Sarfasi law
Rangee
(Querist) 03 July 2020
This query is : Resolved
Sirs,
My question is one lady mortgaged her property by depositing title deed with bank as guaranttor for loan of her sons firm. she died leaving a will prior to mortgage as per the will 52% of property mortgaged she has gifted to third pary her relative who is not legal heir. the will was not revealed to the Bank until issue of 13(2) notice, now whether this property willed to third party can be sold under sarfasi law, please answer
Rajendra K Goyal
(Expert) 04 July 2020
The lady was having clear title of the property when mortgaged.
Will is enforceable after the death of testator and at that time the property was under mortgage. At the time of demise of the testator the property was not free from encumbrances.
Under the circumstances, Bank has first charge on the property, will can be executed if any portion of property is left after satisfaction of the Bank claim.
Dr J C Vashista
(Expert) 04 July 2020
Whether the property under guarantee was self-acquired or ancestral ?
The Bank can invoke its claim/ first charge over the property, if the principal borrower can not / fails to repay the outstanding amount.
However, the will of the testator/ guarantor has to be probated by impleading the mortagor Bank and part of the beneficiary can be attached with the permission of Competent Civil Court but not by DRT.
P. Venu
(Expert) 04 July 2020
The posting suggests deeper issues. Plese post complete facts.
Rangee
(Querist) 04 July 2020
Sir, thanks you all for good reply, The facts are as follows:
1. Mother deposited title deed of property acquired by her through her Father's will.
2. Mother signed some papers with Bank which is not mortgage agreement that papers in printed format called Arrangement Letter Memorandum of recording creation of Mortgage by deposit of title deeds on 27-4-2017 and nor formal agreement was signed with Bank and subsequently she died on 12-7-2017.
3. Mother has offered surety to firm owned by two sons and later on Bank called during 14-9-2017 sanctioned one more loan to the firm and got signed some papers with both sons and one daughter.
3. Now there are two loans daughter signed only for second loan, and she received notice under 13(2) making her liable for both the loans.
My question is whether she is liable for previous loan? whether her signature obtained as guaranttor after death of her mother valid retrospectively or prospectively
One more fact there is discrepancy in measurement of property stated in Agreement signed and letter of arrangement creating mortgage deed which is registered before sub register office.
Please say, whether Bank is entitled to proceed under SARFASI law to the shares of daughter without intervention of civil court. As per Mortgage section 59 defn. the specific property should be mentioned in deed of mortgage in this case after death of mother the property is not constant it is variable as per will of mother. without probate of will or without partition deed can Bank proceed under SARFASI on the property on which security interest has not crystallized due to sudden death and will.
Whether the mortgage deed executed by mother will become abrogated on the date of death of mother and fresh mortgage deed should be created with legal heirs, whether this can be done without intervention of civil court.
Experts kindly help me I am lawyer dealing with this case and I am ready to say more on this if needed.
Thanks
Rangee
(Querist) 04 July 2020
Sir,
Some more facts, the partition deed is done as per will after issue of 13(2) notice is it valid
Rajendra K Goyal
(Expert) 05 July 2020
You said:
1. Mother deposited title deed of property acquired by her through her Father's will.
Reply:
Mortgage by deposit of title deed is legal and valid Mortgage. In subsequent paras you have mentioned that the Mortgage was registered, please clear the position. However, mortgage seem to be OK, in both circumstances.
You said:
2. Mother signed some papers with Bank which is not mortgage agreement that papers in printed format called Arrangement Letter Memorandum of recording creation of Mortgage by deposit of title deeds on 27-4-2017 and nor formal agreement was signed with Bank and subsequently she died on 12-7-2017.
Reply:
Please obtain copies of all documents. As per RBI guidelines Bank is required to give copies at the time of execution. If the Bank is Nationalized, obtain copies through RTI (Right to information Act). Show all documents to local lawyer dealing such cases and discuss in detail. Getting signatures on Memorandum of deposit of title deeds at the time of deposit may be irregular. Discuss with your lawyer.
Rajendra K Goyal
(Expert) 05 July 2020
You said:
3. Mother has offered surety to firm owned by two sons and later on Bank called during 14-9-2017 sanctioned one more loan to the firm and got signed some papers with both sons and one daughter.
Reply:
Whether it was renewal of old loan or new loan? Person who signed the documents are liable for repayment.
You said:
3. Now there are two loans daughter signed only for second loan, and she received notice under 13(2) making her liable for both the loans.
Reply:
If daughter has not signed the letter accepting the liability as legal heirs, she is not responsible for repayment of first loan, if signed she is liable. She is liable for repayment of second loan. If she has not mortgaged any property, notice to her is to be scrutinized in depth.
Rajendra K Goyal
(Expert) 05 July 2020
You said:
My question is whether she is liable for previous loan?
Reply:
She is liable if she has signed letter accepting liability as legal heir of deceased or otherwise on such liability.
You said:
whether her signature obtained as guaranttor after death of her mother valid retrospectively or prospectively
Reply:
Liability is from the date of signature till she accepted liability retrospectively in the documents signed.
Rajendra K Goyal
(Expert) 05 July 2020
You said:
One more fact there is discrepancy in measurement of property stated in Agreement signed and letter of arrangement creating mortgage deed which is registered before sub register office.
Reply:
This can be a point of dispute in court, but Bank is proceeding in accordance with the title deeds deposited with it, success of any challenge is doubtful.
You said:
Please say, whether Bank is entitled to proceed under SARFASI law to the shares of daughter without intervention of civil court. As per Mortgage section 59 defn. the specific property should be mentioned in deed of mortgage in this case after death of mother the property is not constant it is variable as per will of mother.
Reply:
Bank can proceed as per the liability of mother based on title deeds deposited with it. Daughter can inherit share as per will only after Banks liability is fulfilled.
Rajendra K Goyal
(Expert) 05 July 2020
You said:
without probate of will or without partition deed can Bank proceed under SARFASI on the property on which security interest has not crystallized due to sudden death and will.
Reply:
Mother was guarantor, she deposited title deeds, Bank can proceed for realization of collateral with it. Will, probate, partition are subsequent steps if some property is left after repayment of Bank dues for repayment of which deceased was liable.
You said:
Whether the mortgage deed executed by mother will become abrogated on the date of death of mother and fresh mortgage deed should be created with legal heirs, whether this can be done without intervention of civil court.
Reply:
No. Borrowers must provide alternate collateral to continue the loan or Bank can proceed to recover from the property of deceased mortgaged with it or otherwise.
Rajendra K Goyal
(Expert) 05 July 2020
You are advised to discuss in detail with local lawyer. From the facts it seems your case against Bank is on weak footing.
Rangee
(Querist) 05 July 2020
THANK YOU VERY MUCH MR.RAJENDRA K GOYAL SIR, I WILL REVERT IF I HAVE MORE DOUBTS
Rajendra K Goyal
(Expert) 06 July 2020
You are welcome and may revert with doubts if any.
