Mortgage property & gift deed
navin
(Querist) 23 August 2013
This query is : Resolved
my query is can a simple mortgaged registered property be transfered through a gift deed?
Dr J C Vashista
(Expert) 24 August 2013
Yes it can be gifted but after redemption of mortgage
Guest
(Expert) 24 August 2013
Your question is incomplete. You have not mentioned whether the mortgaged property is yours or of someone else has mortgaged his property in your name.
Position differs in each case for the purpose of gifting.
Moreover, transfer of property even by gift does not fall within the purview of business law, the category under which you have posted your question.
navin
(Querist) 24 August 2013
SIR ,"A "HAS MORTGAGED A PROPERTY TO ME by registered simple mortgage.can he transfer property to his son "B" WEN YET THE PROPERTY IS MORTGAGED TO ME.
prabhakar singh
(Expert) 24 August 2013
There is no bar if son accepts the gift with burden of mortgage made in your favor.
It is choice of donee (son)to accept or refuse.
Once son accepts the gift,he is bound by burden on the subject of the gift,that is to say,to discharge the obligation of mortgage in your favor.
Any transferee from mortgagor would have to carry on burden of mortgage imposed on the subject matter.
Guest
(Expert) 25 August 2013
May the property be gifted, but benefit of mortgage may accrue only on release of property from mortgage when the debt liability is extinguished. But the mortgagee also needs to be intimated if the gift is made in between the the period during which the property remains under mortgage.
prabhakar singh
(Expert) 25 August 2013
In case of a simple mortgage ,the mortgagor
(the owner)personally obligates to discharge
the debt(money)advanced by mortgagee(the creditor)by a deed between the two whereunder on default of former ,latter can proceed against as a secured creditor.
The mortgagee by simple mortgage, not even hold possession of secured property and does not even have right of foreclosure, which a mortgagee with possession has.
It is also required to be understood that law always gives due respect to the right of REDEMPTION (seated with mortgagor) against the right of FORECLOSURE (seated with mortgagee).A mortgagor has right to redeem his property any time before his
right is foreclosed by a decree.Needless then to say FORECLOSURE requires a suit by mortgagee;it is not any ipso facto affair at the choice or discretion of the mortgagee.
The reason is that at the time of mortgage, the intention between parties to a mortgage is never 'transfer of any interest in the property' but simply creation of a security of a debt advanced by mortgagee.
Then in case of a simple mortgage where neither title nor possession is with mortgagee,it can definitely be transferred by any mode of transfer without any consent or intimation to mortgagee.A mortgaged property is an encumbered estate and on transfer passess with burden imposed thereon.No kind of mortgagee can restrain any mortgagor fromtransferring his interest right and title he owns in the property mortgaged.
