Nominee vs Owner: Does a Nominee Have the Right to Vote in a Housing Society After the Member’s Death? Here’s What the Law Says
When a flat owner in a housing society passes away, one of the most common questions that arises is — who becomes the rightful member of the society? Can the nominee automatically take over the membership and exercise voting rights? Or does the nominee need to wait until a legal heir certificate or court order is obtained?
This confusion between “nominee” and “owner” has existed for decades. Many housing societies and family members misunderstand what rights a nominee truly has. The new amendments to the Maharashtra Co-operative Societies Act, especially Section 154(B) introduced on March 9, 2019, have helped to bring more clarity to this issue — but even today, several societies continue to interpret the rules incorrectly.
This article explains, in simple and clear language, the difference between a nominee and a legal heir, the meaning of a provisional member, and the voting rights a nominee enjoys in a cooperative housing society after the death of the original member.
The Real-Life Situation: A Common Housing Society Dilemma
Let’s consider a common example.
A man names his son as a nominee for his flat in a cooperative housing society. After the father passes away, the son applies to the society for membership. The society accepts his application but writes “provisional member” next to his name on the share certificate.
Later, when the society calls a general body meeting to discuss redevelopment, the son is told he cannot attend or vote until he produces a succession certificate or legal heir certificate from the court.
Is the society right in doing this? Can it stop a nominee from attending meetings or voting? What do the cooperative housing laws actually say?
Understanding the Concept of a Nominee
A nominee is a person chosen by the flat owner to whom the society can transfer the ownership or membership of the flat after the owner’s death. It is a way for the society to know whom to deal with temporarily until the legal heirs are finalized.
However, a nominee is not the owner of the property by default. The nominee acts as a trustee who holds the property on behalf of all legal heirs until ownership is decided by law or by mutual agreement.
This means:
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A nominee can manage the flat and represent it in the society.
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But the nominee cannot sell, transfer, or claim full ownership unless he or she is also the legal heir.
In other words, being a nominee does not make you the legal owner, but it does allow you to handle the property’s affairs temporarily.
The Legal Basis: Section 154(B) of the Maharashtra Co-operative Societies Act
The Maharashtra Co-operative Societies (Amendment) Act, 2019 added new provisions that define different types of members in a housing society. Among these, Section 154(B)(13) is very important.
It clearly states that:
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After the death of a member, the person nominated by the deceased member shall be treated as a provisional member.
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The nominee remains a provisional member until the legal heirs are determined through a court order, succession certificate, family arrangement, or any other valid legal document.
This means that societies are legally right when they write “Provisional Member” next to the nominee’s name on the share certificate. It’s not discrimination — it’s part of the law.
However, that does not mean the provisional member loses all rights. The law also provides specific powers and protections to provisional members.
What Is a Provisional Member?
A Provisional Member is someone who temporarily holds the rights of a member in the housing society after the death of the original member, until legal succession is finalized.
This person is usually the nominee named by the deceased member.
A provisional member can:
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Attend meetings of the society.
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Participate in decision-making discussions.
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Exercise voting rights (unless restricted by a specific court order).
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Represent the flat in redevelopment or maintenance matters.
The society cannot refuse to recognize or include the provisional member in meetings. Doing so would be a violation of the nominee’s rights under cooperative law.
Can a Provisional Member Vote?
This is one of the most important questions.
According to Section 154(B)(14), the principle of “One Member, One Vote” applies in all housing societies. Every recognized member — including a provisional member — has the right to vote personally.
Here’s what the law says in simple terms:
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The provisional member (nominee) can attend and vote at meetings.
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Voting cannot be done by proxy or through a Power of Attorney.
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Only co-members (joint holders of the flat) can vote in the absence of the main member, and only with prior permission.
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Therefore, if the deceased member’s only representative in the society is the provisional member, that person has full right to vote.
If the society stops the provisional member from voting, it amounts to denial of a lawful right, which can be challenged.
The Role of Legal Heirs
While a nominee becomes a provisional member, the ownership of the flat is decided only after the legal heirs are identified. This may happen through:
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A succession certificate issued by the court,
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A family settlement or arrangement, or
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A registered will.
Once the rightful owner is determined, the membership is transferred from provisional to permanent status.
Until then, the nominee continues as a provisional member and enjoys all society-level rights — including voting.
What If There Is No Nominee?
If a member dies without naming any nominee, the society’s managing committee has the power to identify a person who seems to be the most likely legal heir, based on documents such as:
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Death certificate,
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Proof of relationship, and
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Affidavits.
As per Bye-law 35, the committee can grant temporary (provisional) membership to that person until formal legal documents are produced.
However, in practice, most societies ask the family to produce a succession certificate to avoid disputes or future legal challenges. This is a common precautionary step.
Nominee vs Legal Heir: The Key Difference
This is where most misunderstandings occur. Let’s make it crystal clear:
| Aspect | Nominee | Legal Heir |
|---|---|---|
| Who appoints | Appointed by the flat owner during their lifetime | Determined by law or a court after death |
| Purpose | To represent the deceased in the society and hold property temporarily | To inherit ownership of the property |
| Right in property | Temporary and limited | Permanent and legal |
| Can sell property? | No | Yes, if ownership is legally transferred |
| Membership in society | Provisional | Full (after ownership is confirmed) |
In short, the nominee is a caretaker, while the legal heir is the rightful owner.
Can the Society Deny Meeting Participation to a Nominee?
Absolutely not.
Once the society records the nominee as a provisional member, it is bound to allow that person to:
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Attend all general body meetings, including redevelopment meetings.
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Vote on resolutions.
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Receive notices, circulars, and other society communications.
If the society refuses to include the nominee or bars them from meetings, it is violating Section 154(B). Such actions can be challenged before the Deputy Registrar of Co-operative Societies or in a co-operative court.
What About Redevelopment Decisions?
Redevelopment is a crucial process for any housing society, and every member’s consent matters.
A nominee who is recorded as a provisional member has the same right to attend redevelopment meetings and vote as any other member.
If the society excludes the nominee, the redevelopment decision itself may be legally questioned, as it violates fair participation norms.
Therefore, provisional members should:
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Attend all redevelopment-related meetings.
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Demand to see all proposals, plans, and agreements.
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Exercise their voting right responsibly.
Society’s Responsibility Ends With Recognition
It is important to note that once the society accepts the nominee as a provisional member, its responsibility ends there.
The society is not required to decide who the rightful owner is or to intervene in family disputes.
Determining legal ownership is the responsibility of:
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The court, or
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The legal heirs themselves, if they reach a mutual understanding.
Thus, the society’s role is administrative — not judicial.
Why the Confusion Exists
Many societies still misunderstand the law because:
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Older rules before 2019 did not clearly define provisional membership.
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Committee members fear being accused of favoritism or mismanagement.
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Some lawyers advise societies to wait for a succession certificate for safety.
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Members often confuse membership with ownership.
But the 2019 amendment brought much-needed clarity — and every society is expected to follow it.
Key Takeaways
Let’s summarize the entire discussion into clear, actionable points:
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Nominee ≠ Owner
A nominee is not the owner of the flat. The nominee only represents the deceased member until ownership is legally determined. -
Provisional Membership
After a member’s death, the nominee automatically becomes a provisional member under Section 154(B)(13). -
Voting Rights
The provisional member has the right to vote and attend meetings, as per Section 154(B)(14). -
Legal Ownership
Ownership is finalized only after legal documents such as a will, succession certificate, or family settlement are produced. -
No Proxy Voting
Voting must be done personally by the member. Proxy or Power of Attorney votes are not allowed. -
Society’s Role Is Limited
The society’s duty is to record the nominee as a provisional member — it is not its job to decide inheritance disputes. -
If No Nominee Exists
The society committee can provisionally admit a likely legal heir after due verification. -
Attend Redevelopment Meetings
A provisional member has every right to attend redevelopment meetings and vote.
Final Thoughts: Know Your Rights and Responsibilities
For every housing society member, it’s vital to understand the difference between membership and ownership. These two terms may sound similar but have very different legal meanings.
Just like the 7/12 land record does not automatically grant ownership, being a nominee doesn’t make one the legal owner. Still, the nominee plays a very important role in maintaining the property’s continuity and protecting the society’s operations after the member’s death.
If you are a nominee, remember:
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You are legally recognized as a provisional member.
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You have the right to vote and participate in meetings.
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You can represent the flat in all society matters.
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But you must obtain or support the process to get a legal heir certificate to complete ownership transfer.
If you are a society member or committee, remember:
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You must treat the nominee with full respect and allow participation.
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You cannot deny them entry to meetings or deprive them of voting rights.
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Your responsibility is administrative — not to judge family inheritance disputes.
In short, the law supports the nominee’s right to act as a member, even if ownership is still pending. This balance protects both — the society’s management and the family’s inheritance rights.
Conclusion
The 2019 amendment to the Maharashtra Co-operative Societies Act has made one thing very clear — a nominee has the right to be treated as a provisional member and to participate fully in society affairs until legal ownership is finalized.
So, in the situation where a son has been nominated by his late father and his name is recorded as a provisional member, the society cannot stop him from attending meetings or voting, including in redevelopment decisions.
The society has acted correctly by marking him as a provisional member — but it cannot restrict his participation.
Legal ownership will be decided separately, but until then, the nominee’s rights as a provisional member and voter remain protected by law.
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