Our society is over 80 years old and needs urgent redevelopment. We have 60 members, out of which six expired last year. Their legal heirs have not approached the society so far for the transfer of the flats,
nor is the nomination registered in the records. In these circumstances, for the purpose of 78A procedure, what will be the quorum for the special general meeting (SGM)? Will the deceased members be counted in the total membership? Accordingly, how many members would constitute 51% majority to pass the redevelopment proposal and subsequently select the developer? — Prakash Vengurlekar, Parel
As per section 25 of the Maharashtra Co-operative Societies Act, an individual ceases to be a member of the society upon resignation, transfer of shares or interest, death, removal, or expulsion. The committee should accordingly remove from the register of members the names of persons who have ceased to be members. Since six out of 60 members are deceased and their legal heirs have not approached the society for membership, the total strength of members reduces from 60 to 54. Membership does not pass automatically to legal heirs; they must apply, complete the required formalities, and pay the prescribed fee.
In the absence of a nomination, legal heirs will need a succession certificate, a legal heirship certificate, or a family arrangement deed, and must comply with section 154B-13 before flats can be transferred in their names. Until then, they do not acquire membership rights. For the SGM on redevelopment and developer selection, the quorum required is two-thirds of 54, i.e., 36.
The six deceased members will not be counted for determining total membership, quorum, or 51% majority. In your case, the consent of a minimum of 51% of members present in the SGM will be required, which comes to 27. Recently, in a writ petition before the Bombay High Court, the court held that admission to membership is a must for a legal heir to be considered a member of the society.
The admitted position was that none of the legal heirs of deceased members had applied or been admitted. The court further observed that the managing committee’s failure to update the register of members cannot change the fact that membership ends upon death. The death of a member does not mean automatic continuance of membership or automatic admission of legal heirs.
The quorum mandate is based on the percentage of members, not the percentage of flats or units, and therefore, deceased members must be excluded from the total strength. Records of the society under section 38(2) of the MCS Act are not conclusive when the fact of death is admitted. Accordingly, pursuant to the death of these members, they cease to remain members of the society.
The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to fpjchs@gmail.com
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