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Shashank Mehrotra   27 October 2021

Equitable mortgage on probate

Can equitable mortgage be created by bank on property which after being transferred through will, has been done probate. If yes, what documents are needed to be given to bank to justify



 6 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     27 October 2021

it is suggested that the bank can create equitable mortgage by taking signatures of party and his mother or by obtaining no objection certificates from all legal heirs(including party's sisters)and by obtaining latest sandaran khasra.

Rangee Suresh Kumar Singh   27 October 2021

Will is proposition for transfer of property by Testator  and it will not deprive rights of other legal heirs, hence will can be enforced only if there is no objections from legal heirs, Bank carries risk in acceptintg such property since there can be always dispute among the family members, 

R,S.K.Singh 

Advocate

Advocate Bhartesh goyal (advocate)     28 October 2021

You got the property by curtir of private will so its now your self acquired property.you need not to take NOC from anyone.you just deposit private certificate along with property papers for rahata le mortgage

Rangee Suresh Kumar Singh   30 October 2021

In respect of self acquired property the Testator has every right to  disposse by will probate is only to prove genuiness or otherwise of will and court shall not dweleve into title of the property bequathed in favour of benefiieary, if some question the title the probate application shall be converted into suit. 

If the the property bequathed throgh will is not even liable for change in mutation or change in muncipal records, unless legal heirs issue no objections to the beneficairy The Muncipal authority or Revenue officers have no powers to accept the will until is probated for the purpose of chnage in kathata etc., hence enforcing title through will is subject to no objections from legal heirs, I have seen several cases where in the barrower cheats the Bank by producing fake will to the Bank for the purpose of mortgage and later the the legal heir file suit challengintg the mortage based upon the will. The Bank are always looser in courts since the case gets delayed and there is loss of interest on the financail asset /loan

please give your comment whether u agree or not 

R.S.K.Singh 

Shashank Mehrotra   30 October 2021

I  think my question is not well understood. We have got the property from will and than had challenged it to get probate. Now after probate the property is in our name. All affidavits have been received from all legal hiers. My question is "can bank create equitable mortgage on such property?"
 

Rangee Suresh Kumar Singh   31 October 2021

Probatation of will is an order passed confirming that that the will is genuine, if there is no objection from other legal heirs, then the property shall pass on to the leatee unhinderered without any isssue,s then you may have to approach the municpal corporation and Sub REgister office to get your name enrolled as tittle holder as per law then after all careful analysis and legal opinion of the penal advocate of Bank equaitable mortgage may be created that too submiting kYC of legal heirs to bank to avoid future dispute among the family members is it clear, Bank can creat equaitable mortgage by obtaining probate orders and certified copy of will and munipal corporation katha and survey sketch in your name 

R.S.K.Singh


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