CONVEYANCING

 

Definition of Conveyancing

The art of „conveyancing‟ is of English origin. The word „to convey‟ means to transfer or to make over. The word conveyancing means an instrument or deed through which one or more living person transfer his or their interest in present or in future in or upon an inmmovable property to one or more living persons. In other words conveyance means an act by which property is conveyed or voluntarily transferred from one person to another by means of a written instrument and other formalities. Section 2(10) of the Indian Stamp Act, 1899 defines the term „conveyance‟ as: Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I.

History of Conveyancing

In ancient times, in England the deed writing was optional continued to remain optional until the time of King Charles II, particularly the case in which the deed was required not to be under seal. Writing was required only in the great matter of importance. It was only during the reign of King Charles II that the British Parliament enacted in 1677 a legislation requiring writing for creation and transfer of the interest in landed property with an exception in case of lease for less than three year. The Real Property Act of 1845 required all grants of landed interest to be made by writing which came to be known as „conveyancing‟.

The present form of conveyancing is based on the Conveyance of Land Act of 1845 and the Law of Property Act of 1925. In India the forms of conveyancing are based on the present English forms. No legislation in India has ever been passed on the law of conveyancing. Conveyancing in India is not unknown as the word, ‘Qabuliyatnama’, ‘Jagirdar’, ‘Muafidar’ and ‘Charpatra’, etc., are occurring from ancient days in the Indian literatures. Thus, as in England and so in India, too, there are two types of Deeds, viz., „Deed Poll‟ and „Indenture‟.

 

Charpatra (Redemption of rent), Jagir grants, Quabuliyats, etc, were all the seal of the grantor. The Deed Poll is a document which is executed unilaterally in the first person while an indenture is bilateral or multilateral deed. Bonds, Power of Attorney and Wills are „Deed Polls‟. Mortgages, sales and gifts can also be unilateral and so these are 'Deed Polls', while a deed of Lease is a bilateral document to be executed by the Lessor and Lessee both and so it is an „Indenture‟.

The Position of Drafting in India  

The condition of drafting of conveyancing in mofussil India is deplorable. It is only in the then Presidency Towns (metropolitan cities) of Bombay, Calcutta and Madras the work of drafting of the conveyancing remained in the hand of solicitors and barristers well trained in the field of drafting on the lines of English conveyancing and it still continues on the same pattern and is satisfactory. But in the Mofussil Towns the task of drafting of conveyancing remained and continues to remain in the hands of „deed writers‟, „scribes‟ or „scribers‟ who have no legal knowledge but have adopted the profession of deed writing. So, the deeds in Mofussils generally and commonly suffer from so many defects and sometimes these defects become incurable.

 

Deed

In a broad sense the „deed‟ means something done or performed which is synonymous with „act‟. In legal sense, deed means a solemn act denoting document, and it may be defined as an instrument written on parchment or on a paper executed, signed, sealed and delivered by the executant. A document or an instrument through which a present or future interest in an immovable property is transferred by one or more living persons to another living person or persons is called deed. It is called a deed because it is considered the most solemn and authentic act that a person can possibly perform in relation to his property. Statements made in deeds may amount to admission and may operate as estoppel in certain circumstances.

In Halsbury's Law of England, a deed has been defined as an instrument written on parchment or paper expressing the intention of some persons named therein who make assurance of some interest in property, or of some legal or equitable right, title or claim, or undertake or enter into some obligation, duty or agreement enforceable at law or in equity, or to do some other act affecting the legal relation or position of a party to the instrument. Historically, in England, deeds were classidfied into (a) Deed Poll, and (b) indenture deed.

 

Deed Poll

As the old practice in England was to indent or cut a document which indicated towards executant of the deed; and when deed was polled or cut at the top or at the bottom it was known as „Deed Poll‟. It was called Deed Poll or single deed because it was executed by one party only. A bond, a power of attorney, and a will are the best examples of Deed Poll. It is an executed contract of conveyance made by the grantor alone.

 

Indenture Deed  

Under the old practice of drafting of deed in England, the mark of cut or indent indicated towards the executant of the deed. A deed is technically called an „indenture‟ or „deed indented‟, because the old-practice in England was to cut or intend for the purpose of tally. The old practice was to write two copies of the deed upon the same piece of parchment or substance with some words or terms or letter of alphabet were so written that when one copy was separated from the other, the substance or the parchment was so cut or indented so as to leave half of the word or letter in one copy and the other half in another copy, so as to fit or aptly join its counterpart from which it was supposed to have been cut, indented or separated.

This practice of indenting of deeds is no more in England and at present indenture means a deed between two or more parties importing the meaning of executed contract of conveyance made under seal. A deed of Lease, a mortgage deed and a partnership deed were the best example of indenture deed according to old practice in England.

 

Distinguish between Deed Poll and Indenture Deed  

1. Deed Poll and Indenture both are executed contract and are always in writing.

2. Both are deeds of conveyance and muniment of record of title, and used as documentary evidence if needed.  

3. Deed Poll or single deed is a unilateral document executed by one party only, while Indenture deed is bilateral or multilateral document executed by two or more than two parties.  

4. A Deed Poll is generally written in the first person while an Indenture deed is always written in the third person. In other words, in a Deed Poll, the grants and the covenants of the grantor are in the first person, while in an Indenture, grant and covenants are in the third person.  

5. A Deed Poll may be commenced with the expression, „ Know All Men By These Presents‟ or „To whomsoever it May Concern‟ or straightway „I, so and so, Send These Greeting or Presents‟, while in an Indenture deed, the opening words are – „This Indenture of..........‟ or „This Deed of.........‟ or „This Instrument of.........‟ etc.  

6. Historically, in England, the difference between a Deed Poll and an Indenture deed was an interesting one, but at present there is no such difference and both are indiscriminately used for each other. The difference is only for phraseology but of no practical importance.  

7. The old concept of difference between the Deed Poll and an Indenture as, historically, was maintained in England had never found place in India. It is because an indenture relating to real property in England was required to be made under seal which never was a requirement in India.   

 

Document  

Documents means any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter ( sec. 3, Indian Evidence Act 1872). Documentary evidence is an important piece of evidence of which the Court, Jury and Tribunal take judicial cognizance.

 

Deed, Conveyance and Deed of Conveyance

The term „Deed‟, „Conveyance‟ and „Deed of Conveyance‟ or „Conveyancing‟ are frequently used interchangeably to denote one and the same legal concept, and each is being commonly understood to mean an instrument in writing whereby the grantor conveys to the grantee some right, title or interest in or upon some real property .

Thus, by the aforesaid expressions, we mean each of them as document, indenture or instrument in writing. So , the terms, „conveyance‟, „conveyancing‟, „deed of conveyance‟ or „conveyancing‟, „deed‟, „document‟, „indenture‟ and „instrument‟ are interchangeable for the purpose of drafting of documents.

 

Object and Function of Conveyancing

Movable property may be physically given and taken by actual delivery, while this is not possible in case of property in case of immovable properties. Thus, conveyancing is that branch of the law of transfer of property which deals with the mode and form of transfer to which both- the transferor and the transferee have agreed upon.

Its main object is to enable the owners of real property to make voluntary transfers of their right, title and interest therein for some specific purpose and for a specified period. Such transfers are not otherwise possible than by conveyancing. It incorporates the expressions of the intention of the parties to the deed of conveyance so that accordingly it shall take effect. In case of any doubt, dispute, ambiguity and susceptibility, the real intention of the parties may be discovered from the words, phrases and the expression used in the deed.

A transferor may have passed the property intending to pass; but if he has not expressed himself in suitable words of the language, the deed may be defective or susceptible of two or more constructions; and so the benefits of the transfer may be lost to the transferee. Secondly, where any adverse claimant interposes before the transferee, may get actual legal possession of the transferred property, it may be quite possible that the transferor with all his willingness may not be able to help the transferee.

It helps the Court and judicial tribunals to determine any dispute if subsequently arises between the parties to the deed. It serves the purpose of both- the transferor and the transferee in protecting their interests. It protects the interests of the transferee from any precedent and /or subsequent acts or omissions of the transferor or any other person claiming through or under him against the expressed intention of the grant and the covenant of the deed; and likewise, the interest of the transferor is also protected from any subsequent acts or omissions of the transferee. It is a document of title to the property and forms the basis of a record of rights maintained by the Government. It is, also, a documentary piece of evidence.