similar issues and observed that the developer failed to comply with the mandatory statutory obligations under Section 10 of MOFA read with Rule 8 of the Rules framed thereunder. The developer having failed to get the society registered cannot take the advantage of its own default and claim the entitlement to the unconsumed FSI without the consent of the home buyers.
The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to [email protected]