Mortgage by conditional sale
Vivek Kumar
(Querist) 13 August 2018
This query is : Resolved
Sir I did a registered mortgage by conditional sale to a person in 2006.according to deed if mortgagor donot pay the loan in specified duration (4 years) the deed convert in absolute sale and I(mortgagee) will be the owner of property and get possession of property. the person (mortgagor) didn't pay the debt amount after and before the specific time duration 11/10/2010.after date I request him many times to give money and return his lone.but he refused all time.in 2012 April i need to money urgent so I sale to mortgage property to a person (A) by registered sale deed.person A get possession and mutation in his name in govt record. person A paying property tax since 2012 to till now.now the son of mortgagor come to me and said I will give your amount and return my land otherwise I will go to court and case against you.sir I want to know do I did any wrong thing to sale my land(because I was the owner at selling time' of land according to deed of mortgage by conditional sale section 58 c transfer of property act1882). Can court rejecte sale deed who I sold to person A.Can I or buyer A can face any problem, please replay
kavksatyanarayana
(Expert) 13 August 2018
If the mortgagor did not return the money after the period as agreed or written, then the mortgagor dont want to sell the property, he may be got the mortgage transferred to other person and shall repay your loan. otherwise he shall execute a sale deed in your favour for a reasonable consideration excluding the loan amount and interest thereon. If he fails to do so, you have file a case against the mortgagor for recovery of loan amount. But you have no right to sell the mortgaged property. so seriously settle this issue in an amicable way or contact an experienced Advocate if any case filed by the son of the mortgagor.
K Rajasekharan
(Expert) 14 August 2018
As rightly advised already you had no right to sell the property even after the period of mortgage (in a mortgage by conditional sale) because a mortgage is always a mortgage and a mortgage by conditional sale is quite different from a real conditional sale. The sale in this type of mortgage is an ostensible one but not real one.
Your right was limited to file a suit for foreclosure and get a decree debarring the mortgagor of his right to redeem the property.
Guest
(Expert) 14 August 2018
Mr. Vivek,
Your problem does not give a look of some real problem, when you have brought the son in to picture without mention of the mortgagor, whether still alive or dead. Further, when you know about the provisions of section 58c, you should also have checked the provisions of other related sections. All this gives clear impression, as if you intend to get ready made answer to your hypothetical problem, without seeing all the sections pertaining to mortgage of a property and the rights and liabilities of a mortgagee..
However, if it is your real problem, as per the given description, the mortgage deed entered in to by you was not only a deed for mortgage of the property of the owner, but also an agreement to transfer the property on failure to get the mortgage released in time. By virtue of that you were entitled to claim the possession of the property and registered in your name, as a deemed owner of the property. But, you missed several important legal formalities, as contained in sections 53 to 104, which were necessary to be followed before you could sell the property to some other person.
Of course, complications are there in your sales transaction due to having not observed provisions of various sections of law on mortgaged property.
Vivek Kumar
(Querist) 14 August 2018
Many thanks to all experts for valuable opinion
Vivek Kumar
(Querist) 14 August 2018
Many thanks to all experts for valuable opinion
Vivek Kumar
(Querist) 14 August 2018
Many thanks to all experts for valuable opinion
Vivek Kumar
(Querist) 14 August 2018
Many thanks to all experts for valuable opinion
Vivek Kumar
(Querist) 14 August 2018
BUT DEAR EXPERTS I WANT TO SAY SOME POINTS 1.I sold to mortgage land on the basic of deed of mortgage by conditional sale and at the time of selling land sub registrar check mortgage deed and say now after default of mortgagor it is a sale deed,and I can sale it.in registered sale deed of A it clearly written that land is sold on the basic of my mortgage by conditional sale deed sign by sub registrar. 2. After I sold land the purchaser apply for mutation in govt record on by basic of his registered sale deed and my conditional sale deed both.and his mutation is done by govt officer in govt record without any problem. 3.mortgagor and his son never challenge in previous 8 years(11/10/2010) to till now.now mortgagor died 3 month ago and his son challenging.is it time barred now 4.can registered sale deed challenge after 3 years of registration (now it is 6 years above). 5.mortgagor know that after his refusen many times I am going to sell mortgage land but he not claim at selling time(he present at registrar office. He knew that I sold land in 2012 6. The mortgage debt is more then mortgage land value (at time of mortgage the land value in govt record is 70000 and I give mortgagor to 100000) so mortgagor has no lost. 7.purchase A is Bonafide purchaser he is paying property tax since2012 and possession of land.and taking loan oh his land....................sir I do all formalities to sale local advocate/sub registrar/ mortgagor. Sir please reply
Guest
(Expert) 14 August 2018
The simple answer to your latest revelation is that everything depends upon objection by any of the concerned party/ legal heirs. Moreover, payment of property tax is not a guarantee to the the legal title and ownership of a property. Any legal deficiency can reverse the transaction due to invalidity or illegality of the transfer of property.
But, when you have already sold the property, your anxiety is not understood. Llet the buyer of property be concerned more than you.
However, if you have some worry, you you may wait for any action by the sons of the mortgagor, or else, as any casual query and information in tit bits may not be helping appropriately, both you and the buyer should seek personal advice from some local expert by getting all the case related documents examined thoroughly..
