Lost title
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This article is written by Rangita Chowdhury of Symbiosis Law School, Noida. It talks about how duplicate property documents are filed for when the original ones are lost

Introduction 

The importance of property can never be overstated. Without material belongings, life becomes virtually non-existent. The term ‘property’ is derived from the Latin word ‘propertietat’ and the French equivalent ‘proprious’, which means “a thing owned.” The most important aspect of  property is its ownership, without which property has no value. Ownership is established by title i.e. the documents that bestow ownership rights upon the owner. Thus, loss of title is equivalent to the loss of ownership.

Property and title 

Title is a legal term and is associated with property. The term is associated with ‘a bundle of rights’ in a piece of property, either movable or immovable. Most often, a title refers to the ownership right to property or the ground of right of ownership to property. Every property has a title to which a party may either have a legal interest or equitable interest.

‘Immovable property’ as defined under Section 3 (26) of The General Clauses Act (1897) includes land, benefits arising out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Immovable property is also defined in various other acts like Transfer Of Property Act (1882), Registration Act (1908), the Income Tax Act (1961) etc.

There are various definitions of movable property put forth by various statutes: For instance, Section 3 (36) of the General Clauses Act defines movable property as, “property of every description, other than immovable property. Section 2 (9) of the Registration Act, 1908 puts forth a definition of property which includes “standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property.” Whereas, Section 22 of the Indian Penal Code (1862) defines moveable property  as  “corporeal property of every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth.”

Possession of a property does not always signify title. It is distinct from ownership and needs to be proved. Thus, possession may not prove ownership. On the other hand right to possession proves the legitimacy of possession, even if the property is not possessed. Right to property is supreme and defeats all other rights. 

A Title may be legal or equitable. When one buys a property, pays for it and gets the sale deed registered in his name, he becomes the actual owner or legal owner of the property. When the actual owner dies, his legal heirs or beneficiaries of his will get an equitable share of the property and are said to possess equitable title as well. Similarly, In a trust too, one person may own the legal title, such as that of a trustee. Others may own the equitable title, they are the beneficiaries of. Title, other than signifying ownership, may also refer to any legal document that serves as the proof of ownership of the property, such a deed. 

Exclusive possession, exclusive use, acquisition conveyance, including by bequest, access easement, hypothecation, partition etc are the different rights that may be considered to be rights of title within the “bundle of rights”.

For example in India, land ownership may be determined by various documents such as  registered sale deeds, record of rights (Govt document providing the name of recorded owners), property tax receipts, and government survey documents. No single title may signify absolute ownership and may be subject to challenge. Thus, ownership of land in India is often presumptive in nature, though the registered title deed often assumes greater importance than other documents. It is often said that the title is the concept and the deed is the document.

Movable property is differentiated from immovable property. Movable property is personal property as per the civil law system and is movable. Even if affixed to any immovable property which is being sold, it does not form a part of the sale transaction and continues to remain as a part of the personal property of the seller. Thus, the owner retains the right of title of his personal property. A Title can also signify ownership of an asset, for example a trademark.

Personal property can be corporeal personal property i.e. tangible or material. (merchandise, jewellery, animals etc ) and incorporeal personal property, which are not necessarily material or tangible (such as copyrights, patents, bonds, and stocks).

Lost title 

Every property has a title as already discussed is the evidence of ownership or ground of ownership. Right of title is mostly established by the possession of relevant documents. Under general law ‘document’ means “any matter expressed or described upon any substance by means of letters, figures or mark for the purpose of recording that matter”. For example, documents relating to property or commercial transactions are generally called instruments or deeds, though there are other documents that have a bearing on the ownership of land documents.

Thus, when the title of a property is lost, it becomes very difficult to establish the rights or grounds of ownership. Sale deed is not only used to execute sale transactions; but also helps to get loans for property. So in the absence of the original sale deed, banks may require a duplicate sale deed along with an affidavit in order to process loans. 

Any sale transaction and transfer of property without the title documents cannot be done. It may also happen that banks keep the sale deeds as a mortgage with them and they can get misplaced from there. Records of rights including mutation and conversion papers of residential or agricultural can get lost or stolen sometimes. Papers, relating to ownership of vehicles such as original registration certificate, insurance documents, etc may also get lost or stolen. Hence, these important documents, if stolen, misplaced or lost, need to be retrieved, and if the same is not possible, then the owner has to arrange for duplicate documents and follow the steps required for filing a lost title. 

Steps to file for a lost title 

  • File an FIR

The first step is filing an FIR(First Information Report) of lost documents under the jurisdiction of the police station where the documents were lost, stolen or misplaced. The complaint can only be filed by the owner. A copy of the complaint needs to be preserved by the owner for future reference. A FIR is filed under Section 154 of Criminal Procedure Code (1973). The owner can verbally file the FIR and a police officer can write it down or the owner can himself write down the details. The police have to read the statement made by the owner to make sure that there are no discrepancies in the events which took place. Once filed, the particulars of the FIR cannot be changed, but additional information can be added later on. 

  • Advertisement in the newspaper 

The next step after successfully filing an FIR is publishing an advertisement regarding the lost documents with all the relevant details like the type of documents lost, contact details in an English daily and a regional newspaper. The owner will need to wait for a period of 15 days to see if anyone reverts back with the lost documents. 

  • Application for a share certificate 

If no response comes back from the advertisement in the newspaper, then the owner should file an application for a share certificate from the authorised housing society as the next step. The authorized Resident Welfare Association (RWA) checks the proof of the owner’s loss (the FIR) after calling a society meeting. After the inspection is done and if the application gets approved, the society issues a share certificate after charging a fee. Asking for a NOC (No Objection Certificate) can also be helpful for future correspondence. 

  • Registering with the notary 

The next step consists of making an undertaking on a stamp paper clearly by mentioning the document details of the lost property, copy of the newspaper advertisement and a copy of the FIR containing the police complaint number. These documents will be attested with the notary so that the documents gain legal validity. 

  • Applying for duplicate sale deeds 

The next step is applying for the duplicate sale deed documents. After the undertaking is registered, then a copy of it along with the copy of the FIR, the copy of the advertisement, and the copy of the share certificate needs to be submitted to the registrar office. The office will check everything to determine its validity and then issue the duplicate property documents. The owner will have to pay the fee which will be charged for the documents. This is somewhat an expensive process but it’s important that one must have the proper duplicates of the legal documents, if they lose the originals. 

Other important land documents

Certain other documents also have a bearing on the title of the property, other than the sale deed. These are the Record of Rights issued by the Land & Land Reforms Department of the State Government and property tax receipts, and survey documents. Though these documents are not a government-guaranteed title to a property, they are still important supplementary documents that the buyer looks for at the time of transfer of property.

When any plot of land is purchased for construction of a house, the classification of the land is an important issue. If the land is classified in the Government document for any purpose other than residential purpose (for example it may be recorded as agricultural land) then the classification has to be changed from agricultural to residential. If the buyer wishes to use the land for commercial purposes, like for setting up any shop or commercial establishment or a factory, then also the classification has to be changed to ‘commercial’. This is known as conversion.

Similarly, whenever a person buys a property from another person, the ownership has to be changed in the record of rights. This process is known as mutation and involves the change of name of the recorded owner. Similarly, in the event of the death of a person, it is also desirable that the legal heirs get the property mutated in their name. In India, a simple change of name of the owner through execution of a sale deed is not enough because whenever the property will change hands once again, the new buyer will verify that whether the seller is the actual recorded owner of the land as per land records. Fraudulent sale transactions including selling of the same property to multiple persons through fraudulent means are very common in our country. Sometimes the land may be litigated. Hence, ‘mutation’ papers assume great importance as these are government records testifying ownership whereas sale deeds are registered agreements between two parties.  Receipts of land revenue paid, municipal or taxes paid are also examined by the buyer.

In India, the land is in the concurrent list and procedures related to the record of rights are all provided in the respective land laws of the State Government. Thus, when records of rights are lost, then most of the procedures stated above for obtaining duplicate sale deeds are required to be followed. It is required to be mentioned here, that getting the name of buyer recorded in the land records also requires production of the sale deed. Thus, when the deed is lost or misplaced, then the recording has to be done by production of a duplicate sale deed. 

Duplicate vehicle papers

In India, cars are important personal possessions. Hence, within the ambit of movable property, the procedures related to getting the duplicate of a lost Registration Certificate has been discussed here in brief. Now, when the ownership papers of the car are lost then procedures for obtaining a duplicate Registration Certificate of the vehicle are provided in the Central Motor and Rules, 1989. The steps  include: 

  • Reporting the loss of the original certificate to the police station under whose jurisdiction the loss happened. 
  • There is a form required to be filled up for this purpose and it is known as Form 26
  • If any payments are due then the same has to be paid under Rule 81 of the Central Motor Vehicles Rules, 1981. 
  • Pollution Clearance Certificate, insurance papers, address proof, tax clearance papers, an affidavit stating that the original RC is lost etc, are required to be enclosed with the application form.
  • PAN Card of the owner and in its absence, Form 60 and Form 61 are also required.

Conclusion

The Title is the most important proof of ownership of a property, be it movable or immovable. Documents providing ownership rights are thus very important and need to be preserved carefully. These are essential for sale transactions and getting loans from banks. The latter often keeps sale deeds as the mortgage for granting loans. But they can still get lost, misplaced or stolen. But remedies are available for obtaining duplicate titles, and this has been discussed in detail in this article.

References

  1. https://www.makaan.com/iq/buy-sell-move-property/misplaced-your-property-documents-dont-worry-follow-these-steps
  2. http://www.legalservicesindia.com/article/502/Definition-&-concept-of-property.html#:~:text=Property%20is%20any%20physical%20or%20intangible%20entity%20that%20is%20owned,others%20from%20doing%20these%20things.%20%5B

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