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.
Attestation:
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.
Registration
(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.
0 Comments
Thank you for your response. It will help us to improve in the future.