Mortgage
Mohammad Imran
(Querist) 28 February 2012
This query is : Resolved
A building is constructed on a piece of land jointly owned to four persons one of whome is a minor. The owners intend to mortgage the land along with the building to a bank for availing a loan facility. Since minor is not competent to make mortgage, how can they mortgage the property. Is is possible that the other three owners mortgage their respective shares in the property?
M/s. Y-not legal services
(Expert) 28 February 2012
any one of the next friend can act on behalf of the minor.. law will permit you..
-tom-
Mohammad Imran
(Querist) 28 February 2012
I dont think so Tom. Even a court appointed guardian cannot mortgage the property of a minor unless the loan is for welfare and betterment of the minor himself. Here the proposed mortgagors intend to mortgage the property as a collateral security against loan to be availed by a 3rd person.
Raj Kumar Makkad
(Expert) 28 February 2012
Court permission is required for that purpose otherwise remaining 3 partners can mortgage their shares.
adv. rajeev ( rajoo )
(Expert) 28 February 2012
Without the court permission property of minor cannot be mortgaged. If court considers that the mortgage is for the benefit and to protect the interest of the minor, then only it permitts.
Sankaranarayanan
(Expert) 28 February 2012
I do agree with experts. Without the court permission it is invalid
M/s. Y-not legal services
(Expert) 29 February 2012
hardly i tried for collect something.. there is no specific explanation about minors in mortgage.[ the transfer of property act 1882].
any one can clear me regard this?
-tom-
prabhakar singh
(Expert) 29 February 2012
@ Mr.Tom!
A minor is incompetent to enter into any type of contract(under section11 of Indian Contract Act only majors can enter into contract).
A mortgage is also a contract relating to immovable property hence governed by Transfer of Property Act.
A guardian of minor can inter into any contract on behalf of the minor with prior permission of the court under Guardians of Wards Act.But the court grants permission only when it finds the proposal favorable and beneficial or needful to the minor.
In the instant query the court shall not grant the permission.
Hence only three persons,who are majors, can mortgage their share.
M/s. Y-not legal services
(Expert) 02 March 2012
i think my earlier answer also the next friend of the minor can act on behalf of the minor..
-tom-
Mohammad Imran
(Querist) 03 March 2012
@Mr. Prabhakar Singh.
That is exactly the legal position on the point. However, the problem here is that the building is in the joint names of the 4 persons including minor. Can only three share holders mortgage their respective shares in a single house? Can the mortgagee enforce such a mortgage? Can 3/4th of a house be sold?
