• No Index-2 and possession letter. Should I buy resale flat?

Hi 

  I am going to buy a 17 year old property. The buyer had bought 14 flats in the name of his trading firm. He does not have registration receipt as he paid a lump-sump stamp-duty (receipt of stamp-duty is  available). Also he is trying to get index-2 of the flat from registration office in Mumbai where he registered the flat. He is asking me to do an 'agreement to sale' without index-2 and then full registration. He has following docs. He has no loan on this property

original agreement (but no registration receipt)
MSEB bill, 
property tax receipt, 
society NOC, 
sanction plan and 
commencement certificate

Should I buy the flat?. I plan to get loan on this property from bank.
Asked 5 months ago in Property Law from Pune, Maharashtra
Religion: Hindu
The property is under cloud especially document wise. There is no sale deed registered on the seller's name.  He is possessing only registered sale agreement document for which he has paid the stamp duty and not for the registered sale deed. Besides having all other ancillary supporting documents, the main document i.e., the title deed in his name is missing so he becomes ineligible to sell the property.  Therefore it can be said that the seller is not having marketable title to sell the property and if yo buy this one without obtaining legal opinion you may land in a great trouble at a later stage. 
Consult a local lawyer before making any decision or entering into a sale agreement.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
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Does building have OC or completion certificate 

2) insist that seller obtain index 2 of flat then only should you buy the flat 

3) don't enter into any agreement for sale 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
It is not clear from your query as to whether the sale agreement is registered or not.
It is not advisable to make any comment on the title of the proeprty unless the relevant papers are checked in person.
Hence my advice is to get all the proeprty papers vetted by a local lawyer.
From the information you have provided I do not find it wise to proceed further.
Devajyoti Barman
Advocate, Kolkata
5192 Answers
54 Consultations
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1) obtain certificate from lawyer based on search reports that title is clear and marketable 

2) mere sanction of bank is no guarantee that title is clear and marketable 

3) insist on seller getting index 2 done in his name 

4) wait till index 2 s completed then purchase flat 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
How can I get certificate of "clear and marketable title" ?. If a lawyer does the title search report for last 15 years, then he should give me the title report?
The apartment complex is well-known and has completion certificate. But out of 192 flats in 4 buildings, 48 do not have completion certificate in different floors due to some NOCs like fire etc done.

The clear and marketable title is not a certificate which can be given by some authority. It is to be observed or noted from the title documents only.  A lawyer can opine and confirm about this marketable title to the vendor to proceed with the purchase. Title search or tracing of previous title to the property being now sold is totally different to that of the  present marketable title to the vendor enabling him to sell the property as an absolute owner to the prospective buyer. Previous title holder is not selling this property hence the title search for any number of years is not going to solve your problem when there is a litigation in the future disputing the sale by a person other than the owner of the property.  Construction completion certificate or occupation certificate are not the title documents.
If the agent is able to get the loan from HDFC bank then he is in collusion with the corrupt bank officials and those involved in this racket. Do you want to go legally or by the tout's words?




1.  The corrupt bank officials will not remain permanently in the seat, at a later date if the bank is coming to know about the fraud played on it especially when there is a default in repayment of EMI, then all these question will arise.  What prevents you from taking a legal opinion from an experienced and skilled lawyer in the local before investing into this big project.




2.  When the purchase itself is not confirmed you are talking about registration and indexing the property documents etc which are post purchase process, if you have decided to get cheated  (i.e., without verifying the details or confirming the genuineness of the property proposed to purchase) nobody can help you.



3.  You may find the answer in the above lines for this question too.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1. He has all the documents but he does not have the most important document i,e the sale deed which gives him the title to the property. So do not buy the flat. 

2. It is an open secret that bank officials sanction loan if their palms are greased, but this will not cure the inherent defect in your title.
Ashish Davessar
Advocate, Jaipur
18096 Answers
448 Consultations
5.0 on 5.0
1) wait for building completion certifcate or  OC to be issued before you purchase the flat 

2) never purchase a flat which dos not have building completion certificate or OC 

3) as far as registration receipt is concerned you can file FIR about missing registration receipt followed by issue of public notice in newspapers
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
What about the original sale deed by which the sale was executed to your vendor by his own vendor at the time his purchase?
Index-II :-  Index II is a very important document of the property while taking loan fro the bank or the financial institution. The certified copy of the extract is valid. 
What about the possession certificate?
The Index-II will contain the details of the fee and stamp duty paid, that should suffice the requirement of registration receipt. 
Title is a legal term; it means the ownership right to property. When search is conducted unto the property of the person who owns it, it is called the Investigation of Title.

The investigation is carried out broadly to ensure that the property is indeed in the name of the person selling, is free from liens, mortgages and encumbrances, that the property tax has been fully paid up to date and that the property is not engaged in any legal conflicts. The owner of the property/land has to prove this satisfactorily or else there is no chance at all that any buyer/creditor would take the risk & invest his funds.

Generally buyer relies upon advocate's report on title. Advocate report on title is based on scrutiny of records available in various Government departments. 

Therefore obtain an opinion from a advocate before venturing into the buying 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
if registration receipt is not available ask seller to file FIR about missing registration receipt and also issue public notice in this regard 

2)sale deed should contain an indemnity clause wherein seller indemnifies you in case any claims are made in respect of the property 

3) building completion certificate or OC is must 

4) without OC or BCC you would find it difficult to find buyers for your flat 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
You have not stated whether you obtained a legal opinion from a lawyer or not, if obtained what was his opinion for the purchase.

Also you have not stated that whether the vendor is possessing the original sale deed or not, if not  and he possess only the registered sale agreement in his favor, then did you ask him to prove his title by producing the original registered  sale deed document standing in his name?

He might not have bothered about the completion certificate or possession certificate because he might be an irresponsible person, but after purchasing this property, while selling it  how will you answer this question to the buyer who intends to buy your property at a later stage?

All the documents what you have mentioned are only secondary documents, what about the main document i.e., registered sale deed document ?

What about the legal opinion from a qualified lawyer?

Search report from a lawyer and about encumbrance alone will not solve this problem, he has to certify or render his opinion to the genuineness of the property be scrutinising all the documents.

You may have a second opinion from a different lawyer even if it may cost you a little more than the usual cost.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
The title to a property flows from the sale deed and not share certificate or agreement to sale. It is the sale deed alone which results in conveyance of title from the seller to buyer. If the sale deed is there then you require no receipt or sale agreement whereas to purchase a property the sale deed of which is missing is an invitation to a long drawn legal battle. 
Ashish Davessar
Advocate, Jaipur
18096 Answers
448 Consultations
5.0 on 5.0
Don't go ahead as seller does not have builder possession letter not registration receipt 

2) letter from lawyer is clear that you can go ahead subject to production of said 2 documents 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Note that there is no registration receipt and also NO POSSESSION letter from builder. Seller is saying that since society NOC is there, we don't need vacant possession letter from builder to him. Is it true?

It is not so. 
 The seller may give some lame  excuses  which are not valid in the eyes of law.
You have stated that the vendor is having sale agreement, but sale agreement deed is different to that of the registered sale deed, did you get that?, if not then ask for the original sale deed standing in the name of the vendor who is selling you the property.  NOC from society is also a different subject.






Index-2 was created recently as a True copy (original was not there). In this true copy they have defined the flat number, names of the parties and market value. They have not written PAN numbers and stamp duty value. 

If you suspect the genuineness of Index-2, then you may have a second thought to buy this property.






 There is no registered sale deed. At the maximum owner is willing to create FIR, newspaper notice and bank indemnity for lost registration receipt. Lawyer report says that flat has no encumbrance and has clear title subject to condition that builder's vacant possession letter,, registration receipt is available.

Why there is no registered sale deed in favor of the vendor who is selling the property to you?

Without a registered sale deed executed in his favor, how does the vendor claims title to the property? 

Or how do the lawyer certifies that the vendor is having a title to the property?

Without marketable title to the property the vendor cannot sell this property to you, so probe into the details before deciding to buy.

T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0

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