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D.A.V. Jayasingh Durai (Sales)     20 April 2012

Surety withdrawal

One women acquires her ancestral property long back.  She is having 3 daughters and 1 son.  From the bottom of her heart, her intention is to distribute the property among dauthers and that she will be revealing to his son from his childhood.  The reason for her intention can be known from this statement which often come from her mouth "we must help and strenghten the daughters and the son needs to look after himself".  She has more consideration for her son in laws, but it is opposite to her daughter in law. 

Before 3.5 years she mortgaged her property to a soceity and while doing so, she got the signature of her son claiming (by saying through a word) that he is the legal heir of this property, and the society insists the signature of the son.  Son also signed without reading anything because the one who requests is his own mother.  Now to get more money in the property, she again contacted her son (who is staying in a separate rented house as he along with his wife and children were forcefully driven out from the parents home) to get a signature, claiming that the society is insisting son's signature by saying the same statement like "Society is telling that the son is the legal heir".  Now the son is not interested to sign as he heard enormorous number of times "you are not having any share in this property" from her own mother's mouth.  As this is the case they are threatening the son by saying "if you are not signing then we will deal accordingly" (not stating the full intention of them). 

People advised the son, stating that there is no need for your sign to mortgage the property.  Hope they have cleverly and cunningly using you as a surety.  Now only the son realizes whether the society requested his sign as he is a legal heir or as a surety.  Now he is intending to withdraw the sign (surety).  Is there any possibility to withdraw the surety.  If yes, then how to do it.

Please advice.

 



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 3 Replies

Uday (Lawyer)     20 April 2012

To my understanding, when the property is mortgaged with the society, without the consent of the legal heirs, the property could not have been mortgaged. The society should have either obtained the signature in the category of a co-borrower or they must have obtained his consent. In the first instant, the son also is liable to pay the money to the society as the co-borrower. In the event of his failure, the property will be sold and if there is any shortfall, the remaining will be claimed by the society from the mother as well as the son.

If the son has signed the papers just for the sake of consent, then absolutely he will not have any problem and the society will proceed against the property for the recovery of money.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     20 April 2012

Dear Querist, 

The property stands in the name of mother, hence the natural presumption is that it is her own seperate property. How she gets the property would be of utmost relevance here to determine further course of action. How do you call it an ancestral property ? 

Secondly : assuming that it is indeed ancestral property - not just yours but all other legal heirs need to sign it so as to enable the mortgage of the same. 

If the son is being project as a surety - he has every right to call for documents and plead non est factum - that is he did not know the nature of transaction at time of signing and ask for their cancellation. 

D.A.V. Jayasingh Durai (Sales)     20 April 2012

Thanks for the replies.  I call it as ancestral property by means of the following:

It is her parents property.  Her father worked in a British firm and her mother is a house wife.  Her father purchased and registered the property in his wife's name, who is the mother of this said women.  From her mother she got this after the death of her mother.  Her brother released this property to her as he got another separate house as his share.  Hope this helps.
 


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