Sell/Mortgage share of Undivided property without consent of other joint owner
2 years ago
I have joint undivided house property, i have 1/4th portion of the property, My brothers sold their 3/4th undivided share in the year 2016 to unknown person without my NOC & Consent. I have complete possession of house. Unknown person purchased 3/4th share without possession. Unknown person was after me to sell my 1/4th portion to him. But i denied so he approached co-operative bank in 2018 and mortgaged 3/4th share to cooperative bank. Co-operative bank without my consent & NOC mortgaged 3/4th share.
Now i do not know which 3/4th part bank going to auction, as there is no partition till now.
Some lawyers told me that you have right of preemption to purchase property but sale deed challenge limitation is of 3 years only. its 2021 now.
What should i do?
Ayantika Mondal @ Prime Legal
Responded 2 years ago
A.Hi,
It is required to take consent and NOC from joint owner to sell or mortgage the property. Bank is also required to take the divided property. Undivided property cannot act as security. You can show your possession over the property and invalidate the sale of it.
You need to satisfy the court for the reason of your delay.
If you find it helpful, kindly rate my answer. Thank You.
It is required to take consent and NOC from joint owner to sell or mortgage the property. Bank is also required to take the divided property. Undivided property cannot act as security. You can show your possession over the property and invalidate the sale of it.
You need to satisfy the court for the reason of your delay.
If you find it helpful, kindly rate my answer. Thank You.
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A.Hi,
You can file a civil suit and can take your property back showing possession and undivided property. You can also sue bank for taking undivided property as security. You need to satisfy the court for the reason of delay.
If you find it helpful, kindly rate my answer. Thank You
You can file a civil suit and can take your property back showing possession and undivided property. You can also sue bank for taking undivided property as security. You need to satisfy the court for the reason of delay.
If you find it helpful, kindly rate my answer. Thank You
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A.Preemption is applicable for sale and not for mortgage hence the limitation mentioned under Article 97 of Limitation Act is not applicable to mortgage but for sale only.
The bigger question is how come the bank has taken the unpartitioned house on mortgage? A bank will take only a clean property as security which can be easily sold or auctioned in the market. The bank will find it difficult to move ahead with.
You can play around with bank here.
See bank will file case in DRT as per the SARFAESI Act. You can move the case in Civil Court as your civil rights will be impaired and since you are not the borrower you are not supposed to go to DRT but your property is being pulled in the case in DRT.
There will be complexity issue of jurisdiction and if you hire a good lawyer then he will play around with this and not allow the bank to go anywhere.
The bigger question is how come the bank has taken the unpartitioned house on mortgage? A bank will take only a clean property as security which can be easily sold or auctioned in the market. The bank will find it difficult to move ahead with.
You can play around with bank here.
See bank will file case in DRT as per the SARFAESI Act. You can move the case in Civil Court as your civil rights will be impaired and since you are not the borrower you are not supposed to go to DRT but your property is being pulled in the case in DRT.
There will be complexity issue of jurisdiction and if you hire a good lawyer then he will play around with this and not allow the bank to go anywhere.
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Pardeep Kumar Dhiman Dhiman
Responded 2 years ago
A.Dekhiye bank sirf 3/4 share tak hi property ko nilam kar sakte hai. Ab aap ka kahna hai ki kon part nilam hoga. Vah sale deed ke aadhar par property ko nilam karenge. Kya aap ke dawara sale deed ka study kiya gaya hai. If nhi kiya gaya hai tab sale deed ka study kare and usme dekhe ki kon sa part sale hua hai. Agar aap ka part usme nhi hai tab aap ko koi problems nhi hai. Aap apne part par enjoy kare.
Agar aap ka part usme likha gya hai tab aap ko sale deed challenge karna chahiye tha ab time kafi ho gya hai isliye sale deed ko challenge nhi kiya jaa sakta hai.
Aap injunction ke liye court jaa sakte hai.
Please respond
Agar aap ka part usme likha gya hai tab aap ko sale deed challenge karna chahiye tha ab time kafi ho gya hai isliye sale deed ko challenge nhi kiya jaa sakta hai.
Aap injunction ke liye court jaa sakte hai.
Please respond
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Vaidehi Samant
Responded 2 years ago
A.You may file your case in the Court, if limitation period is over than you may file Application for condonation of delay along with your Civil case stating appropriate reasons as to why it took so long for you to file the case, in most of the cases such delay is pardoned and matter is accepted by the Court and also currently in the times of Covid19 pandemic such delay is very much understandable so you may try to file the case in the Court. Consult a good property lawyer in your area and go ahead if you deem fit. Thank you.
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