Legal rights in father's property
Vipin S
(Querist) 21 May 2012
This query is : Resolved
I want to ask about my legal rights in father's property.
The case is bit difficult and I need your expert views/comments.
In our family there are my father, mother, my wife, my son, and myself.
My grand mother who was a govt teacher and getting pension of Rs.15000 pm, passed away last month. We live in a one bedroom flat for the last 20 years.
There are two younger brothers and an elder sister also (all married and living separtely with their respective families).
About ten years ago when we were in joint family my grandmother decided to buy a new house for the family as the current flat was not sufficient for the joint family (Since grand mother was the highest earning member at that time, no one could say anything against her).
For the purpose she decided to morgage the flat (which was in my father's name) in a cooperative bank and took a loan of Rs.3.50 Lacs and arrange the rest of the amount herself and bought a new home for about 5 lacs in the name of herself and my younger most uncle. The new house is about 9 km away from our current flat. That time my younger most uncle moved in to the new house but my mother refuses to move due to her private job. My grandmother asked my elder uncle not to move in the new house due to some conflict with him.
After 3-4 years my younger most uncle sold the said property saying that if no one else is coming to live in to that big house why should I alone stay there. He sold the property and bought a new one in the name of his wife and himself.
For the first 2-3 years the loan installment which was around 6000 pm was paid regularly by my grandmother after that in around 2004 the bank went under liquidation and was closed for almost 1 year and no one could neither pay his/her installment nor transfer the loan to other bank.
The said cooperative bank is still under liquidation process and now doing only recoveries of old loan cases.
For the last 5-6 years my grandmother was only paying 2000-3000 pm for the loan due to which the loan interest keep increasing gradually @14% p.a.
Now the loan amount has come to Rs.5.50 lacs with interest and grandmother has died last month.
Now the problem is my that currently my father is jobless and myself is not enough financially capable that I can settle the loan and free our property. Hence I am cosidering about selling the property for about 10-12 lacs and settle the loan and move in a rental property and the deposit the remaining profit into bank FD.
But now since grandmother is no more, my youhger uncle suddenly put a clause that if you (i.e. me and my father) sold this property, he wants 50% of the remaining amount. And if you want to live in this property without selling it, you should pay atlesat Rs.5000 pm to reduce the loan amount yourself. His point is that since at the time of taking the loan my father's income was not sufficient, his (uncle's) own income papers was also put before the bank as supporting income.
Now the question is that the loan is huge at Rs.5.50 lacs and even if I pay Rs.5000 pm how much time would it take to get finish, and as the property has completed almost 20 years life how is it possible for me to again put in 10-15 years paying for this loan. And if we decide to sell the property the younger uncle is in front of us asking for 50% share from the profit.
So, the question is what can I do or should do and what is my legal right in such a complex situation.
Please advice with your valuable suggestion.
ajay sethi
(Expert) 21 May 2012
1)since said flat is in name of your father your uncle does no have any right on said flat .
2)your grand mother had mortgaged the flat for 3.5 lakhs for purchase of new flat in her name and that of your uncle .(how can grnad mother mortgage flat of her son ? )
3) subseqenlty yor uncle soldthe said flat . (how can your uncle sell the said flat which was in joint name without your grand mother consent)
4)he bought a new flat in his and wife name . your uncle cannot claim any share in flat owned by your father . the mortgage was done by your grnamother for purcase of another flat and your uncle has already pocketed sale proceeds of same .
Vipin S
(Querist) 21 May 2012
Hello Ajay ji,
Thanks for your response. I would like to clarify the points raised by you as follows:
1) I agree with your suggestion.
2) My grandmother had mortgaged the flat with the consent of my father, though my mother and I opposed at that time but it was of no worth since father agreed upon that.
3) As I mentioned in my query that I have two uncles (one elder and one younger) the new house was purchased in the name of younger uncle along with my grandmother which was subsequently sold house with the consent of my grandmother.
4) You are right at your point that since uncle had sold out his jointly-owned property, he has no right to object. But the fact is that he is not objecting anything rather the elder uncle is objecting stating that at the time of first loan his income-papers was attahced as supporting income as my father's income was not enough. At this point he's saying that if we sell the flat he needs 50%.
The last and the most important questions remains unanswered as to what can / should "I" do as a legal heir of my father? Can I transfer the property in my name and tell the bank that I will take care of the loan and later on sell the property? OR is there any other option that I can opt for??
ajay sethi
(Expert) 21 May 2012
has your elder uncle paid off any loan install ments?
the flat is standing in name of your father . since he died intestate the said flat will be transferred in name of legal heirs . your uncle has no rights on said flat .
if flat is in cooperative society has your father made any nomination ?
if not make application for transfer of flat in nemae of legl heirs . contact Secretary of your society . you dont need uncle NOC for transfer of flat
Vipin S
(Querist) 21 May 2012
Hello Ajay ji,
As you have cleared much of the cloud now, I would like to tell you the objecting uncle has not paid any single penny for the loan. He is just arguing that grandmother verbally told so that if the flat gets sold he'll get 50% of the amount, nothing else.
About nomination, well I don't think any nomination has been made so far and as you suggested earlier that I should apply for the transfer of flat in legal heirs name.
But the problem is that the cooperative bank is not operating is day-2-day business since it is in liquidation process of DRT Mumbai and a Liquidator has been appointed by the DRT to recover the outstanding loans and paid for the depositors money. And this process is going on for the last 8 years or so.
So, seeing the above scenario is it possible for me to apply and get the property transferred??
ajay sethi
(Expert) 21 May 2012
the property wont be transferred unless loan is repaid . society must have at time of loan being sanctioned informed bank that no third party rights will be created unless loan is repaid .
society wont transfer flat without NOC from liquidator
Vipin S
(Querist) 21 May 2012
Hello Ajay ji,
Thanks for your valuable suggestion, thanks indeed.
Vipin
Shonee Kapoor
(Expert) 22 May 2012
The query is resolved by Ld. Sethi.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
