Non-availability of documents - What to do?

Non-availability of certain documents

Generally speaking, non-availability of title deeds or misplacement or missing of property title documents is a serious matter of concern. The reason for the missing or non-availability is to be identified and may be due to the following:

• The document related to property might be acquired by partition
• The documents might be really misplaced and not lost or encumbered.
• The document might be lost or stolen.
• The property might be mortgaged, and the documents offered as security.
• The property owner might have entered into sale agreement with other and the deeds might have been given as promise.

If it is mortgaged by deposit of title deeds and the sale is effected through certified copy of deed/s, the innocent buyer may not get the marketable title over the property and the mortgagee has the first charge. If the documents are lost or stolen, the owner might have given advertisement in popular dailies and wide publicity revealing the fact of missing of documents. However, in the eyes of prospective buyers, a property without proper original title deeds has its marketability injured. The buyer may suspect the genuineness of vendor and marketable title as deposit of title deeds does not require any registration. On the other hand, the loss or misplace of previous title deeds or EC, patta, tax receipt may not affect the title of the property as well.

In an event, the seller says that the previous deed in original is not available. Now, the proplawyer has to see the length of ownership of the seller that is the period from the date of his purchase and the possibilities of challenges by the (imagined) mortgagee, if any, due to the mortgage by the previous owner. If, for argument sake, we imagine that the property is mortgaged, the right of redemption by the mortgagor (previous owner) is 30 years and the limitation period for any claim by the mortgagee is 12 years. Hence, a deed executed before 12 years might have extinguished any right of claim by any mortgagee prior to it. So, the proplawyer assume that there is no possibility of any claim due to the missing or non-availability of any previous deed when the present title deed is executed before twelve year. In such event, it is sufficient to mention in the sale deed or to get affidavit from the seller stating that the property previous deeds and documents are missing or misplaced and there is no mortgage, charge, lien affecting the marketability of the property. Indemnity may be executed indemnifying property and claimant against any claims, damages due to any inadequacy in title.

If the property was acquired by the partition or a part of the property was bought by the seller, the original previous deed may not be available with seller and buyer may not get the same. The proplawyer has to scrutinize the deeds and form an opinion by legal prudence.