It is necessary to peruse terms of mortgage to advice
2) you have to contact lawyer and file detailed reply denying allegations made in suit proceedings
3) you have to pay amount with interest
What to do
Hi My father was a retired government employee, due to a case on him the government has stopped the amount which should be provided after retirement. I and my family living separately after my marriage. After the family council, my father said to come and stay at home. The first floor was empty and I have started constructing, and it was in the final stage. Recently I came to know that the house was in mortgage for other 3rd person. The 3rd person was a broker and my father tried to sell the property. The broker(3rd person) has tried to sell the house by giving some advance, but he was not successful such that no one came to purchase the property. As the time going on the 3rd person said that to return the money, as security he took the mortgage of my house with our any interenst. Now the construction was almost completed and I have invested a lot in it. Q1) How should I face the 3rd person(broker) regarding the mortgage. Q2) If 3rd person(broker) files a case on us, what will be the solution as I have invested to construct the property Q3) As per the mortgage document([deleted]) it's mentioned the amount should be paid within 100 days, but 455 days has been passed. Will it be a problem? Q4) As the father issue was under court we are fighting for that. We said to the 3rd person that once our issue is clear in court we will get the retirement amount and will pay him. But he is not obeying it. what to do?
Asked 3 years ago in Property Law
Religion: Hindu
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12 Answers
Hello,
- Regarding the mortgage, the person can take legal steps to recover the amount, including getting an order from the court, to auction the mortgaged property. You have to buy time from him. If he demands money as the time has elapsed, you must reply assuring repayment.
- If he files a case for recovery, you have to defend, say for example, take the stand that the property mortgaged is an ancestral property in which you too have a right and therefore your father was not fully entitled to enter into the mortgage agreement.
- You will be liable to pay interest for the delayed time for return of the amount borrowed. It will form the ground that you failed to abide by the terms of the mortgage.
- There is not much you can legally do as the amount is overdue. The only way out is to try to arrive at a settlement even after he files a case in the court.
Claim, the house is ancestral property. There are many incidences of ancestral property. Property purchased from sale proceeds of ancestral property, property purchased from funds out of family business, any contribution of family member, however small, property purchased from sale of family ornaments, any of the above makes the property ancestral. Ancestral cannot be sold, transferred or mortgaged without the consent of all share holders. As all share holders have not given their consent, the mortgage is not binding on them. As the mortgagee has allowed to add one more floor to the house he cannot take advantage out of that. Why he did not give you notice immediately after lapse of 100 days for execution of mortgage deed? Why he did not issue you notice to stop the construction of first floor? Why he is waiting for completion of construction of first floor? Because the mortgage deed is sham. There is no any intention to enforce the mortgage deed. It is just a loan transaction without interest which you are ready to pay. All these valid questions can be raised by your Advocate for consideration of Court. It is not easy for him to take the house. Since father is facing court case he is in dire need of money, taking advantage out of that the mortgagee forced to sign the loan document as mortgage deed. You can very much turn tables on him.
Since the proeprty was not on your name hence it was a foolish thing to make construction on the property which is not on your name.
Your father has already mortgaged the proeprty in favor of a third person, hence that mortgage loan has to be discharged fully with interest in order to retrieve the title by your father.
Now since you have already invested your amount in the property without following the legal procedures, you cannot claim property as a compensation towards the amount invested.
You can at the maximum claim the return of amount that you have invested in the property from your father or can file a suit for recovery of the money invested and obtain a stay order till the money invested is returned to you with interest.
1. The property stands in your father's name.
2. Find out whether he has registered any mortgage deed with the 3rd person or not in connection with the said property.
3. If it has been registered then you have no say on the matter.
4. If it has not been registered, and you have the original title deed of the said property, then there has been no legal mortgage created with the 3rd party.
5. However, the building or part of it which has been constructed by you also stands in the name of your father.
dear sir,
since the property was mortgaged and you were unaware of it, you can take legal actions against the 3rd person and also your father and claim your investment.
initially, you will have to send them a legal notice and try to solve this issue amicably. if the matter will not be resolved, you can take this matter to the court. under fraud, cheating, criminal breach of trust, etc
Hi 1)As the property belonged to my grandfather. And his 3 sons have shared the partition on the property including my dad. In the sale deed, it clearly says that the property belongs to my grandfather. Can I file a case as it belongs to ancestral property.
Asked 3 years ago
Any property purchased by grandfather becomes ancestral property in the hand of father. You have every right to seek your share in the property as grandson. Issue lawyer’s notice to all legal heirs seeking partition and separate possession of property. After that file a suit in district Court for partition and separate possession. You will get your share.
It is not ancestral property
property which remains undivided for 4 generations is ancestral property
Dear Sir,
If the property was divided among the brothers as per a partition deed, the property will loose its character as being ancestral. To be characterized as ancestral it should be undivided property that has been inherited up to four generations of male lineage.
Thank you
You have admitted that this property belonged to your grandfather.
Grandfather's property is not ancestral property hence you cannot claim coparcenary rights in your grandfather's property.
This property is your father's own and absolute property, hence you may have to look for some other way to recover the amount you have invested in the property/construction
1. Since, this house mortgaged by your father , then that person having right to sell the house if the payment not done during the mentioned period after terminating the agreement .
- Further , he also having right to get the order from the court within the time frame .
- However, you can pay his amount and can get back the property papers from him .
2. You can claim the amount of construction , and further can claim your share in the property on the ground that this house was purchased by your father after arranging amount from the ancestral property.
3. The limitation period of filing a suit is 3 years from the date of contract /agreement , hence even after expiry of 100 days , you can cleared the mortgaged amount .
4. You can file an Injunction suit for restraining him from selling the house .
1. Grandfather's property is not considered as ancestral property.
2. Ancestral property is defined differently.
3. Legally speaking, you can not lay any claim on the said property claiming it as your ancestral property.