You have to first obtain consent of bank for transfer of flat

2) bank would not give consent until loan is repaid

3) better sale deed be executed by A in favour of B

4) B can avail income tax rebate of interest paid on home loan

Hi, Whether the builder has executed the absolute sale Deed. Suppose builder has executed the absolute Sale Deed then only he can gift the flat to his brother. If there is no Absolute Sale Deed, he can't gift the same to his borther.

2. Suppose, if there is Absolute Sale Deed then with the consent of the Bank, who mortgage the property can execute the Gift Deed.

Sir, here in this case since the property is under bank loan the bank loan need to be repayed or loan need to be transferred. So for this transaction you need NOC from the bank.

So better prepare a sale deed, apply for transfer of bank loan remaining.

Gift under transfer of property is without consideration so the sale deed need to be done under which he will get a tax rebate and benefit.

1. The characteristic of a Gift Deed is there shall be no transaction of money but only out of love and affection a Donor gifts the property to the Donee.

2. In lieu of above, you cannot execute a gift deed in your brother's favour if you expect him to pay EMIs.

Hello,

No benefit can be availed in this case.

Gift deed has to be executed for limited extent.

And the loan has to be transferred later by the bank.

regards

Either it has to be transferred through a gift deed or the same can be transferred through a sale deed. In case of a sale deed it will be mandatory for you to give some consideration.

regards

But the rest of money can be consideration the remaining bank loan amount can be shown as the consideration for sale(Settlement deed ). In the gift deed there can be no consideration.

So draw a deed in name of Sale and settlement deed where you are transferring your brother the property in lieu of only the bank remaining loan amount which he has to settle.

1. I assume the builder has entered agreement with you

2. you can definitely assign your rights under the agreement for sale with the builder, by executing a gift deed in favour of your brother

3. the builder will require you to pay certain transfer fee whereupon your brother will be recognised by him as an allottee of the proposed flat

4. whatever balance sale consideration which your brother would be required to pay in the form of bank EMIs will be taken as his cost of acquisition of the property and he will also get the benefit of deduction (from his income) on interest paid on home loan, ie the interest component paid by him will be deducted from his taxable income as per the applicable limits defined in income tax act for interest payment

5. once you assign your rights by way of gift to your brother, your brother will become liable for the liabilities attached to those rights ie paying the bank emis

6 you can discuss the above with your builder and think of executing a deed of assignment of rights by way of gift wherein you will be the donor, your brother will be donee and builder as confirming party. you as donor can pay the transfer fee to the builder to show that ur intent is actually to gift the rights to your brother. you would also have to pay stamp duty (at a rate lesser than that applicable for sale) and registration fee

7. alternatively if you want to avoid paying the transfer fee and execute additional documents to give effect to the gift, you can wait till you get possession from builder and thereafter you can execute a gift deed with your brother. upon the gift taking place your brother will become owner of the flat and he will get the income tax benefit for paying the bank emis for the balance sale consideration

8 to add to the above, you will also need to take bank noc for transferring or assigning your rights to your brother by way of gift.

Let A repay loan then execute gift deed in favour of brother

1. Without permission of the bank you can not gift the mortgaged flat to your brother.

2. So take consent of bank, transfer the loan account along with gift of the flat.

Gift deed between the family members does not require passing of consideration.

1. For GIFT deed to be successful, the possession of the immovable property should be taken over by the DONEE. In this case instant, since the property is underconstruction, the GIFT cannot pass possession. Hence Gift deed shall remain null & void.

2. The monies for the Flat can be Gifted and same taken into the Income Tax returns of the Donee, for completing the Gift deed.

Keep Smiling .... Hemant Agarwal

No, there are practice of transferring the under construction buildings.

But, it has to be in accordance of law.

Inform the same to the bank and tell them to change the owner name on loan paper and make another agreement with the new one.

This gift deed would be kind of without consideration, so doesn’t require to be paid heavy amount of stamp duty on it.

But, there is a possibility that Registrar may ask for the stamp duty as it also for repayment of loan. It can’t be said right know as the situation is new and requires to be go by some rulings over it.

Rest, you can have e detail conversation with me through Kanoon.

A tripartite agreement can be entered with the bank by the donor along with the builder and the donee.

In the agreement all such terms and conditions may be reduced to writing so that there arises no dispute of any kind in the later stage in this regard.

The donor can express about transferring his booking to the donee as a gift settlement with settlement conditions that the donee may get the property sale deed registered to his name and all the future EMI repayments may be made by the donee.

This agreement should be drafted meticulously so that no technical flaw should become a legal hassle at any stage in future.

Please remember that a gift deed is void if there is a consideration passed, hence gift deed cannot be executed if the EMI repayments are to be made by the donee.

The donee once starts repaying the loan EMI repayment, can avail the ext benefits as available and applicable.

If A proceed with sale deed then, money transfer is required, however he does not want to take any money for the down payment paid to builder already(approx 60% of total value) from B.

As we know that property transfer happens even in case of under construction flat with home loan where builder asks for some sort of agreement between seller and buyer for the money exchange.

However in this case there is no payment involved, so any advice how to proceed if gift deed cannot be executed.

There are lot of legal issues involved in such arrangements.

Please remember that a gift deed is void if there is a consideration passed, hence gift deed cannot be executed if the EMI repayments are to be made by the donee.

You can execute a nominal or a sham sale or transfer deed involving the money transaction to make it more proper and effective.

You can discuss with your advocate at length and look for some way to arrive at a solution for this.

This is my response to you:

1. You can make a will for the transfer of future property;

2. You can insert that clause in the will;

3. But if you immediately want to transfer the responsibility then you can execute a Power of Attorney with clauses stating that your brother gets all the rights to manage or sell;