Title Deed Lost and Certified Copy Unavailable: The Law Does Not Leave the Owner Without a Remedy

Taken from:

Saji Koduvath, Advocate, Kottayam.

Other Secondary Evidence Admissible Even if Regn. Copy Destroyed

The Madras High Court recognised that where both the original title deed and the registration copy maintained by the registering authority have perished, the law does not fail merely because a certified copy cannot be produced. In Kottaichamy v. Kannan (25 April, 2008 in S.A. (MD) No. 478  of 2007) P.R. Shivakumar, J., it is held as under:

  • “When the original is shown to be destroyed or lost and the registration copy of the document available with the registering authority is also said to be destroyed, then it is quite justifiable that in such cases other form of secondary evidence also can be permitted in line with the provision found in Section 65 of Act.” 

Non-availability of Certified Copy – Deterioration of Registration Record

In R. Parameswaran Pillai v. The Special Deputy Collector LA (NH) & Competent Authority  (T. R. Ravi, J.), 2022 KER 74351, the writ petition is filed for a direction to the respondent to release the compensation amounts due to the petitioner as part of the land acquisition proceedings. The contention of the petitioner is that the partition deed No.2065 of the year 1090 M.E. registered before the Kazhakootam Sub-Registrar Office was irretrievably lost, and certified copy of the document was also not issued by the Sub-Registrar as the original of the same has deteriorated.

In Sree Narayana Dharma Sangham Trust v. Surendranath, 2022 (6) KHC 33 : 2022 (4) KLJ 158, the Kerala High Court (A. Badharudeen, J.) held that where the original document has become unavailable and the Sub-Registrar reports that the document has deteriorated to such an extent that no certified copy can be issued, the case falls within Section 65(c) of the Evidence Act and secondary evidence is admissible. It is held as under:

  • “Sub section (c) of Section 65 deals with the situation when the original has been destroyed or lost, or when the party offering evidence of its own contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the given facts of this case, the petitioner attempted to get an authenticated copy of the settlement deed from the Sub Registrar concerned and the said attempt failed as it was reported that the document was torn akin to a situation as near to ‘destruction’ of the document mentioned in sub-section (c) of Section 65 and as such secondary evidence is permissible in the case of the document in question.”

Title May Be Established by Other Legally Admissible Evidence

The High Court of Kerala, in R. Parameswaran Pillai v. The Special Deputy Collector, 2022 KER 74351, directed the respondent officials to consider the claim of the petitioner based on the documents like the tax receipts, possession certificates, the extract from the Basic Tax Register, etc., in the absence of the title deed and the copy of the paper publication effected by the petitioner regarding the loss of the document. Although the Court did not expressly formulate a rule of evidence, its directions clearly indicate that, in the absence of the original title deed and its certified copy, the claimant’s title may be established by other legally admissible evidence such as the available revenue records and other contemporaneous materials.

Illustrative Modes of Proving Title in the Absence of the Title Deed

A title deed is evidence or a legal expression of ownership.  Or, it represents ownership. But it does not represent unfailing ownership by itself. The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition). Therefore, depending upon the facts of the case, in the Absence of the Title Deed, ownership may be established by one or more of the following:

  • long and continuous possession;
  • origin of title of neighbouring or similarly situated  lands;
  • enactments concerning the origin of title;
  • mutation and revenue records (including the Basic Tax Register and possession certificates);
  • land tax receipts;
  • admissions made by the opposite party;
  • recitals in subsequent deeds and connected documents;
  • reliable contemporaneous writings and public records;
  • admissible secondary evidence, including oral evidence of the contents of the lost document where legally permissible;
  • boundary descriptions contained in neighbouring title deeds or survey records; and
  • other surrounding circumstances relevant to the ownership and identity of the property.

Loss of the Title Deed Does Not Extinguish Ownership

A title deed is not the source of ownership; it is evidence of ownership. The right to property exists independently of the document by which it is ordinarily proved. That is, the title to immovable property does not reside in the title deed; the deed is only the best evidence of title. Accordingly, the accidental loss of the original deed, or the inability to obtain a certified copy owing to the deterioration or destruction of the registration records, does not extinguish ownership. Once the foundational facts regarding the loss or destruction of the document are satisfactorily established, the law permits proof by secondary and other legally admissible evidence. The owner is therefore not left remediless.

Constitutional Perspective

To hold otherwise would mean that the accidental destruction of a document—or the deterioration of public records maintained by the State—would itself extinguish proprietary rights. Such a consequence would be wholly inconsistent with the law of evidence, the law relating to declaration of title, and the constitutional protection of property under Article 300A.

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