AFFIDAVIT OF NON-ENCUMBRANCE

Sworn declaration that the property described in the Schedule is free from all encumbrances

To be engrossed on non-judicial stamp paper or an e-stamp certificate of the value prescribed for an affidavit in the State where it is sworn, and then sworn before a Notary Public or an Oath Commissioner.

Sworn at __________ on __________

I, __________, __________, aged __________ years, resident of __________, identified by __________, do solemnly affirm and state on oath as follows.

1. Who I am, and why I am making this affidavit

1.1 __________

1.2 The property this affidavit is about is described in the Schedule at the end. I call it the Property.

1.3 I am making this affidavit for the use of __________, whom I call the Recipient, in connection with __________.

1.4 I know that the Recipient is going to act on what I say here and part with money, or with a valuable right, in reliance on it. I make every statement below with that squarely in mind.

2. How I hold the Property

2.1 I acquired and hold the Property as follows: __________

2.2 My title to the Property is clear, marketable and free from reasonable doubt. I have done nothing, and so far as I know and believe nobody through whom I claim has done anything, by which that title is or could be affected.

2.3 The original title deeds and documents of the Property are today __________. Clause 8 below says a great deal more about this, and it matters far more than it looks.

3. The Property is free from encumbrances

3.1 __________

3.2 Save only as expressly disclosed elsewhere in this affidavit, and to put the position beyond argument, I state that as on today:

    (a) No mortgage of any kind. The Property is not mortgaged to any bank, non-banking financial company, co-operative society, chit fund, money lender, employer, individual or anybody else — not by a registered mortgage deed, not as a simple mortgage, a usufructuary mortgage, an English mortgage or an anomalous mortgage, and not by deposit of title deeds under Section 58(f) of the Transfer of Property Act, 1882, other than any mortgage disclosed in clause 3 of this affidavit.

    (b) No charge, lien or hypothecation. No charge, lien, hypothecation, pledge, security interest, negative lien or non-disposal undertaking of any kind stands created over the Property or over any part of it, whether written or oral, whether registered or not, other than any charge or security disclosed in clause 3 of this affidavit.

    (c) No guarantee secured on it. I have not offered the Property, and have not allowed it to be offered, as security or collateral for the debt or obligation of any other person, and I have given no guarantee that is secured on the Property.

    (d) No agreement to sell or transfer. I have entered into no agreement to sell, bayana or advance receipt, memorandum of understanding, option, right of first refusal, development agreement, joint development agreement, exchange, gift, settlement, family arrangement, trust or partition in respect of the Property with anybody, in writing or orally, other than the transaction with the Recipient for which this affidavit is made.

    (e) No power of attorney outstanding. Other than any power of attorney disclosed in clause 1.1 above, no general or special power of attorney authorising anyone to sell, mortgage, lease, develop or otherwise deal with the Property is outstanding. Any general or special power of attorney over the Property executed by me at any time in the past has already been revoked, has expired or has been withdrawn, and nobody has acted or will act on it. I understand that this affidavit does not itself revoke a power of attorney, and that a registered power needs a registered deed of revocation and notice to the attorney.

    (f) No possession given to anyone. Except as stated in clause 5, I have not delivered possession of the Property or any part of it to any person under any agreement, arrangement or understanding, and nobody is in a position to claim the protection of Section 53A of the Transfer of Property Act, 1882.

    (g) No lease, tenancy or licence. Except as stated in clause 5, the Property is not subject to any lease, sub-lease, tenancy, sub-tenancy, licence, leave-and-licence, paying-guest arrangement, caretaker arrangement or any other right of occupation, written or oral, registered or unregistered.

    (h) No attachment or court order. The Property is not under attachment, whether before judgment or in execution of a decree, and is not subject to any injunction, receiver's order, garnishee order, prohibitory order, provisional attachment or other order of any court, tribunal, arbitrator or authority.

    (i) No statutory recovery. No recovery certificate, demand notice, provisional attachment or proceeding is pending or threatened against me or against the Property under the Income-tax Act, 1961, the Central Goods and Services Tax Act, 2017 or the corresponding State Act, the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, the Employees' State Insurance Act, 1948, the land revenue law of the State, or any other law under which a due can become a charge on immovable property or be recovered as an arrear of land revenue.

    (j) No insolvency. I am not an undischarged insolvent. No insolvency, bankruptcy or personal-guarantor proceeding has been admitted against me or is pending, and no application to start one has been filed against me. Where the owner is a company or a limited liability partnership, no corporate insolvency resolution process, liquidation or winding-up proceeding has been admitted or is pending against it and no resolution professional or liquidator has been appointed.

    (k) No family or inheritance claim. No other person — co-owner, coparcener, member of a Hindu Undivided Family, legal heir, minor, ward, adopted child, wife, husband, or a person entitled under a will or under any personal law — has any share, right, title, interest, claim or charge in the Property, including any charge for maintenance under Section 39 of the Transfer of Property Act, 1882 or under any law relating to maintenance.

    (l) No acquisition or requisition. I have received no notice of acquisition, requisition, land ceiling, road widening, town planning reservation, set-back, demolition or unauthorised construction affecting the Property, and so far as I know and believe no such proposal exists.

    (m) No easement or third-party right. Nobody has any easement, right of way, right of light and air, right of drainage, right of support or any similar right over the Property, other than rights of the kind that ordinarily attach to a property of this description and that have been disclosed to the Recipient.

    (n) No dues to the builder or the allotting authority. Nothing remains payable by me to the builder, developer, promoter, allotting authority or lessor of the Property, and no lien of theirs subsists over the Property or over its allotment.

    (o) Not restricted land. The Property is not wakf property, not a religious or charitable endowment, not evacuee or enemy property, not government, nazul or gram sabha land, and is not land whose transfer is restricted under any tenancy, land reform, ceiling, tribal land or agricultural land law.

    (p) Not benami. I hold the Property in my own right and for my own benefit and not as a benamidar for anybody else, and no notice, provisional attachment or proceeding under the Prohibition of Benami Property Transactions Act, 1988 is pending or threatened in respect of the Property.

3.3 Save as disclosed in this affidavit, I have done nothing, and I will do nothing, that would create any encumbrance of the kinds listed above or would allow anybody else to create one.

4. Rates, taxes, dues and society charges

4.1 All property tax, house tax, municipal tax, land revenue, water charges, sewerage charges, electricity charges and every other rate, cess and tax payable in respect of the Property have been paid in full up to __________. Nothing is in arrears.

4.2 __________

4.3 No amount is due from me under any law under which the amount could be recovered as an arrear of land revenue or could become a first charge on the Property.

4.4 I will pay every tax, cess, charge, penalty or society due relating to the period up to completion, even where the demand is raised after completion, and I will reimburse the Recipient anything the Recipient is made to pay on that account.

5. Possession of the Property

5.1 __________

5.2 The Property has clear and undisputed boundaries as described in the Schedule. There is no encroachment on it, and no part of it encroaches on any adjoining property or on any public land, road, drain, footpath or common area.

5.3 Save as stated in clause 5.1, no part of the Property has been let out, given on licence or handed over to anybody for use as a place of worship, a place of business, a godown, a hoarding site, a mobile tower site or for any other purpose capable of giving rise to a claim.

6. Court cases, orders and attachments

6.1 __________

6.2 Save as stated in clause 6.1, no arbitration, mediation or conciliation is pending or has been invoked in respect of the Property, and no arbitral award affecting it is subsisting or under challenge.

6.3 No notice has been issued to me under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and no proceeding is pending before a Debts Recovery Tribunal, in respect of the Property.

7. The Encumbrance Certificate, and what it does show

7.1 An Encumbrance Certificate — an EC — is a certified extract from the registers and indexes kept by the Sub-Registrar under the Registration Act, 1908, and Section 57 of that Act entitles any person to inspect those registers and take copies. For the property and the period it covers, the EC lists the documents that were actually presented and registered at that office — sale deeds, mortgage deeds, gift deeds, releases, partitions, registered leases, court attachments that were notified to the registry — or it certifies that nothing was found. In several States a certificate showing entries is issued in Form 15 and a nil certificate in Form 16.

7.2 __________

7.3 Where a certificate or search report has been obtained, I confirm that the property described in it is the same property as the one described in the Schedule, that it covers the sub-district in which the Property is situated, and that the period it covers runs up to a date close to the date of this affidavit. If the Recipient asks, I will obtain a fresh certificate covering the period up to the date of completion, at my own cost.

8. What an Encumbrance Certificate cannot show — and my declaration on each of those things

8.1 This is the clause that matters, and it is the reason this affidavit exists. An Encumbrance Certificate is a record of what was registered. It is not a record of what is true. A great many claims capable of defeating a buyer or a lender never reach the Sub-Registrar's books at all, so they cannot appear on any certificate, however clean the certificate looks. I understand this. I make the declarations below knowing that the Recipient cannot verify them from the registry and is relying on my oath instead.

8.2 A mortgage created by handing over the title deeds leaves no registered trace whatsoever. Under Section 58(f) of the Transfer of Property Act, 1882, a person who delivers the documents of title of immovable property to a creditor, in a town notified for the purpose, with intent to create a security, thereby creates a mortgage — and Section 59 of the same Act expressly does not require that kind of mortgage to be made by a registered instrument. It needs no deed, no stamp paper, no witness and no registration. It comes into existence by the act of handing the papers over. This is the security Indian banks take as a matter of routine; it is called an equitable mortgage, or a mortgage by deposit of title deeds. Nothing about it will ever appear in an Encumbrance Certificate. I therefore state on oath:

    (a) I have never deposited, delivered, handed over or made available the original title deeds of the Property, or any of them, to any bank, financial institution, company, firm, society or individual with the intention of creating any security over the Property, and no such deposit subsists today, other than any deposit made to a lender disclosed in clause 3 of this affidavit.

    (b) I have signed no memorandum of deposit of title deeds, no letter recording a deposit of title deeds, no declaration of deposit and no confirmation of an equitable mortgage in respect of the Property, other than any such document signed in favour of a lender disclosed in clause 3 of this affidavit.

    (c) The original title deeds of the Property are today __________, and I will produce every one of them for the Recipient's inspection and hand them over as the transaction requires. If I cannot produce an original title deed I will say so in writing and explain why, because a missing original is precisely how a deposit of title deeds shows itself.

    (d) I have caused a search to be made on the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI), set up under Chapter IV of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Particulars of a mortgage by deposit of title deeds are required to be filed with that registry, so a CERSAI search is the one central check capable of catching an equitable mortgage. No subsisting security interest over the Property stands recorded there, other than any security interest relating to a loan disclosed in clause 3 of this affidavit. I also know that a lender's failure to file with CERSAI does not by itself destroy the mortgage as between that lender and me, and I am not relying on the absence of a CERSAI entry to contradict anything I have sworn above.

8.3 An unwritten or unregistered agreement, and possession given under it. An agreement to sell, a bayana receipt, a memorandum of understanding or a family arrangement can give rise to a claim without ever being registered, and a person put into possession under a registered written agreement to sell who has performed his part of it can resist eviction under Section 53A of the Transfer of Property Act, 1882 — since the 2001 amendment and Section 17(1A) of the Registration Act, 1908, an unregistered agreement no longer supports that defence. None of this appears in an Encumbrance Certificate. I state that I have made no such agreement or arrangement with anybody in respect of the Property, and that nobody holds any bayana, advance or part payment from me or has paid me anything towards a purchase of the Property.

8.4 Short tenancies. A lease from month to month, or for a term of one year or less, need not be registered — Section 17(1)(d) of the Registration Act, 1908 requires registration only of leases from year to year, for a term exceeding one year, or reserving a yearly rent. So a tenant can be in lawful occupation of a property whose Encumbrance Certificate is entirely blank. I have stated the true position on possession in clause 5 and there is nothing beyond what I have said there.

8.5 Statutory dues that become a charge without being registered. Arrears of property tax and municipal charges are, under most municipal laws in India, a first charge on the property itself; land revenue arrears are recoverable against the land; goods and services tax dues are a first charge on the property of the defaulter under Section 82 of the Central Goods and Services Tax Act, 2017; and a transfer made during the pendency of income-tax proceedings in order to defeat recovery can be declared void against the revenue under Section 281 of the Income-tax Act, 1961. Not one of these is registered with the Sub-Registrar and not one appears on an Encumbrance Certificate. I have stated the position on dues in clause 4 and there is nothing beyond what I have said there.

8.6 Court attachments, injunctions and pending litigation. An attachment before judgment or in execution, an injunction, or the bare pendency of a suit about the Property can bind a buyer under the doctrine of lis pendens in Section 52 of the Transfer of Property Act, 1882, whether or not any of it is ever communicated to the Sub-Registrar. In some States, including Maharashtra and Gujarat, a notice of pendency has to be registered before Section 52 will bite; in most States it does not. I have stated the position on litigation in clause 6 and there is nothing beyond what I have said there.

8.7 Claims of family members and heirs. A coparcener's share in Hindu joint family property, a minor's interest, the share of a legal heir on an intestacy, a claim under a will, a wife's or dependant's charge for maintenance, and claims under Muslim personal law all arise by operation of law. None of them is registered and none appears on any certificate. I have stated the position in clause 3.2(k) and there is nothing beyond what I have said there.

8.8 Society dues and the society's lien. A co-operative housing society's charge over a flat, and over the shares relating to it, for unpaid dues arises under the State co-operative law and the society's bye-laws — not under any registered instrument. I have stated the position in clause 4.2 and there is nothing beyond what I have said there.

8.9 What the certificate itself can miss. An Encumbrance Certificate covers only the sub-district it was issued from, only the period asked for, and only entries indexed against the property description that was searched. If the Property was earlier described by a different survey, khasra, khata, plot, gat or flat number, or fell in a different sub-district before boundaries were redrawn, an entry can exist and still not appear. I confirm that I have disclosed to the Recipient every earlier description, number and sub-district by which the Property has been known, so far as I am aware.

8.10 In short: everything in this clause 8 concerns matters the Recipient could not have found by searching the registry. Each statement is made on my own personal knowledge except where clause 13 says otherwise, and each is made in the full knowledge that the Recipient is relying on it.

9. What I undertake until the transaction is completed

9.1 From today until this transaction is completed — meaning, in the case of a sale, until the sale deed is executed and registered and possession is handed over, and in every other case until the Recipient confirms in writing that its requirement has been met — I will not:

    (a) create, or agree to create, any mortgage, charge, lien or other security over the Property, including by depositing any title deed with anybody;

    (b) sell, agree to sell, gift, exchange, lease, licence or otherwise transfer or agree to transfer the Property, any part of it, or any interest in it, to anybody else;

    (c) part with possession of the Property or any part of it to anybody else;

    (d) execute any power of attorney authorising anybody to do anything in (a) to (c); or

    (e) allow any encumbrance to arise through non-payment of any tax, charge, due or instalment.

9.2 If anything happens that makes any statement in this affidavit untrue, or that would make it untrue if it were repeated on the day of completion, I will tell the Recipient in writing at once and before completion.

9.3 Every statement in this affidavit is to be treated as repeated by me on the day of completion.

10. Indemnity

10.1 If any statement in this affidavit turns out to be false or incomplete, or if any encumbrance, claim, demand or third-party right that I have denied is found to exist or to have existed, I will at my own cost have it removed, satisfied, released or settled within thirty days of being asked in writing.

10.2 I will keep the Recipient indemnified, on a full indemnity basis, against every loss, damage, cost, expense, claim, demand, penalty and legal fee the Recipient suffers because a statement in this affidavit was false or incomplete, or because any such encumbrance existed.

10.3 This indemnity is in addition to, and does not take away from, every other right and remedy the Recipient has in law, including the right to rescind the transaction and to recover what has been paid, with interest.

10.4 This indemnity does not end when the transaction completes. It continues afterwards and binds my legal heirs, executors, administrators, successors and assigns.

11. General

11.1 Where more than one person swears this affidavit, each of them is bound by it individually and all of them jointly.

11.2 If any part of this affidavit is held to be invalid, the rest of it continues to stand.

11.3 This affidavit is governed by Indian law. A dispute about it may be taken to the courts at __________ or to the courts within whose jurisdiction the Property is situated. Nothing in this clause affects Section 16 of the Code of Civil Procedure, 1908, which requires a suit about the immovable property itself to be filed where the property is.

12. I understand what a false affidavit costs

12.1 I have made this affidavit on oath. I know that a person who knowingly makes a false statement in an affidavit commits the offence of giving false evidence, punishable under Sections 227 and 229 of the Bharatiya Nyaya Sanhita, 2023 — the provisions that replaced Sections 191 and 193 of the Indian Penal Code, 1860 — and that making a false statement in a declaration that the law receives as evidence is separately punishable.

12.2 I also know that a false statement made in order to obtain money or a right in property can be prosecuted as cheating, and that a court before which this affidavit is used may direct that a complaint be filed against me.

12.3 I am making this affidavit voluntarily, in my full senses, without any pressure, coercion, undue influence or inducement from anybody. Its contents have been read by me, or read over and explained to me in a language I understand, and I have understood them.

13. Verification

I, the deponent above named, verify that what is stated in paragraphs 1 to 12 of this affidavit is true to my own personal knowledge, except the statements about searches of public records and about matters knowable only from public records, which are true to the best of the information received by me from those records and believed by me to be true. Nothing in it is false and nothing material has been concealed.

Verified at __________ on __________.

SCHEDULE — The Property

__________

DEPONENT

Signature: ______________________________

Name: __________

__________

Address: __________

Date: __________ Place: __________

TO BE COMPLETED BY THE NOTARY PUBLIC OR OATH COMMISSIONER

Solemnly affirmed and signed before me at __________ on __________ by the deponent named above. Each deponent appeared before me in person, was identified to my satisfaction, and signed this affidavit in my presence.

Notarial Register Serial No.: ______________________________

Notarial fee / notarial stamp: ______________________________

Signature and seal of the Notary Public / Oath Commissioner:

______________________________

Name: ______________________________

Notary Registration No.: ______________________________

Area of practice: ______________________________

Date: ______________________________

Papers to attach, and papers to collect

1. The Encumbrance Certificate or the sub-registrar's search report referred to in clause 7 — for at least thirteen years, and thirty if the office will give it.
2. A CERSAI search report for the Property. This is the check that catches an equitable mortgage, and it is the one most buyers skip.
3. A certified copy of the latest title deed, and the chain of title deeds going back thirty years.
4. The latest property tax receipt, and the latest water and electricity bills, matching the date in clause 4.1.
5. The society's no-dues certificate, its no-objection certificate for the transfer, and the original share certificate.
6. Where a loan is being closed: the lender's foreclosure statement, and after payment, the loan closure letter, the NOC, the released original title deeds, the reconveyance or release, and proof of satisfaction on CERSAI.
7. The approved plan, the commencement and occupancy certificates, and the completion certificate, where the Property is a flat or a built structure.
8. Where title came through inheritance: the death certificate, the legal heir or succession certificate, and the will with its probate or letters of administration.
9. Where somebody signs for another: the registered power of attorney, the board resolution, the partnership authority, or the evidence of kartaship.
10. A passport photograph of each deponent, if the notary or the bank asks for one.

Before you swear this

1. Do not sign it at home. Sign it in front of the notary, and carry the original of the ID you named in the affidavit.
2. Read clause 8 again, slowly. It is the clause you are most likely to get wrong and the one that carries the sharpest consequences. If your original title deeds are with anybody at all — a bank, a financier, a relative, a friend who lent you money — you cannot swear clause 8.2 as it stands. Disclose it instead.
3. If you disclosed something, give the particulars. Where you have said that a loan is subsisting, that somebody is in occupation, that a case is pending, or that the Encumbrance Certificate shows entries, this affidavit must set out the particulars of it. An affidavit that admits a loan and then names no lender, no account number and no outstanding amount discloses nothing, protects nobody, and will be sent back.
4. Check the stamp value before you buy it — Rs. 100 may not be enough. Clause 10 of this affidavit is an indemnity, and several States stamp an affidavit-cum-indemnity at the indemnity-bond rate (Rs. 500 in Maharashtra) rather than at the nominal affidavit rate. An under-stamped affidavit is inadmissible in evidence under Section 35 of the Indian Stamp Act, 1899. Ask at the e-stamping counter, and if the answer is unclear, buy the higher value.
5. Buy the stamp paper in the deponent's own name, not the buyer's, the bank's or the lawyer's.
6. Every owner signs. An affidavit from one of several co-owners does not clear the property.
7. Initial every page, including the Schedule.
8. Take at least three signed originals — one for the Recipient, one for your file, one for the registration or loan file.
9. Ask the notary to write the register serial number on the affidavit before you leave.