Q.   I have mortgaged the property to bank to avail the loan.  The mortgage is simple mortgage which is registered.  I am in possession of the property which is vacant.  Can I let out the mortgaged property which would help me financially o discharge the loan?

A.:   Transfer of property act deals with this situation.  The relevant section is 65A which you may refer.  The mortgager, if in lawful possession of the mortgaged property shall have all powers to let out /lease the property which is binding on the mortgages.  If the terms of your mortgage do not prohibit such leasing/renting of the property subject to certain conditions stipulated in the act.  Such lease should be in the ordinary course of management of the property and in accordance with local law usage and custom.

         Further, such lease shall reserve the best rent that can be reasonably obtained and should not have any premium or rental advance.  The lease should not provide for renewal.  The lease should have to commence to later than six months from the date of lease. I the case of lease of buildings, whether leased with or without the land on which they stand, the duration of lease shall not exceed three ears and the terms of lease shall provide for recently o failure to pay the rent within the time specified.  However these terms may be varied or changed by the mortgage deed itself,  So please verify the mortgage deed executed  by you and proceed,

         A father of a Hindu joint family, had acquired a 30 x 40 site during 1950 in Rajajinagar and during 1972-74constructed a house consisting of ground and first floor and authorize from own earnings/loans etc.  He subsequently died during June 1976 leaving behind wife now 74 years, two daughters (one daughter died and the other married in 1983 now resides separately) and one son (aged 41 is residing in the above house along with wife/mother)   the deceased father did not make any will during his lifetime.  After his death. The widow and the daughter who joined service cleared the debts/loans apart from giving education to the only son through their earnings.  Now the mother who has been provided with only one room in the ground floor stays alone by cooking though she is suffering from various diseases and the son who is staying at the first floor separately is not allowing his sisters to come and meet the mother.  Mother and sister would like to claim their entitled share in the father’s property but the son wants to knock off full share and not coming for partition of the property.  Son also enjoys the outhouse rent let out to tenant.  The question is (1), How far the daughter who is married during 1983 and residing separately with her husband can claim hr share and to what extent? (2) Whether the deceased daughter who is no more today will have a share because she had left a daughter who is mentally retarded and admitted in a hospital/organization at Mysore/  (3) Whether partition suit can be initiated by the existing daughter either by the son who is a major now or herself eligible for filing the suit .  Please advice.

A.:    1. Daughter who are married prior to 1.3.1994 are not entitled for any share in join family property.

         2.  If the deceased daughter is marred before 1.3.94, her legal heir cannot claim any share in the joint family property.

         3.  The surviving daughter and her children cannot force partition, as she is not entitled to the share in joint family property.

         4.  If the property referred is acquired out of self-earned funds of ‘A’ all the children and wife are entitled to equal share in the property and any one can file a partition suit.

          But apart from legal relief it is advisable to settle the family disputes amicably.

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