• Purchase of land without encumbrace certificate and original deed

Sir,

I am going for registration of sale deed for a plot of land by tomorrow. Permission/NOC have been availed both by SDC office and Town Committee. However, the owner dont have the sale deed copy of his original purchase. The Jamabandhi copy is available, wherein he is mentioned as the owner of the land.

Concern:
1. Can the sale deed be entered without the encumbrance certificate (EC), as it is taking time to collect the same from sub-registrar office. 
2. If the deed is registered without EC, would my right on property be questioned later, if some other facts comes out later.

Grateful, if you could advice me on above on urgent basis please, as we are going for sale deed registration tomorrow. Thanking you.

Regards,
Amit Agarwalla
Asked 1 year ago in Property Law from Golaghat, Assam
Religion: Hindu
1) if original sale deed is lost has FIR been lodged by the seller ?

2) has public notice been issued of loss of originals? 

3) The encumbrance certificate is used in property transactions as an evidence of free title. When buying land  it is important to confirm that the land or property does not have any legal dues. A prospective homebuyer must ensure that the property he intends to purchase has a clear and marketable title.

4) your title to property can always be questioned later if your title is not clear and marketable 
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
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1) if no FIR is filed no public notice issued of loss of original documents it is possible that seller may have mortgaged the original documents 

2) jamabandhi is record of rights of the said land .  when you purchase a property you must avoid taking any risks. in present case the original sale deed is missing and no police complaint has been lodged of loss of originals 

3) avoid purchasing  the land as title is not clear and marketable 
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
1. The sale deed can be registered without EC. The sub-registrar is bound to register the sale deed when it is presented for registration to him. The only satisfaction to be recorded by him is with respect to the payment of stamp duty.

2. The ownership to a property can always be impeached in the court by any person who can prove that he has a better title to the property. This is regardless of whether the sale deed has been registered with or without EC. 

3. Obtain a certified copy of the sale deed of the owner if he does not have the original.

4. To purchase a property without inspecting the sale deed of the seller is fraught with an inherent risk of the sale being challenged in the court by a person claiming to have a better title than the purchaser.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
1. This purchase of property without original title deed is very risky even if Non-Encumbrance certificate is collected since mortgage of property is not registered to be added in the Non-Encumbrance certificate,

2. If the Vendor has deposited the original Title Deed with a Bank for creating mortgage  for taking loan, then the Registrar will not come to know about it,

3. In the said event, the sale deed registred in your favour will be invalid since mortgaged property can not be sold,

4. Has the Vendor filed any missing diary with the police for having lost/misplaced the original Title Deed?

5. However, the deal will be risky for the above reason.

Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Encumbrance means the charges or liabilities created on a particular property, whereby it is held as a security for any debt of its owner which has not been discharged as on date. The certificate can be obtained from the concerned Sub-Register Office on an application in a prescribed form provided by the authorities .In the normal course it will take around 2 weeks for obtaining the certificate. Government Authorities and Financial Institution like bank, etc... Demand 13 years of encumbrance. There will be a nominal fee for obtain, it depending upon the number of years. In an emergency there is a provision for paying “double fees" for getting it immediately. This certificate will show the genuiness of owners title....The normal course the certificate will be full proof document, but there can be clerical errors from the Sub-Registrar Office, our vigilances can check this error. Therefore, it is always advisable to inspect the property personally and to verify and confirm that the original title documents are available with property owner. Some additional safeguards like paper notification, searching in jurisdictional courts for any pending cases would be useful.

The encumbrance certificate is a mandatory document used in property transactions as an evidence of free title/ownership. 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
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Are jamabandhi copy and the permissions not sufficient for the ownership and sale transaction. Hope the permissions are given after ensuring that the title is  clear and marketable.
Nobody will ensure such details especially if the vendor bribes the authority for false title claims, so it can be risky too. 



What are the risk of entering the purchase of plot in our case.
You may not get loan from bank if your title is not traced or not found to have a marketable title at a later date.
You may not be able to sell the property because your documents are not clear
Somebody else will be claiming the property based on the proper documents held by him on the same property 
Many more such risks are involved.


Better take a proper legal opinion from  a local lawyer and then proceed. 
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
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