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Drafting of Documents namely sale deed, will and its Registration

before the Registrar
By S.Nagarajan,M.L.,
I Additional District Judge,
Coimbatore.
Lecture series by BEYOND LAWCLC on 14-06-2021

Drafting of sale deed

It is commonly noticed by court of law that while tendering evidence, there

are various infirmatives and that if 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 a most important legal document required to be executed between the

seller and the purchaser and that at the time of purchasing property, sale deed
indicate that the tittle of the ownership of the concern property transferred from the
name of 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 buyer,
seller, area, location of the property and payment details between the parties. The
sale deed has to be registered with the nearest sub-registrar office and that the sub-
registrar has to verify whether the entire consideration is passed to the seller by the
purchaser. As per section 54 of the transfer of property act 1885, is defines sale
that means 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 status of the property by obtaining
encumbrance certificate before deciding to by the property. Professional persons
like Advocates, Licensed document writers, Chartered Accountant having writing
license can prepare the sale deed.
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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 described as found in the Adhar card,
previous tittle deed and should be ensured.

c) The competence of the seller has to be considered and that he should be person
above 18 years and of sound mind. If guardian executes sale in favour of the
minor, necessary permission from the competent court has to be obtained.

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

information regarding Survey number, description of the locality, area, length and
breadth of land, plat no, the directions of the land situated, four boundaries etc. If
property is pledged than details of such previous transactions to be mentioned.

e) In case of 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 tittle 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
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paid by the previous owner.

i) Indemnity clause to be added to make sure that when the property is sold, the
buyer is free from encumbrances and to ensure that seller has paid all the existing
charges on the property and other taxes like Property tax, Water Bill, Electricity
Bill and development charges to the concerned corporation.

j) It is to be noted that the property is not subjected to encumbrances, mortgages,

charges, lein, attachments claim regarding demand acquisition proceeding by the
Government and an undertaking to be made in the clause that the seller would
resolve all encumbrances.

k) After drafting sale deed, the parties should sign in the document in the presence
of two witnesses and the witness details like name, age, identity proof, Adhar card
to be annexed.

l) The required stamp duty to be paid by the buyer or as the case may be.

m) The parties may assigned time limit for performing their respective duties and
obligations regarding handing over of possession with in the time prescribed and
in case of failure the action to be taken against the defaulting party.

n) Since disputes are increasing day by day, their shall be a mandatory clause
regarding settlement of disputes like Arbitration, Mediation so that dispute may be
resolved at an earlier period.

Rights and liabilities of seller as per section 55 of transfer Property Act

a) To disclosed to the buyer any material defects in the property of which the buyer
could not with ordinary care discover.

b) To produced all documents of tittle relating to the property to the buyer.

c) To answer to the best of his information and all relevant questions put to him by
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the buyer.

d) On payment of consideration execute sale deed.

e) To take care of the document of tittles and property which are in his possession
as an owner of ordinary prudence would take of such property.

f) To pay all public charges and other tax due to the property.

g) On receipt of full consideration handover all original tittle deeds to the buyer

Steps to be taken by a buyer for purchasing/Registering a property

a) The buyer has to ensure that the property is free from any encumbrances or
pending litigation with respect to property tittle, any mortgage pending.

b) The buyer has to verify the classification of property from the Government
records along with other important records to locate the property against the
adjourning property.

c) Buyer has to verify as to any change in ownership due to estate filing, transfer
of property, death etc.

d) Non objection certificate to be obtained from co-owner in case of joint party.

e) To verify the valuation of the property and the guideline value of the sale.

f) Buyer has to pay the stamp duty at registrar office and that stamp duty varies
from 4 person to 7 person of the market value of the party.

Documents required for registration

a) Duplicate copy of the sale deed to be annexed.

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b) Two passport size photographs of the buyer, seller and two witnesses to be
produced.

c) Photo identity proof such as Adhar card, Voter ID card of the parties.

d) Revenue record like Patta, Chitta or the property register card so that it can be
verified that property does not belong to Government.

e) Copy of Municipal tax Bill, EB bill to be attached.

f) Copy of Pan card of both Seller and Buyer.

Process of Registration of sale deed

Step 1: Preparation – The total consideration as stated in the sale deed must have
been paid to the seller. There should not be any arrears of previous loan, house tax,
society dues etc and if arrears is there, Registrar can refuse registration.

Step 2: Calculation of stamp duty is to be paid and that usually 4% to 7% of the

Market value of the property depending upon each state. In Delhi stamp duty is 6%
for Male, 4% for Female, in Chennai it is 4% and in Bangalore it is 5%, and that
along with stamp duty, registration charges 1% has to be paid.

Step 3: Payment of stamp duty online payment facility is available for Delhi,
Gujarat, Karnataka, Chandigarh by visiting the site namely stock holding
corporation of India(https://www.shcilestamp.com/) and that the stamp duty may
paid by Netbanking/Debit Card/NEFT/RTGS etc.

Step 4: After submission of stamp duty the buyer has to carry printout of the online
reference acknowledgement number and to take printout of the e stamp certificate
and each stamp paper has a unique identification number for future reference and
usage.
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Step 5: The buyer may also visit nearer bank authorized centre, pay stamp duty
and provide necessary details and obtain stamp paper. A list of bank authorized
collection center is available on stock holding corporation of India site.

Step 6: Purchase stamp paper for the required amount from the authorized stamp
vendor in that area and thereafter print the contents of sale deed in the stamp paper
and if more pages are to be taken then it can be printed out in green sheets.

Step 7: If e stamp is purchased then print out of the sale has to be attached with the
plain paper.
Registration at sub-registrar office

a) Appointment has to be taken from the nearest Sub-Registrar after submitting the
necessary document and token will be given in which date and time the parties to
be present before the Sub-Registrar.

b) Appointment also be taken on online if e stamping facility is availed.

c) On the date of appointment, the buyer and seller along with witnesses must be
present at the time of registration. The TamilNadu Government has passed a Rule
namely TamilNadu Registration ( Identity verification for the registration of
documents ) Rules, 2018 and that any person presenting any document at the
proper registration office for registration under section 32 of Act may utilized
facility of consent based Adhar authentication service to fulfill the requirement.
Consent based Adhar authentication service means the Electronic authentication
carried out by the unique identification authority of India(UIDAI) or agencies
appointed by it after matching the biometric information of an individual at his
request or with his consent with the information maintained by UIDAI.

d) The buyer and seller have to signed each page and witnesses have to sign only
on last page. The buyer and seller finger prints will also be taken at the time of
registration.

e) In TamilNadu the charges for Property Registration are stamp duty at 7% on the
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Market value of the property and registration fee 1% of the value of the property.
In case of property registration on account of the exchange of property, stamp duty
at 7% on the Market value of the higher value property and registration fee of 1%
of the value of the higher value property. Property registration in TamilNadu must
be completed within 4 months of executing the sale deed an delay in registration in
attracts penalty as follows
Upto 1 week 25% of the registration fee
Upto 1 month 75% of the registration fee
For 4 months 100% of the registration fee

In Kerala online registration of document is available. One has to visit the

site namely www.keralaregistration.gov.in and can login in to online property
registration portal. The applicant can apply for document registration by selection
the time slot ( token ) and has to update the details of particulars as sought for.
After presenting the document and annexes manually, details would be updated.

Collection of Register sale deed

After signing of the sale deed, token slip will be issued for future reference
and the same to be shown while collecting the original sale deed. Original
registered sale deed can be collected in 15 to 20 days after registration. In case
loan is availed from the bank, the bank will directly collect original registered deed
from the Sub-Registrar.

Benefits of sale deed

a) It is to be seen that a well drafted sale deed would avoid future litigation and
confusion.

b) It is an enforceable document in the eye of law.

Section 17(1) of Registration Act provides for what are the documents
which required compulsary registration. A list of documents have been set out
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therein. On 24.09.2001 though a amendment was introduced as section 17(1)(A) of
Registration Act, it was only for the purpose of protecting the person under section
53(A) of Transfer of Property Act. If a suit is filed on basis of sale agreement for
protecting the possession of the buyer, the said agreement shall be registered under
section 17(1)(A) of Registration Act. For a suit filed for enforcing the contract
under specific relief act registration is not necessary, because though registration
act was amended on 01.12.2012, the proviso to section 49 was not amended. The
authorities on the context is
2018(7) SCC 439
2019(6) CTC 580
2019(2) CTC 290
2018(6) CTC 198
If a document is executed on 08.06.2021, the same has to be registered
within 4 months from the date of execution as per section 47 of the Registration
Act. The authority on the context is
AIR 2010 (Supreme Court supplementary 78)
2018(2) CTC 407
As per section 33,34 and 35 of stamp Act when unregister, unstamped
document is produced before the court then the court is entitled to impound the
document under section 33 of the Stamp Act as public office. The authority on the
context is
2008(4) SCC 720
AR 2008 SC 1640

Family arrangement

An oral family arrangement is permissible and there is no necessity register

the same. If the family arrangement records the earlier partition of the parties and
the same is for mutation purpose in revenue record then no registration is required.
If property is divided under the deed by metes and bounds then registration is
necessary the authority on the context is
AIR 1976 Supreme Court 807
1976(3) SCC 119
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Sale deed model form

This deed of sale made and executed at Coimbatore this 8th day of June
2021 Between Mr.A , Age 55 years occupation Agriculture residing at No.12,
Gandhipuram, Ring Road, Coimbatore here in after called the vendor ( which
expression shall, unless repugnant to the context, mean and include his heirs,
executors, administrators and assigns ) of the one part
and
Mr.B, Aged above 50 years, occupation Business residing at 123, Circle
Road, Gandhipuram, Coimbatore of the other part.
Whereas the property bearing door No.140, Revenue Village,Annur,
Mettupalayam Taluk, Coimbatore District described in further in the scheduled
attached herewith belong to one Mr.C.
Whereas said owner Mr.C had executed sale deed dated 01.01.1990 at Sub
Registrar office Mettupalayam in document No.436/90 had transferred and
conveyed the said property infavour Mr.B, present owner is owned and possesed
by him.

Whereas the present purchaser had approached the vendor with proposal to
purchase the said property and had agreed upon the term and conditions has
worked out between the parties and sale agreement was entered on 01.01.2021 and
was reduced in to writing

Now this deed witnesses that the vendor hereby conveys, sells and transfers
and to the present purchaser of the property describe scheduled.
That the purchaser have paid enter consideration of 1 lakh by way of Cheque
No.6579,dt 01.01.2021, drawn on the SBI Bank, Mettupalayam Branch, the receipt
where of vendor does hereby acknowledge to the purchaser and vendor declares
that there is nothing due from the purchaser towards the sale price.

That the vendor has assured to the purchaser that the vendor has a clean,
clear and Marketable tittle to the said property and same is encumbrance free.
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That the vendor assures to the purchaser that the said property is neither a subject
matter of any pending litigation, acquisition and that seller has the absolute right to
sell, transfer and convey the sale.

That the vendor has already paid all the taxes, charges and assessment
payable in respect of the schedule property upto date and those accruing and
becoming due herein after shall be paid by the purchasers.

The purchasers have the right to use the property according to the wish.

That the vendor has today put the purchaser in actual possession of the said
property and the purchaser hereby declares that the vendor shall not have any right
tittle or interest in or over the said property or any part thereof

That the purchaser shall get their name entered in the records of rights in
respect of said property.

That the vendor has applied for, obtained and furnished to the purchaser all
the necessary permission, exemption and clearance under the provision of law in
force required for the due and effective execution of this deed.

The vendor and seller already agreed that all the expenses of stamp duty
and registration charges have been borne out by the purchaser alone.

Schedule of property

Describing the SF No, Ward No, Locality of area, extent, measurement on

four sides, four boundaries etc.

In witness whereof the parties hereto have signed hereunder at Mettupalayam the
8th day of June 2021.
Vendor, Purchaser and Witnesses
Document prepared by so and so
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Drafting of will and process of Registration

What is will?
A will is legal declaration of a person on a document regarding the
distribution of his assets after his death. This document is a unilateral document
that comes in to force after the death of the executor. Though the will is legal
document there is not prescribed format of it and it can even be hand written or
typed in a plain paper and there is no necessity that it should be on stamp paper. A
will may be revoked or altered by the executor at any time before his death.

Categories of will

The will is governed by the laws relating to Transfer of property Act,

Indian succession Act 1925, Indian Registration Act 1908 and Indian Stamp Act
1899.
There are two categories of will namely privilege will and unprivileged will.

a) Privileged wills are those made by soldiers who are employed in a expedition or
a war or an airman or mariner. In this type of will, it does not require many legal
formalities and can be made either or in written form.

b) Unprivileged wills are other kinds of wills and that it imbibes a lot of
formalities to be carried out right from verification of signature till attestation of
witness.

Power of a Hindu to execute a will

Under Mitkashara Law, Hindu could bequeath his separate and self
acquired properties even prior to the Hindu Succession Act being enacted. A Hindu
being a member of the joint family could also posses his separate property not
inherited from his father, grandfather or great-grandfather. A Hindu could execute
a will bequeathing his separate and self required property. It is settled that in case
of property of the join-family as long as the property is joined, the right of the
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coparcener can be described as on interest. It is to be noted that on division of the
join family property, there is definite share when there is metes and bounds then
the shares translates in to absolute right.

Important ingredients of a will

A will must have the following essential characteristics

a) The actual intention of the testator which is to take effect after his death. The
drafts man shall avoid cut copy paste methodology because it will lead to further
complication.

b) The will is a legal declaration of the testator of his intention to distribute the
property to the bequeathed person.
c) The will must describe the manner of disposal of the property.

d) The will can be altered or revoke during the lifetime of the testator.
e) As per section 59 of the Indian succession Act 1925, the testator must be above
age of 18 years and of sound mind. Even a person of unsound mind may make a
will during the interval of the soundness of his mind. Similarly, this section
prohibits the person from making a will, when he is in a state of intoxication or
suffering from illness, Where he is incapable of understanding the consequences of
the act.

Execution of a will

For execution of the will, a probate in India needs to be obtain from the
competent court. A probate of will is a legal certification of the genuineness of the
will, which can be procured by filing an application before the court with details of
schedule of property and annexing a copy of the will and requesting the court to
grant probate to carryout the intention of the testator.
Normally when a will is drafted, the implication which follow to the
beneficiary has to be considered and it would be safe to inform the beneficiaries of
the sale. Further to avoid complication the best method to safeguard the will would
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be to register the same so that it is preserved and acquires status of legal validity
than that of an unregistered will. The drafts man shall take instructions directly
from the testator to ensure that his intention and wishes are considered. It is to be
ascertained that property to be bequeathed is of self acquired or ancestral property.
If it is an ancestral property and proper advise to be rendered to the testator that it
would be changed by persons by inheritance of claim.

Details to be included in will

a) The Name, Age, Address and other identity proofs of the testator shall be
mentioned in the will when it is executed

b) The testator shall declare that he is of sound mind and not under coercion while
drawing the same.

c) The details of the beneficiaries of the will and the distribution of assets to them
shall be mentioned. The Name, Age, Address and relationship of the beneficiaries
with that of the testator shall be mentioned.
d) In order to ensured that the will is carried out as per the intention of the testator,
an executor may be appointed.

e) Most importantly the will should contain the details of the assets and property
that a testator has and the allotment of property in the will.

f) The testator shall state the share to each of the beneficiaries on the property and
detailed list of the same shall be given to avoid confusion. In case one of the
beneficiary being minor then naturally a Custodian/Guardian to be appointed.

g) The testator should give directions as to implement the terms of will.

h) The testator should affix his signature / thumb impression in the presence of
atleast 2 Witnesses. The witnesses may not know the details of will, but they just
have to verify that signature by the testator was affixed in front of them.
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Attestation means the attester must see the executant signing and vice versa.

i) As per section 63(c) of Indian Evidence Act will shall be attested by two or more
witnesses.

j) The testator should sign with date on the will and witnesses to signed the same.

Grounds for challenging a will

a) If a will is alleged to have made due to coercion, fraud or undue influence and
that it was not drawn with a clear intention of the testator.

b) There are certain elements which give rights to reasonable suspicious

circumstances that some foul play had happened.

c) If the testator is of unsound mind while drawing the will.

d) If the will contains signature of the testator alone and when there is no attesting
witnesses, it can be challenge as no proper execution.

e) If the testator did not have sufficient knowledge of signing the will, it can be
taken as a ground for challenging the validity of the will.
Revocation of a will

a) Supposing if a will alleged to be executed by the testator and if it is not found

after his death and was last seen with the testator possession, it has to be presumed
that is destroyed.

b) If the testator executes a subsequent will, a previous will revoked automatically.

c) If there is a declaration of intention to revoke the will by the testator in written

form then it can be taken in to consideration to uphold the new will and revoke the
old one.
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d) If unprivileged will is executed after the privileged will then it shall over rule
the privileged will.

e) If the testator gets married after the will, it shall be deemed to be revoked. It is
an important principle under the Indian Suscession Act to safeguard the interest of
actual descendants.

Properties bequeathed under the will

It is to be noted that all the movable and immovable assets, fixed deposits,
money in bank accounts, securities, bonds proceeding of insurance policies,
retirement benefit, precious metals like gold, silver etc brand names, trade mark
and intellectual property right.

Competence of the witnesses

The witness shall be of above eighteen years of age and of sound mind. There
should be two witnesses to the will as per section 68 of Indian Succession Act.
As per section 69 of Evidence Act the attestation by both the witnesses is to
be proved by examining one attesting witness. As per section 63 of Indian
succession Act attestation of two witnesses required.