• Mortgagor died without legal heir

Mortgagor – Elder Brother
Mortgagee – Younger Brother
The elder brother has mortgaged his property (measuring 500 sft) with his younger brother. Elder brother is a bachelor and has no legal heirs. Apparently the elder brother passed away without writing any WILL.
Please clarify the following points,
1.	Can the other siblings (another brother and two sisters) claim ownership
2.	How this can be settled now
3.	Can Mortgagee decide on the settlement
4.	Can Mortgagee decide to settle this to two sisters equally upon receiving the Principal amount with Tax
5.	Since the property on question is on Free WILL, can all siblings claim equal right
Asked 2 years ago in Property Law from Chennai, Tamil Nadu
If elder brother has taken loan against the property and have mortgaged his property, then his legal heir is required to pay the loan in order to claim the rights in the property. Since as mentioned by you that elder brother has no legal heir as in wife or son, then as per Hindu Succession Act, the property will devolve to his mother and if mother is not there then it shall devolve to all legal heirs. 
Therefore, the other sibling  will have to settle the amount with the mortgagor to claim the rights on the property. The other sibling should pay the loan of elder brother and execute the settlement agreement.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
1. Yes, along with mother if she is alive.
2. Yes by way of jutal deed of partition.
3.Yes surely.
4. Yes the sisters along the mortgagee takes share in the property.
5.Yes , they can claim equal share.
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
1) on the demise of elder brother his property would devlove on his legal heirs . 

2) since elder brother was bachelor and has only 4 siblings the property would devolve on the siblings equally . in other each sibling has 1/4th share in property . 

3) loan taken by elder brother has to be paid by legal heirs to claim the share in property
Ajay Sethi
Advocate, Mumbai
23192 Answers
1218 Consultations
5.0 on 5.0
1. Was the said property mortgaged to secure any loan availed by the elder brother from the younger brother?

2. After the demise of the mortgagor without settling the outstanding dues, the mortgaged property will be owned by the mortgagee,

3. However, other siblings of the elder brother can offer to jointly repay the outstanding dues of the elder brother and in such case the mortgagee brother, if he so agrees,  shall release the mortgage on the property which will then be divided amongs all his legal heirs.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. Since the elder brother was a bachelor the property would devolve on his mother and other siblings in equal proportion after his demise unless he executed a will. 

2. After the demise of the mortgagor without repaying the loan taken by him the property is owned by the mortgagee.

3. His legal heirs can claim their share in the property by repaying the unpaid loan to the mortgagee.

4. After the mortgage is cleared the property can be divided by drawing a deed of partition.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0
1) what is total amount due and payable as on date? 

2) whether in pursuance of loan any payments were made by mortgagor ?

3)if other legal heirs  pay the loan amount with interest then the property would devolve on the legal heirs equally
Ajay Sethi
Advocate, Mumbai
23192 Answers
1218 Consultations
5.0 on 5.0
1. It is illegal to charge 2% interest per month i.e. 24% interest per year,

2. However, the other legal heirs of the elder brother can send a legal notice to the younger brother offering to refund the principal amount along with interest as per bank rate,

3. If the younger brother refuses to agree, all the said legal heirs can file a suit against the younger brother claiming release of the mortgage of the said property after receiving payment from them,

4. After that all the legal heirs can get the said property partitioned amongst themselves.
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
229 Consultations
5.0 on 5.0
1. The rate of interest @ 2% per month is usurious. It is illegal to charge 24% yearly interest. Be that as it may, only a court of law can decide whether such a high rate of interest is legal or not. 

2. The property will devolve equally on all legal heirs if they repay the loan with interest,.
Ashish Davessar
Advocate, Jaipur
18088 Answers
447 Consultations
5.0 on 5.0

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