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Suite No. E04/A Paltan Tower (8'h floor)

E7 Purana Paltan Line (Culven Rd), Dhaka
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\7 Tel: 93,47996, 9334672,93 4n,01711

Our Ref: ARAJnT/02/15

546750 Barristers and Advocates

Dated: February 17, 2015

Mr. M. Tariqul Islam

Senior Vice President
Credit Admin. Dept.
Eastern Bank Limited
Head Office, Jiban Bima Bhaban
10, Dilkusha C/A
Dhaka-1000

RE: LEGAL OPIMON ON OBTAINING BIA DEEDS IN RESPECT OF

MORTGAGELENDING

Dear Sir,

We refer to your lettor dated 17.02.2015 in connection with above

It appears that Eastem Bank Limited (the "Bank') usually obtains all the property
documents in original except the Biadeed(s) in respect of its mortgage, but they
obtain the bia-deed(s) in certified form or even the photocopies of the same as the
case may be.

Now the Bank has raised the following queries pertaining to the obtaining bia deed(s)
and has sought our observation on the same and they are dealt below:

a) What Jorm of bit deeds shall the banh oblain considering the cunent
penpective?

Note that, there remains no law or any Guidelines of Bangladesh Bank for the time
being in force suggesting for safe keeping any deedJdocument, or as to whether in
original or certified, in respect of any registered mortgage.

To answer this queries, things have to be considered in 2(two) folds, first the legality
of mortgage and the second one as to the admissibility of deeds as evidence in any
recovery or enforcement proc€€dings.

Note that, for any registered mortgage, keeping all the deeds in custody is not a legal
mandate. So farihe admissibility of evidence is concerned the original deed is a
primary evidence and the certified or photocopy both are secondary evidences'
beconiary evidences are also admissible evidence in certain circumstances, e'g' when
the original is in the possession ofother party, where the original is lost or destroyed,
when lertified copy is permitted etc. On the top, in any recovery proceedings,
Artha Rin Court usually do not ask for bia deeds or the same in original'
 n {l^&t@ittrs 2
rnuatiotr sheet

In summary, it is always suggested to obain all the bia deeds in original or certified
for the custody, but in case, they are not obtainable and the chain of ownership can
be established from the other deeds or khatians, the Bank may obtain photocopy of
the same-

b) llhol may be the probable consequcnces il phoacopy bia deed(s) are

obtained in lieu of certified/original ones- in lhe event of money suit &
ownership dispule?

As stated above, photocopy is also a secondary evidence and may be produced in

Court as that of certified. Thus, there is no difference between the two and hence no
adverse consequences. It is mentionable that, in our legal system, he who files a case
he needs to substantiate his case by reievant documentVdeeds. The original being
primary evidence is always preferable, but in case, if it is not with the Bank as being
the mortgagee, still Bank's any case can be established by certified or photocopy, as
secondary evidence. Moreso, in any material time, certified copy can be obtained if
the situation so require.

c) Hout the bonk stay prutected against such lmubles?

The Bank should always ensure that the ownership of the property to be mortgaged
property is in order. In lieu of custody of originaVcertified deeds, the interest of the
Bank would be more protected, if they can physically verif the genuineness of
ownership and title de€d with all authorities before mortgage.

d) What should be the slandard morkel praaice for this bia deed issue?

So far our knowledge goes, all the Bank and NBFI are suggesting for original, but if
not available, they obtain certified or photocopy. Some Banks on the top veriry the
title deed and mutation with the relevant authority and on that basis sometimes waive
certain deeds, including bia deed.

e) How far shall the bank go Jor obtaining bia deed to establish chah of
ownenhip despile country law advises to 8o back for minimwt 25 yean? Is
there any olhet addilional suggestion that ban* ma! adhere to?

Note that, Chain of ownership ofa landed proPerty up-to 25 years is in ftct relevant
for any Transfer Instrument and IGPA, which means such deed must contain at least
chain of 25 years. Basically, this idea of 25 years came from the situations where
thousands of deeds did not contain any chain at all. Recently, thus this 25 years
threshold have been imposed.

It is further mentionable that, the imposition of provision of 25 years in transfer

instrument do€s not automatically denote the conclusiveness of any title or indicate
 ,n 4t st(r;i,ltrs 3
.itruttion Shcca

the land is undisputed. still, the chain of ownership has to be drawn for more than 25
years to know thi dispute or encumbrancy and hence the relevance of bia deed of25
years old or more older cannot be ovemrled. It is further mentionable that, the
iimitation for filing civil proceedings to cure such land dispute may run fiom the
date of knowledgi and showing knowledge at later sometimes, there had been
thousands of proceedings were lodged in Court or Tribunal. Thus, it may still
possible for a person to file proceedings showing knowledge of dispute now whereas
the disputed transfer was made long back'

copy and
,- If the bank obtains the imnedide preceding bia deed in ceafrcd and why?
in photoapy or vice vena-which one
ihe earlier bia deeds is hetler

lfall the bia-deed(s) are available, all should be obtained in original or certified. Ifthe
chain can be established neatly from other deed or khatains, if the name of present
owner(s) is/are recorded with the recent survey, then some ofthe bia deeds (whether
original, certified or photocopy) may be waived by the Bank.

We understand, that the Bank's query as to the immediate preceding bia deed raised
from the discussion we had at our chamber with some of your officials. Note that,
the idea as to obtaining immediate preceding bia deed in certified and rests in
photocopy may be suggisted mode where no original bia deeds at all are available
ind to sa"e costs. Since as stated above, both the certified and photocoPy are
secondary evidence, only immediate preceding in certified coPy may be suggested to
save costs of obtaining all/rests in certified form .

It depends upon the Banlq how would they obtain land documents'

g) In courT cases, usually the cerlifred bia deeds are required lo produce' If
bank holds lhe Photocopics since inception, ban* may find it diftcult to
comply at the stage. We need your leaned corrn Enls,

This issue is already covered above.

usually, all the Bank or Financial institution tries to keep all the deedJdocuments in
original as much as possible so as to avoid the same being used for another mortgage
with another Bank or for are

ofthe view that, now sale the

53D of the Transfer of Property Act, lE82 (as amended)' anl, *la o, *-.ongug"'X}
th".ortgaged p.operty withoui the written permission from the lender bank is void'

Should you have any further query, please revert back to us'

Yours faithfully

hman)