Boundary prevails over extent
Querist :
Anonymous
(Querist) 08 January 2023
This query is : Resolved
out of the three brothers, two executed a mortgage deed jointly in favor of a third party. They mentioned the extent of 3.24 acres and mentioned the boundary which showed the third brother to the east and southern sides.
However, within the boundary, they have shown in the mortgage deed the extent of the property is only 2.24 acres instead of 3.24 acres. Will the Boundary prevail over the extent even if the discrepancy is around 1acre? will it be considered only 2.24 acres is mortgaged?
or the concept is applicable only to minor discrepancies? Since the discrepancy is more than 1 acre the extent of what is mentioned is going to be considered.
Please share any citation, if available.
kavksatyanarayana
(Expert) 08 January 2023
Is it a joint property of the 3 brothers or individual properties? Why did not execute the rectification deed if the boundary is wrongly mentioned in the mortgaged property?
Dr J C Vashista
(Expert) 09 January 2023
Show the mortgage deed to a local prudent lawyer for appreciation of document and necessary proceeding for rectification, if required.
T. Kalaiselvan, Advocate
(Expert) 09 January 2023
Firstly, if the property was a jointly held property, only two joint owners without the consent cannot execute the mortgage deed, therefore the mortgage deed is invalid;
If it was not a jointly held property then the additional extent shown in the mortgage deed is an error, hence a registered rectification deed has to be executed to rectify the error or else the owner of the additional property may sue the mortgagors and get the deed nullified.
Therefore confirm the status and take proper legal action on the suggestions made by a local advocate who can render the opinion after assessing the actual status.
Dr J C Vashista
(Expert) 10 January 2023
Both the consenting brothers can execute mortgage deed for their share.
P. Venu
(Expert) 19 January 2023
Has the property been partitioned by metes and bounds? If not, the property that has been mortgaged is only the proportionate share of 3.24 acre. This aspect ought to be clearly brought out in the recitals of the deed.
As such, any definite suggestion requires that the documents be perused and issues discussed.
