Part IV

wnveyancing and Drafting of Deeds

1

Conveyancing General
Conveyancing
The word "To convey" means, to transfer, to make over. The word
conveyancing" means and denotes an instrument or deed through which
one or more living persons transfer his or their interest in present or in
tuture in or upon an immovable property to one or more living persons
History of Conveyancing
In England, the deed writing was optional until the time of King
Charles II, particularly the cases in which the deed was required not to
be under seal.! Writing was required only in the matter of great
During the reign of King Charles II, the British Parliament enacted importance.
in 1677
a legislation requiring writing for creation and transfer of interest in landed
property with an exception in case of lease for less than three years, The
Real Property Act of 1845 required all grants of landed
by writing which became known as interest to be made
conveyancing is based on the conveyance "conveyancing'. The present form of
of Land Act of 1845 and the Law
of Property Act, 1925.3
In India, the forms of conveyancing are
forms. No legislation in India has ever been based on the present English
conveyancing. Though conveyancing in India was notpassed unknown
on the law of
as the words
"Qabuliyatnama", Jagirdar Muafidar' and
England and in India, to0, there are two typesCharpatra' etc. witness. In
and "indenture". Charpatra of Deeds, viz., "Deed poll"
(Redemption
etc. were all of the nature of Deed of rent), Jagir grants, Qabuliyats,
active intention of and the seal of thePolls written on parchment expressing
grantor. The deed poll is a document
which is executed unilaterally in the first
bilateral or multilateral deed. Bonds, Powerperson, while an indenture is a
of Attorney and Wills
Polls'. Mortgages, sales and gifts can als0 be are Deed
Deed Polls', while a deed of lease is a unilateral and so these are
by the lessor and lessee both bilateral document to be executed
and so it is an
Indenture'.
Conveyance
It refers to the
mode of transferring
another by written instruments property from one person to
and related formalities,
an instrument itself and includes such
whether a lease, mortgage, or vesting
1. Williams Real
instrument.
2. State 8 and 9 Property, 20th
Vic. 106, Section 4.
ed., 153.
3. A.C. Dutt on
Real Property, 4th ed., 165.
(474)
 Conveyancng and Drafting of Deeds
475
barister or solicitor is mainly concerned
veyancer with the practice of
Wag formerly competent in England for a member of an
I t practice
'gNCIing. as a conveyancer below the Bar, Le., without
wa Court
to
calledto the Bar.
Conveyancing
been
is the science and art of validly ereating, transferring,
rights-in property particularly in or over land, by written
ertinguishing
kinds. Tt is, accordingly, a major branch of legal work and
various is based on the knowledge of what rights can exist in
d It
what ends can be secured within
kinds of property, of
business.
particular

orer rulesof
law, andof what machinery, such as vesting in trustees,
appropriately be employed
existing to achieve particular ends. It includes
of private Acts
title and the preparation agreements, wills,
a
of
conveyances. Conveyancing depends-
instruments which operate asprofessional practices, customs, and
estgaion

other practice, on the

extent on prudence have dictated as necessary or
experience, and
d arge
forms
p 8 which
particular circumstances, and on precedents or styles,by
Ages
4grpriate in past, or held the
been found appropriate in theends.
have desired
of securing particular
dwards which
capable
to
Courts be Conveyancing
Function of
and given and taken by actual
Ohject properties may be physicallycase of immovable
properties. Thus,
Movable not possible in deals
while this isbranch of the law of transfer of property which the
elivery, transferor and
Veyancingisthatform of transfer to which both-the owners of
D
the mode and Its main object is to enable the interest
with agreed upon. right, title and
ransferee have make voluntary transfers of theirspecific interest therein
real
property to
part, or to transter or create any Such transfers are not
shole or in
purpose and for a specified period.
specific
lirsome possible than by conveyancing. of the parties to the
wberwise the intention
expressions of effect. In case of any
It incorporates thethat accordingly it shall takeintention of the parties
ded of conveyance so the real expressions used in
di_pute, ambiguity and susceptibility, and the
doubt,
discovered from the words, phrases property intending to pass; but
may be passed the deed
may have of the language, theso the
the deed. Atransferor himself in suitable words constructions; and
The has not expressed susceptible of two or more
Secondly, where any
My be defective or may be lost to the transferee. legal
Veneits of the transfer transferee, may get actual that the
the
adverse claimant interposes before it may be quite possibletransferee.
possession of the transferred property, may not be able to
help the
any
ransferor with all his willingness dispute tribunals to determineserves
judicial deed. It
helps the Courts and between the parties to the their interests.
dispute if subsequently arises sferee in protecting
precedent and/or
ue purpose of bothtransferor and tran from any other personclaiming
It transferee
protectsS or omissions of the transferorintention
the interests of the or any and
of the grant is also
the
Bubsequent
tCovenant acts
hrough orof under him against the expressed transferor
interest of thetransferee. It is a
the deed; and likewise, ortheomissions of the
protected from any subsequent acts
476
Principles 8& Forms of Pleadings &Conveyancing
document of title to the property and forms the basis of a record of
maintained by the It is, als0, a documentary piece of
rights
Government. evidence.
The Position of Drafting in India
The condition of drafting of conveyance deeds in lower courts tends to
be deplorable. Only in the Presidency Towns aka metropolitan cities of
Bombay, Calcutta and Madras, the task of drafting remaing in the hands
wellistrained
barristers and in the field of drafting on the li
English and
ofof solicitors conveyancing satisfactory. But in the other places, the
task of drafting of conveyancing continues to be in the hands of deed
or 'scribers' who have no legal knowledge but b
adopted or
writers' the'scribes'
profession of deed writing. Thus, the deeds in lower courts
8
generally and commonly suffer from so many defects and sometimes
defects become incurable. It is submitted that India needs comprehensive
legislation to ensure the defects can be rectified and the work is undertaken
only by persons with knowledge of law.
Deed
As such the word 'deed' means something done or performed which ie
synonymous with 'act. In legal sense, deed means a solemn act denoting
document, and it may be defined as an instrument written on parchment
or on a paper executed, signed, sealed and delivered by the executant. A
document or an instrument through which a present or future interest in
an immovable property is transferred by one or more living persons to
another living person or persons is called a deed. It is called a deed because
it is considered the most solemn and authentic act that a person can
possibly perform in relation to his property. Statements made in deed may
amount to admission and may operate as estopped in certain circumstances.
In Halsbury's Laws of England, a deed has been defined as an
instrument written on parchment or paper expressing the intention of some
persons named therein who make assurance of some interest in property,
or of some legal or equitable right, title or claim, or undertake or enter
into some obligation, duty or agreement enforceable at law or in equity, or
do some other act affecting the legal relations or position ofa party to the
instrumnent.
A deed is, in principle, necessary for every
law requires to be evidenced by writing, and in transaction
many
which common
In modern practice, a deed is described by a name,cases under statute.
mortgage, indicating the nature of the transaction. A deede.g., settlement or
must be signed,
but need not be attested by any witness unless a
However, it is customary to have a witness or witnesses statute requires it.
statement that the deed was signed, sealed, and deliveredandandappend for
a
the
attesting witness to sign his name, adding his
principle, it must also be sealed the party toaddress
be
and description. ln
bound under the deed
expressly or impliedly acknowledging the seal to be his before delivery. But
in the present day a seal, if any, is
stuck on the deed. usually a small circle of gummed pape
Historically, in
(b) indenture deed. England, deeds were classified into : (a) deed poll; anu
 Conveyancing and
pol,so called because Draftin g of
Deeds
top, is a deed made the
deed
A
atthe indenture, 80 called by and
line at the top, is because the
parchmentexpres ing
has been
the polled or shaven
477

evidencing some act or deed to parchment inwa8 tention

a
of one
e
Jae
P
parties,

do l l
which
agreement betweentwothem.or morinetendedpersonsor
England, it was a
practice to
deed,indent
In towards executant of the or cut a
ahented
atthe bottom it was When a deed document
top or known as was polled orwhich
the
it was executed by one
are the best example party
"deed
of deedonly. Abond, pol"a
or "single cut,
deed"
made by the grantor alone. pol. It is an power of attorney.
will
a
pnd

so called because it is cut

executed contract of
Adeed deed evenly or polled at the top
indenture or between two parties was
angles), and contained a single person's formerly indented (wherea8 or cut at
gute
And
intention, e.g., to grant a power of declaration to all of his act
attorney or to change his name.
IndentureDeed
Adeed was is technically called an indenture or
becausethe old practice in England was to cut or
deed indented',
fa tally. The old practice was to write two copies indent
of the fordeedthe upon
purpose
the
same piece of parchment or substance with some words or terms or letter
f alphabet were so written that when one copy was separated from the
other, the substance or the parchment was so cut or indented s0 as to leave
ialf of the word or letter in one copy and the other half in another copy.
mas it fit or aptly join its counterpart from which it was supposed to have
ben cut, indented or separated. This practice of indenting of deeds is no
Ionger practiced. The deed is however still called an indenture. At present,
indenture means a deed between two or more parties importing the
meaning of executed contract of conveyance made under seal. A deed of
lease, a mortgage deed and a partnership deed were the best examples of
indenture deed according to old practice in England.
A deed is made between two or more parties, e.g., a lease or
Conveyance. It was formerly the practice in such a case to write two copies
0n one sheet and then divide them by an indented or jagged line so that
Pacn could fit the other and so be identified as genuine, but such 1s not
nOW necessary.

Distinction
1. Deed
between Deed Poll and Indenture Deed
deed, both are executed
contracts and are
poll
adlways in writing. and indenture and
of record of title,
2. Both are deeds of conveyance and muniment
sed as evidence if needed.
8. document
Deed ary
poll or single deed is a unilateral document executed by one
multilateral document
party only, while deed is a bilateral or
execut4.ed by two orindenture
more than two parties. while an
A deed written in the first person,words, in a
poll is generallyin the third person. In other
deedndentpolurel, the
deed
is always written
grants and of the
COvenants
grantor are in the first
person,
478
Principles & Forms of Pleadings & Conveyancing
while in an indenture, grants and covenants are in the third person.
5. Adeed poll be commenced with the expression, "Know All
By These Presents" ormay"To whomsoever it May Concern" or Men
straightway
"I,
80 and so, Send These Greetings or Presents", while in an indenture deed
the opening words are WThis indenture of...." or "This Deed of...
"This Instrument of..." etc.
6. Historically, there was difference between a deed poll and an
indenture deed but at present, there is no such difference. The
18 only fr phraseology but of no practical importance. dif erence
7. The old concept of difference between the deed poll and
as historically maintained in England, had never found place in India indenture,
Document
Document means any matter expressed or described upon any
substance by means of letters, figures, or marks, or by more than one o
those means intended to be used, or which may be used, for the
of recording that matter. (Section 3, Indian Evidence Act. purpose
18T
Documentary evidence is an important piece of evidence of which the Cot
or Tribunal take judicial cognizance.
Deed, Conveyance and Deed of Conveyance
The terms, deed', 'conveyance', and deed of conveyance
conveyancing are frequently used interchangeably to denote one and the
same legal concept, and each is being commonly understood to mean an
instrument in writing whereby the grantor conveys to the grantee some
right, title or interest in or upon some real property.
expressions, we mean each of them as document, indentureThus, by the aforesaid
in writing. So, the terms, or instrument.
'conveyance',
or conveyancing, deed', document, 'conveyancing, deed of conveyance
interchangeable for the purpose of drafting indenture' and instrument are
of documents.
Components of Deed
A deed consists of various essential clauses, and each
and concisely deals with different clause precisely
ensure that the various clauses haveitems. The draftsman has to see and
of order and each clause has been arranged in a proper
sequence
various clauses dealing with been framed and suitably worded. These
subject-matter of any deed or separate and distinct items of the
deed. Clarity, simplicity and document are called
components or parts of
Redundancy brevity
should be avoided. The are necessary for a good drat.
conveyancing : following are various components 01
1. Description of the
of the deed, i.e.,
"This Deed of Sale",document ofDeed.--A
transaction
deed usually begins with the
to which it relates. name
"This
this expression may be Deed of Mortgage", "The Deed of For instance,
Z. Date of the written preferably in capital letters. Gift, etc. ad
be necessary to Deed,--A deed should be dated so that it
the execution determine the date of the deed. This may no
which is material for date is the date of
registration
on the last and the passing of
title.
the purpose of limitation, mutation,
For instance, "The Deed of gift made
day of January, 2010" (The figures 2010 should preferably be
 Conveyancing and
ten
inWords)
Drafting of Deeds
Deed,7
479
to the
Parties The name of the parties
BETWEBNin capital
approximateage should letters. The name of should begin
word
be written the with
his address
and then
his profession, first,
trade then tr ansferor
his or her along
All aged
8on of B shall
about 50 years or
busin ess father'Fors
hereinparty, residing mention the nameon tradeand
after besimilarly comes.
of..who
terhe name of the first
the
of party of the second part conjuncting with the
at..carrying
called... party of the first part."
eription
peerabl
capitalletters).
in word "AND'
case of iudicial persons, eg., companies and
In names, the clause "registered under the registered societies
Indian Compani
case of estatutes
san Act'idol,
their Registration Act", or
mithfulladdress of its head officeincorporated
Societies under someIn special
should be mentioned.
er1tsname follows "acting through Shri...... its shebait, Mahant', etc.
hcaseoflegally disabled person, viz., minor, lunatic, etc. after the name
minor,etc. "Acting through Shri.
thecase of Government, the name of the..guardian
lnthe appointedunder
person authorised by Court".
Article
the Constitution of India should be written but the transfer shall
apresly be made on behalf of and in the name of the President or
case may be.
Gorernor, as the
4. Recitals,--Recitals shall contain a brief history of the property
farming the subject-matter of deed up to its vesting in the transferor. It
should also mention the reason by which the present grantor has been
ELAbled to make this grant. This is technically called narrative recitals.
contain facts relating to the
Next follows introductory recitals which may of the deed.
mtive of transfer culminating in the execution
5. Testatum,This is a witnessing clause and forms operative part
transfer is made.
dthe deed. It contains consideration for which the WITNESSES".
Usually, it begins with the words, "NOW THIS DEED
document should be
6. Consideration.The consideration of the
pecifcally and explicitly mentioned.
of having
7. Receipt.-It is in the context of acknowledgment from the
received the consideration in whole or in part by the grantor
grante and token whereof the receipt is mentioned.
8. Operative Words, The following words are usually used to
'agrees', 'conveys, 'assigns,
e 18 operation. For instance, grants,
sells, transfers, etc. which is the
8. brief description of the property withits full
Parcels,Thisdeed. Usually, a schedule of the property
is a
Bubj
descr10,iepcttio-mn atister given. If -This
of the attached.
necessary, a plan is also instrument commences
part of the deed ormodern practice is not to
Habendum.
with the Words, "To Have and to Hold", But the to make the transfer
ontain these Words because it is not necessary
etiectiv11.e. and Reservation,-Anwould pass
exception means
something
transferee. A
Exception
Already existing unless expressly excepted to the
but created
at the
time of

Teaervation means Something not in existence

480 Principles & Forms of Pleadings & Conveyancing
the transfer. If the circumstances of the transferred property warrant to
the transferor to except and/or reserve, he can do s0.
transaction. a
12. Covenants,Sometimes in case of a particular
covenant becomes necessary to be imposed upon andpositive from either party to
as as the nature
the deed. These covenants are restrictive as well instance, "Parties hereto
of the transaction permits to the parties. For some special terms
mutually agree with each other as follows" after this
and conditions may be stated.
mentions about the fact
13. Testimonium,-This part of the deed
that the parties of the deed having signed it. This part appears to be
necessary and without
superfluous as the fact of the execution of the deed isdeed does not become
signature or thumb impression execution "IN of the
WITNESS WHEREOF" the
possible,The usually begins with the words first
parties heretohave hereunto set their hands the day and the year
hereinabove mentioned.
14. Signature and Attestation,-Finally, a deed should be signed
witnesses who shall also
by the executants in the presence of the attesting
put their respective hands in the deed.
Other Requirements of Deed
a deed
1. Parties must be competent to contract.-The parties to persons
must be competent to contracts, and they should not be minors or
to which they
of unsound mind or otherwise disqualified by any other law cannot
are subject. A mninor and a lunatic are incompetent and so execute
a document. But a natural guardian or a guardian appointed by a Court
of law can execute a document on behalf of a minor or a lunatic provided
necessary permissions have first been obtained from the Court of competent
jurisdiction.
2. Signatures and Attestations.-If parties to a deed are illiterate
or anyone of the executants is illiterate, the deed must be read over and
explained to him thoroughly in the presence of uninterested and
independent witnesses. Only after reading out the contents and explaining
the implications of the deed in the presence of such witnesses, such
executants should be asked to affix their thumb impressions. And then, the
attesting witnesses in the presence of each other as well as in the presence
of the executants affix their own signatures.
3. Stamp duties,Stamp duty is required for all the instruments of
transfer under the provisions of the Indian Stamp Act. Therefore, a
draftsman must be conversant with the provisions of Stamp Act, 1899 with
local amendments and the deed must be properly stamped.
4. Registration,-A deed compulsorily registrable must be registered
within four months. of its execution under the Registration Act or under
any other law in order to make it effective. However, a party desirous oft
registering a document which is not compulsorily registrable, may do so.
In addition, drafting of a deed also requires knowledge of a particular
branch of law to which the deed relates.
5. Admissibility.-In relation to evidence, the question is whether
particular items of evidence may properly be adduced. It depends partly on
rules of law or practice, e.g., that hearsay evidence is generally
 Conveyancing and Drafting of Deeds 481
on the logical relevancy of the
andpartly
4dissible
cOnnection with the matter under
investigation particular evidence,to
to the state of
Courtas Admissibla some fact which isandpartitsoflikeliness
the
is
vestigation. the
evidence
matter
is
accordingly evidence
matter
i also relevant to under inquiry. Evidence may notbe
and purpose and not for
another. "The wrongful admission or
luded o r one be a ground of appeal.
oevidence may
missible

w tAdmission,-Incivil proceedings, an admission is any

ion
facts admitted
a party in his pleadings, including allalegations
admitted bywhich
be
are not specifically denied. One party may
to
kaken other party
the admit certain facts and a judge may direct a defendant.
to
MAdet h eother
really in dispute. Admissions may also be made before
by
o n mattersnot
al
during
sdmitprOceedings.
w
criminal proceedings,
an admission is any statement by an accused
charged, or any facts relevant to establish his
In eitherthe offence e,g., to the
adnmitting statement made extra-judicially by anin accused,
evidence if made in
thereof A an admission is not admissible
Aultamounting to or inducement, but a genuinely free
any threat, promise, made after caution.
ASequenceofstatement is admissible, including one
police,
statement made in the accused's
non-denial of a charge or
voluntary
exceptionally.
Slence, or admission, unless very
i s not an
presence,
DeedofarTangement assignment of a debtor's property,
comprising an for the
class
ofinstruments composition, a deed of inspectorship
authorising the
A for a
agreement licence
business, a letter of
adeed of or up of a a view to the
payment of
winding business with a
dispose of purpose of carrying on or debtor asupan
arrying on or a winding
manage or
debtor to arrangement for the by a
debts, or an these may be entered into must be registered
Any of proceedings. To be valid it
debtor's business.
bankruptcy
alernative to the Department of Trade.
of
ih the Registrar
Deed of settlement usually formed before 1844.
stock company was property and laid down
a joint partnership might also be
Adeed whereby trustees of the
business. There
Made certain
persons
management of the 1862 companies registered
and settlement
Tegulations for the patent. Between 1844 file a deed of were
private Act or letters 1844, had to before they
Act, documents
Under the Joint Stock Companies and other
omtaining prescribed particulars
hlly incorporated.