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Ramesh   29 April 2021

Release deed.

Sir / Madam,

Me and my wife own a flat jointly which is mortgaged to a bank. Housing loan is in both of our names but income proof is of mine and EMIs are being paid by me.
Due to personal reasons we have decided to divorce. Now can my wife execute a release deed wherein she releases her rights on the property. Are Release deeds executable during mortgage period?


Learning

 16 Replies

Vandan Kumar   29 April 2021

Yes ,
or you can opt for gift deed.

Ramesh   29 April 2021

Sir, 

Can gift deed be done for self acquired property?

Will I be able to transact  the property on my own 

 Keeping this gift deed?

SHIRISH PAWAR, 7738990900 (Advocate)     29 April 2021

Hello,

As per my opinion, release deed while flat is mortgaged is not possible. It is only possible if bank allows you to execute release deed.

Advocate Bhartesh goyal (advocate)     29 April 2021

Yes,  your wife can relinquish her share by executing registered release deed with the permission of bank as property is mortgaged in bank.

Sankaranarayanan (Advocate)     29 April 2021

yes i do agree with experts answer. first you need to obtain banker permission 

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     29 April 2021

1.  "AFTER"  taking NOC from financing Bank, Wife may execute a proper Stamp Duty paid & Registered "Gift Deed" in your favor.  Release Deed in such situation is not possible.

Keep Smiling .... Hemant Agarwal 
VISIT:  www.chshelpforum.com

Ramesh   29 April 2021

Sir, 

Bank is not giving NOC for executing Release deed.

Can gift deed be done under this circumstance without permission from bank?

Is original property papers needed at Sub registrar office during execution of Gift deed or a photocopy will suffice?

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     29 April 2021

1. When immovable property is already Mortgaged to a Financial Institution, THEN executing Sale /Gift /Release /Donation or any type of Deed, shall result in prosecutable offences, leading to minimum Three years of Free Lodging & Boarding in the State Prison.

2. Bank is concerned with their outstanding amounts. You may give undertaking to bear entire liability & provide additional surety, if needed by Bank, to further your objectives.

Keep Smiling .... Hemant Agarwal 
VISIT:  www.chshelpforum.com

 

Ramesh   30 April 2021

Sir,

The problem is banks usually don't give NOC in these type of cases.

Private banks just get signatures in Memorandum of deposit during loan sanction and doesn't get it registered in sub registrar office. Bank just keep this MoD as a stamp paper in their custody. As such, the mortgage details won't reflect in encumbrance certificate. Therefore, the sub registrar won't have objection in doing these deeds.

Suppose my wife (who is a co owner and co applicant of loan) executes a release or gift deed in my favor without obtaining bank's consent and thereafter I will inform bank about this and later if I do a Memorandum of deposit in favor of bank and reconsider the loan in my name alone, will this attract any legal complications?

Can I put an email to the bank intimating that their non response in giving an NOC after several reminders and attempts have put me in a situation to execute release deed on my own.

Kindly provide opinion.

 

 

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     30 April 2021

Kindly prefer to Re-Read my earlier advices,  this time more S-L-O-W-L-Y.

Keep Smiling .... Hemant Agarwal 
VISIT:  www.chshelpforum.com

SHIRISH PAWAR, 7738990900 (Advocate)     30 April 2021

During the subsistence of mortgage you cannot execute any type of document to create third party interest in any manner. However, you may seek permission / NOC from bank if posssible. 

Ramesh   01 May 2021

Sir,

Do Release deeds mandatorily needs consideration?

Can release deed be executed by a wife on his husband without consideration when heading for a mutual divorce and both husband and wife have no demands on each other?

M V Gupta (Advocate)     02 May 2021

Right to own  property includes right to relinquish or transfer it to others. Your wife who is co-owner of the property can relinquish or gift her 50% share in your favor. There is no law to prohibit it. However if there is a restriction on alienation of the property by you and your wife without permission of the (mortgagee) bank in the mortgage agreement, then it is necessary for your wife to get consent of the bank. While the relinquishment  or gift without consent may not invalidate the transaction, it will amount breach of contract of mortgage and trigger the clause for enforcement of the mortgage. Hence you should try to get prior consent of the bank for the relinquishment or gift. I do not think it is difficult to get the consent if you convince the bank that your income is sufficient to meet the future EMIS.     

Ramesh   02 May 2021

Sir,

Thank you so much for you kind opinion.

Thank you all for your valuable opinion.


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