Drajting, Pleading and Conveyancing

deed', 'document', 'indenture' and 'instrument are interchangeable for the

purpose of drafting of documents.!
1.13. OBJECT AND FUNCTION OF CONVEYANCING
Conveyarncing 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. The objects are functions of the conveyance
are as follows
" Its main object is to enable the owners of real property to
make
voluntary transfers of their right, title and interest therein for some
specific purpose and for a specified period. Such transfers are not
otherwise possible than by conveyancing
" It expresses the intention of the parties to the deed of
that accordingly it shall take effect. conveyance so
Where any adverse claimant interposes before the transferee, may get
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 judicial tribunals to determine any dispute if
subsequently arises 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.
" It protects the interest of the transferor is also
subsequent acts or omissions of the transferee.
protected from any
" 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.
1.14. ESSENTIAL PARTS OF A DEED
The essential part of any deed of conveyancing are as folows
" The Heading/Title/Description - It contains the
deed. For e.g. - The Deed of Sale
description of the
" Execution date - The date of the execution of the deed
inserted
immediately after the heading.
1. See generally, Kothari, G.M. & Kothari, Arvind G., (1982).
Drafting, Conveyancing
and Pleadirngs. N.M. Tripathi (P.) Ltd., Bombay.
2. See generally, Kothari, G.M. & Kothari, Arvind G., (1982). Drafting,
Conveyancing
and Pleadings. N.M. Tripathi (P) Ltd., Bombay.
3. See generally, Kothari, G.M. & Kothari, Arvind G., (1982). Drafing, Conveyancing ad
Pleadings. N.M. Tripathi (P.) Ltd.,Bombay.
 General Principles of Drafting 15

" The Parties - Name and description of the parties are mentioned in
the deed. There are two parties in a deed of conveyancing - transferor
and transferee.
Recitals -It is composed of brief history of the party. Previous transfers,
if any, can be found from recital portion.
" Testatum This is the witnessing clause begins with "Now this
indenture witnesseth". Consideration and receipt can be mentioned
in this portion of the deed.
Consideration - As contracts are necessarily for consideration (Sec. 10
of the Contract Act), it is advisable to express the consideration. This
is necessary in many cases of transfer for ascertaining the stamp duty
payable on the deed as Sec. 27 of the Indian Stamp Act requires that
the consideration should be fully and truly set forth in the deed.
" Receipt -Acknowledgment of receipt of consideration may be embodied
in the deed itself instead of passing a separate receipt.
Operative Provisions - The rights and obligations of the parties to the
deed are required to be mentioned after the recitals. This area of the
deed is known as operative position.
" Parcels This is a technical expression meaning description of the
property transferred and it follows the operative words. Care must be
taken, on the one hand, to include in the particular description or in
general words, all the lands, etc., which are intended to pass so that
no doubt may arise as to the extent and operation of the deed; and
on the other hand not insert words which will pass more than what
is intended.
" Map -Sometimes it is necessary to have a map or a plan of the property
in order to avoid mistake about its identity and to indicate the actual
property conveyed with greater definiteness and precision. A map
referred to in a transfer deed is treated as incorporated in the deed,
and if it is drawn to scale and demarcates the boundaries clearly it is
not permissible to attempt to correct them with reference to revenue
records.
Exceptions and Reservations - All exceptions and reservations out of
the property transferred should follow the parcels. An exception is
something in existence at the date of transfer which, if not expressly
excepted, would pass with the property as described in the parcels,
Such as trees. A reservations is something not in existence at the date
of the transfer but is newly created by the grant.
" Habendum -This is familiar 'to have and to hold' (in Latin, habendum
et tenendum) clause of the English precedents. In India such phrases as
to have and hold' or such expressions as to the use of the purchaser'
are not strictly necessary.
16 Drafting, Pleading and Conveyancing

" Covenants and Undertakings - If the parties to a transfer enter into

covenants, such covenants should be entered after the Habendum
While drafting covenants, regard should be had to the statutorily
implied covenants which operate subject to any corntract to the contrary.
Where several covenants follow each other, they may run on as one
sentence, each being introduced with the words 'and also» or by the
words 'First,'Secondly',etc. or they may be set out in paragraph form
with the heading.
Testimonium -The concluding part of the deed. It states that the parties
have signed the deed. The last part of a deed is the testimonium which
sets forth the fact of the parties having signed the deed. This is not an
essential part of the deed, but as it marks the close of the deed there
is no harm in continuing the established practice.
Signatures and Attestation - After testimonium should follow the
signatures of the executants and those of attesting witnesses. If
executant is not competent to contract or is a juristic person, the deed
must be signed by the person competent to contract on his or its behalf.
1.15. DIFFERENCE BETWEEN PLEADING AND
CONVEYANCING!
Pleading is (legal) a document filed in a lawsuit, particularly a
document initiating litigation or responding to the initiation of litigation
while conveyancing is (legal) the drawing of deeds etc concerning transfer
of property, and the legal execution of such transfers. Moreover,
is the act of making a plea while conveyancing is (legal) the pleadingof
deeds etc concerning transfer of property, and the legal drawing
transfers. Thus, execution of such
the pleading and conveyancing may be distinguished by
simply stating that while the pleadings are applicable to Cout proceedings
and conveyancing is applicable to the documentation done outside the Court
and not meant for the Court proceedings particularly,
though they may be
tised in the Court proceeding, in order to substantiate a particular
claim or submission. contention,
1.16. SUMMARY
Drafting refers to the writing of legal
either be an affidavit, a written statement, adocuments. This document can
petition, or a
Pleading refers to a legal document filed in a lawsuit.plaint.
This can be a
document pertaining to the initiation of litigation or a document in response
to this initiation.
Conveyancing refers to the transferring of a real property to its new
owner by means of deeds. It also involves the execution of such transfers
legally.
1. See generally, Kothari, G.M. & Kothari, Arvind G., (1982).
and Pleadings. N.M. Tripathi (P.) Ltd., Bombay. Drafting, Conveyancing