doc=document
co.=company
info=information
NEED FOR DRAFTING AND CONVEYANCING
- obtaining legal consultations
- carrying out documentation departmentally
- doc interpretation
- party rights/obligations
- better communication
- workable solutions
- settlement
DRAFTING
- legal drafting= crystallization/expression of legal right,privilege,function,duty or status
- first thinking, second composing
- put facts in systematized sequence
- collect,consolidate and co-ordinate (3Cs)
CONVEYANCING
- art of deed drafting
- transfer of immovable property/property title transferred
- different definitions in english law except will
- transfer deed= conveyance deed
- more stress on docs rather than "drafting"
- CONVEYANCE NOT A CONTRACT
- contract remains to be performed and specific performance may be sought but conveyance passes on title
- no action right yet ownership altered
- mere contract not equal to actual transfer but a completed transaction becomes conveyance.
GENERAL PRINCIPLES
- ascertain names,description and addresses and all particulars about necessary matters
- note down provisions with particular stipulations/directions
- most important law requirements fulfilled
- adherence to customs/conventions
- negative statements generally avoided
- draft order should be strictly logical
- supported by schedules,enclosures or annexures
- DRAFTING RULES
- Fowler's rule
- advisable to sketch/outline docs; suggested by MR. DAVIDSON
- briefly note matters/points able to be incorporated= SKELETON DRAFT
- logical presentation
- simple language intelligible to layman
- ensure transferor's perfect title
- vetted by experts
- nothing omitted/admitted at random
- paragraph division and proper labelling
GUIDELINES FOR PARTICULAR WORDS/PHRASES
- for general words, refer dictionary
- for legal terms, Wharton's law lexicon and in India, Mitra's legal and commercial dictionary
- case laws quoted, if possible
- executor's intention
- maxwell's statute interpretation
- INSTRUMENT
- notaries act,1952
- indian stamp act,1899
- formal legal writing
- Mohan Chowdhary v. Chief Commissioner, AIR 1964 SC 173).
- includes awards made by Industrial Courts (Purshottam v. Potdar, AIR 1996 SC 856)
- does not include Acts of Parliament unless there is a statutory definition to that effect in any Act (V.P. Sugar Works v. C.I. of Stamps U.P. AIR 1968 SC 102).
- A will is an instrument (Bishun v. Suraj Mukhi , AIR 1966 All. 563).
- Section 1 of the Interest Act is wide enough to cover a decree (Savitribai v. Radhakishna, AIR 1948 Nag. 49).
- "AT", "NEAR", "ON", "IN THE VICINITY OF"
- "ADJOINING", "ADJACENT", "CONTIGUOUS"
- "LOT"
- "subject to"
- "excepting", "reserving"
- "more or less"
- "compass points"
AIDS TO CLARITY/ACCURACY
- informal agreements:reasonable expectations
- formal agreements:
- deed, primary evidence of contract,grant or another disposition's terms according to evidence act. law forbids any modification.
- in case of uncertainty, facts and circumstances of the language may be examined
- clear/unambiguous words prevail over hypothetical/supposed considerations
- dominant intention to guide construction
- if preliminary & final contract, the latter will prevail
- if a later clause destroys previous one's obligation:rejected
- interpretation in popular,natural and ordinary sense except in specific intended circumstances.
- hardship considered only when amounting to inconvenience/absurdity
- liberal construction and doc as a whole
- no clause regarded as superfluous
- customs considered prima facie
- antecedent facts/deleted words not considered relevant
- evidence of acts be a guide to intention
- context considered of similar docs
- if 1 clause unbinding, doesn't ipso facto render the whole deed unless it forms an integral part
- if operative part is clear, recitals can be disregarded
- standard form may be arrived by looking at deleted context
- additions to prevail
- immaterial alterations which don't vary legal effect but which merely express law implications won't make deed void.
DEED
- all instruments by which people effect right/liability
- power of attorney also a deed in old english along with a bond
- formal writing, non-testamentary to clear/declare/confirm/assign/limit/distinguish some right,title or interest
- given by Norten on ‘Deeds’ as follows: A deed is a writing
- (a) on paper, vallum or parchment,
- (b) sealed, and
- (c) 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.
- also stated in HALSBURY'S LAWS OF ENGLAND, deed is used to express intention/consent and delivered as that party's act
- present grant rather than mere promise performed in future
- DEEDS ARE INSTRUMENTS BUT ALL INSTRUMENTS AREN'T DEEDS
- DOC defined in Sec. 3(18) of general clauses act,1897
KINDS OF DEEDS
- good deed conveys good title
- inclusive deed contains within the designated boundaries
- latent deed kept for 20/more years
- pretended deed is apparently/prima facie valid
- voluntary deed given without "valuable consideration"
- warranty deed containing warranty covenant
- special warranty deed and limited warranty doesn't carry notice of title defects
OTHER DEED TERMS
- deed pool: 2/more parties and copies given to each party
- deed poll: executed by single party like power of attorney
- deed escrow: signed by 1 and delivered to another as "escrow"
- indenture:
- 2/more parties
- written in duplicate and 2 parts severed to leave an indented/vary edge
- engross all parts of same skin of parchment to form one whole contract
- cyrographum
- above word written between multiple copies and parchment cut a jagged line through this word
- obsolete but calling a deed executed by more than 1 party= indenture continues in england.
DEED COMPONENTS
- TITLE DESCRIPTION
- hints the nature of deed and signals contents
- written in capital letters in doc beginning
- PLACE/DATE of deed execution
- if no date given, oral evidence is admissible
- In India there is a short period of 4 months (Section 23 of Registration Act) for its registration from the date of execution within which a deed must be presented for registration.
- date is on which parties sign/execute deed
- in case of multiple, last will be considered
- written in words and in figures
- place determines territorial/legal jurisdiction
- PARTIES DESCRIPTION
- proper/full: transfer than transferee
- name followed by surname, address followed by other descriptions
- in case of juridical persons: RO and particular act
- reference label in parenthesis
- heirs,executors,assigned liquidators,successors mentioned to safeguard interest.
- RECITALS
- short story upto vesting to transferors
- short/intelligible
- narratives: past history
- states facts/instruments
- chronological order
- introductory: explain motive/intention
- inserted with caution because they precede the operating part
- not usually considered as evidence but open for interpretation by courts
- Ram Charan v. Girija Nandini, 3 SCR 841 (1965)
- TESTATUM
- "witnessing clause" referring to introductory recital and states consideration,if any, and recites acknowledgement of receipt
- CONSIDERATION
- ascertaining stamp duty
- non-mention doesn't invalidate doc
- RECEIPT ACKNOWLEDGEMENT
- OPERATIVE CLAUSE
- PROPERTY DESCRIPTION
- easier to locate
- no encumbrances
- if short, included in doc body or else appended as schedule
- area,measurements,location,permitted use,survey no. etc.
- PARCELS CLAUSE
- methodical description
- necessary in case of non-testamentary doc containing map/plan
- now rendered unnecessary
- such incidents include easements annexed, the rents and profits
- EXCEPTIONS/RESERVATIONS CLAUSE
- admission of certain rights
- follow parcels and operative words
- not be uncertain,repugnant or contrary to law
- "subject to" denotes specific understanding and consenting to this aspect.
- PREMISES AND HABENDUM
- habendum states interest and defines how long interest granted will extend
- starts with "the have and to hold"
- omitted in modern deeds in India
- premises precede habendums which includes parcels/description
- encumbered properties referenced in habendum
- REDDENDUM
- mode/time fixed for rent payment
- reserving clause
- starts with "rendering or paying"
- COVENANTS AND UNDERTAKING
- agreement/consideration/promise under seal
- includes undertakings but stated afterwards
- TESTIMONIUM CLAUSE
- last part that marks close
- signifies parties have signed
- worded according to executant's status/delegation
- SIGNATURE & ATTESTATION CLAUSE
- by competent persons
- not required to be signed by transferee in India
- all conditions/covenants binding without executing conveyance
- in case of special covenant/reservation then transferor may need to sign
- at least 2 witnesses who have seen the executant signing personally acknowledge
- not necessary for both to be present at same time
- deed signed at right end and attesting witnesses on left
- ENDORSEMENTS AND SUPPLEMENTAL DEEDS
- write on back/face of doc, wherein necessary
- endorsements may be said to be negotiable docs
- with reference to new facts
- supplemental entered into when a prior one exists and operative for adding new facts
- by short writing or separate deed
- depends on convenience
- exhibiting parties' intention
- follow customs,conventions and trade practices/banking norms
- each prior deed mentioned clearly by recitals
- stamped according to transactions
- ANNEXURES/SCHEDULES
- incomplete unless registration law given in appended schedule
- supplements parcel info
DEED ENGROSSMENT/STAMPING
- draft approved by parties.
- Board/committee for co.
- after approval is engrossed;copied fair on non-judicial stamp paper. in case drafted in plain paper with no changes, 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.
- If a document is not properly stamped, it is rendered inadmissible in evidence nor it will be registered with registrar of assurances.
No comments:
Post a Comment