1 General Principles of Drafting &

Relevant Substantive Rules

This Chapter Includes
! Introduction; ! Guidelines for Use of Particular
! Drafting, its Meaning; Words and Phrases for Drafting &
! Conveyancing, its Meaning; Conveyancing;
! Drafting and Conveyancing: ! Use of Appropriate Words and
! Distinguished; Expressions;
! Distinction between Conveyance ! Aids to Clarity and Accuracy;
and Contract; ! Legal Implications and Requirements;
! General Principles of Drafting all sorts ! Deed and Document;
of Deeds and Conveyancing & other ! Various Kinds of Deeds;
Writings; ! Components of Deeds;
! Some Do’s & Don’ts; ! Engrossment and Stamping of a
Deed.
Marks of Short Notes, Distinguish Between, Descriptive & Practical Questions

Question upto Dec - 2008 are from CS Final Gr. I Old Course and from June
- 2009 onwards are from CS Professional Programme New Course.
8.1
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SHORT NOTES
2005 - Dec [7] (b) Write short notes on the following:
(ii) Fowler's five rules of drafting. (3 marks)
Answer :
Fowler’s Five Rules of Drafting : As per “anyone who wishes to become
a good writer should endeavour, before he allows himself to be tempted by
more showy qualities, to be direct, simple, brief, vigorous and lucid.”
The principle referred to above may be translated into general in the
domain of vocabulary as follows :
(a) Prefer the familiar word to the far fetched (familiar words are readily
understood).
(b) Prefer the concrete word to the abstract (concrete words make meaning
more clear and precise).
(c) Prefer the single word to the circumlocution (single word gives direct
meaning avoiding adverb and adjective).
(d) Prefer the short word to the long (short word is easily grasped).
(e) Prefer the Saxon word to the Roman (use of Roman words may create
complications to convey proper sense to an ordinary person to
understand).
(f) Always prefer active voice to the passive voice in the drafting of
documents.
2006 - Dec [8] (b) Write brief notes on ‘force majeure’ and ‘deed escrow’.
(5 marks)
Answer :
Deed Escrow : A deed signed by one party and delivered to another as an
"escrow" for it is not a perfect deed. Until and unless the deed's signed by all
the parties are dated when the last party signs it. It is merely writing
(Scriptum). The deed operates from the date it is last signed. Escrow means
a simple writing not to become the deed of the expressed to be bound
thereby, until some condition should have been performed. (Halsbury Laws
of England, 3rd Edn., Vol. II, p. 348).
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Force Majeure : Means Acts of God, wars or similar action affecting India,
Civil Commotions or general strike (excluding by its own employees) lying
beyond the reasonable control.
2007 - June [6] (b) Write short notes on any three of the following:
(i) Testimonium clause
(ii) Indenture
(iii) Deed Escrow
(iv) Habendum. (2 marks each)
Answer :
(i) Testimonium Clause : The clause of the deed is marked by this
clamps and is an integral part of the deed. Testimonium is the clause
in the last part of the deed. Testimonium signifies that the parties to
the document have signed the deed. This clause marks the close of
the deed and is an essential part of the deed.
The usual form of testimonium clause is as under:
"In witness whereof, parties hereto have hereunto set their
respective hands and seals the date and year first above written". This
is the usual English form of testimonium clause. In India, except in the
case of companies and corporations seals are not used and in those
cases testimonium clause reads as under:
"In witness whereof the parties hereto have signed this day on the
date above written."
Thus testimonium clause can be worded according to the status
and delegation of executants.
(ii) Indenture : Deeds in which there are two or more than two parties is
referred to as indenture. It was written in duplicate upon one piece of
parchment and two parts were severed so as to leave an indented or
vary edge, forging being then, rendered very difficult. Indentures were
so called as at one time they are indented or cut with uneven edge at
the top. In olden times, the practice was to make as many copies or
parts as they were called, of the instruments as they were parties to it,
which parts taken together formed the deed and to engross all of them
of the same skin of parchment.
(iii) Please refer 2006 - Dec [8] (b) on page no. 16
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(iv) Habendum : Habendum is a part of deed which states the interest yet
to be taken by the purchaser. Habendum clause starts with the words
"THE HAVE AND TO HOLD". Formerly in England in case of a
gratuitous transfer, the equitable interest wherein remained with the
transferor and the transferee was not deemed to be the owner of the
beneficial interest. It was therefore, necessary to indicate in the deed
that it was being transferred for the use of the transferee if it was
intended to confer an equitable estate in him. It was for that reason
that the habendum commenced with the words: "to have to hold to the
use of...............". Now it is not necessary to express it so. In the
modern deeds, however, the expression "to have and" are omitted.
The habendum limits the estate mentioned in the parcels. The
transferee is mentioned again in the habendum for whose use the
estate is conveyed. If the property conveyed is encumbered, reference
thereto should be made in the habendum. If the parties to transfer
enter into covenants, they should be entered after the habendum.
2010 - Dec [5] Write notes on the following :
(i) Habendum (4 marks)
Answer:
Please refer 2007 - June [6] (b) (iv) on page no. 17
2010 - Dec [7] (b) Write a note on ‘covenants and undertakings’. (5 marks)
Answer:
Please refer 2008 - June [6] (b) of Chapter - 2 on page no. 45
2013 - June [8] (b) Write a note on ‘covenants and undertakings’.
(4 marks)
Answer:
Please refer 2008 - June [6] (b) of Chapter - 2 on page no. 45
2013 - Dec [4] Write notes on the following:
(i) Habendum and reddendum (4 marks)
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Answer :
HABENDUM
(i) Habendum is a part of deed which states the interest, the purchaser
is to take in the property. The habendum clause starts with the words.
“THE HAVE AND THE HOLDS”
(ii) Formerly in England, if there was a gratuitous transfer, the transferee
was not deemed to be the owner of the beneficial estate in the
property.
(iii) The habendum limits the estate mentioned in the parcels.
(iv) In India, such Phrases as “to have and to hold” or such an expression
as “to the use of the purchaser” can very well be avoided as in cases
except those of voluntary transfers, such an expression is superfluous.
REDDENDUM
This is peculiar to a deed of lease. Here is mentioned this mode and time
fixed for payment. It begins with the word “rendering or paying” with
reference to the reserved rent is payable during the terms of the lease. Place
where payable and instalment where mentioned. If there is apportionment of
rent that is also mentioned.
2014 - Dec [3A] (Or) Write notes on the following:
(i) Covenants and undertakings. (4 marks)
Answer:
Please refer 2008 - June [6] (b) of chapter 2 on page no. 45

DISTINGUISH BETWEEN
2006 - June [7] (a) Distinguish between ‘contract’ and ‘conveyance’.
(5 marks)
Answer:
Contract Conveyance
(a) Any right of any action is not (a) It alters the ownership of existing
created in conveyance. right.

(b) Provisions of Indian Contract (b) Whereas it is governed by the

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Act, 1872 governs any contract. Transfer of Property Act, 1882.

(c) Contract remains to be (c) Conveyance passes on the title
performed and its specific of property to another person.
performance may be sought.
(d) A contract to mortgage or sale (d) The deed of mortgage or sale
would not amount to activate would operate as conveyance of
thus per of interest in the such interest.
property.

2007 - Dec [6] (b) Distinguish between the following:

(iii) ‘Deed’ and ‘instrument’. (4 marks)
Answer :
Instrument : The word "instrument" includes every document by which any
right or liability is, or purports to be, created, transferred, modified, limited,
extended, suspended, extinguished or recorded.
Deed : The term deed describes all the instruments by which two or more
persons agree to effect any right or liability. For example, Gift Deed, Sale
Deed, Deed of Partition, Partnership Deed, Deed of Family Settlement,
Lease Deed, Mortgage Deed and so on. A bond is also included in the wide
field of expression ‘Deed’.
A deed may be defined as a formal writing of a non-testamentary
character, which purports and operates to create, confirm assign, limit or
extinguish some right, title or interest.
2008 - Dec [8] (d) Distinguish between ‘drafting’ and ‘conveyancing’.
(3 marks)
Answer :
Distinction between drafting and conveyancing : Both the terms "drafting
and conveyancing" provide the same meaning although these terms are not
interchangeable. Conveyancing gives more stress on documentation much
concerned with the transfer of property from one person to another, whereas
"drafting" gives a general meaning synonymous to preparation or drafting of
documents, Documents may include document relating to transfer of
property as well as other "documents" in a sense as per definition given in
Section 3 (18) of the General Clauses Act, 1897 which include any matter
 [Chapter # 1] General Principles of Drafting &... O 8.7

written, expressed or described upon any substance by means of letters

figures or mark, which is intended to be used for the purpose of recording
that matter. For example, for a banker the document would mean loan
agreement, deed of mortgage, charge pledge, guarantee, etc. For a
businessman document would mean something as demanded under Section
2(4) of the Indian Sale of Goods Act, 1930 so as to include a document of
title to goods i.e. "Bill of lading, dock warrant, warehouse-keepers certificate,
wharfingers certificate, railway receipt multi model transport document
warrant or order for the delivery of goods and any other document used in
ordinary course of business as proof of the possession or control of goods
or authorising or purporting to authorise, either by endorsement or by
delivery, the possessor of the document to transfer or receive goods thereby
represented". The Companies Act, 2013 defines vide Section 2(3b) the term
"document" in still wider concept so as to include "summons, requisitions
order, other legal process and registers, whether issued, sent or kept in
pursuance of this or any other Act, or otherwise". Thus, drafting may cover
all types of documents in business usages.
In India, the commercial houses banks and financial institutions have
been using the term "documentation". In substitution of the words "drafting
and conveyancing". Documentation refers to the activity which symbolises
preparation of documents including finalisation and execution thereof.
2009 - June [3] (a) Distinguish between the following :
(i) 'Conveyance' and 'contract'. (4 marks)
(ii) 'Instrument' and ' deed'. (4 marks)
Answer:
(i) Please refer 2006 - June [7] (a) on page no. 19
(ii) Please refer 2007 - Dec [6] (b) (iii) on page no. 20
2009 - Dec [4] (b) Distinguish between the following :
(i) ‘Document’ and ‘deed’. (3 marks)
Answer :
Document Deed
(i) Document has been defined by (i) There is no specific definition of
general clauses Act, 1894. deed in any act.
(ii) It means any matter expressed or (ii) Deed usually describes all the
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described upon any substance by instruments by which two or

means of letters figures or marks, more persons agree to effect
or by more than one of those any right or liability.
means which is intended to be
used, or which may be used for
the purpose of recording that
matter.
(iii) E.g. a writing, a map or plan, (iii) E.g. partnership deed, deed of
words printed, photo graphed etc. family, lease deed etc.
2011 - June [7] (b) Distinguish between the following :
(i) 'Endorsements' and 'supplemental deed'. (4 marks)
Answer :
Endorsement & Supplemental deed
Endorsement means to write on the back or on the face of a document
where in it is necessary in relation to the contents of that document or
instruments. The term endorsement is used with reference to negotiable
documents like -
(a) Cheque
(b) Bill of exchange
(c) Hundies etc.
(d) Promissory notes.
For e.g. - On the back of the cheque to sign one name as payee to obtain
cash is an endorsement on the cheque.
Supplemental deed - is a document which is entered into between the parties
on the same subject on which there is a prior/ex documents existing an
operative for adding new fact to the document on which the parties to the
document have agreed which otherwise cannot be done by way of
endorsement. Thus supplemental deed is executed to give effect to the new
fact in the deed.
2011 - Dec [7] (b) Distinguish between the following:
(i) ‘Conveyance’ and ‘contract’. (3 marks)
Answer:
Please refer 2006 - June [7] (a) on page no. 19
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2013 - Dec [7] (b) Distinguish between the following:

(i) ‘Legal document’ and ‘instrument’. (3 marks)
Answer :
Legal Document:
(i) “Document” as defined in section 31(18) of general clause Act, 1894,
means any matter expressed or described upon any substance by
means of letters, figures or marks.
(ii) which may be used for the purpose of recording that matter.
Example:
A writing is a document.
Words printed, lithographed or photographed are document.
Instrument:
The word “instrument” includes every document by which any right or liability
is, or purports to be, created, transferred, modified, limited, extended,
suspended, extinguished or recorded.
2014 - June [2A] (Or) Distinguish between the following :
(i) ‘Indenture’ and ‘deed escrow’. (4 marks)
Answer:
Indenture: Indenture are those deeds in which there are two or more parties.
It was written in duplicate upon one piece of parchment and two parts were
severed so as to leave an indented or vary edge, forging being then,
rendered very difficult. Indentures were so called as at one time they are
indented or cut with uneven edge at the top. In olden times, the practice was
to make as many copies or parts as they were called, of the instruments as
they were parties to it, which parts taken together formed the deed and to
engross all of them of the same skin of parchment.
Deed Escrow: A deed signed by one party will be delivered to another as an
“escrow” for it is not a perfect deed. It is only a mere writing (Scriptum)
unless signed by all the parties and dated when the last party signs it. The
deed operates from the date it is last signed. Escrow means a simple writing
not to become the deed of the expressed to be bound thereby, until some
condition should have been performed.
2015 - June [2A] (Or) Distinguish between the following:
(iii) ‘Habendum’ and ‘reddendum’. (4 marks)
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DESCRIPTIVE QUESTIONS
2006 - June [5] {C} (c) What is meant by ‘recitals’ as a component in a
deed? What is its evidentiary value? (5 marks)
Answer :
Recitals : Recitals contain the short story of the property up to its vesting
into its transferors. Care should be taken that recitals are short and
intelligible. Recitals may be of two types. One, narrative recitals which relates
to the past history of the property transferred and sets out the facts and
instrument necessary to show the title and relation to the party to the subject
matter of the deed as to how the property was originally acquired and held
and in what manner it has developed upon the grantor or transferor. The
extent of interest and the title of the person should be recited. It should be
written in chronological order i.e. in order of occurrence. This forms part of
narrative recitals. This is followed by industry recitals, which explain the
motive or intention behind execution of deed.
Recitals should be inserted with great caution because they precede the
operative part and as a matter of fact contain the explanation to the operative
part of the deed. If the same is ambiguous recitals operate as estoppel.
Recital offers good evidence of facts recited therein. Recitals are not
generally taken into evidence but are open to interpretation by the courts. If
the operative part of the deed is ambiguous anything contained in the recital
will help in its interpretation or meaning. In the same sense, it is necessary
that where recitals contain chronological events that must be narrated in
chronological order.
Recital generally begins with the words "Whereas" and when there are
several recitals instead of repeating the words "Whereas" before each and
every one of them, it is better to divide the recitals into numbered paragraphs
for example, "Whereas"-
1.
2.
3.
etc.
It has been held that "Recitals" carry evidentiary importance in the deed.
It is an evidence against the parties to the instrument and those claiming
under and it may operate as estoppel [Ram Charan v. Girija Nandini, 3 SCR
841 (1965)].
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2006 - June [6] (b) Define and differentiate between the following terms :
(i) Instruments;
(ii) Document; and
(iii) Deed. (10 marks)
Answer :
(i) Instrument : The word "instrument" includes every document by which
any right or liability is, or purports to be, created, transferred, modified,
limited, extended, suspended, extinguished or recorded.
(ii) Document : Document as per General Clauses Act, 1894 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. As for instance, a writing is a document, words
printed, lithographed or photographed are documents; a map or plan
of a place or stone is a document. A caricature is a document. Thus
document is a paper or other material thing affording information, proof
or evidence of anything.
(iii) Deed : The term deed connects all the instruments by which two or
more persons agree to effect any right or liability.
A deed may be defined as a formal writing of a non-testamentary
character, which purports and operates to create, declare, confirm,
assign, limit or extinguish some right, title or interest.
A deed is a present grant rather than a mere promise to be
performed in the future. Deeds are in writing, signed, sealed and
delivered. Deeds are instruments , but all instruments are not deeds.
All deeds are documents. But it is not always that all documents
are deeds. A document under seal may not be a deed if it remains
undelivered e.g., a will, an award, a certificate of admission to a
learned society, a certificate of shares or stocks and share warrant to
bearer, an agreement signed by directors and sealed with the
company’s seal, license to use a patented article or letters of co-
ordinations.
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2006 - June [8] (a) “Drafting of document is a skilled man’s job.” Explain this
statement with some important do’s and don’ts in drafting. (5 marks)
Answer :
The essence of the process of drafting is synthesis of law and fact in a
languages. A proper understanding of drafting cannot be realised unless the
nexus between the law, the facts and the language is fully understood and
accepted. This requires serious thinking followed by prompt action to reduce
the available information into writing with a legal meaning.
Some Do’s :
1. Reduce the group of words to single word;
2. Use simple verb for a group of words;
3. Avoid round-about construction;
4. Avoid unnecessary repetition;
5. Write shorter sentences;
6. Express the ideas in fewer words;
7. Prefer the active to the passive voice sentences;
8. Choose the right word;
9. know exactly the meaning of words and sentences you are writing; and
10. Put yourself in the place of reader, read the document and satisfy
yourself about the content, interpretation and the sense it carries.
Some Don’ts : The following things should be avoided while drafting the
documents :
(a) Avoid the use of words of same sound. For example, the words
"Employer" and "Employee".
(b) When the clause in the document is numbered it is convenient to refer
to any one clause by using single number for it. For example, "in clause
2 above" and so on.
(c) Negative in successive phrases would be very carefully employed.
(d) Draftsman should avoid the use of words "less than" or "more than”,
instead they must use "not exceeding".
(e) If the draftsman has provided for each of the two positions to happen
without each other and also happen without, "either" will not be
sufficient; he should write "either or express the meaning of the two in
other clauses.
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In writing and typing the following mistakes always occur which should
be avoided:
1. "And" and "or";
2. "Any" and "my";
3. "Know" and "now";
4. "Appointed" and "Applied";
5. "Present" and "Past" tense.
2007 - Dec [6] (a) What are the important principles which a draftsman
should keep in mind in drafting and conveyancing? (3 marks)
Answer :
The following principles of drafting & conveyancing must be adhered to :
(a) Fowler’s five principles of drafting. According to Fowler, "anyone who
wishes to become a good writer should endeavour, before he allows
himself to be tempted by more showy qualities, to be direct, simple, brief,
vigorous and lucid".
The principle referred to above may be translated into general in the
domain of vocabulary as follows:
(i) Prefer the familiar word to the far fetched (familiar words are readily
understood).
(ii) Prefer the concrete word to the abstract (concrete words make
meaning more clear and precise).
(iii) Prefer the single word to the circumlocution (single word gives direct
meaning avoiding adverb and adjective).
(iv) Prefer the short word to the long (short word is easily grasped).
(v) Prefer the Saxon word to the Roman (use of Roman words may
create complications to convey proper sense to an ordinary person
to understand).
(vi) Always prefer active voice to the passive voice in the drafting of
documents.
(b) Outline the contents of a document before drafting.
(c) Skeleton draft and its self-appraisal.
(d) Legal provisions must be complied with.
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2009 - June [1] {C} Attempt the following :

(i) Define 'document'.Explain various kinds of deeds. (5 marks)
Answer :
Document : Document according Section 31 (18) of General Clauses Act,
1894 means any matter expressed or described upon any substance by
means of letters, figures or marks, or by the more than one of those means,
intended to be used, or which may be used, for the purpose of recording that
matter. As for instance, a writing is a document, words printed, lithographed
or photographed are documents; a map or plan is a place or stone is a
document. A caricature is a document. Thus, document is a paper or other
material thing affording information, proof or evidence of anything.
Various kinds of Deeds :
1. A good deed is one which conveys a good title, not one which is good
merely in form.
2. A good and sufficient deed is marketable deed; one that will pass a good
title to the land it purports to convey.
3. An inclusive deed is one which contains within the designated
boundaries lands which are expected from the operation of the deed.
4. A latent deed is a deed kept for twenty years or more in man's escritoire
or strong box.
5. A lawful deed is a deed conveying a good or lawful title.
6. A pretended deed is a deed apparently or prima facie valid.
7. A voluntary deed is one given without any "valuable considerations".
8. A warranty deed is a deed containing a covenant of warranty.
2009 - June [5] (a) Explain in detail the general principles of drafting and
conveyancing and other writings. (12 marks)
Answer :
Drafting of legal documents requires skill, At the very first instance, the
names, description and the addresses of the parties to the instrument must
be ascertained by a draftsman. He must obtain particulars about all
necessary matters which are required to form part of the instrument. He must
also note down with provision any particular directions or stipulations which
are to be kept in view and to be incorporated in the instrument. The duty of
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a draftsman is to express the intention of the parties clearly and concisely in

technical language. With this end in view , he should first form a clear idea
of what these intentions are.
A corporate executive, therefore, must note down the most important
requirements of law which must be fulfilled while drafting complete
instrument on the subject. Knowledge of law of the land in general and
knowledge of the special enactments applicable in a particular situation is an
essential requirement for a draftsman to ensure that the provisions of the
applicable law are not violated or avoided. A limited company can do only
that much which it is authorised by its memorandum. Further, a company
being a legal entity, must necessarily act through its authorised agents. A
deed, therefore, should be executed by a person duly authorised by the
directors by their resolution or by their power of attorney.
It is also to be ensured that the format of documents adopted adheres
to the customs and conventions in vogue in the business community or in the
ordinary course of legal transactions. For any change in the form of such
document, use of juridical and technical language should invariably be
followed. The statements of negatives should generally be avoided. The
order of the draft should be strictly logical. Legal language should be, to the
utmost possible extent, precise and accurate. The draft must be readily
intelligible to layman.
Document should be supported by the schedules enclosures or
annexures in case any reference to such material has been made in that.
2009 - Dec [1] {C} Attempt the following :
(b) Define ‘deed’. What are the components of a deed in general ?
(5 marks)
Answer :
A deed is a writing-
(a) paper, vallum or parchment,
(b) sealed and
(c) delivered, whereby an interest, right or property passes, or an obligation
binding on some persons is created or which is in affirmance of some act
whereby an interest, right or property has been passed.
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A deed is a present grant rather than a mere promise to be performed

in the future.
Deeds are in writing, signed, sealed and delivered.
Deeds are instruments, but all instruments are not deeds.
A deed is divided into different paragraphs. Under each part relevant
and related information is put in paragraph in simple and intelligible
language. The usual parts or components or clauses of deeds in general
are mentioned as follows:
(1) Description of the Deed Title
(2) Place and Date of execution of a Deed
(3) Description of Parties to the Deed
(4) Recitals
(5) Testatum
(6) Consideration
(7) Receipt Clause
(8) Operative Clause
(9) Description of property
(10) Parcels Clause
(11) Exceptions and Reservations
(12) Premises and Habendum
(13) Covenants and undertakings
(14) Testimonium Clause
(15) Signature and attestation
(16) Endorsements and supplemental Deeds
(17) Annexures or Schedules.
2009 - Dec [5] (b) Explain habendum. What does a habendum clause signify
in a document? (4 marks)
Answer :
Habendum is a part of deed which states the interest, the purchaser is to
take in the property. Habendum clause starts with the words ”THE HAVE
AND TO HOLD”. Formerly in England if there was a gratuitous transfer, the
transferee was not deemed to be the owner of the beneficial estate in the
property, the equitable estate wherein remained with the transferor as a
resulting trust for him. It was therefore, necessary to indicate in the deed that
 [Chapter # 1] General Principles of Drafting &... O 8.17

it was being transferred for the use of the transferee if it was intended to
confer an equitable estate in him. It was for that reason that the habendum
commenced with the words: “to have to hold to the use of ............”. Now it
is not necessary to express it so. In the modern deeds, however, the
expression “to have and” are omitted. The habendum limits the estate
mentioned in the parcels. The transferee is mentioned again in the
habendum for whose use the estate is conveyed. Whatever precedes the
habendum is called the premises. The parcels or the description of the
property usually again included in the premises. If the property conveyed is
encumbered, reference thereto should be made in the habendum. If the
parties to transfer enter into covenants, they should be entered after the
habendum.
In India such phrases as “to have and to hold” or such an expression as
“to the use of the purchaser” can very well be avoided as in cases except
those of voluntary transfers such an expression is superfluous.
2010 - June [1] {C} (b) What are the do’s and don’ts which should be
considered while drafting documents? (5 marks)
(c) Explain the following:
(i) Deed pool
(ii) Deed poll
(iii) Indenture
(iv) Cyrographum
(v) Deed escrow. (2 marks each)
Answer :
(b) Please refer 2006 - June [8] (a) on page no. 26
(c) (i) Deed Pool : It is an arrangement wherein as many copies are made
as there are parties, so that each party may be in possession of a
copy.
(ii) Deed Poll : A deed made and at the same time executed by single
party e.g. power of attorney, is called a deed poll because in olden
times, it was polled or cut level at the top. It had a polled or clean cut
edge. It is generally used for the purpose of granting powers of
attorney and for exercising powers of appointment or setting out an
arbitrator's award. It is drawn in first person usually.
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(iii) Indenture : Indenture are those deeds in which there are two or
more parties. It was written in duplicate upon one piece of
parchment and two parts were severed so as to leave an indented
or vary edge, forging being then, rendered very difficult. Indentures
were so called as at one time they are indented or cut with uneven
edge at the top. In olden times, the practice was to make as many
copies or parts as they were called, of the instruments as they were
parties to it, which parts taken together formed the deed and to
engross all of them of the same skin of parchment.
(iv) Cyrographum : This was another type of indenture in olden times.
The word "Cyrographum" was written between two or more copies
of the document and the parchment was cut in a jugged line through
this word. The idea was that the difficulty of so cutting another piece
of parchment that it would fit exactly into this cutting and writing
constituted a safeguard against the fraudulent substitution of a
different writing for one of the parts of the original. This practice of
indenting deeds also has ceased long ago and indentures are really
now obsolete but the practice of calling a deed executed by more
than one party as an "indenture" still continues in England.
(v) Deed Escrow : A deed signed by one party and delivered to another
as an "escrow" for it is not a perfect deed. It is only a mere writing
(Scriptum) unless signed by all the parties and dated when the last
party signs it. The deed operates from the date it is last signed.
Escrow means a simple writing not to become the deed of the
expressed to be bound thereby, until some condition should have
been performed (Halsbury Laws of England, 3rd Edn., Vol. II, p.
348).
2010 - Dec [1] {C} (c) What is meant by ‘recitals’ as a component in a deed?
What is its evidentiary value ? (5 marks)
Answer:
Please refer 2006 - June [5] {C} (c) on page no. 24
2010 - Dec [2] (a) Explain the following :
(ii) Testimonium (2 marks)
(iv) Deed escrow (2 marks)
 [Chapter # 1] General Principles of Drafting &... O 8.19

Answer :
(ii) Please refer 2007 - June [6] (b) (i) on page no. 17
(iv) Please refer 2007 - June [6] (b) (iii) on page no. 17
2010 - Dec [6] (a) Define the term ‘deed’. Explain any seven usual clauses
in a deed. (8 marks)
(b) Whether an unburnt fresh hard disk in a computer is a ‘document’ within
the meaning of section 3 read with section 65B of the Indian Evidence Act,
1872 ? Discuss with reference to case law. (4 marks)
Answer :
(a) Please refer 2009 - Dec [1] {C} (b) on page no. 29
Answer:
(b) The issue whether hard disc of a computer is a document within the
meaning of sections 3 and 65B of the Evidence Act, 1872 was decided
in the case Dharamvir v. CBI [148 (2008) DLT [288].
In this case it was held that hard disc is a document. The court held
that as long as nothing at all is written on to a hard disc and it is
subjected to no change, it will be a mere electronic storage device like
any other hardware of the computer. Once the hard disc is subject to any
change, then even if it restored to the original position by reversing that
change, the information concerning the two steps, viz., the change and
its reversal will be stored in the subcutaneous memory of the hard disc
and can be retrieved by using software designed for that purpose.
Therefore, a hard disc that is once written upon or subjected to any
change is itself an electronic record even if it does not at present contain
any accessible information.
In addition there could be active information available on the hard
disc which is accessible and convertible into other forms of data and
transferable to other electronic devices. The active information would
also constitute an electronic record. Given the wide definition of the
words ‘document’ and ‘evidence’ in the amended Section 2(o) and 2(t)
of IT Act, there can be no doubt that an electronic record is a document.
 8.20 O Solved Scanner CS Prof. Prog. M-III Paper 8 (New Syllabus)

2011 - June [1] {C} (a) In India, there is no law on conveyancing or

interpretation of documents. Explain how disputed ambiguous formal deeds
can be judicially decided then. (8 marks)
Answer :
Principles of interpretation of deeds and documents are:
(A) Formal Agreements:- The following rules of interpretation may be
applied:
(i) Under Section 91 of the Evidence Act provides that a deed
constitute the primary evidence of the terms of a Contract, or of a
grant or of any other disposition of property.
(ii) In case of uncertainty, the rule embodied in provisions 2 and 6 of
section 92 of the Evidence Act can be invoked for construing a
deed -
(iii) The cardinal rule is that clear and unambiguous words prevail over
any hypothetical consideration.
(iv) Sometimes a contract is completed in two parts:-
(a) An executory contract is executed
(b) An executed contract
(v) The court must interpret the words in their popular, natural and
ordinary sense, subject to certain exceptions as,
(a) Where the contract affords an interpretation different from the
ordinary meaning of the words; or
(b) Where the conventional meanings are not the same with their
legal sense.
(vi) All mercantile documents should receive a liberal construction.
(vii) If certain words employed in business, or in a particular locality have
been used in particular sense, they must prima facie be construed
in technical sense.
(viii) The ordinary grammatical interpretation is not to be followed, if it is
repugnant to the general context.
(ix) If the main clause is clear and the contingency mentioned in the
proviso does not arise, the proviso is not attracted at all and its
language should not be referred to for construing the main clause
in a manner contradictory to its import.
 [Chapter # 1] General Principles of Drafting &... O 8.21

(x) As a general rule of construction of documents, the recitals are not

looked into, if the terms of the deed are otherwise clear. If in a deed
the operative part is clear, or the intention of the parties is clearly
made out, whether consistent which the recitals or not, the recitals
have to be disregarded.
(xi) Sometimes a standard form is used, particularly in contracts with
government departments on big corporations. In these standard
printed forms, words not applicable are deleted according to the
requirements of individual transactions.
(B) Informal Agreements:
In interpretation of informal agreements the rule to be applied is that of
reasonable expectation; that is to say the agreement is to be interpreted
in the sense in which the party who used the words in question should
reasonably have apprehended that the other party may apprehend them.
2011 - June [2] (b) Discuss how section 8 of the Transfer of Property Act,
1882 regarding operation of transfer has simplified 'parcels clause' in a deed.
(8 marks)
Answer :
The parcel includes words such as:-
(a) Messuages,
(b) Tenements,
(c) Hereditaments,
(d) Land,
(e) Water etc.
According to Section 8, operation of transfer-unless a different intention
is expressed or necessarily implied, a transfer of property passes
immediately to the transferee. all the interest which the transferor is Capable
of passing in the property and in the legal incidence, thereof.
Such incidence includes-
(i) Where the property is land, the easements annexed there to the rents
and profits thereof occurring after the transfer and all things attached
to the earth.
(ii) Where the property is machinery attached to the earth, the movable
parts thereof.
 8.22 O Solved Scanner CS Prof. Prog. M-III Paper 8 (New Syllabus)

(iii) Where the property is house, the Easements annexed thereto, the rent
thereof accruing after the transfer and the locks, keys, doors windows,
etc.
(iv) Where the property is a debt or other actionable claim, the securities
there of but not arrears of interest accrued before the transfer.
2011 - Dec [1] {C} (a) “All instruments are legal documents, but all legal
documents are not instruments.” Critically evaluate with reference to leading
cases. (10 marks)
Answer :
According to Section 3 of the Indian Evidence Act, 1872, defines Document
as “any matter expressed or described upon any substance by means of
letter, figures, or marks, or more than one of these means, intended to be
used or which may be used for purposes of recording that matter.
Examples:
(i) Writings;
(ii) Prints;
(iii) Maps;
(iv) A caricature
(v) Photo
(vi) Video etc.
However, an instrument is a specific type of legal document used or intended
to be so used or capable of being used as evidence of:
— Financial / monetary / legal right or liability.
— Purports to be so created, transferred.
modified, limited, extended, suspended, extinguished or recorded those
rights and liabilities.
The word instrument has been interpreted in different judgements by
different courts with reference to the different enactment.
Example :
1. As per Section 2(b) of the Notaries Act, 1952 and Section 2(14) of the
Indian Stamp Act, 1899, the word “instrument” includes every document
by which any right or liability is or purports to be created, transferred,
modified limited, extended, suspended, extinguished or recorded.
 [Chapter # 1] General Principles of Drafting &... O 8.23

2. “Instrument” include awards made by Industrial Court. (Purshottam v.

Potdar).
3. “Instrument” does not includes Act of Parliament unless there is a
statutory definition to that effect in any Act. (V.P. Sugar Works v. C.I. of
Stamps).
4. A will is an instrument (Bishun V. Suraj Mukhi).
5. The word “instrument” in Section 1 of the Interest Act is wide enough of
cover a decree (Savitribai V. Radhakishna).
2011 - Dec [2] (a) Explain the following:
(i) Fowler’s five rules of drafting. (4 marks)
Answer:
Please refer 2005 - Dec [7] (b) (ii) on page no. 16
2011 - Dec [8] (b) What do you mean by —
(i) Inclusive deed
(ii) Latent deed
(iii) Pretended deed
(iv) Voluntary deed
(v) Warranty deed (2 marks each)
Answer :
(i) Inclusive Deed : An inclusive deed is one which contains within the
designated boundaries lands which are expected from the operation
of the deed.
(ii) Latent Deed : Is a deed kept for 20 years or more in man’s escritoire
or strong box.
(iii) Pretended Deed : A pretended deed is a deed apparently or prima
facie valid.
(iv) Voluntary Deed : A voluntary deed is one given without any valuable
consideration.
(v) Warranty Deed : A warranty deed is a deed containing a covenants
of warranty
2013 - June [2] (a) Explain the following:
(i) Parcels clause as a component of a deed. (4 marks)
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Answer :
Parcels Clause
This is a technical expression meaning methodical description of the
property. It is necessary that in case of non-testamentary document
containing a map or plan of the property shall not be accepted unless it is
accompanied by the True Copy. Usually the Parcel Clause starts with the
words All Those.......................... And further or description covers as per the
type of property subjected to transfer under the deed. This clause includes
words such as : Messuages, Tenements, Hereditaments, Land, Water etc.
But use of these words has been rendered unnecessary in view of Section
8 of Transfer of Property Act, 1882. This Section has cut down the length of
the deeds and done away with description of minute details of the incidents
of the property intended to be conveyed.
2013 - Dec [5] (a) “Drafting may be defined as the synthesis of law and fact
in a language form.” Explain. (8 marks)
Answer :
Drafting may be defined as the synthesis of law and fact in a language form
[Stanley Robinson: Drafting its application to conveyancing and commercial
document 1980]
(i) All three characteristics rank equally in importance.
(ii) Legal drafting is the crystallization and expression in definitive form of
a legal right, privilege function, duty or status.
(iii) Legal instrument such as constitution, status, regulations, ordinances,
contract, wills, conveyances, indentures, trusts and leases.
NOTE: The process of drafting operates in two planes, the conceptual and
verbal besides seeking the right words, Drafting, therefore, is first thinking
and second composing.
2014 - June [2] Explain the following :
(a) Reasons for drafting recitals in a deed with due caution.
(c) Drafting and conveyancing have the same meaning though these are not
interchangeable. (4 marks each)
 [Chapter # 1] General Principles of Drafting &... O 8.25

Answer:
(a) Recitals should be inserted with great caution because they precede the
operative part and as a matter of fact contain the explanation to the
operative part of the deed. If the same is ambiguous recitals operate as
estoppel. Recital offers good evidence of facts recited therein. Recitals
are not generally taken into evidence but are open for interpretation for
the courts. If the operative part of the deed is ambiguous anything
contained in the recital will help in its interpretation or meaning. In the
same sense, it is necessary that where recitals contain chronological
events that must be narrated in chronological order.
Recitals carry evidentiary importance in the deed. It is an evidence
against the parties to the instrument and those claiming under and it may
operate as estoppel [Ram Charan v. Girija Nandini, 3 SCR 841 (1965)].
Answer:
(c) Drafting and Conveyance Distinguished: Both the terms “drafting and
conveyancing” provide the same meaning although these terms are not
interchangeable. Conveyancing gives more stress on documentation
much concerned with the transfer of property from one person to
another, whereas “drafting” gives a general meaning synonymous to
preparation of drafting of documents. Document may include
documents relating to transfer of property as well as other
“documents” in a sense as per definition given in Section 3(18) of the
General Clauses Act, 1897 which include any matter written, expressed
or described upon any substance by means of letters, figures or mark,
which is intended to be used for the purpose of recording that matter.
For example, for a banker the document would mean loan agreement,
deed of mortgage, charge, pledge, guarantee, etc. For a businessman,
document would mean something as defined under Section 2(4) of the
Indian Sale of Goods Act, 1930 so as to include a document of title to
goods i.e. “Bill of lading, dock-warrant, warehouse-keepers’ certificate,
wharfingers’ certificate, railway receipt multi-model transport document
warrant or order for the delivery of goods and any other document used
in ordinary course of business as proof of the possession or control of
goods or authorising or purporting to authorise, either by endorsement
or by delivery, the possessor of the document to transfer or receive
goods thereby represented.
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2014 - June [3] In the light of judicial pronouncements, discuss the

following :
(d) Testamentary disposition is personal; it cannot be delegated to any other
person. (4 marks)
Answer:
Testamentary disposition is the disposition or transfer of property that takes
effect upon the death of the person making it. The testator retains almost
entire control of the property until death. In short, it is the gift or property
which takes effect at the time of the death of the person making the
disposition. The transfer can be made by deed, by an inter vivos transaction,
or by will. All instruments used to make testamentary dispositions must
comply with the requirements of the statute of wills.
Testamentary disposition also used to refer to the process of dead persons’
will being complied with by announcing the division of the assets of the dead
person amongst the people whose name has been mentioned in the will.
Section 59 of the Indian Succession Act, provides for the persons capable
of making wills. Accordingly, every person of sound mind not being a minor
may dispose of his property by will.
The testamentary capacity is recognized only in a sound disposing state of
mind. Soundness of mind denotes the mental capacity of the testator as to
what he is doing, his capability of understanding his extent of his property,
the person who is the object of his bounty and the persons who are thereby
excluded. Testamentary disposition is personal, it cannot be delegated to
any other person. A testator cannot confide to another the right to make a will
for him. (Tienouth v. Mulroney 227 P.2d 590 (1951).
2014 - Dec [2] Explain the following:
(a) Drafting of legal documents is a skilled job requiring observance of many
do’s and don’ts. (4 marks)
Answer:
Please refer 2006 - June [8] (a) on page no. 26
2015 - June [1] (a) “Drafting of documents is very important part of legal
documentation. Documents are subject to interpretation when no clear
meaning could be inferred by a simple reading of documents.”
 [Chapter # 1] General Principles of Drafting &... O 8.27

Explain this statement with reference to the rules relating to interpretation of

formal legal documents. (10 marks)
2015 - June [2] Explain the following:
(d) All instruments are legal documents but all legal documents are not
instruments. (4 marks)

Repeatedly Asked Questions

No. Question Frequency
1 Distinguish between of 'Conveyance' and 'contract'.
06 - June [7] (a), 09 - June [3] (a) (i), 3 Times
11 - Dec [7] (b) (i)
2 Write a note on ‘covenants and undertakings’.
10 - Dec [7] (b),
13 - June [8] (b), 14 - Dec [3A] (Or) (i) 3 Times
3 What is meant by ‘recitals’ as a component in a deed
? What is its evidentiary value ?
06 - June [5] (c), 10 - Dec [1] (c) 2 Times
4 Explain the Testimonium
07 - June [6] (b) (i), 10 - Dec [2] (a) (ii) 2 Times
5 Write notes on Habendum
07 - June [6] (b) (iv), 10 - Dec [5] (i) 2 Times
6 Explain the following:
Drafting of legal documents is a skilled job requiring
observance of many do’s and don’ts
06 - June [8] (a), 14 - Dec [2] (a) 2 Times
7 Explain the following:
All instruments are legal documents but all legal
documents are not instruments.
11 - Dec [1] {C} (a), 15 - June [2] (d) 2 Times
8 Distinguish between the following:
Habendum’ and ‘reddendum’.
13 - Dec [4] (i), 15 - June (2A) (Or) (iii) 2 Times
 8.28 O Solved Scanner CS Prof. Prog. M-III Paper 8 (New Syllabus)

Table Showing Marks of Compulsory Questions

Year 10 11 11 12 12 13 13 14 14 15
D J D J D J D J D J
Descriptive 5 8 10
Total 5 8 10

Motivational Quote