An instrument Or deed usually consists of three parts: -

(A) The non-operative part,

(B) The operative part, and

(C) The format part

The non-operative part contains: -

(i)         Description or name –

It is usual but not necessary to begin a deed by giving it a name. The name has to be chosen with great case. The name should be indicative of the true contents of the deed, sometimes in construing a deed. The name has also to be taken into consideration. The nature of the transaction depends entirely upon the terms of the deed.

 (ii) Date of the deed –

It is usual to give the date on which a deed is executed either after the name or at the end before the signatures. The date is stated thus: This deed of sale made on the fifth day of September, one thousand nine hundred and eighty-two (5th day of September) between …………. If the deed does not mention the date on which it will come into effect a presumption arises that it will come into effect from the data of execution. Certain deeds take effect from the date if delivery of the deed. In such cases it is the date of delivery which is the date of the deed. Wills take effect not from the date of execution. Certain deeds take effect from the date of delivery of the deed. In such cases it is the date of delivery which is the date of the deed. Wills take effect not from the date of execution but from the date of the death of the executants (testator)


(iii) Parties to the deed: -

(a) After the name and date of the deed the names of the parties to the deed are setout. The names name and particulars of the parties should be given in such detail from which the parties can easily be identified. It is usual to describe parties by their name, age, parentage, occupation and residence. In cases where it is intended that the successors the parties win also be bound by the deed it is usual to add a clause after the description of the parties stating; The parties shall include their heirs, successors, assigns and legal representative it is necessary for the draftsman to determine the parties who should be joined before drafting a deed.


 (b) Description of certain parties: -

Companies and firms are described thus: The Delhi sugar Mills Co. Ltd. A company registered under the companies Act, 1956 having its registered office at………….(add ress) Delhi. 90 A B, son of …………. resident of, ………….a partner of, and acting for and on behalf of the firm carrying on business under the name and style of ………….(firm's name) at…………. (firm's address) Minor: can act only through their guardians: A B, son of …………. resident of ………….a minor, acting through his ………….and natural guardian ………….C.D., son of ………….resident of …………. a lunatic can act only through a manager appointed by the court. He is to be described thus: A B, son of ………….resident of …………., a lunatic, acting through acts through its trustees: A,B,C,D and E,F, trustees of the trust known as ………….trust, situate at.. ………….


Government :

Contracts on behalf of the Union and state Government are entered into in the name of the president or the Governor as the case may be. (Act. 299 constitution) they are executed by persons who are authorized in this behalf by the president or the Governor.


(c) Reference to parties in the body of the deed: Unilateral deeds:

Since there is only one party he can refer to himself as 'I' or as "the executants" in the body of the deed. Bilateral deeds: it is usual to describe the parties by their capacities like: Between A B………….(Herein after called the Lessee) and C.D. …………. (Here in after Called the Lessee) …………. In subsequent parts of the deed they be referred to as the lessor and the lessee. Multilateral deeds: the description is: This deed of partition dated ………….between A B ………….(Party of the first part), C,D, ………….(Party of the second part), E, F………….(part of the third part) In the body of the deed they are referrer to as "party of the first part" etc.


(iv) Recitals:

These are a narrative of what has led to the necessity or desirability of executing the deed or document. They contain a brief history or in short form the motive for making the deed. Recitals begin with the familiar words "whereas the parties are desirous of or have agreed on some particular course of action, etc." Recitals usually show the reasons and the history of title designed to show that the grantor is entitled to make the disposition. These must beset out in such a manner as to show a complete unbroken chain and is such order that they are properly connected and consistent. Where the operative part of a deed is unambiguous the recitals have no effect on the construction of the deed but if the operative part is ambiguous, the recitals govern the construction.


(B) The operative part contains:

(i) Testatum or premises: -

After the recitals the operative parts of the deed begin generally with the words 91 "Now this deed witnesses that". 'This part gives effect to the intention of the parties and sets out in detail the transaction between the parties. It sets out the capacities in which the parties are acting and the payment and receipt of consideration. Words like "grants", "agrees", "confirms", "sells", "transfers", "conveys", "assigns" etc. are used to denote the purpose and object of the deed. In this part the property which is the Subject of the deed is also described.


 (ii) Hebendum:

Next follows the habendum. This part of the deed used to be introduced by the words "to have and to hold", now generally shortened to "to hold". This purpose of the habendum is to define the interest conveyed and to set out the limitation on the property involved. It shows whether or the creation of a trust or an obsolete sale. It mentions whether the property is encumbered or not. It also names the grantee again. The habendum is not an essential or necessary part of a deed.

(iii) Exception and reservations:

In this part of the deed all the exceptions and reservations which are intended to be attached to the transfer should be clearly stated. For example, if it is desired to lease out a parcel of land the transferor may desire to retain the right to extract minerals therefrom, or again a person may reserve the right to pass rainwater over the land demised-all such exceptions and reservations must be clearly set forth in this part of the deed .


(iv) Covenants:-

Almost every document, whether a sale, lease or mortgage must contain terms by which the parties bind themselves. It is not necessary to mention such covenants as are attached by law to a particular transaction, but if any special terms or agreements are made at variance with the implied covenants then these must be clearly 'state'. For instance, a lease under the transfer of property Act implies the right to sublet, but the parties may impose conditions against subletting. In such a case the terms must clearly be given in the deed.

(c) The formal part contains:

(i) The Testimonium: - This set forth the fact that the parties have signed the deed. It usually begins with the words: In witness whereof the parties aforesaid, namely, have on the day and year just above- mentioned put their signatures in the presence of the witnesses. It the date of the execution of the deed has not been given in the beginning it is to be given in this part. In place of the words "the day and year just above-mentioned" the words "this day of ………….20 …………." are to be substituted;


(ii) Signature and attestation: -

Immediately following the testimonium the parties put their signatures. There after the witnesses put their signatures if the deed requires attestation then the executants must sign in the presence of the witnesses and the witnesses must sign in the presence of the executants. In such a case after the signatures of the executants the following words are written: Signed by the above-named parties in our presence and we have signed in his presence. Then follows the signature of the witnesses. Where a document consists of more than are page the-parties and witnesses must sign each page.


(iii) Parcels of description of the property: -

the property is described in detail accurately and correctly 92 either at the foot of the deed or in schedules annexed to the deed. The object of the description is to make the property easily identifiable. Sometimes a plan is attached and made part of the deed. Some guidance in this respect may be taken from the provisions of sec. 21 and 22 of the Registration Act, 1908.


Sec. 21- Description of property and maps or plans: -

a) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same

b) House in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which the front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

c) other houses and lands shall be described by their names, if any, and as being in the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they about and their existing occupancies, and also, whenever it in practicable by reference to a government map or survey.

d) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of time copies of the map or plan as are equal to the number of such districts.


Sec. 22 Description of the houses and land by reference to government maps or survey: - (i) Where it is, in the opinion of the state Government practicable to describe houses, not being houses in towns, and lands by reference to a government map or survey, the state Government may, by rule made under this Act, require tat such houses and lands as aforesaid shall, for the purpose of sec. 21 be so described. (ii) save as otherwise provided by any rule made under sub-section (i) failure to comply with the provisions of sec 21, sub sec. (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to identify that property.

Attendant requirements of execution: It is essential for the draftsman before putting pen to paper to consider whether the parties to a deed are free to contract in the capacity in which they intend to contract.


For instance, a minor cannot contract except through a guardian, natural or one appointed under the provisions of the Guardian and wards Act, 1890 and sometimes the leave of the court has to be taken before the deed can be executed. In the case of joint Hindu families a contract by a kurta has to be in his personal capacity and as manager of his joint family. These and such like impediments have to be taken into account and the draftsman would be well advised to thoroughly study this aspect of the matter. After the deed has been drafted, if the parties are illiterate the deed should be read out to them and thoroughly explained to them. Execution includes attestation and the necessary number of witnesses must be present at the time when the parties put their signature or mark or cause the same to be put upon the deed. Thereafter the witnesses must be sign in the presence of the parties.


Construction or interpretation of documents Some of the main rules of constructing deeds are:

a. The meaning of the document or of a particular part of it is to be sought for in the document it self. The intention of the parties must be discovered, if possible, from the expressions they have used. The question is not what the parties intended to say, but what they have said.

b. Clear and unambiguous words prevail over an intention, but if the words used are not clear or unambiguous the intention will prevail.

c. The plain, ordinary meaning of the words used is to be adopted in constructing a document. Words are to be taken in their literal meaning.

d. The literal meaning which the parties were in the habit of affixing to the expression employed.

e. Technical legal terms will have their legal meaning.

f. Extrinsic evidence may be admitted, not for finding out the writer's intention, but only to interpret the language used.

g. The deed must be construed as a whole.


Exclusion of oral evidence by documentary evidence:

Once a document has been executed no oral evidence will be permissible in proof of the terms of the contract, grant or other disposition of property except the document itself or secondary evidence of the contents of the document when permissible (sec.91, evidence Act, 1872) When the document has been proved, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to or subtraction form the terms contained therein (sec.92 evidence Act, 1872) When the language used in a document is on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects. See 93 evidence Act. 1872) When the language used in a document is plain in itself, and when it applies accurately to existing fads, evidence may not be given to show that it was not meant to apply to such facts. (Sec.94) When a language used in a document is plain in itself, but is unmeaningful in reference to existing fact, evidence may by given to show that it was used in a particular sense. (sec. 95, Evidence Act) Sec.96. when the facts are such that the language used might have been meant to apply to anyone and could not have been meant to apply to more than one, of several persons or things evidence may be given of facts which show which of those persons or things it was intended to apply to. Sec.97. when the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which 94 of the two it was meant to apply. Sec.98. Evidence may be given to sow the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a particular sense.



To attest means to be witness to, Attestation is defined in sec. 3 of Transfer of Property Act, 1882 thus "Attested" in relation to an instrument, means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executants sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executants, or has received from the executants a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of he executants, but it shall not be necessary that more than are of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.


Some of the documents which are required by law to be attested are; Bonds (sec.265 of stamp Act, 1899), Gift deed in respect of immovable property (sec. 123, transfer of property Act, 1882) Mortgagee (sec.59, Transfer of property Act, 1882) and wills (sec.63, Indian Succession Act, 1925). Attestation is not necessary for the validity of documents not required by law to be attested but in practice it is invariably, adopted as the witnesses can be called to prove the execution of the deed when required. The witness must sign as a witness and for the purpose of attesting the execution. A party to the document cannot be and attesting witness.


It is not necessary that the attesting witnesses should be made aware of the nature or contents of the document. They are merely witnesses of the execution of the document by the executants. The rules relating to proof of execution of documents by attesting witnesses are contained in sections 68 to 92 of the Indian Evidence Act, 1872. These sections real as below:


Sec.58. Proof of execution of document required by law to be attested:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.


Sec.59. proof where no attesting witness found:

It no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.


Sec.70. admission of execution by the party to attested document:

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.


Sec.71 :

Proof when attesting witness denies the execution may be proved by other evidence.


Sec.72. proof of document not required by law to be attested:

It the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.



Stamp Duty:

Sec. 3 of the Indian stamp Act, 1899, provides that every instrument shall be chargeable with duty of the amount indicated in Schedule I Amendments have been made to the stamp act by almost every state. On account of this the duty chargeable on an instrument values from state to state.

Duty on an instrument is payable as prescribed in the state in which the instrument is executed. If the instrument is sought to be used in another state, where the duty prescribed for that instrument is higher, then the difference between the two has to be paid in addition to the duty already paid before the instrument can be so used. A draftsman must be conversant with the requirements of the stamp Act; He must familiarize himself with the duty chargeable on the instrument in the state where the instrument is executed. An efficient draftsman has not only to Sec. that the proper duty is paid on an instrument but also to be seen that no extra or avoidable burden is placed in the executants. A clever and able draftsman will easily be able to word his instrument in such a manner as to be chargeable with the minimum duty .

Sec. 10 and the rules made there under prescribed how stamp duties are to be paid most instruments have to be written on non-judicial stamp-paper of the requisite value. Sec. 11 enumerates the instruments which maybe stamped with adhesive stamps. An instrument not duly stamped is not invalid, but it is incapable of being used in evidence until it is stamped properly. Sec. 35 of the stamp Act lays down the disabilities with which an instrument not duly stamped suffers. Sec. 62 provides that every person executing, making or using an instrument without the some being duly stamped shall be punishable with fine which may extend to five hundred rupees.



(i) Compulsorily and optionally registrable documents.-

Sec. 17 of the Registration act, 1908 enacts that where a document is executed to effectuate any of the transactions spe~ified in Sec. 17,' such document must be registered not with standing that the transaction is one which the law does not require to be in writing. The registration of these documents is compulsory.

Sec. 18 specifies the documents of which registration is optional. In fact every document can be registered some state amendments provide that the registering officer shall refuse to register any document presented to him for registration unless it is accompanied by a time copy thereof.


(ii) Time of Presenting:

A document must be presented for registration within four months of its execution (Sec. 23). Where a document is executed by different persons at different times it may be presented for execution within four months form the date of each execution. The sub-registrar has no power to extend the time or to condone the delay in presenting a document for registration. But where a document could not be presented within time owing to urgent necessity or unavoidable accident" the Registrar, when the delay in presentation does not exceed four months may condone the delay on payment of a fine not exceeding ten times the amount of the proper registration fee. There does not appear to be any power to condone delay beyond four moths. However, a will may be presented for registration at any time.


(iii) Place of Presenting:

A document relating to property has to be presented for registration in the office of the sub-registrar within whose sub-district the whole or some portion of the property to which the documents relates is situate. Other documents maybe presented for registration either in the office of he sub-Registrar in whose sub-district the document was executed or in the office of any other subRegistrar under the state Government at which all the person executing and claiming under the document desire it to be registered. The Registrar may in his discretion receive and register any document which might be registered by ay sub96 registrar subordinate to him.


(iv) Who may present document for registration registration:

A document to be registered is required to be presented at the proper registration office:

(a) By some person executing or claiming under it;

(b) By the representative or assign of such person, or

(c) By the agent of such person, representative or assign, duly authorised by a power of attorney executed and authenticated in accordance with the provisions of Sec.33

(d) Effect of registration :

A registered document operates from the time from which it was intended to operate and not from the date of registration. A registered document, other than a will relating to property, takes effect against any oral agreement or declaration relating to such property except when the oral agreement or declaration is accompanied or followed by delivery of possession and the same constitutes a valid transfer under the law.


(vi) Effect of non-registration: 

A document which is compulsorily registrable but is not registered fails to effect and is void as regards immovable property. It cannot affect any immovable property comprised therein or confer any, power to adopt. It cannot be received in evidence of any transaction affecting such property or conferring such power. But such a document may be received as evidence of a contract in a suit for specific performance or as evidence of part-performance of a contract for purposed of Sec. 53-A of the transfer of property Act, 1882. 

Or as evidence of any collateral transaction not required to be effected by a registered instrument (Sec. 49 of the Registration Act, 1908) Sec. 49 hits instruments and not transactions. A registered document relating to immovable property takes effect as regards the property comprised therein against unregistered document relating to the same property even j the two documents are not of the same nature (Sec. 50) 

Hints on drafting: 

on drafting: The object with which a document is executed is to state the intentions of the parties in the dearest possible language in order to keep the evidence of those intentions in writing. The first duly d a draftsman, therefore, is to have a clean conception of what the intentions of the parties are and then to examine how far their wished can be carried out without contravening the provisions of law for this he must have a sound knowledge of laws. 

This will also enable him to find out the facts from the parties which are necessary for drafting a proper which are necessary for drafting a proper deed. Nothing should be inserted or omitted for which there is no satisfactory reason. Only material facts should be stated. All facts are material, the statement of which is essential to the validity of the transaction. Conclusions or inferences of law or facts should be avoided. It is a common error of unskilled draftsmen to make negative statements. 

This should not be done. Thus, in stating that A and B took as tenant- in-common it is unnecessary to add "and not as Joint tenants". Where however, the happening of a condition subsequent depends upon the non-existence of a particular fact or event, a statement of the negative fact or event becomes material. 

The language of the document be clean and precise. It is desirable to use technical expressions which have acquired a clear meaning and to avoid unusual words and expressions which cause confusion. Facts should, as a general rule, be stated in chronological order both in the recital and the operative parts.