kumar101 (clerk) 20 January 2014

Can house be attached

Hi,

I have house in Hyderabad, AP, which was bought before marriage on my name using house loan from a pvt bank in 2005. The papers are with the bank as the loan is not cleared. It will take another 10years for it be cleared.

- I lost job in 2010 and since I was unable to pay the monthly installments, I gifted (non-registered) the house to my father as a gift (non-registed) since the documents are with the bank. This gift was done on a simple bond paper and my father is paying the monthly installments

- Now, my wife filed a Domestic violence case(DVC) and judge has attached the house in DVC case (jan'2014)

My questions

a) Can the judge attach a house under bank loan in another civil case(DVC)

b) Will the simple gift given on bond paper in 2010 be valid

c) I heard that there is a Apex court judgement that home-loaned properties can't be attached by court in other civil cases

Please urgently help me what should I do

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8 Replies

dv (ghvhb) 20 January 2014

You have not specifed details ...why was the house attached ? Non payment of maintainance or is the house on your name and wife names.jointly You can ask your father to file another case showing his right in the house since he has paid installments Get a stay or file to challenge the order in sessions

AV Bagur Advocate (Advocate ) 20 January 2014

As a thumb rule there is no protection to any mortgaged property - whether it is individual dwelling residential house or an HUF. Even if the Gift deed is valid, the beneficiary of the gift deed would be liable for the debt amount attached to the house. Where a property carries multiple liens, charge, claims, then the same will be decided separately by way of a civil adjudication, but all would be subject to mortgage. There is no known judgment of the apex court that says that a mortgage can be sub-vented if it is an individual residential unit.

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kumar101 (clerk) 20 January 2014

@dv -> The attachment is due to non-payment of maintenance

@AV Bagur -> The maintenance amount payment was ordered in Yr-2013 and whereas the gift deed was given in Yr-2010. The house loan was taken in Yr-2005. How can court give orders in yr-2014 on a property not owned by me since its in mortgage to a bank.

K.K.Ganguly (Advocate) 20 January 2014

a. Property mortgaged with a Bank creating security interest can not be attached by a Civil Court,

b. No mortgaged property can be dealt with by the mortgagor. Hence, mortgaged property can not be gifted. Moreover, unregistered Gift Deed is invalid,

c. Yes. It is a well settled proposition of law.

T. Kalaiselvan, Advocate (Advocate) 20 January 2014

@kumar 101:

a) Can the judge attach a house under bank loan in another civil case(DVC)

Bank loan is under equitable mortgage?, if so, the order by the court to attach the property for default in paying the maintenance amount is invalid, you should havelet known the court about the existing bank loan on the property, even now you can by a memo inform the court the property now ordered to be attached is underr loan with a bank.

b) Will the simple gift given on bond paper in 2010 be valid:

No it is not valid. First of all until you redeemed the property, you do not have any title over the property hence you cannot gift thee property to any one on which you yourself have no right. Therefore the gift deed under the said circumstances, whether registered or unregistered is invalid.

c) I heard that there is a Apex court judgement that home-loaned properties can't be attached by court in other civil cases

Yes i is a settled law.

kumar101 (clerk) 22 January 2014

@K.K. Ganguly --> Thanks for the info. But, when u say "settled law", can u give any links to the law/apex court judgements as some lawyers say that bank can be impleaded into the DVC case and my wife can be asked to pay the loan amt and then take over the property. Is this true ???