Plot in mother's name and she is staying away
Dear Sir . My father is a govt. employee, he bought a plot in the name of my mother in 2003 and started construction of our house by obtaining Bank Loan . My father has been clearing these bank loan every month, my parents got married in 1992 , but now my mother left my father in 2012 and she is staying alone. I and my brother along with my father are residing at our home. The Question is we went to bank for Takeover of the loan from other bank but they are asking that my mother's presence is must to mortgage. We requested and begged her to come and sign for loan Takeover but she denied. Now what shall we do ? Please help me to sort out this issue....
file a case in civil court for direction to bank regarding your issues that your mother had not buy the said property by her own but your father who had buy the said property in your mother name that he is government servant and he always transfer to many places in india as per his duty. For prove you can show the transaction of purchase of said property.
Just asking her by sending notice to sign respective documents as the said property is benami property which has purchase by hard earn money of your father service so she not having any rights as its self earned property.
Transferring the ownership from one person to another, needs verification to that effect. Since, it is a mortgaged property, the property generally doesn’t change hands because of the encumbrances attached to it.
Bank’s Stand :-
The bank also does not entertain such a transaction, because if anything goes wrong in future – the bank is only interested in the interest as well as principal amount of the worth of the property and falling into litigation is their least interest. A change in the ownership involves a different risk thereby, making the banks a little hesitant in doing so. The deed that the mortgagor signs with the bank also contains certain stipulations to this effect, which allows/prohibits the mortgagor to further sell or transfer the property. However, if the bank poses a condition to make your mother present at the time of such an approval then, certainly such a transaction cannot take place otherwise. Because you need to understand one thing that as an evidentiary proof, on papers – your mother is the owner of the property – thus, possessing a legal right over the property (enabling her to take all the decisions with respect to the said property).
Going by the language and the intention of Section 58 in The Transfer of Property Act, 1882 – a mortgage creates an interest of the mortgagee (bank) in the property wherein it is presumed that the principal money and interest is secured. Now, if the amount is already secured with the bank and the deal is between the mortgagor and the bank then what right does the mortgager possess on the property in order to transfer.
A mortgagor doesn’t possess ownership in the property bought with the loan, rather they have possessory or security interests in them.
Had it been a normal buyer-seller situation, with respect to the takeover of loan – the seller first needs to settle the loan on the property as against the mortgaged, in order to transfer it to another buyer by way of the takeover of suc
 A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed
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