Can a photocopy create a valid mortgage? Kerala HC says yes, but only if…

The original deed was gone. The bank had only a copy. The Kerala High Court said: that copy can create a valid mortgage—if it meets one condition.

Two High Courts. One question. Two different answers. And the difference between a valid mortgage and a worthless piece of paper comes down to a single word: certified.

When the government seal mattered

C. Assiamma needed a loan. She went to the State Bank of Mysore. To secure the money, she had to create an equitable mortgage—a mortgage where the borrower deposits the title documents with the lender, without a formal registered deed. The bank holds the papers as security. If the loan defaults, the bank can sell the property.

But the original deed of transfer—the document proving Assiamma owned the property—was gone. Lost. Irretrievable.

The bank had only a copy. Not a photocopy from a neighbourhood shop. A certified copy—one issued by the government registration office, bearing the official seal and stamp of the Sub-Registrar. The bank manager's desk held that single sheet, its blue seal catching the light, the signature of the registering officer faint but legible beneath the embossed crest.

Could that certified copy serve as a valid document of title? Could the bank rely on it to create a mortgage?

The Kerala High Court faced this question in C. Assiamma v. State Bank of Mysore.

The fallback rule

The court began with a basic rule: a copy of a deed is not ordinarily a document of title. You cannot walk into a bank, hand over a photocopy, and claim you've created a valid mortgage. The law expects the original.

But the court recognised that life is not always that neat. Originals get lost in floods. Burn in fires. Disappear in family disputes. The courtroom fell silent as the judges considered the reality of a missing deed—the weight of a file that felt too thin, the absence of the one document that mattered most.

The law has a fallback: the principle of 'Next Best Evidence'. When the best evidence—the original—is gone, the law accepts the next best thing. But only if certain conditions are met.

The Kerala High Court laid down the test. A certified copy can be used as a document of title for an equitable mortgage only when "the original document is lost and there are no chances of that document being made use for any purpose".

In that specific situation, the court held, "the next best evidence of the owner's title to the property would be a certified copy of that document".

The key phrase: certified copy. Not any copy. A certified copy—one issued by the government registration office under the official seal.

The condition the bank must meet

The Kerala High Court added a crucial condition: "The essential pre-requisite for the use of a certified copy as a document of title is the loss of the original deed."

This is not a casual requirement. The borrower—or the bank seeking to enforce the mortgage—must prove that the original is genuinely lost. Not misplaced. Not temporarily unavailable. Lost.

The court did not specify exactly how this loss must be proved. But the implication is clear: a mere statement that the original is missing will not suffice. There must be evidence—a police complaint filed at the local station, a public notice published in a newspaper, a sworn affidavit before a magistrate—that the original cannot be found despite reasonable efforts. Imagine the scene: the borrower standing before the bank's loan officer, explaining that the deed was destroyed in a house fire, the smoke-stained remnants photographed and attached to a police report. Or the family dispute where an uncle refused to hand over the documents, forcing the borrower to issue a public notice in the local gazette. Each of these steps—the complaint, the notice, the affidavit—builds the evidentiary chain that the court would later examine.

This judgment opened a judicial pathway for financial institutions. Banks could now accept certified copies for equitable mortgages, provided they verified the loss of the original. But the window was narrow. The bank's internal process would need to mirror the court's logic: a dedicated officer would examine the proof of loss, document it in the loan file, and ensure the certified copy was obtained directly from the registration office's archives. The smell of old paper from the Sub-Registrar's records, the slow creak of the register books being opened—these were the sensory anchors of a process that now had legal validation.

When a xerox failed

Enter the Madras High Court. In Ananthkrishnan v. K G Rangasamy, the court faced a similar question—but with a different kind of copy.

Here, the borrower had deposited a xerox copy of a registered document. Not a certified copy. Just a plain photocopy—the kind produced by a machine in any office, the toner smudged at the edges, the paper flimsy and unsealed. The question: could this common photocopy create a valid equitable mortgage?

The Madras High Court said no. Emphatically. The courtroom's silence was broken only by the rustle of papers as the judgment was read aloud.

The court relied on a Supreme Court ruling in Kalyan Singh v. Chhoti, which had drawn a sharp distinction between different forms of secondary evidence under Section 63 of the Indian Evidence Act, 1872 (the provision that lists what kinds of copies are legally acceptable when the original is unavailable).

The Supreme Court had noted that certified copies carry a special legal status. Under Section 79 of the Evidence Act, the court must presume that a certified copy is genuine—that it correctly reproduces the original. This is a statutory presumption (a legal assumption that the court is required to accept unless the opposite is proved). The certified copy's seal, the judge noted, was not just decoration—it was the mark of the state's authority, a guarantee that the document could be trusted.

But an uncertified copy—like the xerox in the Madras case—enjoys no such presumption. The court called it "just an ordinary copy". Without further proof that it accurately reproduces the original, it cannot be treated as valid secondary evidence. The photocopy, the court observed, could have been altered with a pair of scissors and some glue—there was no way to verify its authenticity without the original to compare it against.

The Madras High Court held that the xerox copy was "bad to create an equitable mortgage with xerox copy". The mortgage was invalid. The bank had no security.

Why one word decided everything

Two cases. Two copies. Two outcomes.

The Kerala High Court said a certified copy can work—if the original is lost. The Madras High Court said a plain xerox copy cannot work—ever.

The distinction is not technical hair-splitting. It reflects a deeper logic about reliability. A certified copy comes from the government's own records. It bears the official seal. It can be cross-checked against the registration office's archives. A xerox copy comes from a machine. Anyone can make it. Anyone can alter it. It carries no guarantee of authenticity.

For financial institutions, the practical lesson is straightforward. Accepting a certified copy for an equitable mortgage is legally defensible—but only if the bank has verified and documented the loss of the original through a police complaint, a public notice, or a sworn affidavit. Accepting a plain photocopy is a risk that may cost the bank its security entirely. The loan officer's desk, once cluttered with flimsy copies, must now hold only documents that carry the state's seal—or the bank may find itself in court, holding nothing but a worthless piece of paper.

THE PLAY: Before accepting any copy as a document of title for an equitable mortgage, verify that it is a certified copy issued by the registration office—not a xerox—and document the loss of the original through a sworn affidavit, police complaint, or public notice.

The original deed was gone. The bank had only a copy. The court said: that copy can create a valid mortgage—but only if it carries the seal of the state.