We have property -house in name of our grand mother. she took a loan of rs 50000( 30 years ago) by mortgaging that house. my grand father died in 1997 and grand mother died in 2007. there is no will made by them. my grand parents have 4 sons and one daughter (all married).
few month ago we came to know that one of my uncle ( we got that news after his death ) had paid rs 200000 to that bank and released the property and again taken some loan another bank by mortgaging that to another bank(without consent of rest of his brother and sister) . he died in 2015.
we stay in our own made separate house. other two uncles family now staying in that house( as they dont have personal house). now my aunt and her married daughter started to renovate a certain portion (2/5 th portion area) of that house without our consent and started claim of that portion ( as they are renovating that portion and that uncle paid the loan amount)
now my question is that how he(uncle) can take loan by mortgaging that house without our consent ?
how his family member can ask for (2/5 th share)?
as we told them to stop the renovation work ( without proper equal share partition ), his daughter and son in law just ignored us?
what should we do now ? tell us ?
Asked 1 year ago in Property Law from Rampurhat, West Bengal
1) your uncle cannot mortgage house without consent of other co owners . On repayment of loan bank would not handover original documents to uncle without consent of other legal heirs
2) file suit for partition for division of house by metes and bounds
1. If your grandmother had deposited the title deed standing in her name with the lending Bank creating security interest on it, the Bank will not return the said title deed to any person other than the mortgagor.
2. So if is highly unlikely that the said Bank has returned the original title deed to your Uncle.
3.Enquire the exact fact from the Bank through FTI mode.
4. If you find that your grandmother hasn't registered any gift deed in favor of your said Uncle.,you can file a partition suit claiming your share of the said property.
5. Simultaneously, you can also file a petition praying for an order restraining your uncle to carry on his renovation/construction work till the suit is disposed off.
1. Since your grandmother passed away intestate her property devolved through succession on all her children equally. It, therefore, follows that your uncle could not have mortgaged the entire property without the consent of all the heirs. The other heirs may file a suit for declaration of the mortgage deed as illegal as it came to be executed without their consent.
2. The other heirs are free to cull out their share by filing a suit for partition in the civil court. To stop them from renovating the house further you may seek permanent injunction against them.
1. Your uncle is certainly at fault in mortgaging the whole property as on death of your grand mother the said proeprty devolves upon you uncles and aunt in equal share.
2.So your father has got 1/5th undivided share in the proeprty along with your uncles and aunt and hence your uncle can not mortgage more than his undivided 1/5th share.
3. So ask your father to claim and demarcate his 1/5th share . If your uncle refuses to do so then your father must file a suit for partition to claim his share and injunction so his sahre may not be transferred in the meantime.
After the death of grand mother the property devolves to her all legal heirs(Her children s).If there was a charge created with bank then bank only claim their debt .Here your uncle mortgage the same property with other bank.It is illegal .So check whether there is any document created in favour of him by your grand mother before death.
If not file a suit for partition for getting your share of the said property.