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Krishnaraya   30 January 2017

Gift deed prior to divorce

Dear Sirs/Madam,

Thank you for your kind advise towards one of my earlier posts and it really has worked to my favor. Request your assistance in the below case too:-

A married couple with a daughter own a Flat in Mumbai -Property in Name of Mr X & Mrs Y...as per registered agreement and share certificate.
 
Mrs Y now is expected to part ways with her husband, however Mr X may want to continue staying in the same house. Mr X is suggesting an option of a gift deed to be executed on his name before parting ways to save on stamp duty.
 
(a) By doing so is Mrs Y letting go of her rights from the property?
(b) She wants to have her share of money, so how can she do it by executing gift         deed.
 (c) if they apply for divorce and a clause is mentioned regarding payout to Mrs Y on the share of the property will it be legal after executing Gift deed. In case her husband continues to stay in that house, how will she claim her share of money.
 (d) Will there be a seperate NOC from Mrs Y required in case the house is sold to a third party.
 
Kindly advise.
 
Thanks & Regards,
Krishna


Learning

 10 Replies

Kumar Doab (FIN)     30 January 2017

In case of gift deed monetary consideration is not involved.

Gift deed should be registered.

In instant matter, let your own counsel specializing in family, property, civil matters advise you in detail so that there NO flaw in any deed (including but not limited to Gift deed being considered by you) and chances of cancellation, revocation, transfer back to donor. 

Kumar Doab (FIN)     30 January 2017

Go thru:

Transfer of Property Act, 1882; Sec122,123, 126

Registration Act, 1908; Sec;17

Moreover once you include money exchanged; it is NO more Gift deed. 

Prefer outright sale.

Kumar Doab (FIN)     30 January 2017

Only the owner can dispose by a valid deed.

Whereas, you have mentioned about a registered agreement, and not a sale deed/title deed.

 

If this confers ownership rights then only both are owner and can act like owner.

A valid and duly registered Gift deed confers ownership on donee.

Gift is complete once accepted by donee.

 

The Flat is jointly owned (as per your post) so both owners’ need to sign the sale related documents to third party.

 

Krishnaraya   30 January 2017

Thank you Kumar Sir.

Please advise if the Gift deed is executed today where Mrs Y gifts her share of the property to the husband and later on within a year they get divorced, is there any procedure to revoke the gift deed.

Can she claim her share of the house or is it assumed she has foregone her rights and will not receive a single penny.

Can a point be mentioned in the divorce agreement that Mr X owes Mrs Y a sum of Rs ______ and without paying that amount she cannot be forced to leave the house or If Mrs Y decides to leave the house Mr X will contribute 50% of the property amount as per market value as one time alimony and Mrs Y will leave the house.

 

Kindly advise

Kumar Doab (FIN)     30 January 2017

In case of gift deed monetary consideration is not involved.

In case of valid gift deed the donee becomes owner.

Court alone can revoke the gift deed.

You have doubts.

Don't forgo the share.

Let the matter of divorce be decided and then sell the share.

The proposal that you are discussing is not good.

I don't suggest to agree to it.

Krishnaraya   31 January 2017

Thank You Kumar Sir for your generous advice.

Kumar Doab (FIN)     31 January 2017

You are welcome.

Krishnaraya   20 February 2017

Dear Sir,

Request your kind advice on this last question, in continuation to the above query.. Is it necessary/mandatory to divide, sell /transfer the property before divorce. Can the property continue to be in both the names after divorce  until either party gives a notice in writing regarding selling the property to get their respective share money.

Kindly suggest. Thanks in advance

Kumar Doab (FIN)     20 February 2017

 

Before the divorce; both husband and wife is owner.

After divorce (valid divorce/by court of law) both are owner. Of course they are no more husband and wife.

The owner can exercise all rights that are vested in owner.

Bhaskar Anga   18 March 2024

I want to give my house to my wife as alimony. Can I do gift registration to save stamp duty...


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