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SUNDARAVADIVELU   28 January 2022

Mortgage deed maintability

Settlement deed created by grand monther registered in favor of minor grandchild under the guardianship of the father of the minor child, the father is only life interest he is not eligible to sell, in the settlement deed specifically mentioned that there is a loan against the settled property, the loan obtained by the settler from benefit fund after obtained the loan executed the settlement she died by natural death.

The mortgaged property came for auction by the benefit fund for loan recovery at the time the father borrowed a loan from an individual financier to secure the property by registering the mortgage deed, The individual financial directly paid the loan amount to the benefit fund and secured the property from auction and taken custody of documents, after taking over the documents the registered mortgage deed executed in favor of individual financier by the father who has the life interest in the property

Due to the nonpayment of borrowed money, the individual financier brought mortgaged property for auction, at the time the minor child become major and filed a case for injunction stating that the father does not have power to mortgage, he has an only life interest in the property,  the borrowed money is not responsible for his part.

The question is

1. The loan amount of benefit fund directly paid by the individual financier, for secure the property

2. Settlement deed specifically mentioned that there is an earlier loan with benefit fund, 

3. To safeguard the property from the auction the father borrowed the loan is correct or not. This is called legal requirement and welfare of the minor

4. The case filed by the minor child after attaining the major at the age of 23 years, the time limit filing case from his minor to major 3 years as per limitation clause

5. The case filed by the minor child now major is maintainable or not 



 1 Replies

Megha   01 February 2022

As per Section 8(2)(a) of the Hindu Minority and Guardianship Act, immovable property of a minor cannot be moratgaged or transferred by way sale, gift, exchange or otherwise without prior permission of the Court except for the benefit of the minor's estate. This was held by the Supreme Court in the case of Saroj v Sunder Singh & Ors.  

Disposal of such immovable property is voidable at the instance of the minor or any other person claiming under him.  It also states that the guardian cannot bind the minor by a personal covenant.  

Further, the minor can, within three years of attaining majority file a suit against the guardian for sale without appropriate permission.  However, if the minor can prove to the judge's satisfaction that there existed a compelling reason for delay in filing the petition, such delay can be condoned.

Best regards,
Megha


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