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Gift deed of mortgaged property

Querist : Anonymous (Querist) 20 February 2024 This query is : Resolved 
Gift deed of mortgaged property registered without consent of Bank. On first page of deed along with property valuation loan amount Rs 32,00,000 mentioned for calculating stamp duty and donee will pay loan writen in deed. also stamp duty on loan amount paid by donee. Is gift deed valid ?
Isaac Gabriel (Expert) 20 February 2024
Gift deed is a closed matter unless revoked.The bank transactions based on the gift deed is in no way affedted.
Querist : Anonymous (Querist) 20 February 2024
Can gift deed challenged on this as gift is not without consideration
T. Kalaiselvan, Advocate (Expert) 20 February 2024
The conditions imposed in the gift deed makes it invalid.
Besides the execution of gift deed during the pendency of a mortgage loan is not valid because until the mortgage loan is discharged in full, the original owner/borrower don't have any rights in the property.
Thus this also renders the gift deed as not only invalid but also an illegal act.
Besides the donor only has to bear the expenses towards payment of stamp duty and registration charges and not the donee

Therefore the gift deed appears to be invalid in law.
kavksatyanarayana (Expert) 20 February 2024
No doubt very well explained by Sri T.Kalaiselvan Sir. Generally, the Sub Registrar shall not entertain a Gift deed as the property is on a mortgage with a Bank. How can the donee pay the mortgaged amount? If the donee pays the loan, it will not come under Gift except Gift for consideration and attracts stamp duty as a Sale.
Querist : Anonymous (Querist) 20 February 2024
Thanks Stamp duty on loan amount also paid by donee.
kavksatyanarayana (Expert) 20 February 2024
Stamp duty not only on loan amounts but on the Market Value of the entire property shall be paid
Querist : Anonymous (Querist) 20 February 2024
Yes Donee paid stamp duty on both loan amounts and on the Market Value of the entire property. Is payment of stamp duty by donee treated as consideration and gift deed become invalid.
kavksatyanarayana (Expert) 21 February 2024
No. It is a Gift deed for a consideration.
T. Kalaiselvan, Advocate (Expert) 22 February 2024
Yes, the stamp duty borne by the donee amounts to payment of consideration to the donor, making the gift deed invalid as per law

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