Registered gift deed cancellation - suggestions
Sorry for the long description. I hope this enables you give clear suggestion.
Myself along with my Father-In-Law bought a residential site (40x60) in 2013 where both of us invested money and got the property registered jointly (un-divided) in my Father-In-Law and my wife's name (home maker, no other source of income).
Subsequently my Father-In-Law gifted his property rights to my wife through a registered gift deed. All my Brother-In-Laws and my Mother-In-Law signed the gift deed.
I wanted to take a home loan on this property where my wife as a co-applicant in SBI. But SBI informed me that I need to be the co-owner of the property. So suggested us to get a gift deed executed, so myself and my wife become co-owners. I did so and later found that the katha is not transferable by BBMP due to a pending case in court against my housing board (CA sites converted to residential site etc) (canara bank layout, Bangalore).
I checked in BDA master plan/modified plans to make sure my site is not under this illegally converted land and found that it is not. My site also has got the BDA Khatha and it is part of BDA released sites to housing society.
I don't want to wait till the stay is vacated (afraid that it may take too long as I don't understand judicial processes).
BBMP is ready to give plan sanction but not katha transfer. I checked in BBMP.
I need your expert suggestion how do I go about it?
1. Cancel gift deed so that I don't have to go for katha transfer and take loan from other banks where co-ownership is not needed?
- If yes is it allowed to cancel a registered gift deed (there were not major conditions in the gift deed, but there are some common conditions)?
- what are the procedures to cancel it?
2. Re-gift to my wife? what is the procedure for katha in this case? Do we still need to officially transfer or original katha which is already in my wife's name is sufficient?
I need your suggestions as I am really scared about my dream home and suffering for none of my mistakes.
Asked 2 years ago in Property Law from Netherlands
Hi, you can't cancel the gift deed once gift deed has been executed it can't be canceled.
2. The power to cancel the gift deed lies on court when gift was executed by way of fraud, cohesion or undue influence.
3. Better go for another bank for loan they may sanction the loan without insisting katha.
1) once gift deed is made you are 50%owner of property . title of property passes on from donor to donee .
2) cancellation of gift deed can be made with mutual consent of parties .
3)deed of cancellation has to be executed in this regard duy stamped and regsitered .
4)before you go in for cancellation please check whether other banks will sanction loan
5) since your wife is home maker no bank will sanction loan as she has no repayment capacity .
6) hence you have to be co applicant and for that property has to be in your name as co owner atleast
1. Gift Deed can be cancelled if bo the donor and donees so agrees to,
2. File a cancellatuion deed and get it registered,
3. Before taking the said step, find out whether any other Bank will provide loan to your wife or not since she is not employed,
4. You can also find out whether any other Bank will give you loan when you have 50% share of the property alongwith your wife and when the katha will not be transferred by BBMP now due to a pending case in court against your housing board.
1. After the gift deed has been executed it cannot be cancelled unilaterally. However, if the donor and donee are into a positive agreement to cancel the gift deed then it may be cancelled by executing a deed of cancellation.
2. Before executing a cancellation deed you must ascertain whether other banks will provide loan to your wife in view of the fact that she does not have an earning of her own and thus lacks the capacity to repay the loan.
3. Some other bank may agree to give you the loan if you are the co-applicant as well as the co-owner.
1. you can get a cancellation deed and registered and the property will be in your wife's name alone.
2. Since khatha is not transferred in your that question of re-transfer does arise.
3. If lending banks are not insisting a property in your name getting the gift deed cancelled is the best option.
Usually a registrar should not have a problem when you register a cancellation deed, in case if he does , you please check whether you have incorporated a clause of a cancellation by mutual willingness..if not any objection from the part of the registrar a court order is needed.This is because a gift accepted is absolute once the donee signs it so the legal transfer of it happens.