Me and My wife have joint home loan wiht HDFC Ltd. Registry is also in both of us name, me first owner and my wife is second owner. We are having divorce now. We have to agreed on following terms 1. I will pay Rs 10 lakh as one time payment to my wife 2. She will relinquish her share in property and executive gift deed in my favour. I approached to Bank, they asked me to close Home loan first, which I cannot afford to do it. All emis are paid from my bank account in case of home loan and I am only paying it since begining. My question is : What if my wife executive the gift deed in my favor, although its mortgaged with Bank. I will keep paying EMIs as usual and loan will get over in 2024. Will bank create problem that time in handing over original papers to me. Also, will this gift deed be valid. Means, whether I will become sole owner of property after all emis paid. Will I be able to resell if after loan repayment. What will be legal hurdles or implications in this case
1. It will be better if the wife will execute a relinquishment deed and thereupon relinquish her share upon you.
That will be a convenient way than the gift deed. In this manner as and when the loan will get over you can get the entire property transferred to your name on the basis of relinquishment deed.
Contact a local lawyer who may get the same done for you
It's a joint property and mortgaged. Unless the property is redeemed, how can one assume absolute ownership?
The proper course is the EMI's to be cleared, redeem the property and then settle between yourselves.
1) Yes! You registered gift deed on your name with registrar. And mentioned that in mutual consent divorce , that you are paying one time settlement against 10 lakhs rupees and flat gift deed on your name, let court now all details what is given against what.
This transfer from your wife to you is possible only after the home loan is cleared. That is so because your wife is a co-borrower besides being a co-owner with you.
One option to overcome this difficulty is that you both may agree in-writing to give effect to this transfer as soon as the home loan is cleared.
Hello sir , you can get a gift deed executed in your favour from your wife .. Through gift deed you will be the sole owner of the property .. You can also mention about the gift deed in the mutual Divorce petiton .. Bank is only concerned about the EMI .. after completion of loan amount they will hand over you the original papers .. They cannot challenge the title over the property
Bank consent is needed to create third party rights on the property
2) bank can challenge gift deed executed in your favour as it is done without their NOC
3) better repay the Home loan first
4) on repayment of Home loan bank would hand over original documents to both you and your wife only
Your wife is co-owner in the property as well as co-borrower in loan so she has equal liability to pay loan.
Without permission of bank the title cannot be modified As the original documents are mortgaged with bank .
I would suggest you talk with bank modify your loan and remove you wife as co-borrower from loan provide bank with another security and side by side relinquish deed can be made by your wife to relinquish her rights from property.
Or you and your wife can make an agreement that as soon as the emi of bank is completed she will transfer her share in your name with no.further consideration and same agreement can be registered.
Hi,
Instead of gift deed, get the right relinquished by wife, include it in the agreement of divorce and then apply for removal of her name from bank loan. You may do it, between first motion and second motion.
Dear Client,
Gift deed will attract more stamp/registration duty. Relinquishment Deed is better option. I think i have advised u earlier also,
Don`t bother about bank, this is there usual practice, Copy of sale deed is sufficient to execute release/gift deed, or can get certified copy of sale deed.
There`s no bar to accept release/gift deed with burden of mortgage.
Deed is valid and sole ownership after redemption of loan.
She can execute a registered gift deed or relinquishment deed in your favour. Once the same is executed you will get the original papers as it is legal way for the same. You don't need to close the loan account for the same.
The property is on mortgage loan with the bank, hence the bank will be actual owner of the property till the loan amount is fully repaid.
After discharging the home loan in full, the bank will return the property documents to both of you after both signing in the register for having received the documents.
The registered gift deed executed by your wife today will not be binding on the bank at the time of returning the documents because the property is in joint names and both are applicants for the loan amount.
In fact the gift deed itself may not be held valid when she is legally not considered to be a owner of her share in the property which is mortgaged to bank for loan purpose.
Alternately you may ask somebody to replace her as co-applicant to the home loan.
1. FIRSTLY, give indemnity bond /undertaking, by Husband & Wife, jointly, to Bank, that all future residual loan amount will be serviced by Husband. OR shift the Loan to another Bank in name of Husband only.
2. Consequent to above, ask for NOC from lending Bank to execute Gift Deed from Wife to Husband. AFTER this the Husband will become 100% Title-Owner of the property, without any further reference to the Wife.
Keep Smiling .... Hemant Agarwal
