General Principles of Drafting and Relevant Substantive Rules – Drafting, Pleadings and Appearances Important Questions

Question 1.
Explain the following statement; Drafting is the synthesis of law and fact in a language form.
Answer:
According to Stanley Robinson, drafting is a synthesis of the following three characteristics which rank equally in importance:

  1. Fact
  2. Law
  3. Language

Legal drafting is a crystallization and expression in definitive form of a legal right, privilege, function, duty, or status. For example statutes, regulations, ordinances, agreements, contracts, deeds, conveyances, indentures, trusts etc.

Following are the Pre-requisite of drafting:
Skills of a draftsman
Knowledge of facts and law

The aforesaid prerequisites enables a draftsman to put facts in a systematized sequence to give a correct presentation in a self-contained and self-explanatory form without any ambiguity or doubt about legal status, privileges, rights and duties of the parties, terms and conditions, breaches and remedies.

Drafting requires serious thinking followed by prompt action to reduce the available information into writing with a legal meaning. The process of drafting operates in two planes; the conceptual and the verbal. Therefore, a nexus between fact, law and language is absolutely necessary.
General Principles of Drafting and Relevant Substantive Rules 1
Thus, the statement is correct and act as an essence of the process of drafting.

Question 2.
Conveyance is an act of transfer of any property.
Answer:
Conveyancing is an art of drafting deeds and documents whereby | any right, title or interest in a property is transferred from one person to l another. Thus, conveyance is an act of conveyancing or transferring any property whether movable or immovable from one person to another permitted by customs, conventions and law within the legal structure of the country. “Conveyance includes mortgage, charge, lease etc”.
Mitra’s legal and commercial dictionary defines “conveyance” as the action of conveyancing, a means or way of conveyancing, an instrument by which title to property is transferred, a means of transport, vehicle.

According to Section 5 of the Transfer of Property Act, 1882 Transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons and to transfer property is to perform such act.

According to Section 2(10) of the Indian Stamp Act, 1899 Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred and which is not otherwise specifically provided by Schedule I of the Act.

Question 3.
Why is the knowledge about the rules of drafting of pleadings and conveyancing important in corporate affairs? Illustrate.
Answer:
The knowledge about drafting and conveyancing is important for the corporate executives for:

  • Obtaining legal consultations: Better interaction could be had by the corporate executives while seeking legal advice from the legal experts, to decide upon the coverage and laying down rights and obligations of the parties therein.
  • Carrying out documentation departmentally: An executive can make a better document with all facts known and judging the relevance and importance of all aspects to be covered therein.
  • Interpretation of the documents: In India, in the absence of any legislation on conveyancing, it becomes imperative to have knowledge about the important rules of law of interpretation so as to put right language in the documents, give appropriate meaning to the words j and phrases used therein, and incorporate the will and intention of j the parties to the documents.

Therefore, knowledge in advance on the subject matter facilitates better communication, extraction of more information, arriving on workable solutions, and facilitates settlement of the draft documents, engrossment and execution thereof.

Question 4.
Comment on the following statement; Drafting and conveyancing have the same meaning though these are not interchangeable.
Answer:
The terms; drafting and conveyancing are not interchangeable as following are the difference between drafting and conveyancing:

Drafting Conveyance
1. Drafting is defined as the synthesis of law and fact in a language form. 1. As per section 2(10) of the Indian Stamp Act, 1899, 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 by Schedule I of the Act.
2. Legal drafting is a crystallization of expression in definitive form of a legal right, privilege, function, duty, or status. 2. Conveyancing is an art of drafting deeds and documents whereby any right, ‘title or interest in a property is transferred from one person to another.
3. Concept of drafting is wider than the concept of conveyancing. 3. Concept of conveyancing is narrower than that of drafting.
4. Drafting gives a general meaning synonymous to preparation of drafting of documents. It relates to every document, every deed, every statute etc. 4. Conveyancing gives more stress on documentation concerned with the transfer of property from one person to another.
5. For instance: Arbitration Agreement, Service Agreement, Receipt etc. 5. For instance: Sale deed, mortgage deed, gift deed etc.

Question 5.
Distinguish between the following; Conveyance and contract.
Answer:
Following are the differences between contract and conveyancing:

Contract Conveyance
1. Section 2(h) of Indian Contract Act, 1872 defines Contract as an agreement enforceable by law. As per section 2(10) of the Indian Stamp Act, 1899, 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 by Schedule I of the Act.
2. Contract consists of a reciprocal promise and each party to the contract is bound to perform the promise. There is no such promise stipulated in a conveyance deed.
3. Contract is governed by the provisions of Indian Contract Act, 1872. Cases of conveyance of immovable property are governed by the provisions of Transfer of Property Act, 1882.
4. Contract executed is yet to be performed. Upon the execution of a conveyance deed, a right, title or interest in the property is passed on to another.
5. A contract creates a right of action in favour of the parties. No such right is created, however, ownership is altered.

Question 6.
Explain Fowler’s five rules of drafting.
Answer:
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.

Following are the Fowlers’ five rules of drafting:-

  1. Prefer the familiar word to the far fetched (familiar words are readily understood).
  2. Prefer the concrete word to the abstract (concrete words make mean¬ing more clear and precise).
  3. c. Prefer the single word to the circumlocution (single word gives direct meaning avoiding adverb and adjective).
  4. d. Prefer the short word to the long (short word is easily grasped).
  5. e. Prefer the Saxon word to the Roman as use of Roman words may create complications to convey proper sense to an ordinary person to understand.

Question 7.
Write notes on the following; Expert’s opinion.
Answer:
Drafting of legal documents is a skilled job. The duty of a draftsman is to express the intention of the parties clearly and concisely in technical language. In the commercial world, it is a common practice to get the | opinions of experts in order to ensure that deeds and documents are f clear, definite unambiguous and no material facts are left out.

Expert opinion comes from the professional who has acquired knowledge and skills through study and practices over the years, in a particular field or subject, to the extent that his or her opinion may be helpful in fact-finding, problem-solving, or understanding of a situation.

If the draft document has been prepared for the first time to be used again and again with suitable modification depending upon the requirements of each case it should be vetted by the experts to ensure its suitability and legal fitness if the corporate executive feels it so necessary.

Question 8.
Explain the following; Legality of a written deed for performing a promise in near future.
Answer:
A deed may be defined as a formal writing of a non-testamentary character which purports or operates to create, declare, confirm, as sign, limit or extinguish some right, title, or interest. For Instance: Gift Deed, Sale Deed, Deed of Partition, Partnership Deed etc.

According to Norten, a deed is a writing:

  • On paper, vellum or parchment
  • Sealed and
  • 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.

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.

It comprises of all the essentials of a valid contract provided under section 10 of the Indian Contract Act, 1872.
Therefore written deeds for performing a promise in near future are enforceable in the court of law.

Question 9.
What do you mean by:
i. Inclusive deed
ii. Latent deed
iii. Pretended deed
iv. Voluntary deed
v. Warranty deed
Answer:
Meaning of given terms as follows:

Types Meaning
i. Inclusive Deed Inclusive deed is one which contains within the designated boundaries lands which are expected from the operation of the deed.
ii. Latent Deed Latent deed is a deed kept for twenty years or more in man’s escritoire or strongbox.
iii. Pretended Deed Pretended deed is a deed apparently or prima facie valid.
Types Meaning
IV. Voluntary Deed Voluntary deed is one given without any “valuable consideration”, as that term is defined by law, one founded merely on a “good”, as distinguished from a “valuable”, consideration on motives of generosity and affection, rather than a benefit received by the donor, or, detriment, trouble or prejudice to the grantee.
Vi. Warranty Deed Warranty deed is a deed containing a covenant of warranty.

Question 10.
Explain the following:
i. Deed pool
ii. Deed poll
iii. Indenture
iv. Cyrographum
v. Deed escrow
Answer:
Explanation of the following terms as discussed below:

Term Meaning
i.Deed Pool A deed between two or more parties whereas many copies are made as there are parties, so that each party may be in a possession of a copy. This arrangement is known as “deed pool”. Example: Sale Deed, Lease Deed, Mortgage Deed etc.
ii. Deed Poll
  • A deed made and executed by a single party is called a “deed poll”.
  • 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.

Example: Power of Attorney, Letter of Appointment, etc.

iii. Indenture
  • “Indentures” 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.

Example: Gift deed.

iv. Cyrographum
  • 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.

Example: Sale Deed, Mortgage Deed, Lease Deed.

v. Deed Escrow
  • A deed signed by one party will be delivered to another as an “escrow”.
  • Explanation: “Escrow” means a simple writing not to become the deed of the expressed to be bound thereby until some condition should have been performed.
  • It is not a perfect deed as it contains a limitation or a condition on the delivery.
  • It is only a mere writing unless signed by all the parties and dated when the last party signs it.

The deed operates from the date it is last signed.

  • Question 11.
    Distinguish between the following; Indentuffe and Deed escrow.
    Answer:
    Following are the differences between indenture and deed escrow:
    Indenture:
  • Indentures are those deeds in which there are two or more parties.
  • Indentures were in written form, in duplicate upon one piece of parchment and two parts severed so as to leave an indented or vary edge, forging being then rendered very difficult.
  • Indentures were in self-styled form so 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.

Example: Gift Deed.

Deed Escrow:

  • A deed signed by one party will be delivered to another as an “escrow”.
    (Explanation: “Escrow” means a simple writing not to become the deed of the expressed to be bound thereby until some condition should have j been performed).
  • Deed Escrow is not a perfect deed as it contains a limitation or a condition on the delivery.
  • Deed Escrow is 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 sign.
  • Question 12.
    “All instruments are legal documents but all legal documents are not instruments”. Critically evaluate with reference to leading cases.
    OR
    Distinguish between legal document and Instrument.
    Answer:
    Instrument:
    According to Section 2(14) of the Indian Stamp Act, 1899, instrument includes every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded.
    Following are some judicial precedents on instruments:-
  • Mohan Chowdhary v. Chief Commissioner AIR 1964 SC 173
    “Instrument includes an order made by the President in the exercise of his constitutional powers”
  • Purshottam v. Potdar AIR 1996 SC 856 “Instrument includes awards made by Industrial Courts”
  • V.P. Sugar Works v. C.I. of Stamps U.P. AIR 1968 SC 102:
    “Instrument does not include Acts of Parliament unless there is a stat¬utory definition to that effect in any Act.”
  • Bishun v. Suraj Mukhi AIR 1966 All. 563 “A will is an instrument.”
  • Savitribai v. Radhakishna AIR 1948 Nag. 49 “The word “instrument” in Section 1 of the Interest Act is wide enough to cover a decree. ”

Document
On the other hand, Section 3 of the Indian Evidence Act, 1872, defines j “document” as any matter expresses or described upon any substance j by means of letter, figures or marks, or more than one of these means, j intended to be used or which may be used for purposes of recording that I matter. Examples: Writings, prints, maps, etc.

Also, according to Section 3( 18) of General Clauses Act, 1894, “Document” 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.

For Example, A writing, words printed, lithographed or photographed, a map or plan, an inscription on a metal plate or stone, a caricature is a document.

Therefore, all instruments are legal documents but all legal documents are not instruments as they may not always create, transfer, modify, limit, extend, suspend, extinguish or record a right or liability.

Question 13.
The date of the execution of a deed is material for the purpose of limitation and registration of the document. If the date is accidentally f missing in the deed, how do you, as a company secretary, will deal with ! such a situation? Refer the relevant law on the point.
Answer:
The date of deed is the date on which parties sign or execute it. If several parties to a deed sign the deed on different dates, in such cases, the practice is to regard the last of such dates as the date of deed.
The date comes immediately after the description of the deed. In order to avoid risk of forgery, the date should be written in both words and figures.

For Example: “This Deed of Gift made on the 3rd day of July 2020”. The relevant law on the given point are discussed as follows:

  • Applicability of law of limitation: It is the date of execution which is material in a document for the purpose of application of law of limitation i.e. beginning and maturity of period.
  • Registration Act: According to Section 23 of Registration Act, a deed must be presented for registration within 4 months of its execution therefore date of execution becomes importance.
  • Undated: A deed is perfectly valid if it is undated or the date given is an impossible one, e.g. 30th day of February.
  • Remedy: If no date is given oral evidence will always be admissible to prove the date of execution-only it leaves necessary to prove it. However, it is of great importance to know the date from which a particular deed operates.

Question 14.
Distinguish between the following; drafting and documentation.
Answer:
Following are the differences between drafting and documentation:-
Drafting
According to Stanley Robinson, drafting is a synthesis of the following three characteristics which rank equally in importance:

  • Fact
  • Law
  • Language

Legal drafting is a crystallization and expression in definitive form of a legal right, privilege, function, duty, or status. E.g. statutes, regulations, ordinances, agreements, contracts, deeds, conveyances, indentures, trusts etc.

Following are the Pre-requisite of drafting:-

  • Skills of a draftsman
  • Knowledge of facts and law

Drafting requires serious thinking followed by prompt action to reduce – the available information into writing with a legal meaning.

The process of drafting operates in two planes;

  1. Conceptual and
  2. Verbal.

Drafting may cover all types of documents in business usage. Drafting, in legal sense, means an act of preparing the legal documents like j agreements, contracts, deeds etc.

Document:
According to Section 3(18) of General Clauses Act, 1894, document means any matter expressed or described upon any substance by means of letters, figures or marks, or by combination of one of those means to be used for the purpose of recording that matter.

Also, according to Section 3(18) of General Clauses Act, 1894, “Document” 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. E.g. A writing, Words printed, lithographed or photographed, a map or plan, an inscription on a metal plate or stone, a caricature is a document.

  • Documentation refers to the activity which symbolizes preparation of documents including finalisation and execution thereof.
  • Documentation is a set of documents provided on paper, or online, or on digital or analog media, such as audio tape or CDs.
  • Proper documentation provides evidence of what has transpired as well as provides information for researching discrepancies. Supporting documentation may come in paper or electronic form.

Question 15.
Drafting of legal documents is a skilled job requiring observance of many do’s and don’ts.
OR
Comment on the following; Things that should be avoided while drafting a document.
Answer:
Following are the do’s and don’ts to be kept in mind while drafting legal documents:-

Some Do’s Some Dont’s
1. Reduce the group of words to single word. 1. Avoid the use of words of same sound. For example, the words “Employer” and “Employee”.
2. Use simple verb for a group of words. 2. When the clause in the document is numbered it is convenient to refer to anyone clause by using single number for it. For example, “in clause 2 above” and so on.
3. Avoid round-about construction. 3. Negative in successive phrases would be very carefully employed.
4. Avoid unnecessary repetition. 4. Draftsman should avoid the use of words “less than” or “more than”, instead, he must use “not exceeding”.
5. Write shorter sentences. 5. 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 both or express the meaning of the two in other clauses.
6. Express the ideas in fewer words. 6. In writing and typing, the following mistakes always occur which should be avoided:
“And and ‘or;
Any and my;
“Know’ and now;
“Appointed” and ‘Applied”;
“Present” and ‘Past” tense.
7. Prefer the active to the passive voice sentences.
8. Choose the right word.
9. Know exactly the meaning of the words and sentences you are writing.
10. Put yourself in the place of reader, read the document and satisfy yourself about the content, interpretation and the sense it carries.

Question 16.
“Drafting of documents is a very important part of legal documentation”. Documents are subject to interpretation when no clear meaning could be inferred by a simple reading of documents.
OR
In India, there is no law on conveyancing or interpretation of documents. Explain how disputed ambiguous formal deeds can be judicially decided j then?
OR
Comment on the following statements; Rules of Interpretation.
Answer:
Interpretation is the process of ascertaining the true meaning of the words used in a statute.
To adjudicate disputes where the agreement is formal and written, the following rules of the interpretation may be applied:-
i. Deed: Deed constitutes a primary evidence of the terms of a contract, The law forbids any contradiction of or any addition, subtraction or j variation in a written document. (Section 91 of the Evidence Act).

ii Uncertainty: Section 92 of the Evidence Act enables the court to examine the facts and surrounding circumstances. It also permits evidence of any separate oral agreement on which the document is silent and which is not inconsistent with its terms.

iii Words and Intentions: Clear and unambiguous words prevail over any hypothetical considerations or supposed intention.
iv. Intention: Surrounding circumstances can be seen for ascertaining the intention of the parties.

v. Preliminary and final contract: If a contract is completed in two parts and any difference between the preliminary contract and final contract arises, the terms of the latter must prevail.

vi. Earlier clause vs. Latter clause: If in a deed later clause destroys the obligation created by the earlier clause, the latter clause is to be rejected and the earlier clause prevails.

vii. Interpretation of words: The court must interpret the words in their popular, natural and ordinary sense, subject to following exceptions:-

  • If contract affords an interpretation different from the ordinary meaning of the words.
  • Where the conventional meanings are not the same with their legal sense.

vii. Hardship: Hardship to either party is not an element to be considered unless it amounts to a degree of inconvenience or absurdity to such an extent that the Courts are compelled to think that such could not be the meaning of the parties.

ix. Liberal construction: The words must be understood in their natural and ordinary meaning.

x. Leave alone no clause: Every part of the document should be given a meaning. (Note: The given list of rules is inclusive, not exclusive)

Question 17.
Define deed. Write note on the components of deed.
Answer:
Definition of Deed:
A deed may be defined as a formal writing of a non-testamentary character which purports or operates to create, declare, confirm, assign, limit or extinguish some right, title, or interest.

According to Norten, a deed is a writing on paper, vallum or parchment which means thin layer made of skin of animal, sealed and 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. Example: Gift Deed, Sale Deed, Deed of Partition, Lease Deed, Mortgage Deed, a power of Attorney, Bond etc.

  • 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.

Components Of A Deed: The below-mentioned are list of components:

1. Description of the Deed Title. 2. Place and Date of execution of a Deed. 3. Recitals.
4. Description of property. 5. Description of Parties to the Deed. 6. Testatum.
7. Parcel. 8. Exceptions and reservations. 9. Consideration.
10. Covenants and Undertakings. 11. Premises and Habendum. 12. Receipt clause.
13. Signature and Attestation. 14. Endorsements and Supplemental Deeds. 15. Operative clause.
16. Testimonium Clause. 17. Annexures or Schedules.

Question 18.
Explain Haben dum. What does a haben dum clause signify in a document?
Answer:
Following are key points on haben dum:

  • Habendum in a deed states an interest which the purchaser intends to take in a property. Habendum clause starts with the words “THE HAVE AND TO HOLD”.
  • In England, if there was a gratuitous transfer, the transferee was not deemed to be the owner of the beneficial estate in the property. It was, therefore, necessary to indicate in the deed the interests transferred. Now it is not necessary to express it as the expression “TO HAVE AND” are omitted.
  • Habendum limits the estate mentioned in the parcels. The transferee is mentioned again in the haben dum for whose use the estate is conveyed. If the property conveyed is encumbered, it should be made in the haben dum.

Question 19.
Write a note on covenants and undertakings.
Answer:
Following are key points on covenants & undertakings:

  • The term “covenant” has been defined as an agreement under seal between two or more persons whereby one person promises to the other that something is or is not done already or shall or shall not be done afterwards.
  • A covenant can be express or implied.
  • According to Wharton’s Law Lexicon; a “covenant” is an agreement or consideration or promise by the parties, by deed in writing, signed, sealed and delivered, by which either of the parties, pledged himself to the other than something is either done or shall be done for stipulating the truth of certain facts.
  • “Covenant clause” is stated first and includes undertakings also.
  • In some instances, the covenants and undertakings are mixed, i.e. cannot be separated in that case they are joint together.

This clause may be drafted as follows:
The parties aforesaid hereto hereby mutually agree with each other as follows.

Question 20.
What is meant by recitals as a component of d deed? What is its evidentiary value?
Or
Explain the following; Reasons for drafting recitals in a deed with due caution.
Or
“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 estoppels.” Write a detailed note on this statement with reference to the decisions of the courts.
Answer:
Following are key points on recitals :

  • Recitals contain the series of events showing as to how the property has been vested into its transferors.
  • Recitals should be short and intelligible. 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.
  • Recitals precede the operative part and contain the explanation to the operative part of the deed.
  • Recitals begin with “WHEREAS” and when there are several recitals they can be numbered.

The following are the types of recitals:

1. Narrative Recitals 2. Introductory Recitals
Narrative recitals contain the past history of the property which gives the facts necessary to show as to how the property was originally acquired and in what manner it has developed upon the grantor or transferor. Introductory recitals explain the motive or intention behind execution of deed. They are placed after narrative recitals. It contains the basic objective of the execution of the deed resulting into the change of hand in the property.
The extent of interest and the title of the grantor is also explained.
It should be written in chronological order.

Evidentiary importance:

  • Recitals are not generally taken into evidence but are open for interpretation for the Court.
  • If the operative part of the deed is ambiguous anything contained in the recital will help in its interpretation. Any inaccuracy in the recitals may act as estoppels under section 115 of the Evidence Act.

In the case of Provash Chandra Dalui v. Biswanath Banerjee AIR 1834, 1989 SCR (2) 401 Supreme Court laid down that “The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. In the case of Ram Charan.

Girija Nandini 3 SCR 841 (1965) it was 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 estoppels.

Question 21.
Explain the following; Testimonium.
Answer:
Following are the key points on testimonium:

  • 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 Where Of, parties hereto have hereunto set their respective hands and seals the date and year first above written”.
OR
In Witness Where Of the parties hereto have signed this Deed on the date above written.

Question 22.
Define the term deed. Explain any seven usual clauses in a deed.
Answer:
“Deed” defined as a formal writing of a non-testamentary character z which purports or operates to create, declare, confirm, assign, limit or extinguished some right, title or interest.
“Deed” is termed normally used to describe all the instruments by which two or more persons agree to affect any right or liability. Example: Sale deed, Lease deed, Gift deed.

Following are the seven clauses in a deed are as follows:

Clause Explanation
1. Description of the Deed Title
  • The draftsman after discussion with the parties in the first instances about the nature of the deed he has to write i.e. the name of the document.
  • All deeds as such must be described by the name of the transactions to which it relates.
  • The description of the deed must be expressed in the beginning of the document itself and it should be written in capital letters.
  • For example: “This Deed Of Sale”
    “This Deed Of Mortgage”
    “This Deed Of Lease.”
2. Place and Date The name of the place and the date on which it is executed has to be given.

General Principles of Drafting and Relevant Substantive Rules 2

General Principles of Drafting and Relevant Substantive Rules 3
General Principles of Drafting and Relevant Substantive Rules 4

Question 23.
Explain the following; Parcels clause as a component of a deed.
Or
Discuss how section 8 of the Transfer of Property Act, 1882 regarding operation of transfer has simplified parcels clause in a deed.
Answer:
Following are the key points on parcels:

  • Parcels means methodical description of the property which is the subject matter of the deed.
  • 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.
  • 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.”
  • Section 8 of the Transfer of Property Act, 1882 regarding operation of transfer has simplified parcels clause in a deed: Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

For Example:

  • In case of Land:
    The easements annexed the rents and profits accruing and all things attached to the earth.
    In case of machinery attached to the earth: The movable parts thereof.
  • In case of house:
    The easements annexed thereto, the rent accruing after the transfer, the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith.
  • In case of money or other property yielding income:
    The interest/income thereof accruing after the transfer take effect.

Question 24.
Explain amino attest and.
Answer:
“Amino Attestandi” means attestation should be done by at least two witnesses who should have seen the executant signing the deed or should have received from the executant personal acknowledgement to his signatures. Following are the key points :

  • It is not necessary that both the witnesses should have been present at the same time. There is no particular form of attestation but it should appear clearly that witnesses intended to sign is attesting the witnesses.
  • The deed is signed at the end of the document on the right side and attesting witnesses may sign on the left side. Attestation by witnesses is necessary in the case of some transfers, for example, mortgage, gift, sale, and revocation of will. In other cases, though it is not necessary it is always safe to have the signatures of the executant attested.
  • After attestation clause, signatures of the executants of the documents 5 and their witnesses attesting their signatures follow.
  • It is essential that the attesting witness should have put his signature, S amino attest and, intending for the purposed attesting that he has seen the executant sign or has received from him, a personal acknowledgement of his signature.

Question 25.
Distinguish between Operative clause and Testimonium clause.
Answer:
The following are differences between Operative Clause and Testimonium Clause:
Operative Clause
This part of the deed expresses the nature of transaction between the parties and as such operative words vary according to the nature of transaction between the parties.
The words used in operative parts will differ from transaction to transaction.

For example:
In the case of mortgage, the usual words to be used are “Transfer by way of simple mortgage” etc.
The exact interest transferred is indicative after parcels by expressing the intent or by adding haben dum.

Testimonium Clause:

  • 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 Where Of parties hereto have hereunto set their respective hands and seals the date and year first above written”.

Question 26.
Distinguish between the following; endorsements and supplemental deed.
Answer:
Following is the difference between endorsements and supplemental deed:
Deed of endorsements:

  • Endorsement means to write on the back or on the face of the same document wherein it is necessary in relation to the contents of that document or instrument.
  • Endorsement helps in putting new facts in words on such documents.
  • According to Negotiable Instrument Act, 1881 *the term “endorsement” is used in instruments like cheques, bill of exchange etc. For example, on the back of the cheque to sign one’s name as Payee to obtain cash is an endorsement on the cheque.
  • Under the Registration Act, 1908 the word ‘endorsement’ applies to entry by the Registry Officer on a rider or covering slip tendered for registration under the said Act.
  • In conveyancing agreements, a part payment or acknowledgement of a debt by a debtor are carried out by endorsements.

Supplemental deed:

  • Supplemental deed is executed to give effect to the new facts in the deed entered into between the parties on the same subject for adding new facts which cannot be done by way of endorsement.
  • Supplemental deed may be supplemental to several deeds. In such a case, each prior deed should be mentioned clearly by way of recitals to make the deed with reference to the existing deed intelligible and free from ambiguity.

The word, “Supplemental” shall be added as shown below:-

A deed of ……………. dated ……………. made between the parties thereto (or between ………………. ) hereinafter called the principal deed, shall be added.

Whereas this deed is supplemental to a deed of sale executed by the parties on …………. hereinafter called the ‘principal deed’

Question 27.
Distinguish between endorsement and engrossment.
Answer:
Following is the difference between endorsement and engrossment:

“Endorsement” “Engrossment”
“Endorsement” means to write on the back or on the face of a document. The document after approval is engrossed, Lecopied fair on the non-judicial stamp paper of appropriate value as may be chargeable as per Stamp Act.
The term “Endorsement” is used with reference to negotiable instruments like cheques, bill of exchange etc. For Companies, it is approved by Board of Directors (BODs) in their meeting or by a duly constituted committee of the board for this purpose by passing requisite resolution approving and authorizing of its execution.
For example on the back of the cheque to sign one’s name as payee to obtain cash is an endorsement on the cheque. The document after approval is engrossed e. copied fair on the non-judicial stamp paper of appropriate value as may be chargeable as per Stamp Act.
Endorsement is used to give significance to a particular document with reference to new facts to be added in it. In case document is drafted on plain paper but approved without any changes, it can be lodged with collector of stamps for adjudication of stamp duty, who will endorse certificate recording the payment of stamp duty on the face of document and it will become ready for execution.
Also, endorsement is used to express definite approval to a particular document.
The draft of document is required to be approved by the parties.
If a document is not properly stamped, neither it is rendered inadmissible in evidence nor it will be registered with Registrar of Assurances.

Drafting, Pleadings and Appearances Notes