Can Second Co-Owner Vote & Contest in Elections of AOA?

In group housing societies every election season the issue of owner and co-owner occupies centre stage and discussions take place whether co-owner can vote or stand as a candidate in the election. I have perused different flawed opinions of residents in the last few dates regarding rights of co-owner hence, thought of contributing this brief write up.

First of all, let us be clear about who is an apartment owner? As per section 8 of the U.P. Apartment Act, an apartment owner is a person who owns the apartment. A person becomes the owner of a flat the moment he pays the last penny pending towards the allotted apartment. The registration of the lease/ sale deed is immaterial for ownership.

As per law, there can be more than one person as the owner of the flat. Where the flat is owned by more than one person each such person becomes the equal owner of the flat having undivided interests. All owners have equal rights, neither less nor more by virtue of whose name is mentioned before or later in the Builder-Buyer Agreement or the lease deed.

The Supreme Court of India in the judgment of Sriram Pasricha vs Jagannath & Ors on 24 August 1976 Equivalent citations: 1976 AIR 2335, 1977 SCR (1) 395  (available at https://indiankanoon.org/doc/942903/  ) has consistently reiterated that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others (owner/co-owner) and it cannot be said that he is only a part-owner or a fractional owner of the property.

“As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in-trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person …… The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned”.

Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when the partition takes place. 

Sriram Pasricha vs Jagannath & Ors on 24 August, 1976. reported in : 1976 AIR 2335

Also, Allahabad High Court in the celebrated case of Designarch has stretched the definition of apartment owner for practical purposes. The court has even included ‘the spouse and children and ‘a lawful tenant’ of the owner within the definition of an apartment owner. This means that even if the name of the spouse or children are not in the lease/ sale/ handover deed then too they are considered to be owners of a flat. Such a wide definition of apartment owner has been given by honourable High Court probably with an intention to allow maximum participation of the residents/owners in the affairs of the group housing which includes its maintenance through the association of the apartment owners.

We must know that all persons who purchase apartments in group housing are automatic members of the apartment owners association. Therefore, there can be more than one member from one flat depending upon the number of owners the flat has.

The next and most crucial question that arises is that among those many co-owners of a flat who shall have the right to vote and put forward his candidature for elections. As per the law settled by the Hon’ble Supreme Court any of the co-owner can cast its vote, but then how to decide as to which co-owner will cast the vote and can participate in the AOA election? Whether it will be a co-owner whose name appears first in the conveyance deed (title deed: sublease or sale deed) or will be determined by some other document?

The lawmakers appears to have anticipated such situation as such to minimise the conflicting views most of the state have formulated model bye-laws for managing the affairs of an apartment owners association.

Under the U.P. Apartment Act 2010, Model Bye-Laws have been framed by the state government and it takes care of most of the issues including election and voters. The Bye-law – 5 deals with Joint Apartment Owners and provides thus:

“5. Joint Apartment Owners—Where apartment has been purchased jointly by two or more persons, they shall be jointly entitled to the apartment and the share certificates shall be issued in their joint names, but the person whose name stands first in the share alone have the right to vote.”

Bye-law -5 Model Bye-laws under UP Apartment Act 2010

The U.P. Apartment Act 2010 and Model Bye-Laws have not defined what is share certificate or the process to issue it. However, a general principle of law is that no provision of the statute can be left redundant. As such issuance of the share certificates is the responsibility of the Board of the Association of Apartment Owners (AOA) to its members. Every AOA should issue a share certificate to its members while giving membership and in the membership form, it should specifically ask the co-owners as to whose name amongst the co-owners should be placed at first place in the share certificate irrespective of sale/ lease deed. Once the share certificate will be issued the person having the first name therein amongst the co-owners will be legally eligible to cast vote and file candidature in the AOA election.

Conclusions:

• Every co-owner has equal and undivided right in a property including apartments/ flats and rights in consequence of such property rights irrespective of whose name find first place or last in the title/ conveyance deed like sale deed, lease deed or sub-lease deed.

• Every Apartment Owners Association (AOA) in Uttar Pradesh is obliged and duty bound to issue share certificate to the member apartment owners/ co-owners while giving them membership.

• Membership Form should contain column seeking information from co-owners, whose name shall be first in Share Certificate irrespective of title/ conveyance deed.

• The Co-owners can put any of the co-owner’s name at first place in the share-certificate irrespective of title/ conveyance deed.

• The co-owner having first name in the share-certificate will have right to vote and file its candidature in Board election.

• The voting / candidature right is not dependent on first co-owner as per the registered conveyance deed rather it is dependent on the share certificate.