My father are 3 brothers, after the death of grand mother they mutually shared teir property. But one of his brother mortgae the property and have taken loan on the property.
Now they want to do the legal partition , but the one who had taken loan is not agreeing to close out the loan.
Please suggest how can the partion be done .
2 Answers from Attorneys
Only a brother has not right on the property therefore he has not right to mortgage the property without consent of the others two. You should release the property from mortgage and get partitioned. For the process not to take several legal steps. For the services you may avail legal services.
It is very strange that one brother has mortgaged the joint property without the knowledge or consent of the co- owners, the mortgagee being unaware of the joint ownership (presumption). I strongly believe it is a sham being created at the behest of the mortgagor brother in sheer connivance with some other party or the mortgagee (so called). The main reason for this premise is that a valid mortgage cannot be executed without either exchange of document or a lien over the property. In this case I believe there would be no documents executed after your grandmother's death. The possession of previous papers of the property is important. In case the entire bunch of the old property papers is with the mortgagee then that could be very fatal to the title of this property.
Hence my suggestion is to collect the previous bunch of title deeds ( I am insisting again and again on the previous/old bunch of papers as I also believe that there would have been no new once executed after your grandmothers death) and on the basis of the same have the fresh partition done by metes and bounds.
Now the most important point here is that the mortgagor uncle may resist or object in showing the title deed or creating a partition. Then your father along with the other uncle should file a suit for partition against the mortgagor uncle and make the lender also a party in the suit.
Let me remind you that if the lender is dishonest and is in possession of the old title deeds then he may claim the entire property under the mortgage. Hence it is relevant to rope him into the said partition suit.
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