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shyam lal   08 April 2022

Mortgage of property

As per unregistered family settlement on a stamp paper witnessed and signed by all share holders in question. Query is can I mortgage my share in the undivided property to a bank without getting a NOC from the other share holders


 10 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 )     08 April 2022

You are eligible to get loan by mortgaging the property standing in your own name and also in the name of your mother and sister

shyam lal   08 April 2022

Mr Rama Chary.

kindly read the question /query & then answer.

Kishor Mehta (CEO)     08 April 2022

(1) You can not mortgage or deal in anyway with any property which does not stand inyour own name. (2) Unregistered family settlement is not valid to transfer any property to a coparcener's name. It has to be properly stamped and registered for such transfer.

shyam lal   08 April 2022

Attention Mr Kishore Mehta kindly clarify which act of Law? does not permit sale of undivided share in property to a third party

Kishor Mehta (CEO)     08 April 2022

With due respect, Undivided share in a joint property has to be proved with duly stamped and registered family settlement, any unregistered document/family settlement is not valid to prove one's share in a Court of Law. This is most elementary one does not need  to refer to any act to understand this elementary fact.

shyam lal   08 April 2022

whether a sale of immovable property or an interest in immovable property which is jointly owned by two persons, or more than two persons, or when such interest in property had arisen from bequest, can be made to a third party without intervention of Courts i.e. without getting a decree to that effect.





 Supreme Court in Gautam Paul v. Debi Rani Paul,(2000) 8 SCC 330 has held that there is no law which provides that co-sharer must sell/ her share to another co-sharer. Thus, strangers/ outsiders can purchase shares even in a dwelling house.

 Sale of undivided interest in property can take place without a compulsory decree from appropriate Court by way of “mutual settlement”. In Ramdas vs. Sitabai and Ors., MANU/SC/0910/2009Court laid down, that" There could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court." (Para 17)

 Thus, following are the requisites for carrying out sale of undivided interest to third party, in Immovable property, where sale is by mutual consent:
 1. No Objection Certificate from the co-owners with respect to transfer of ownership i.e. title and possession.
 2. Division /arrangement by metes and bounds, reached out amongst the co-owners.

 No doubt any co-owner, where the property is undivided or otherwise in certain cases, does have a right of pre-emption and has a right over any stranger who is a potential vendee of the property in question, that’s why an NOC is required.

 In the absence of division by metes and bounds no undivided interest can be given in possession to the stranger unless there is a decree of partition, or there is an arrangement already reached amongst the parties and which divides property by metes and bounds.

 The provisions under law regulating the same; Section 4 of the Partition Act, 1893 and provisions of Section 44 of the Transfer of Property Act, 1882. The Object of these provisions is to keep-off strangers who may purchase the undivided share of a co-sharer of an immovable property, so far as dwelling houses are concerned to make it possible for a co-sharer who has not sold his share to buy off the stranger purchaser.[1]

 Thus, a sale of undivided interest can be made to a third party if the co-sharers reach a settlement for division of said property by metes and bound and give an NOC for the same. In absence of division by metes and bounds, a sale remains valid and only the possession of joint estate cannot be enjoyed by the vendee unless the property which is subject matter of sale has a character of exclusivity.

Mr Kishore thanks for the reply now what sense does the above make .

Kishor Mehta (CEO)     08 April 2022

With due respect, while the details are explicit and correct, these are irrelevant to the initial query as the qureriest wants to mortgage his share without NOC from other share holders and there is no registeted document specifying his right to any share. I hope you will understand. The matter stays closed. 

shyam lal   08 April 2022

I have joint undivided house property, i have 1/4th portion of the property, My brothers sold their 3/4th undivided share in the year 2016 to unknown person without my NOC & Consent. I have complete possession of house. Unknown person purchased 3/4th share without possession. Unknown person was after me to sell my 1/4th portion to him. But i denied so he approached co-operative bank in 2018 and mortgaged 3/4th share to cooperative bank. Co-operative bank without my consent & NOC mortgaged 3/4th share. Now i do not know which 3/4th part bank going to auction, as there is no partition till now. Some lawyers told me that you have right of preemption to purchase property but sale deed challenge limitation is of 3 years only. its 2021 now. What should i do

Food for thought Mr.Kishore


Shashi Dhara   08 April 2022

File civil suit against bank and purchaser  making your siblings as parties and file partition suit  or  submit to prelitigation in court to decide by issuig notice to all parties involved which may be referred to lok Adalat.

shyam lal   08 April 2022

@ Shashi Dhara .well advised as things stand and sorry state of lawyers and courts even Fasting unto death would yield nothing.

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