• Transfer rights on agreement to sell

Hello,
I bought a flat which is under construction and only Agreement to Sell and Agreement to build are complete. I got my wife as a co-owner and also as a co-applicant for the home loan. Due to some disputes we are separated now. All the downpayment and repayment for the loan availed are being paid by me only. While she is ready to leave her rights she is refusing to sign the relinquishing deed until the divorce is complete. My stand is to get the relinquishment done before the decree and i shall take the divorce which she is not agreeing to. Can you suggest the best way to sort this out for us so that i don't have any issues and she can get the divorce. 

Also, considering me making the total payments and no sale deed executed till now, can the builder provide me with a new sale agreement basing on which i can get the property registered on my name only if there is a way.

Thanks
Asked 2 years ago in Property Law from Bangalore, Karnataka
Hi, in your case no sale deed is  executed by the builder  so question of relinquishing your wife right  does not arise.

2. You have to approach the builder and request him to execute new agreement of sale and construction agreement and if he does not agree then you to request him  to register the sale deed in your name only so that your wife will not come in picture.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. You have not yet bought the flat as claimed by you in your query. You have excuted an agreement for sale with the builder/seller and paid the builder/seller part of the consideration,

2. At this stage you apply to the lending Bank and also the builder to treat you as the sole buyer and applicant since you are the sole payer of the consideration,

3. If the builder/seller and the Bank agrees, then the sale deed can be executed and registered in your name only,

4. In that case your problem in connection with the flat will be over,

5. If the builder/seler and the Bank refuses to comply with your request, you shall have no other alternative but to either get the dispute with your wife i connection with this flat settled amicably,

6.You can, alternatively, file a declaratory suit praying for declaration that you are the sole owner/prospective buyer of the flat giving direction upon the builder/seller and/or the lending Bank to consider you as the sole applicant of the flat and for the loan required to buy it.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. It is wrong of you to say that you have bought the flat. 

2. The agreement to sale has been made and you in pursuance thereof paid the earnest money through a bank loan.

3. Repayment of loan taken in joint names by the spouses is, in the absence of an agreement to the contrary, a domestic arrangement among the spouses. The bank cannot treat you as the sole buyer when your wife has signed as a co-applicant.

4. Legally speaking, your wife can obligate the builder to execute the builder to make her the co-owner of the property. She can also successfully maintain a lawsuit against the bank. 

5. Unless your wife relinquishes her rights in the property the sale deed cannot be registered in your favour alone. It is in your interest to arrive at an amicable settlement with your wife.
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
1. The MOU has no force as far as relinquishment of her sharte in the flat in concerned.
2.it is better to do this beofre taking the date of final hearing.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) since your wife is co applicant for the home loan if you want sale deed registered in your name you would need bank consent 

2) further in your agreement for sale wife is mentioned as co owner . builder will not execute sale deed in your name without your wife consent .

3) your best option is to arrive at an amicable settlement with your wife
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
1) you can file consent  terms in your divorce petition . 

2) if you are filing for divorce by mutual consent these terms will form part of petition . 

3) the consent terms should mention that at time of second motion your wife will execute such documents as may be necessary to relinquish her  share in the flat . 

4) in the event your wife refuses to abide by the consent terms you can refuse to grant divorce
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
1. If your wife refuses to honour her promise post mutual divorce you will have to seek appropriate orders from the court, which will open another round of legal battle between you and her. 

2. If you are willing to trust her word then these terms can be incorporated in the petition. 

3. You cannot on the basis of MOU alone register the sale deed in your favour. Your wife has to execute the deed of relinquishment before you can become the owner of the entire property.
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
1. Do  ear in mind that if she does not honour the terms after divorce you have no option but to initiate legal proceeding against her.
2. there is no way that on the basis of the terms of the divorce petition you become its absolute owner if she does not execute relinquish deed.
3. I would never recommend to proceed without getting the executed first.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) dont agree for documents to be executed by your wife post divorce . 

2) what  is the guarantee she will honour her commitment? . 

3) she cant be forced to relinquish her rights in the flat . 

4) what is total amount paid by you to builder?if you have paid token amount cancel the deal 

5) inform the builder that you dont want to purchase the flat . request him to refund amount already paid as per terms of agreement . . . if bank has not disbursed the loan cancel the loan . at most you will lose the processing charges .
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
Hello,
1)  You need to know that though it is mentioned in the terms of the mutual consent petition that she would sigh the relinquishment deed if she backs out at a later stage you will need to approach the court again to get an order on basis of the undertaking before the court and this would mean a lot  of time and money in the court to get what you want.

2) As such the terms and conditions in the mutual consent divorce do not have the legal strength to make you the absolute owner of the joint property.

3) Therefore play your cards safe and get her to agree to execute the Deed of relinquishment as a condtion for filing of MCD. This would secure your position even if she goes back on the MCD itself.
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0
1) we have advised you that in the consent terms it should be mentioned that before or at time of second motion your wife shall surrender her rights in the flat . 

2) if your wife refuses to honour consent terms dont attend court at time of second motion . 

3) in your absence court wont grant divorce . 

4) if you agree to your wife terms that she would surrender her rights only post divorce you have no guarantee that she will honour her commitment once divorce is granted . if wife has given an undertaking to court you can take contempt of court proceedings against her if she fails to honour her commitment
Ajay Sethi
Advocate, Mumbai
23405 Answers
1230 Consultations
5.0 on 5.0
1. The terms proposed by your wife tilt the table entirely in her favour and may cause you prejudice. It is not advisable to agree to them.

2. If she recants her promise to sign the relinquishment deed post divorce then you will again have to seek the intervention of court. The result of any courtroom battle is uncertain.

3. You may also cancel the agreement if the agreement permits the cancellation by you and refund by the builder. Thereafter, a fresh agreement can be entered into.
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
1. In consent terms you can incorporate any term. However, if your wife does not honour her promise of relinquishing her share post divorce, you cannot get the ownership of the property except if a court of law holds you as the owner of the property.  

2. To get the declaration from the court you will have to file another case to enforce the terms of MOU, which your wife can contest. This is why it is not advisable to give her the latitude of signing the relinquishment deed post divorce.
Ashish Davessar
Advocate, Jaipur
18266 Answers
451 Consultations
5.0 on 5.0
If she does not execute the relinquishment deed after divorce violating the terms of the mutual divorce petition, you shall not become its absolute owner. It is never done and hence it is advised not to go for divorce hearing on final motion unless and until the deed of executed.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1. As regards her relinquishment of right as co-applicant for the flat and loan, the said MOU will have no value,

2. She has to execute a relinquishment deed to this effect,

3. You shall have to recourses if she refuses to relinquish her right after availing thge decree of divorce, other than approaching civil court for a declaration in your favour,

4. Get relinquishment deed executed and registered before the 2nd motion of the MCD.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. She can very well refuse to keep her promise/commitment mentioned in the MOU after availing the decree of divorce,

2. In that case you shall have to file a decrlaratory suit as advised in my earlier posts,

3. Try to get the relinquuishment deed executed and registered before the 2nd motion.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0
1. You can not get her name deleted as co-applicant for the flat and also the loan by submitting copy of the MOU she will sign for getting MCD, as has been advised earlier,

2. For the above purpose, you need to submit fresh relinquishment deed before the builder and also the lending Bank,

3. You shall have to evaluate the risk and make the risk benefit analysis in this regard.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
234 Consultations
5.0 on 5.0

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