• Original flat document missing

Sir, I (buyer) entered in to an Sale Agreement for Rs.1 Crore plus stamp duty and registration charges for an 2 BHK flat in Mumbai (Dahiser). Our Transaction is registered with Registrar in Dec 2019 with 50% sale amount - rest amount is loan. This been an MHADA flat it required NOC & transfer document from MHADA for loan. Due to the covid all these transaction got delayed and the final loan disbursement was about to happen on 1st july 2020 - on this day i came to know from buyer that the Original Document (first chain) is missing.He never showed the original document to me - its a big mistake from my side. The flat is currently on rent and tenant stay there.The seller is 63 years old senior citizen.

Here are my queries :-

1. How to handle this if i have to buy the flat within total legal frame - what additional documentation needs to be done.

2. What if i want to withdraw and the seller is not ready to cancel the deal stating he has further invested money. 

3. I have initiated the process of share certificate transfer with the society and also asked the tenant to get into rent agreement with me (seller agreed so i can take rent from this july month) - should i proceed with this or should not ? weather it will create problem to me in case i want to withdraw

please guide
Asked 2 years ago in Property Law
Religion: Hindu

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36 Answers

1. A police FIR needs to be filed and lost certificate needs to be obtained by buyer also the buyer has to publish about lost document in newspaper.

2. See you may cite document as the reason for cancellation in case he refuse to refund you have to file suit.

3. See if he gets a lost certificate and certified copy of original document you may proceed.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You may get problem in further selling it. Take an indemnity bond and undertaking about original Chain missing from the seller. Also tell the seller to file a missing complaint with police and also newspaper publication

Prashant Nayak
Advocate, Mumbai
28075 Answers
93 Consultations

4.4 on 5.0

  1. It's in your own interest to withdraw.  The onus is on seller to provide original title documents otherwise as agreed in the sale agreement, he has to refund the amount.  

2.   There is every llikelihood that the property is mortgaged with some bank and once you purchased the property, the bank liability is yours.

Dalip Singh
Advocate, New Delhi
1050 Answers
36 Consultations

5.0 on 5.0

1) ask seller to issue public notice about loss of original documents 

 

2) file police complaint about loss of original documents 

 

3) obtain certified copy of originals from sub registrar office 

 

4)in alternative cancel the deal as seller does not have clear and marketable title to property 

 

5) ask seller to refund your money with interest 

 

6) if he refuses sue the seller to recover your money 

 

7) you have to take call whether you want to proceed with deal or not 

Ajay Sethi
Advocate, Mumbai
89045 Answers
6352 Consultations

5.0 on 5.0

1. It is a blunder from your end which may cost you.

2. Original sale deed is the first document in the chain of title without which you should not have agreed to purchase the property in the first place.

3. If the seller did not have the original document then he could have obtained a certified copy of it and delivered to you.

4. If you withdraw now then the seller will be entitled to forfeit the money in accordance with forfeiture clause in the agreement.

5.Let the seller obtain the certified copy of the original deed and deliver to you.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Dear sir,

There is a possibility that the original deed have been been kept with a mortgagee and some loan has been obtained on this property.

1. Ask the owner to Lodge a police complaint about missing deed and issue a public notice. 

2. Obtain a certified copy of the sale deed and the encumbrance certificate from Registrar's office. 

3. You can withdraw and also claim interest as the owner is at fault. If he denies you can institute a suit for recovery of money. 

4. Do not proceed untill the first two steps are taken.  Tomorrow the buyer might take a defence that you are blowing hot and cold at the same time.

Hope this helps.

Best wishes. 

Agam Sharma
Advocate, New Delhi
617 Answers
6 Consultations

5.0 on 5.0

1. The vendor has to provide the original documents. 

If not he has to file a missing complaint with police and get a non traceable certificate and then issue a public notice in a local newspaper. 

After that an indemnity bond to be executed by the vendor and then he should apply for certified registration copy of the documents that are reported to be missing. 

2 you can drag him to court for relief and remedy. 

3. You may stop all these process immediately and wait for the vendor to comply with the legal procedures as required in this connection. 

 

T Kalaiselvan
Advocate, Vellore
79208 Answers
1614 Consultations

5.0 on 5.0

1. Missing of original document is not big deal if the same is a registered deed. In such cases if you get certified copy of ig most of your problem is solved. 

2. If the seller can not satisfy you on title of the property you have legal remedy for cancelling it.

3. Show the papers to an advocate so he can decide on importance of missing deed and take a final call on this. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
408 Consultations

5.0 on 5.0

Hi

What happened is due to the lack of due diligence from your part.

First of all make sure that the sellor has a clear title. Without any encumbrances.

Do a title search with lawyer if you have not done it.

If you had initiated a housing loan then surely your bank would have asked for the title clearance.

Even if you don't have the original sale agreement as it is missing, first get a title certificate after doing a search in the registrar office of the concerned area and of the title is clear then apply for the duplicate sale  agreement from the registrar office after making the seller file for an FIR of missing sale agreement.

If you have done all the above then proceed with the deal further 

It could be also possible that his legal heirs may have it , there could be possibility of a transfer by gift or MORTGAGE  official or unofficial etc.

Get it right on record that he missed it and reported to police. Next step is to make a  Public notice in the news paper that the document is missing and the same will not be used as the owner is obtaining a duplicate , refraining anyone who find the original document to use it,including seller's legal heirs.

FIR, public notice in news paper , application for duplicate in the sub regustrar etc are must.

Also you could mention the same in the original sale agreement which you make with the seller.

Most banks advise  the above procedure when you go for a loan, inorder to get the the title clear and to avoid future claims from anyone, including his legal heirs.

Your possession of the property or registration of the sale agreement and the whole deal will not make the transfer legal unless the seller has a  clear and marketable title.

Contact a lawyer and do the necessary steps to make sure the property you buy   is  legally secure.

 

Thresiamma G. Mathew
Advocate, Mumbai
1633 Answers
212 Consultations

5.0 on 5.0

1. File a FIR  for the missing documents and get a copy of those from the office of MHADA.

2. If you want to cancel the deal than you have to send him a legal notice for cancellation of the deal on basis of original documents missing .

3. If you want to cancel the deal than don't proceed with the rent formalities. 

 

Rahul Jatain
Advocate, Rohtak
5365 Answers
4 Consultations

4.8 on 5.0

1. In MHADA properties there is no "Sale Deed" but only an "allotment letter" issued to the original allottee.  Such copy of certified document can be obtained from MHADA (Bandra office).

2. Anyways you can take a "irrevocable indemnity bond" from the Seller, to indemnify you against any futuristic legal litigation or losses or claims by anybody and to compensate you for such litigation /loses /claims etc..... This will be legally sufficient for futuristic purpose of Sale /Gift/ Lease /Mortgage /Donate /Whatever ...

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. If the original document is missing , then he should firstly lodge a missing complaint with the local police ,and further publish the same in new papers as well , so that there may not be misuse of the same. 

- Further , he can apply for getting certified copy of the missing document from the office of the registrar , where it was registered , and this copy is valid legally. 

2. If you will purchase the said property in the absence of chain original or certified document , then bank may not sanction loan . 

- Further , you may face problem at the time of selling the said property as well. 

Mohammed Shahzad
Advocate, Delhi
10304 Answers
123 Consultations

5.0 on 5.0

Missing original chain of documents, purchase not advisable. Will face problem in future and also in loan approval.

Send legal notice to builder for concealing the fact and chested you and demand refund with interest plus expenses incurred on stamp duty. If not returned, file FIR.

 

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. for the lost original document, the seller will have to lodge a FIR with police and also issue public notice in newspapers 

2.you have a valid ground to back out from the contract since the chain title document is not there and also because the lender bank will not disburse the loan without all the original title documents being deposited with the bank. The lender bank may also refuse to disburse the loan even if you give them the FIR copy and newspaper cuttings of the public notice as above. The seller can refuse to refund and if he does that then you will have to file a suit against him for cancellation of the agreement and recovering the money so far paid by you. This will entail legal costs for you

3. how can you get the share certificate transferred without the transaction having been completed in all respects? Even though there is a registered agreement, the transaction is still pending. If you proceed to transfer the share certificate and collect rent from the tenant then you will lose your right to back out from the contract due to the reason of lost title document. So that is call you have to take. 

Yusuf Rampurawala
Advocate, Mumbai
6998 Answers
79 Consultations

5.0 on 5.0

No problem if seller has lost Original Agreement. Please ask seller to keep ready zerox copy of Original Sale Agreement and prepare a public notice to be published in two leading News Papers one regional language and another English Language for the declaration of title of the property declaration is to publish the description of the property and intend to sell it with declaration that anyone has any interest, title and occupation over the property then contact the Advocate of seller or seller directly to show his her ownership over the property within two week. 

After publication, take affidavit of seller and published news item to banker ,they would process your loan application. This is the law and process which one has to follow if Original Agreement is misplaced. 

You may have to file suit for recovery of money which is not advisable. 

You can withdraw and you may proceed as well.

Choice is yours. 

I would advice you to proceed with. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

1. Seller should obtain true copy of original Document from revenue department to complete the chain of documents.

2. For that you have to file suit against seller for recovery of advance paid and cancellation of agreement.

3. You can proceed with purchase if seller is ready to obtain true copy of first sale document from revenue department.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Check whether FIR has been lodged by seller regarding missing original documents? Whether public notice issued? It may be that equitable mortgage has been created by seller by depositing original title deeds.

If FIR is lodged, public notice issued then you can proceed with purchase of property on basis of certified copy of sale deed.

We would advice you to avoid buying such property.

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

1) seller would not agree for reduction in price as share certificate already transferred in your name 

 

2) litigation is long drawn and expensive proposition 

 

3) you can with mutual consent cancel the sale deed by execution of deed of cancellation 

 

4) request for reduction at earliest 

 

 

Ajay Sethi
Advocate, Mumbai
89045 Answers
6352 Consultations

5.0 on 5.0

how can you even ask for a reduction in price when you have already got the shares transferred to your name in the society records?

if you had any apprehension you ought not to have taken steps to transfer the shares to your name

now after the seller having done all what was required by you and you already having transferred the shares to your name and also registered the LL agreement with the seller's tenant and further the tenant also agreeing for you to collect license fee from the tenant from July onwards, after all this you turn around and say that you want a price reduction, then i am afraid that the Court will throw you out and impose heavy costs on you

moreso when the seller happens to be a senior citizen

if you had any doubts, you should not have transferred the shares and registered the LL agreement with seller's tenant. You should have told the seller that without the missing document you cannot proceed with the deal. 

However in this case you went ahead with the deal and the seller took the required steps. Now if you ask for a price reduction then it will be like arm twisting and the Court will heavily come down upon you. It wont be surprising to see exemplary costs being imposed on you for such arm twisting tactics

Yusuf Rampurawala
Advocate, Mumbai
6998 Answers
79 Consultations

5.0 on 5.0

once share certificate transferred on your name you cannot ask seller to reduce the price. 

first of all your case in not maintainble in court. 

through Mutual Understanding only . 

 

Mohammed Mujeeb
Advocate, Hyderabad
19032 Answers
32 Consultations

4.5 on 5.0

Yes you can for missing document.

No

Only when you came in knowledge of missing document.

Yes

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

You need full consultation and conversation with the senior Lawyers for speedy solutions of all issues with flats,ownership  Society and transfer process. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

1. yes

2. yes its a problematic issue for you due to its defective title

3. yes

4. yes but only if the said facts were not in your knowledge

Prashant Nayak
Advocate, Mumbai
28075 Answers
93 Consultations

4.4 on 5.0

1. Without buying the property by a registered sale deed, you cannot enter into a leave and licence agreement with a tenant and also cannot get the share certificate of the society transferred to your name.

It is an illegal act.

There is no provision in law that you have to get the property value reduced just because some vital documents are missing, you cannot claim the rights legally.

2. You have no rights in the property yet hence the act of entering into leave and licence agreement or getting the shares transferred to your name is an illegal act, you may have to face consequences under criminal law for land grabbing act also.

3. You cannot legally claim any rights over this subject.

There is no provision in law to get the value of the property reduced just because a vital document is missing, if you are not interested in buying the same, you can ignore the agreement or cancel the same  but you cannot legally force the seller to reduce the rate of the property for this reason.

4. If the seller goes to court first you have to defend your interests since you have done illegal acts of entering into leave and licence agreement  with a tenant and also have got the shares transferred to your name illegally, hence you are the person who has committed offence and not the seller.

 

 

T Kalaiselvan
Advocate, Vellore
79208 Answers
1614 Consultations

5.0 on 5.0

1. See you may request for price reduction however, all formalities are legally done by the seller so as such it causes no for reducing the amount.

2. See the leave and license agreement is not valid and further society legally should not have transferred before the registered deed.

3. No limitation period apply on the same.

4. You may take the ground regarding the missing document before the court. 

  

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Yes , because there is fault in the ownership due to not having chain documents , however amicable settle the problem , if you are interested to purchase the property. 

2. No, he has no ground before the court , as this dispute will arise due to his faults.

3. Yes. 

Mohammed Shahzad
Advocate, Delhi
10304 Answers
123 Consultations

5.0 on 5.0

1) The title flow needs to be clear i.e., the ownership has to be clear and no disturbance in flow. Obtain certified copy of the missing document and release news paper notification calling for objections if any.  On perusal of certified copy, if the title flow is clear, you can go ahead.

2) If title is defective, it is better to withdraw by giving notice. You can offer him to get the title flow cleared and if it is cleared you can go ahead.

3) No, you just stop the proceedings till you get the clear title flow.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

1) Better obtain the certified copy of the missing document and if the title flow is clear, you can go ahead with transaction. No harm in trying to get the price reduced.

2) You put it in writing seeking the reduction in price now, no problem.

3) If he goes to court, it will be difficult for you, he has done what all is required to be done in the eye of law. Just check the title flow, by obtaining certified copies of the missing documents, if it  is clear, simply go ahead.

S Srinivasa Prasad
Advocate, Hyderabad
2876 Answers
9 Consultations

5.0 on 5.0

You need full consultation with lawyer to seek proper advice. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

You would not be in better position 

 

2) it is civil offence 

 

3) inform him that on account of pandemic unable to mention payment on due date to extend time for making payment 

Ajay Sethi
Advocate, Mumbai
89045 Answers
6352 Consultations

5.0 on 5.0

1. As opined earlier,  without acquiring title to the property by a registered sale deed,  the act of getting the share certificate transferred to your name as well as letting out the property on leave and license are not legally valid,  any argument put before court on this basis will draw adverse impact to your case. 

2. What action he may take cannot be predicted but any action taken by him against you for this illegal act would be maintainable.

3. You cannot force him to your convenience,  if you want solve it,  better do it amicably instead of stretching it or looking for legal solutions. 

T Kalaiselvan
Advocate, Vellore
79208 Answers
1614 Consultations

5.0 on 5.0

1. The transfer of share certificate prior to sale deed is invalid and also the leave and license are invalid as you are not the owner of the premises.

2. See the owner and tenant may file complaint in this regard. In case the owner is confirming party or witness in this leave and license agreement you may contest in case they file any complaint.  

3. You may ask him to give you an amended agreement.

 

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. No 

2. Civil

3. Can be extended on the ground of covid-19 , 

Mohammed Shahzad
Advocate, Delhi
10304 Answers
123 Consultations

5.0 on 5.0

1. Still. You can terminate

2. No he can't if he files it will never dismissed

3. It's good time. It's ok 

Prashant Nayak
Advocate, Mumbai
28075 Answers
93 Consultations

4.4 on 5.0

Send him legal notice for termination of agreement, mention all the reasons. Don`t make him any payment.

No criminal case, Stay on your condition.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Yes you are in better position for legal battle. 

No seller cannot file any suit against you.

Send a notice to seller for providing remaining documents so that you can make remaining payment.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

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