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Kapil   27 January 2019

Mutation of a mortgaged property

Sir,
I am a banker and have advanced agriculture loan to a farmer securing the loan by simple registered mortgage.The borrower has not paid the loan and he has also sold a part of the mortgaged land by a sale deed.The tehsildar has also done mutation in favor of the purchaser with the clause that 'with charge' "sehbhar in hindi" the title has been transferred to the purchaser.
My question are:-
1. is the sale deed valid as he being a mortgagee can he execute a sale deed without informing us/bank?
2. what happens if in his sale deed he says that the Agri land does not have any encumberance? is the sale deed valid then?
3. Can Tehsildar mutate the land in favor of purchasor though mortgage is present on land?
4 And Lastly, what is the legal validity of transfer of ownership 'with sehbhar or charge'
One more point is there any relation of stamp duty with mortgagee executing a sale deed and a normal guy executing, just to prove that sale deed was invalid.

Thanks
Kapil


 11 Replies

Vikram Sodha (Advocate)     27 January 2019

Legaly you have the first right in the property and mortgagee has to inform you in advance and to release the property from mortgage and after that he can do sale deed.

Vikram Sodha (Advocate)     27 January 2019

you have to file civil suit to cancel the sale deed.

Vikram Sodha (Advocate)     27 January 2019

you have to file civil suit to cancel the sale deed.

Vikram Sodha (Advocate)     27 January 2019

After creation of the mutation it is necessary on your part that you shuold have mutated the mortgage enty in revenue record. if you have to mutated your entry then tehsildar may mutate his entry.

Kapil   28 January 2019

sir,
it would have been better if you had answered point wise as asked. These points are the doubts in my mind and then only I/we will approach the case.
Also, our mortgage is already mutated in Khatauni of the borrower/mortgagee.

G.L.N. Prasad (Retired employee.)     28 January 2019

Query wise opinion.

1. The borrower resorted to fraud and you can bring pressure by complaining to police and filing a civil complaint.

2. When a Banker registers a mortgage, and if fraud has taken place, the Banker can issue a notice to both purchaser and seller threatening criminal action and can proceed legally.  These are usually in Banking and many defaulters dispose of properties that are offered as security.

3.File RTI Application in your individual name and seek information from Tahasildar as follows:

Information solicited:

1. Please provide me the copy of rules and regulations/orders/ circulars that permits the Registrar to permit registration  to third party when the property is held by a banker and when simple mortgage is registered by the then owner/defaulter.

4.The remarks by Registrar states that sale is not absolute and subject to earlier mortgage to Bank.  Mutation is not ownership but just change in a Revenue record and simple mortgage is above that sale.

Contact your Advocate/ standing counsel and report the matter to your controlling office and act as per their directions and avoid suppressing facts known to you about any borrower.

1 Like

P. Venu (Advocate)     28 January 2019

The tone and tenor of your posting suggests that you are seeking professional advice.

Kumar Doab (FIN)     28 January 2019

Handover the matter to legal cell of establishment as suggested above also.

They shall do the needful.

If you are not designated official then avoid forwarding your neck in legal matters.

Perform your part under proper acknolwedgment and keep copies.

Kapil   29 January 2019

Thank you all for your valuable suggestions.

G.L.N. Prasad (Retired employee.)     29 January 2019

When you find a solution and succeed, please do post the procedure adopted by you so that it helps some other banker that may face the problem.  The object of the forum is to share experiences and success stories and to find the correct way in such issues.

Kapil   30 January 2019

obviously sir

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