Mortage property
kalpesh1963
(Querist) 25 February 2012
This query is : Resolved
Sir,
can gifted of equitable mortgage of the property.
It means can it be possible to give gift of then property subject to equitable mortgage?
Raj Kumar Makkad
(Expert) 25 February 2012
Though your query is not clear,however, it is clarified that the equitable mortgage is possible as per India laws.
kalpesh1963
(Querist) 25 February 2012
can I gift the property to my son,the said property on which equitable mortgage is created in favour of Bank
Raj Kumar Makkad
(Expert) 25 February 2012
You cannot do so without redemption of mortgage from the banker and if banker permits you then there is no legal problem.
adv. rajeev ( rajoo )
(Expert) 26 February 2012
you cannot gift the mortgaged property It requires bank's permission to do so. Inspite of it if you gift the property to your son, always encumbrance goes with it
PARDEEP KUMAR
(Expert) 26 February 2012
Yes, you can gift the property, clearly indicating its coming into force only post clearance of mortgage. The bank shall remain the first charge holder. it would be more appropriate, you get it mortgage free and then gift the same.
RAJU O.F.,
(Expert) 26 February 2012
Property under mortgage can be gifted with prior permission of the mortgagee banker. But the absolute title to the property would be obtained only after release of the mortgage by the mortgagee.
J K Agrawal
(Expert) 26 February 2012
Sirs
A mortgaged property can be transferred further any time.
No need to take NOC of previous mortgagee or even to inform him.
(As in case of mortgage one transfers only "an interest in property" and not "the property it self".)
You may gift the property but if your son accepts the gift he has to accept the burdens over property also.
Shantilal Pandya
(Expert) 27 February 2012
Correctly opined by Mr. J K Agrawal...I enodrse. property passes to the donee subject to encumbrance over the property
shivam......
(Expert) 27 February 2012
There is no legal problem in gift; the only thing is that the property shall go to donee subject to charge of the bank..
malipeddi jaggarao
(Expert) 28 February 2012
Though legally allowed, Banks will not agree to your proposal of gifting the property which is already under their mortgage. Your query is not clear. Why this property is under equitable mortgage to the Bank - covering what? If you are the principal debtor/one of the principal debtors, and if your son is a major, you can seek permission from the Bank. They will review the facility and make your son as guarantor and accept this property for equitable mortgage. If you are guarantor to the facility sanction to some other person/firm, the Bank will agree to take your son as additional guarantor and obtain the equitable mortgage on the property. But you are required to take the Bank into confidence at every stage.
M V Gupta
(Expert) 08 March 2012
Under Sec 6 of Transfer of Property Act, any kind of property is transferable. Subsistence of mortgage on the property will not take away the right of the owner to gift it. The donee if accepts the gift will be liable to discharge the loan. However, the banks do generally require that the property shall not be dealt with without their prior consent. This condition is more to protect their interests and cannot take away the right of the owner to transfer the property.
