Definition of Conveyancing

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

Deed
In a broad sense, a ‘deed’ means something done or performed which is
synonymous with ‘act’. In the legal sense, a deed means a solemn act denoting a
document, and it may be defined as an instrument written on a paper executed,
signed, sealed, and delivered by the executants. 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 perform about his property. Statements made in
deeds may amount to admission and may operate as estoppel in certain
circumstances.
In Halsbury's Law of England, a deed has been defined as an instrument written
on parchment or paper expressing the intention of some persons named therein
who make assurance of some interest in the property, or of some legal or
equitable right, title or claim, or undertake or enter into some obligation, duty or
agreement enforceable at law or in equity, or to do some other activities
affecting the legal relation or position of a party to the instrument.
Object and Function of Conveyancing
Movable property may be physically given and taken by actual delivery, while
this is not possible in the case of immovable property. Thus, conveyancing is
that branch of the law of transfer of property which deals with the mode and
form of transfer to which both- the transferor and the transferee have agreed
upon. Its main objective is to enable the owners of real property to make
voluntary transfers of their right, title and interest therein for some specific
purpose and a specified period. Such transfers are not otherwise possible than
by conveyancing.
It expresses the intention of the parties to the deed of conveyance so that
accordingly it shall take effect. In case of any doubt, dispute, ambiguity and
susceptibility, the real intention of the parties may be discovered from the
words, phrases and the expression used in the deed. A transferor may have
passed the property intending to pass; but if he has not expressed himself in
suitable words of the language, the deed may be defective or susceptible of two
or more constructions; and so the benefits of the transfer may be lost to the
transferee. Where any adverse claimant interposes, before the transferee gets
actual legal possession of the transferred property, it may be quite possible that
the transferor with all his willingness may not be able to help the transferee.
It helps the court and the judicial tribunals to determine any dispute which arises
subsequently between the parties to the deed. It serves the purpose of both- the
transferor and the transferee in protecting their interests. It protects the interest
of the transferee from any precedent and /or subsequent acts or omissions of the
transferor or any other person claiming through or under him against the
expressed intention of the grant and the covenant of the deed; and likewise, the
interest of the transferor is also protected from any subsequent acts or omissions
of the transferee. It is a document of title to the property and forms the basis of a
record of rights maintained by the Government. It is, also, a documentary piece
of evidence.
Art of drafting
Object of a plaint and petition- it is to ensure the judge understands the case, the
factual matrix of the petitioner or the plaintiff without any hassle going back and
forth. Secondly it is to enable the opponents to know what the case is. Thirdly
and equally important is it enables a lawyer to cross examine or when he
submits final arguments. In fact many of the youngsters who are preparing a
plaint become seniors by the time the matter comes up for final hearing and
would have forgotten the facts. Somebody else would have to cross examine and
as such the pleadings must be capable of being understand without much
difficulty. That is the reason why one of the first things a lawyer must do is to
write the plaint or petition in a simple language. A plaint or a petition should be
written with an object of ensuring that any person who does not have a much
time is able to comprehend what is written there in the shortest possible time.
A Judge will not have time to peruse through a document or plaint which can
run into 50 or 100 pages. It is for this reason that one must cultivate the art of
precis writing.
Art of précis writing - ability to write and put in the most simple manner, in
the most concise manner using simple language, not very high sounding words
and make it as short as possible but encapsulating everything that is required to
be stated.
A lawyer should know the law before writing a plaint or a petition.
The SRA before 2018 amendment section 16© provided that you must prove
that the plaintiff is ready and willing to perform his part of the obligations or
else the plaint is liable to be rejected. This position changed due to the
amendment of section 16 ( c)in the year 2018.
A person has no right to file a case stating that the set back are violated by his
neighbor. But he can do so if he is able to prove that neighbor not leaving the set
back effects your rights.
LEGAL DRAFTING
It is an art of creating legal documents.Drafting, in legal sense, means an act of
preparing the legal documents like agreements, contracts, deeds etc. There can
be no proper understanding of drafting unless the nexus (a connection or series
of connections linking two or more things) between the law, the facts, and the
language is fully understood and accepted.
The process of drafting operates in two planes: the conceptual and the verbal.
Conveyancing: Act of transferring property title from one person to another;
Documentation: the preparation, finalization and execution of documents
PRINCIPLES OF GOOD DRAFTING

1. Document should be clear;-  Simple words No ambiguity:

Ascertain meanings used
2. Logical arrangement-Logical order of document Eliminate
inadequacy and repetition
3. Consistent usage of wordssame words in same sense- Final product
should be clear
4. Compliance with legal requirements- legal requirements should be
incorporated- a document which is void ab initio has no existence in
law- contractual obligations should not be contrary to the law
5. Concise and brief document- Irreducible minimum of clear words-
avoid repletion and redundancy
6. Direct expression in document- nothing implicit- Active voice
preferred to passive- Simple sentence preferred to complex- Objective
preferred to subjective-
7. Miscellaneous- Divided into paragraphs  First word/phrase of
important part of deed in capitals ;  Proper punctuation Clauses in
subsequent paragraphs should not be referred without giving
numbers Small sentences in simple language Avoid negatives in
successive phrases  State dates, sums and numbers in both figures
and words  Fill blank spaces in document before execution Use
 font Times new roman or Book Antique as this is the most readable
font in all versions of MS  Roman/Arabic numerals, capital/lower
case letters for sub divisions Headings and sub headings No spelling/
grammatical/typing mistake

DRAFTING OF CONTRACTS
An agreement which is enforceable at law is called a contract. Generally when a
contract is reduced to writing, the document itself is called an agreement.
Form of Contract There is no particular form prescribed for the drawing up of
trade contracts, except that they must fulfill all the essential requirements of a
valid contract under the law applicable to the contract. If the law requires any
particular category of contracts to be in writing or to be registered, these
formalities must be complied with.
A contract may be hand written, type written or printed. It may be as brief or as
detailed as the circumstances of a particular trade transaction demand.
Requirements of a valid contract (The Contract Act, 1872)
Legal purpose- Formalities-Intention-Capacity-Consideration-A valid and
binding agreement
Important points in regard to drafting of Contracts
1. Description of Parties to the Contract: names, status and address. In
case of an individual, father’s name and in case of a company, the place where
registered office is situated be also given. In case of firms and companies the
particulars of persons representing them be invariably given including details of
particulars of the firm.
2. Legal Nature of the Contract: In the title or in the introductory part
of the contract, the parties should clearly indicate the legal nature of the contract
as to whether it is a sale/purchase contract or a commercial agency contract or a
contract for technical assistance and advice or building construction and
erection contract, etc. so as to avoid any doubt as regards the nature of the
contract and the legal position of the parties there under.
3. Licenses and Permits: It is generally the commercial practice to
provide that each party to the contract may obtain the requisite licenses in its
own country.
4. Taxes, Duties and Charges: A provision regarding the
responsibility for payment of taxes, duties and other charges, if any, may also be
included in the contract. Provision should also be made for fluctuations in the
rate of taxes, duties and fees, after the conclusion of the contract and it may be
agreed upon whether any increase in such rates would be borne by the buyer or
the seller.
5. Quality, Quantity and Inspection of Goods; 6. Insurance 7.
Documentation: 8. Guarantee; 9. Passing of the Property and Passing of the
Risks; 10. Amount, Mode and Currency of Payment; 11. Force Majeure; 12.
Specific Performance; 13. Proper Law of Contract/ Governance of Law; 14.
Settlement of Disputes and Arbitration
CONTRACTING PARTIES
1. The vendor and the purchaser must be sufficiently described,
irrespective of the fact that the parties know each other. 2. If one of the parties
to the agreement is acting in his representative capacity, such capacity must be
clearly and precisely disclosed and his authority to act in that capacity must
form part of the agreement. 3. specific performance may be enforced not only
against a party to the contract but also against a person claiming title under it. 4.
Legal representatives of parties have a right to require specific performance of a
contract or are bound by the promise to perform the contract.
Subject Matter Subject-matter of the agreement must be described in detail
giving its precise situation and the extent of interest agreed to be conveyed
therein should be clearly stated. If the property is subject to certain charges,
easements, encumbrances, restrictions, covenants etc., the same should be
clearly stated. The vendor should not conceal any material particular with regard
to the property he is selling, which the purchaser has a right to know. Time for
Performance If the time for performance is the essence of the agreement, the
same should be clearly stipulated and the consequences of non-performance
within the stipulated time should also be clearly and precisely declared.

ATTESTATION, REGISTRATION AND STAMP DUTY

 Attestation: It is not necessary for an agreement to be attested by any
witness. But where registration is desired the agreement should be attested by
two witnesses. Registration: Agreements not relating to immovable property and
agreements not creating an interest in immovable property are not compulsorily
registrable. Only agreements creating an interest in immovable property worth
more than Rs. 100 are required by law to be registered. Stamp Duty: For the
purpose of stamp duty, agreements are covered by Article 5 of Schedule I to the
Indian Stamp Act, 1899. The stamp duty for different kinds of agreements
varies from State to State.

PETITIONS UNDER CONSTITUTIONAL LAW

WRITS
Meaning and evolution of the concept of Writs:
The term ‘writ petition’ in its general connotation means a Petition filed
before competent Courts, having prerogative powers, when some special and
inherited rights of the people are infringed by the government or its officials. In
the common laws of England this term is well settled as a ‘prerogative writ’
which means a writ special associated with then king. It resembled the
extraordinary authority of the Crown/ Court. In English prerogative writs were
issued only at the suit of the king but later on it was made available to the
subject also.
Habeas Corpus
Habeas Corpus is a writ requiring the body of a person to be brought
before a judge or Court. In other words, it is prerogative process for securing the
liberty of the subject which affords an effective means of immediate release
form unlawful unjustifiable detention whether in prison or in private
custody. It is an ancient supreme right of the subject. Its object is the
vindication of the right of the personal liberty of the subject. The High Courts
and The Supreme Court have got a very wide power of protecting the liberty of
subjects, under Art.226 and Art.32 respectively of the Constitution. These
powers are to be exercised on certain fixed judicial principles and not in an
arbitrary manner. The jurisdiction can be exercised if the Court is satisfied that
the detention is illegal or improper, where the Court can also embark upon an
inquiry as to whether the enactment under which a person is detained is proper
or not. A proceeding of habeas corpus is essential of a civil character, and is
concerned with the personal liberty of a citizen. However, the power is
exercised on the criminal side of the High Court’s appellate jurisdiction. The
High Courts and the Supreme Court exercise this power when satisfied that the
matter is of urgency, and no other legal remedy is available. An application for
habeas corpus may be made by any person interested in the liberty of the
detenue without unreasonable delay; and it must be supported by an affidavit
of the petitioner. Ordinarily a rule nisi (to show cause) is issued by the Court in
the first instance. It is not open to Court to go behind the reasons given by
Government for the detention, and it must see the motive of the impugned law
and the bonafide of the Government. If the impugned detention has been
induced by malafide and some other strenuous reasons and not for bonafide
cause, it shall be quashed and the individual shall be set at liberty
Mandamus
It is high prerogative writ of a most extensive remedial nature. The
Supreme Court and high court have power respectively under Article 32 and
Article 226 of the Indian constitution to issue this writ in the form of a
command directing any person holding public office under the government or,
statutory bodies or, corporation or, to an inferior Court exercising judicial or
quasi-judicial function to do a particular act pertaining to his office or duty
and which the court issuing the writ considers to be the right of the petitioner
and is in the interest of justice. It is not restricted to persons charged with
judicial or quasi-judicial; duty only. It is issued only when there is a specific
legal right, but not specific legal remedy to enforce that right. It lies for
restoration, admission and election to office of a public nature so long the office
is vacant. It may , also, lie for the delivery , inspection and production of public
books, papers and documents provided that the petitioner has a direct tangible
interest in such books, paper and documents. It lies for the performance public
duties which are not discretionary and compel public officials to perform such
public duties.
 Mandamus will not be issued when any alternative remedy by way of
appeal or any other remedy under any other statute is available. Article 32 is
limited to the enforcement of fundamental right of part III of the Constitution
only.
Certiorari
The writ of Certiorari may be issued to any judge, Magistrate or person
or body of person or authority vested with judicial or quasi-judicial functions.
An order of Certiorari is an order directing the aforesaid authorities and
requiring them to transmit the record of the proceedings in any cause or matter
to the High Court to be dealt with there. It may be issued when the decision
complained is of an authority having the legal duty to act judicially or
quasijudicially, and the authority has either no jurisdiction, or there is an
excess of jurisdiction. Mainly it is issued for quashing decisions only.
Prohibition
The writ of prohibition is an order directed to an inferior Court or tribunal
forbidding such Court or tribunal from continuing with the proceeding of any
cause or matter. It is an appropriate writ ‘to a tribunal which threatens to assume
or assumes a jurisdiction not vested in it, so long as there is something in the
proceeding s left to prohibit.’ The difference between a writ of Prohibition and
Certiorari is that the former is issued to restrain a tribunal from doing an act
before it is actually done, while the latter may be issue during the course of the
proceeding of an act and even after the act is done and the proceeding is
concluded. Both can be issued to the person, or body, or tribunal if charged with
judicial or quasi-judicial duties.
Quo Warranto
It is a writ questioning a right of a person holding an office of a public
nature, and directs him to show an authority under which he is holding such
office or exercising the right. In older days it lay against the crown who claimed
or usurped any office, franchise or liberty for holding an enquiry by what
authority he support his claim. Now, it may be issued any person holding the
office of a public nature on the application of any person without alleging the
violation of his any specific right.
 Any member of the public acting in good faith and whose conduct
otherwise did not disentitle him to the relief can apply to the High Court for this
writ. For instance, any registered graduate of any university can apply for the
instance of this writ against any member of University Syndicate or Executive
Council or Academic Council or any such other statutory body of that
University. Likewise, a petition may lie against the Speaker, chairman or the
parliament of state legislation or any other statutory or local bodies. If the
opposite party fails to support his claim, he will be ousted from the office and
may be ordered to pay fine and cost of the petition.
Drafting of sale deed
It is commonly noticed by the court of law that while tendering
evidence no suitable steps are taken right at the point of drafting and
registration of the document. Often the exercise of drafting sale deed is
done by the document writer without adhering to the basic principles
of drafting regarding description of the property, the status of the
parties, payment of consideration and witnesses etc.

It is most important that a sale deed is executed between the

seller and the purchaser and that at the time of purchasing property,
and indicates that the title of the ownership of the concerned property
is transferred from the seller to the purchaser. It is to be observed that
the rights and obligation of the seller passes to the purchaser. The
sale deed should contain details of the buyer, seller, and area, location
of the property and payment details between the parties. The sale deed
has to be registered at the nearest registrar office and that the registrar
has to verify whether the entire consideration has passed from the
buyer to the seller. Section 54 of the transfer of property act 1885
defines sale as the transfer of property or transfer of ownership from
the seller to the buyer for the consideration of money paid, partly paid
or promised to be paid in the future. The buyer has to ensure legal
status of the property by obtaining encumbrance certificate before
deciding to buy the property. Professional persons like Advocates,
Licensed document writers, Chartered Accountant having writing
license can prepare the sale deed.
2
Important clauses in a sale deed
a) The sale deed must contain the details of the buyer and seller, their

respective names, addresses, age of the parties, contact details,

occupation of parties and the date of execution of the sale. Cut copy
paste methodology to be avoided.

b) The information provided in the sale deed by the parties must be

true and accurate and the name of the seller should be described as
found in the Adhar card, previous title deed and should be ensured.

c) The competence of the seller has to be considered and that he should

be a person above 18 years and of sound mind. If the guardian

executes the sale in favour of the minor, necessary permission from the
competent court has to be obtained.

d) In the case of landed property, the description of the property

should contain information regarding Survey number, description of

the locality, area, length and breadth of the land, plat no, the directions
of the land situated, four boundaries etc. If a property is pledged then
details of such previous transactions to be mentioned.
e) In the case of a constructed house, the carpet area, apartment

registration number, ward number, area, the approved plan by the

corporation, the EB assessment number, the water tax assessment
number etc to be mentioned.
f) The most important and primary factor is that price of the property

which is sold should be specifically mentioned and to what price the

buyer intends to purchase and the details of payment has to whether
consideration has been paid by way of cash/cheque/demand
draft/NEFT transfer/or any other mode of electronic transfer.

g) The sale deed must contain a clause that states as the title of the
property is transferred to the buyer by the seller and that words must
be in express terms regarding conveyance of the property.

h) The sale must contain the details on which date the property will

come to possession to the buyer and in case of building allotted by the

Housing Board, Allotment certificate, no objection certificate with
regard to any due pending to be
WILL

Section 2(h) of the Indian Succession Act, 1925 defines Will as:
“Will means the legal declaration of the intention of a testator with respect to his property which he
desires to be carried into effect after his death.”
Section 2(b) of the Indian Succession Act, 1925 defines Codicil as:
“Codicil is an instrument made in relation to a will, and explaining, altering or adding to its
disposition, and shall be deemed to form part of the will.”
 There is no standard form prescribed by law regarding drafting a will.
 The language of the will should be clear and unambiguous.
 The properties should be described with complete clarity.
 A will is drafted in first person.
 Details of the testator to be mentioned clearly. (Name, Age, Occupation, Address etc.)
 Details of bequeath, to whom and which property is given.
 Details of the executor if any.
 Previous testaments if any.
 Major, Sound state of mind of testator.
 Signature and attestation.
 Signature of the testator and attesting witnesses (with their details)
 No stamp duty is required to be paid on a will.
 Will is not required to be compulsorily registered, it is optional.

POWER OF ATTORNEY
Power of Attorney is a document of agency or a formal arrangement by which one person
(Principal) gives another person (Attorney or Agent) authority to act on his behalf and in his
name. As per the Power of Attorney Act, 1882:
“Power-of-Attorney includes any instruments empowering a specified person to act for and
in the name of the person executing it.”
A Power of Attorney may be a general or special power. A General Power of Attorney covers
more than one subject matter while a Special Power of Attorney relates to a specific subject
matter, though it may contain several powers relating to the same subject matter. Power of
Attorney is required to be stamped but need not be mandatorily registered.