General Principles of Drafting and Relevant Substantive Rules – CS Professional Study Material

Chapter 2 General Principles of Drafting and Relevant Substantive Rules – CS Professional Drafting, Pleadings and Appearances Notes is designed strictly as per the latest syllabus and exam pattern.

General Principles of Drafting and Relevant Substantive Rules – Drafting, Pleadings and Appearances Study Material

Question 1.
Write a note on ‘covenants and undertakings’. (June 2013, 4 marks)
Answer:
Covenants and Undertakings : The term “covenant” is defined as an agreement under seal, which stipulates for the truth of certain facts. In Whasten’s Law Lexicon, a covenant has been explained as 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 includes undertakings also. Usually, covenant is stated first.

In some instances the covenants and “undertaking” are mixed, i.e. can not be separated in that case, they are joint together, words put for this as “The Parties aforesaid hereto hereby mutually agree with each other as follows.” Such covenants may be expressed or implied.

Question 2.
Write a note on the folloyving:
Habendum and reddendum (Dec 2013, 4 marks)
Answer:
Habendum

1. Habendum is a part of deed which states the interest, the purchaser is to take in the property. The habendum clause starts with the words. “TO HAVE AND TO HOLD”
2. Formerly in England, if there was a gratuitous transfer, the transferee was not deemed to be the owner of the beneficial estate in the property.
3. The habendum limits the estate mentioned in the parcels.
4. In India, such Phrases as “to have and to hold” or such an expression as “to the use of the purchaser” can very well be avoided as in cases except those of voluntary transfers, such an expression is superfluous.

Reddendum
This is peculiar to a deed of lease. Here is mentioned this mode and time fixed for payment. It begins with the word “rendering or paying” with reference to the reserved rent is payable during the terms of the lease. Place where payable and instalment where mentioned. If there is apportionment of rent that is also mentioned.

Question 3.
Write notes on the following:
Covenants and undertakings. (Dec 2014, 4 marks)

Question 4.
Write notes on the following:
Habendum (June 2018, 4 marks)
Answer:
Habendum:
Habendum is a part of deed which states the interest yet to be taken by the purchaser. Habendum clause starts with the words “TO HAVE AND TO HOLD”.

Formerly in England in case of a gratuitous transfer, the equitable interest wherein remained with the transferor and the transferee was not deemed to be the owner of the beneficial interest.

It was therefore, necessary to indicate in the deed that it was being transferred for the use of the transferee if it was intended to confer an equitable estate in him.

It was for that reason that the habendum commenced with the words: “to have to hold to the use of ……………….”. Now it is not necessary to express it so. In the modern deeds, however, the expression “to have and” are omitted.

The habendum limits the estate mentioned in the parcels. The transferee is mentioned again in the habendum for whose use the estate is conveyed.

If the property conveyed is encumbered, reference thereto should be made in the habendum. If the parties to transfer enter into covenants, they should be entered after the habendum.

Question 5.
Write notes on the following : (Dec 2018, 4 marks each)
(a) Recitals
(d) Expert’s opinion.
Answer:

• Recitals contain the short story of the property up to its vesting into its transferors.
• Recitals may be of two kind. One narrative recitals which relate to the past history of the property transferred and sets out the facts and instrument necessary to show the title and relation to the party to the subject matter of the deed as to how the property was originally acquired and held and in what manner it has developed upon the grantor.
• The extent of interest and the title of the person should be recited. It should be written in chronological order, i.e. in order of occurrence.
• This forms part of narrative recitals. This is followed by inductory recitals, which explain the motive or intention behind execution of deed.
• Recitals carry evidentiary significance in the deed. It is an evidence against the parties to the instrument and those claiming under and it may operate as estoppel [Ram Charan v. Girija Nandini, 3 S.C.R. 841(1965)].
• Recital normally begins with the words “Whereas” and when there are several recitals instead of repeating the words “Whereas” before each and every one of them, it is better to divide the recitals into numbered paragraphs. For example, “Whereas

(d) 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. 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 got vetted by the experts to ensure its suitability and legal fitness if the corporate executive feels it so necessary.

Expert opinion comes from the professional who has acquired knowledge and skills through study and practice 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.

Question 6.
Write note on the following:
Components of Deed (Dec 2018, 4 marks)
Answer:
The elements of deeds are as follows:

• Description of the Deed Title.
• Place and Date of execution of a Deed.
• Description of Parties to the Deed.
• Recitals.
• Testatum.
• Consideration.
• Receipt Clause.
• Operative Clause.
• Description of Property.
• Parcels Clause.
• Exceptions and Reservations.
• Premises and Habendum.
• Covenants and Undertaking.
• Testimonium Clause.
• Signature and Attestation.
• Endorsements and Supplemental Deeds.
• Annexures or Schedules.

Question 7.
Write notes on the following : (Aug 2021)
(c) Latent Deed and Special Warranty Deed. (4 marks)
(d) Engrossment and Stamping of a Deed. (4 marks)
Answer:
(c) Latent Deed and Special Warranty Deed
A latent deed is a deed kept for twenty years or more in man’s strong box.

Special warranty deed which is in terms a general warranty deed, but warrants title only against those claiming by, through, or under the grantor, conveys the described land itself, and the limited warranty does not, of itself, carry notice of title defects.

(d) Engrossment and Stamping of a Deed
The draft of document is required to be approved by the parties. In case of companies it is approved by Board of Directors in their meeting or by a duly constituted committee of the board for this purpose by passing requisite resolution approving and authorising of its execution. The document after approval is engrossed, i.e., copied fair on the non-judicial stamp-paper of appropriate value as may be chargeable as per Indian Stamp Act.

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. If a document is not properly stamped, it is rendered inadmissible in evidence nor it will be registered with Registrar of Assurances.

Question 8.
Distinguish between the following:
‘Legal document’ and ‘instrument’. (Dec 2013, 3 marks)
Answer:
Legal Document: .

1. “Document” as defined in Section 3(18) of General Clause Act, 1894, means any matter expressed or described upon any substance by means of letters, figures or marks.
2. which may be used for the purpose of recording that matter.
3. Example:
   • A writing is a document.
   • Words printed, lithographed or photographed are document.

Instrument:
The word “instrument” includes every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded.

Question 9.
Distinguish between the following :
‘Indenture’ and ‘deed escrow’. (June 2014, 4 marks)
Answer:
Indenture:
Indenture 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.

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.

Deed Escrow:
A deed signed by one party will be delivered to another as an “escrow” for it is not a perfect deed. It is only a 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 signed.

Escrow means a simple writing not to become the deed of the expressed to be bound thereby, until some condition should have been performed.

Question 10.
Distinguish between the following:
‘Habendum’ and ‘reddendurri. (June 2015, 4 marks)

Question 11.
Distinguish between the following:
‘Supplementary deeds’ and ‘endorsements’. (Dec 2015, 4 marks)
Answer:
Endorsement
Endorsement means to write on the back or on the face of a document wherein it is necessary in relation to the contents of that document or instruments. The term endorsement is used with reference to negotiable documents like:
(a) Cheque
(b) Bill of exchange
(c) Hundiesetc.
(d) Promissory notes.
For e.g. On the back of the cheque to sign one name as payee to obtain cash is an endorsement on the cheque.

Supplementary is a document which is entered into between the parties on the same subject on which there is a prior/ex-documents existing an operative for adding new fact to the document on which the parties to the document have agreed which otherwise cannot be done by way of endorsement. Thus, supplemental deed is executed to give effect to the new fact in the deed.

Question 12.
Distinguish between the following:
‘Endorsement’ and ‘engrossment’. (June 2016, 4 marks)
Answer:

Endorsement

Engrossment

Endorsement means to write on the back or on the face of a document. The term endorsement is used with reference to negotiable 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. Endorsement is used to give significance to a particular document with reference to new facts to be added in it. Endorsement is also used to express definite approval to a particular document.

The draft of document is required to be approved by the parties. In case of companies it is approved by Board of Directors in their meeting or by a duly constituted committee of the board for this purpose by passing requisite resolution approving and authorising of its execution. The document after approval is engrossed i.e. copied fair on the non­judicial stamp-paper of appropriate value as may be chargeable as per Stamp Act.

Question 13.
Distinguish between the following:
‘Operative clause’ and ‘testimonium clause’. (Dec 2016, 4 marks)
Answer:
‘Operative clause’ and ‘testimonium clause’
Operative clause is followed by the real operative words which vary according to the nature of the property and transaction involved therein. 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” (usual mortgage) etc. The exact interest transferred is indicative after parcels by expressing the intent or by adding habendum. (The parcel is technical description of property transferred and it follows the operative words).

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 whereof, parties hereto have hereunto set their respective hands and seals the date and year first above written”. This is the usual English form of testimonium clause. In India, except in the case of companies and corporations seals are not used and in those cases testimonium clause reads as under:

“In witness whereof the parties hereto have signed this day on the date above written”.

Thus testimonium clause can be worded according to the status and delegation of executants.

Question 14.
Distinguish between the following:
Conveyance and Contract (Dec 2017, 4 marks)
Answer:

Contract	Conveyance
(a) Under the contract which enables party to the contract to take action in case of nonperformance or breach of contract to take action against the party who breaches the contract .hence one party who suffers can demand compensa­tion or special performance. So right of action is created in contract .where scanner says right of action is not created .	(a) It alters the ownership of existing right.
(b) Provisions of Indian Contract Act, 1872 governs any contract.	(b) Whereas it is governed by the Transfer of Property Act, 1882.
(c) Contract remains to be performed and its specific performance may be sought.	(c) Conveyance passes on the title of property to another person.
(d) A contract to mortgage or sale would not amount to actual transfer of interest in the property.	(d) The deed of mortgage or sale would operate as conveyance of such interest.

Question 15.
Distinguish between the following :
Drafting and Documentation (Dec 2018, 4 marks)
Answer:

• Drafting may be defined as the synthesis of law and fact in a language form. It is the development and preparation of legal instruments such as constitutions, statutes, regulations, ordinances, contracts, wills, conveyances, indentures, trusts and leases, etc.
• The process of drafting operates in two planes: the conceptual and the verbal. Besides seeking the right words, the draftsman seeks the right concepts. Drafting, therefore, is first thinking and second composing.
• Drafting may cover all types of documents in business usages.
• Drafting, in legal sense, means an act of preparing the legal documents like agreements, contracts, deed etc.
• Commercial houses, banks and financial institutions have been using the term “documentation” in substitution of the words “drafting and conveyancing”
• Documentation refers to the activity which symbolizes preparation of documents including finalisation and execution thereof.
• Documentation is a set documents provided on paper, or online, or on digital or analog media, such as audio tape or CDs. Examples are user guides white papers, on-line help, quick-reference guides, 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 16.
Distinguish between Conveyance and Contract. (Dec 2021, 4 marks)

Question 17.
Distinguish between the following:
Testatum and testimonium clause. (June 2022, 4 marks)

Question 18.
Explain the following:
Parcels clause as a component of a deed. (June 2013, 4 marks)
Answer:
Parcels Clause
This is a technical expression meaning methodical description of the property. 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. Usually 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. This clause includes words such as : Messuages, Tenements, Hereditaments, Land, Water etc. But use of these words has been rendered unnecessary in view of Section 8 of Transfer of Property Act, 1882. This Section has cut down the length of the deeds and done away with description of minute details of the incidents of the property intended to be conveyed.

Question 19.
“Drafting may be defined as the synthesis of law and fact in a language form.” Explain. (Dec 2013, 8 marks)
Answer:
Drafting may be defined as the synthesis of law and fact in a language form [Stanley Robinson: Drafting its application to conveyancing and commercial document 1980]

1. All three characteristics rank equally in importance.
2. Legal drafting is the crystallization and expression in definitive form of a legal right, privilege function, duty or status.
3. Legal instrument such as constitution, status, regulations, ordinances, contract, wills, conveyances, indentures, trusts and leases.

NOTE: The process of drafting operates in two planes the conceptual and verbal besides seeking the right words Drafting therefore is first thinking and second composing.

Question 20.
Explain the following :
(a) Reasons for drafting recitals in a deed with due caution.
(c) Drafting and conveyancing have the same meaning though these are not interchangeable. (June 2014, 4 marks each)
Answer:
(a) 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. If the same is ambiguous recitals operate as estoppel. Recital offers good evidence of facts recited therein. Recitals are not generally taken into evidence but are open for interpretation for the courts. If the operative part of the deed is ambiguous anything contained in the recital will help in its interpretation or meaning. In the same sense, it is necessary that where recitals contain chronological events that must be narrated in chronological order.

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 estoppel [Ram Charan v. Girija Nandini, 3 SCR 841 (1965)].

(c) Distinction between drafting and conveyanclng:
Both the terms “drafting and conveyancing’ provide the same meaning although these terms are not interchangeable. Conveyancing gives more stress on documentation much concerned with the transfer of property from one person to another, whereas “drafting” gives a general meaning synonymous to preparation or drafting of documents, Documents may include document relating to transfer of property as well as other “documents” in a sense as per definition given in Section 3 (18) of the General Clauses Act, 1897 which include any matter written, expressed or described upon any substance by means of letters figures or mark, which is intended to be used for the purpose of recording that matter.

For example, for a banker the document would mean loan agreement, deed of mortgage, charge pledge, guarantee, etc. For a businessman document would mean something as demanded under Section 2(4)0f the Indian Sale of Goods Act, 1930 so as to include a document of title to goods i.e. “Bill of lading, dock warrant, warehouse-keepers certificate, wharfingers certificate, railway receipt multi model transport document warrant or order for the delivery of goods and any other document used in ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented”.

The Companies Act, 2013 defines vide Section 2(3b) the term “document” in still wider concept so as to include “summons, requisitions order, other legal process and registers, whether issued, sent or kept in pursuance of this or any other Act, or otherwise”. Thus, drafting may cover all types of documents in business usages.

In India, the commercial houses banks and financial institutions have been using the term “documentation”. In substitution of the words “drafting and conveyancing”. Documentation refers to the activity which symbolises preparation of documents including finalisation and execution thereof.

Question 21.
In the light of judicial pronouncements, discuss the following:
Testamentary disposition is personal; it cannot be delegated to any other person. (June 2014, 4 marks)
Answer:

• Testamentary disposition is the disposition or transfer of property that takes effect upon the death of the person making it. The testator retains almost entire control of the property until death.
• In short, it is the gift of property which takes effect at the time of the death of the person making the disposition. The transfer can be made by deed, by an inter vivos transaction, or by will.
• All instruments used to make testamentary dispositions must comply with the requirements of the statute of wills.
• Testamentary disposition also used to refer to the process of dead persons’ will being complied with by announcing the division of the assets of the dead person amongst the people whose name has been mentioned in the will.
• Section 59 of the Indian Succession Act, provides for the persons capable of making wills. Accordingly, every person of sound mind not being a minor may dispose of his property by will.
• The testamentary capacity is recognized only in a sound disposing state of mind. Soundness of mind denotes the mental capacity of the testator as to what he is doing, his capability of understanding his extent of his property, the person who is the object of his bounty and the persons who are thereby excluded.
• Testamentary disposition is personal, it cannot be delegated to any other person. A testator cannot confide to another the right to make a will for him. (Tienouth v. Mulroney 227 P.2d 590 (1951).

Question 22.
Explain the following:
Drafting of legal documents is a skilled job requiring observance of many do’s and don’ts. (Dec 2014, 4 marks)
Answer:
The essence of the process of drafting is synthesis of law and fact in a languages. A proper understanding of drafting cannot be realised unless the nexus between the law, the facts and the language is fully understood and accepted. This requires serious thinking followed by prompt action to reduce the available information into writing with a legal meaning.

Some Do’s :

1. Reduce the group of words to single word;
2. Use simple verb for a group of words;
3. Avoid round-about construction;
4. Avoid unnecessary repetition;
5. Write shorter sentences;
6. Express the ideas in fewer words;
7. Prefer the active to the passive voice sentences;
8. Choose the right word;
9. know exactly the meaning of words and sentences you are writing; and
10. Put yourself in the place of reader, read the document and satisfy yourself about the content, interpretation and the sense it carries.

Some Don’ts: The following things should be avoided while drafting the documents:
(a) Avoid the use of words of same sound. For example, the words “Employer” and “Employee”.
(b) When the clause in the document is numbered it is convenient to refer to any one clause by using single number for it. For example, “in clause 2 above” and so on.
(c) Negative in successive phrases would be very carefully employed.
(d) Draftsman should avoid the use of words “less than” or “more than”, instead they must use “not exceeding”.
(e) 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 express the meaning of the two in other clauses.

In writing and typing the following mistakes always occur which should be avoided:

1. “And” and “or”;
2. “Any” and “my”;
3. “Know” and ‘now’;
4. “Appointed’ and “Applied”;
5. “Present” and “Past” tense.

Question 23.
“Drafting of documents is very important part of legal documentation. Documents are subject to interpretation when no clear meaning could be inferred by a simple reading of documents.”
Explain this statement with reference to the rules relating to interpretation of formal legal documents. (June 2015, 10 marks)
Answer:
Where the agreement is formal and written, the following rules of the interpretation may be applied:
(1) A deed constitutes the primary evidence of the terms of a contract, or of a grant, or of any other disposition of property (Section 91 of the Evidence Act). The law forbids any contradiction of, or any addition, subtraction or variation in a written document by any extrinsic evidence, though such evidence will be admissible to explain any ambiguity (Section 92 of the Evidence Act).

(2) In cases of uncertainty, the rules embodied in provisos 2 and 6 of Section 92 of the Evidence Act can be invoked for construing a deed.

(3) The cardinal rule is that clear and unambiguous words prevail over any hypothetical considerations or supposed intention. But if the words used are not clear and unambiguous the intention will have to be ascertained.

(4) In case the terms are not unambiguous it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties. The social milieu, the actual life situations and the prevailing conditions of the country are also relevant circumstances.

(5) Sometimes a contract is completed in two parts. At first an executory contract is executed and later on an executed contract. In case of any difference between the preliminary contract and final contract, the terms of the latter must prevail.

(6) If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the latter clause is to be rejected as repugnant and the earlier clause prevails.

(7) The Court must interpret the words in their popular, natural and ordinary sense, subject to certain exceptions as,

1. where the contract affords an interpretation different from the ordinary meaning of the words; or
2. where the conventional meanings are not the same with their legal sense.

(8) Hardship to either party is not an element to be considered unless it amounts to a degree of inconvenience or absurdity so great as to afford judicial proof that such could not be the meaning of the parties.

(9) All mercantile documents should receive a liberal construction.

(10) No clause should be regarded as superfluous, since merchants are not in the habit of inserting stipulations to which they do not attach some value and importance. The construction adopted, should, as far as possible, give a meaning to every word and every part of the document.

(11) Construction given to mercantile documents years ago and accepted in the mercantile world should not be departed from, because documents may have been drafted in the faith thereof.

(12) If certain words employed in business, or in a particular locality, have been used in particular sense, they must prima facie be construed in technical sense.

(13) The ordinary grammatical interpretation is not to be followed, if it is repugnant to the general context.

(14) Antecedent facts or correspondence, or words deleted before the conclusion of the contract cannot be considered relevant to ascertain the meaning.

(15) Evidence of acts done under a deed can, in case of doubt as to its true meaning, be a guide to the intention of the parties, particularly when acts are done shortly after the date of the instrument.

(16) Unless the language of two documents is identical, and interpretation placed by courts on one document is no authority for the proposition that a document differently drafted, though using partially similar language, should be similarly interpreted.

(17) If the main clause is clear and the contingency mentioned in the proviso does not arise, the proviso is not attracted at all and its language should not be referred to for construing the main clause in a manner contradictory to its import.

(18) The fact that a clause in the deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void unless it forms such an integral part of the transaction as to render it impossible to severe the good from the bad.

Question 24.
Explain the following:
All instruments are legal documents but all legal documents are not instruments. (June 2015, 4 marks)
Answer:
According to Black’s Law Dictionary an instrument is a written document, a formal or legal document in writing, such as a contract, agreements, deed, will, bond, or lease.

Under Section 2(b) of the Notaries Act, 1952, and Section 2(14) of the Indian Stamp Act, 1899, the word “instrument” includes every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded. In the context of the General Clauses Act, it has to be understood as including reference to a formal legal writing like an order made under constitutional or statutory authority.

Whereas legal documents includes contract, agreements, deed etc. which need not contain matters presumed or implied by law. It is better in such an agreement to specify even such matters and all other matters so as to make it a complete code, embodying the rights and duties of each party. Thus, all instruments are legal documents but all legal documents are not instruments.

Question 25.
Examine the following statement:
Drafting is the synthesis of law and fact in a language form. (Dec 2015, 4 marks)
Answer:
Drafting may be defined as the synthesis of law and fact in a language form: [Stanley Robinson: Drafting its application to conveyancing and commercial document, 1980]

1. All three characteristics rank equally in importance.
2. Legal drafting is the crystallization and expression in definitive form of a legal right, privilege function, duty or status.
3. Legal instruments such as constitution, status, regulations, ordinances, contract, wills, conveyances, indentures, trusts and leases.

NOTE: The process of drafting operates in two planes the conceptual and verbal besides seeking the right words Drafting therefore is first thinking and second composing.

Question 26.
Comment on the following :
Conveyance is an act of transfer of any property. (June 2016, 5 marks)
Answer:
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.

“Conveyance”, as defined in Clause 10 of Section 2 of the Indian Stamp Act, 1899, “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.

Section 5 of transfer of property act defines ‘transfer of property” as 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.

Thus, Conveyance is an act of by which movable or immovable property is transferred by way of sale, lease, gift or exchange.

Question 27.
“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 estoppel.” Write a detailed note on this statement with reference to the decisions of the courts. (June 2016, 8 marks)
Answer:
Recitals contain the brief history of the property up to its vesting into its transferors. Care should be taken that recitals are precise and intelligible.

Recitals precede the operative part and as a matter of fact contain the explanation to the operative part of the deed. Any inaccuracy in the recitals may act as estoppels under section 115 of the Evidence Act. Recital offers good evidence of facts recited therein. Recitals are not generally taken into evidence but are open for interpretation for the Courts.

If the operative part of the deed is ambiguous anything contained in the recital will help in its interpretation or meaning. In the same sense, it is necessary that where recitals contain chronological events that must be narrated in chronological order. Supreme Court in Provash Chandra Dalui v. Biswanath Banerjee [1989 Supp (1) SCC 487] laid down the following proposition:

“Ex praecedentibus et consequentibus optima fit interpretation.” 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.

Thus, recital 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 [Ram Charan v. Girija Nandini, 3 SCR 841 (1965)].

Question 28.
Comment on the following statements:
(a) Things that should be avoided while drafting a document.
(b) Drafting and Conveyancing have same meaning and are interchangeable words. (Dec 2017, 5 marks each)
Answer:
(a) The following things should be avoided while drafting the documents :
(a) Avoid the use of words of same sound. For example, the words “Employer” and “Employee”.
(b) When the clause in the document is numbered it is convenient to refer to any one clause by using single number for it. For example, “in clause 2 above” and so on.
(c) Negative in successive phrases would be very carefully employed.
(d) Draftsman should avoid the use of words “less than” or “more than”, instead they must use “not exceeding”.
(e) 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 express the meaning of the two in other clauses.

In writing and typing the following mistakes always occur which should be avoided:

1. “And” and “or”;
2. “Any” and “my”;
3. “Know” and “now”;
4. “Appointed” and “Applied”;
5. “Present” and “Past” tense.

(b)
Distinction between drafting and conveyancing
Both the terms “drafting and conveyancing” provide the same meaning although these terms are not interchangeable. Conveyancing gives more stress on documentation much concerned with the transfer of property from one person to another, whereas “drafting” gives a general meaning synonymous to preparation or drafting of documents, Documents may include document relating to transfer of property as well as other “documents” in a sense as per definition given in Section 3 (18) of the General Clauses Act, 1897 which include any matter written, expressed or described upon any substance by means of letters figures or mark, which is intended to be used for the purpose of recording that matter.

For example, for a banker the document would mean loan agreement, deed of mortgage, charge pledge, guarantee, etc. For a businessman document would mean something as definded under Section 2(4) of the Indian Sale 3f Goods Act, 1930 soas to include a document of title to goods i.e. “Bill of lading, dock warrant, warehouse-keepers certificate, wharf ingers certificate, railway receipt multi model transport document warrant or order for the delivery of goods and any other document used in ordinary course of business as proof of the possession or control of goods or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented”.

As per Section 2(36) of the Companies Act, 2013 the term “document includes summons, notice, requisition, order, declaration, form and register, whether issued, sent or kept in pursuance of this Act or under any other law for the time being in force or otherwise, maintained on paper or in electronic form. Thus, drafting may cover all types of documents in business usages.

In India, the commercial houses banks and financial institutions have been using the term “documentation”. In substitution of the words “drafting and conveyancing”. Documentation refers to the activity which symbolises preparation of documents including finalisation and execution thereof.

Question 29.
Amino attestendi (June 2018, 5 marks)
Answer:
Amino Attestendi:
It is one of the usual parts or components of deed in general. After attestation clause, signatures of the executants of the documents and their witnesses attesting their signatures follow. It is essential that the attesting witness should have put his signature, amino attestendi, intending for the purpose of attesting that he has seen the executant sign or has received from him, a personal acknowledgement of his signature.

Question 30.
Explain the following :
Legality of a written deed for performing a promise in near future. (June 2018, 4 marks)
Answer:
A contract is an agreement enforceable by law. [Section 2(h) of the Indian Contract Act, 1872]. For every contract, there should be an agreement that is made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object.

The agreement should not be declared void hereby to form a contract. This definition of contracts as per Indian Contract Act, 1872 is based on Sir Pollock’s definition which states that every agreement and promise enforceable at law is a contract. Thus for the formation of a contract, there must be an agreement and something in addition to that, i.e., an agreement, and its enforceability at law.

Hence, parties may contract to perform a promise in future and the deed containing such a promise will be legal in the eyes of law .

Question 31.
Why the knowledge about the rules df drafting of pleadings and conveyancing important in corporate affairs? Illustrate. (Dec 2019, 5 marks)
Answer:
Importance of drafting and conveyancing for a company executive could be well understood as the company has to enter into various types of agreements with different parties and have to execute various types of documents in favour of its clients, banks, financial institutions, employees and other constituents. The importance of the knowledge about drafting and conveyancing for the corporate executives has been felt particularly for the three reasons viz.,

1. for obtaining legal consultations;
2. for carrying out documentation departmentally;
3. for interpretation of the documents.

With the knowledge of drafting and conveyancing, there could be better interaction by the corporate executives while seeking legal advice from the legal experts with reference to the matters to be incorporated in the documents, to decide upon the coverage and laying down rights and obligations of the parties therein. Robust knowledge of rules on drafting assist in better communication, extraction of more information, arriving on workable solutions, and facilitates settlement of the draft documents, engrossment and execution thereof.

Knowledge of drafting and conveyancing for the corporate executives is also essential for doing departmental wise documentation. An executive can make a better document with all facts known and judging the relevance and importance of all aspects to be covered therein.

A number of documents are required to be studied and interpreted by the corporate executives. 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 and phrases used therein, and incorporate the will and intention of the parties to the documents.

Question 32.
The date of the execution of a deed is material for the purpose of limitation and registration of the document. If the date is accidently missing in the deed, how do you, as a company secretary, will deal with such a situation? Refer the relevant law on the point. (Dec 2019, 6 marks)
Answer:
The date on which the document is executed comes immediately after the description of the deed. For example, “This Deed of Mortgage made on the first day of January, 2019”. It is the date of execution which is material in a document for the purpose of application of law of limitation, maturity of period, registration of the document and passing on the title to the property as described in the document.

Thus, the “date” of the document is important. Date of execution of document is inscribed on the deed. The date is not strictly speaking an essential part of the deed. A deed is perfectly valid if it is undated or the date given is an impossible one, e.g. 30th day of February. 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. 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. The date is important for application of law of limitation also. In view of the extreme importance of date of execution of deed it should be regarded as an essential requirement. The date of deed is the date on which parties sign or executing 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.

In order to avoid mistake and risk of forgery, the date should be written in both words and figures.

Question 33.
Enumerate the usual parts or components or clauses of a deed. (Dec 2020, 5 marks)
Answer:
A deed is a writing-
(a) 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.

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.

Deeds are instruments, but all instruments are not deeds.

A deed is divided into different paragraphs. Under each part relevant and related information is put in paragraph in simple and intelligible language. The usual parts or components or clauses of deeds in general are mentioned as follows:

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

Question 34.
Discuss the guidelines for use of particular words and phrases in the conveyancing. (Aug 2021, 5 marks)
Answer:
There cannot be any clear cut rule which can be laid down as guideline for using the particular words and phrases in the conveyancing. However, the draftsman must be cautious about the appropriate use of the words and should be clear of its meaning. The following rules may be prescribed for the guidance of the draftsman for using, any particular word and phrase in the drafting of the documents:

1. For general words refer to ordinary dictionary for ascertaining the meaning of the words. For example, Oxford Dictionary or Webster’s Dictionary.
2. For legal terms refer to legal dictionary like Wharton’s Law Lexicon or other dictionaries of English Law written by eminent English Lexicographers as Sweet Cowel, Byrne, Stroud, Jowit, Mozley and Whiteley, Osborn etc. In India, Mitra’s Legal and Commercial Dictionary is quite sufficient to meet the requirements of draftsman.
3. As far as possible current meaning of the words should be used and if necessary, case law, where such words or phrases have been discussed, could be quoted in reference.
4. Technical words may be used after ascertaining their full meaning, import of the sense and appropriate use warranted by the circumstances for deriving a technical or special meaning with reference to the context.
5. The choice of the words and phrases should be made to convey the intention of the executor to the readers in the same sense he wishes to do.
6. The draftsman should also use at times the recognised work of eminent legal expert on the interpretation of statutes.

Question 35.
Explain Indenture and Cyrographum in relation of a deed. (Aug 2021, 4 marks)
Answer:
Indenture
Indenture are those deeds in which there are two or more parties. It is 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 yery difficult. Indentures were so called as at one time they were 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. This practice of indenting of deeds is no more used in England and at present indenture means a deed between two or more persons / parties importing the meaning of executed contract of conveyancing.

Cyrographum
This was another type of indenture in olden times. 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.

Question 36.
Elucidate eight principles which a draftsman should keep in mind while drafting. (Dec 2021, 4 marks)
Answer:
The draftsman should keep in mind the following Principles of drafting:

1. As far as possible the documents should be self-explanatory.
2. The draftsman should begin by satisfying himself that he appreciates what he means to say in the document.
3. The well drafted document should be clear to any person who has competent knowledge of the subject matter.
4. The draft must be readily intelligible to a layman.
5. The documents may not be prefect because it says too much or too little or is ambiguous or contains one or more of the facts because it has to be applied in circumstances which the draftsman never contemplated. This should be avoided.
6. Nothing is to be omitted or admitted at random on the document that is to say negative statement should generally be avoided.
7. Use of judicial language should be made.
8. The text of documents should be divided into paragraphs containing the relevant facts.
9. Schedule should be provided in the documents. Whether any portion of the document should be put into the schedule(s) will depend on the circumstances.
10. The active voice is preferable to the passive voice, unless the passive voice in a particular connection make the meaning more clear.

Question 37.
Write a note on testimonium clause of a Deed. (Dec 2021, 4 marks)
What are the considerations to be taken into account in the case of the words used in an agreement are found ambiguous? (4 marks)
Answer:
(i) Testimonium Clause of deed

• Testimonium is the clause in the last part of the deed.
• This 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 whereof, parties hereto have hereunto set their respective hands and seals the date and year first above written”. This is the usual English form of testimonium clause. In India, except in the case of Companies and corporations seals are not used and in those cases testimonium clause read as under:

“IN WITNESS WHEREOF parties hereto have signed this DEED on the date above written.”

So, testimonium clause can be worded according to the status and delegation of the executants. Also, this clause in the deed presupposes that the proper parties are signing the document.

(ii)

• The cardinal rule is that clear and unambiguous words prevail over any hypothetical considerations or supposed intention.
• But if the words used are not clear and unambiguous the intention will have to be ascertained.
• In other words, if the intention of the parties can be gathered from the words and expressions used in a deed, such an intention does not require to be determined in any other manner except giving the words their normal or natural and primary meanings.
• It is the dominant intention of the document as disclosed from its whole tenor that must guide the construction of its contents.
• In case the terms are not unambiguous it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties.
• The social milieu, the actual life situations and the prevailing conditions of the country are also relevant circumstances.

Question 38.
Discuss Engrossment and Stamping of a Deed. (Dec 2021, 4 marks)

Question 39.
What do you understand by the Endorsements and Supplemental Deeds? Does such endorsement and supplemental deeds attract stamp duty? (June 2022, 6 marks)

General Principles of Drafting and Relevant Substantive Rules Notes

Drafting – Its Meaning

• it’s the development and preparation of legal documents such as constitutions, statutes, contracts, wills, deeds, leases etc. Its important element are:
  • Knowledge of LAW
  • Knowledge of FACTS
  • To put those facts in a LANGUAGE
• It involves THINKING & COMPOSING, so as to give a correct presentation of legal status, rights and duties of the parties, terms and conditions, remedies etc. in a self explanatory manner without any ambiguity.

Conveyancing – Its Meaning

Conveyance means:

• An act of conveyancing or transferring
• Any property, whether movable or immovable
• From one person to another
• Within the legal structure of the country
• But does not include acquisition by inheritance The transfer mev be :
• by sale
• by lease
• by giving gift
• by exchange
• by will

Drafting v/s Conveyancing

Drafting	Conveyancing
Preparation of documents for Transfer of property, and Others	Preparation of documents for Transfer of property

Both drafting and conveyancing are a type of documentation.
Conveyance v/s Contract

Basis	Conveyance	Contract
Meaning	It deals with the transfer of property.	It remains to be performed and its specific performance may be sought.
Rights	It just transfers the ownership of existing right without creating any right.	It may / may not create a right of action.
Act	Transfer of Property Act, 1882.	Indian Contract Act, 1872.

General Principles of Drafting & Conveyancing

• As certain the names, addresses etc. of parties
• Express the intention of the parties clearly and concisely
• Use legal language wherever possible
• No information is to be omitted or admitted at random
• The draft must be readüy understandable by layman
• Understand the legal provisions on the subject matter
• Document should be supported by schedules
• The document should be self explanatory
• Use of active voice
• Document should be properly numbered
• Avoiding negative language.

Some Important Rules of Drafting
1. Fowlers’five rules of drafting:
Every writer should endeavour to be:

• Direct
• Simple
• Brief
• Vigorous
• Lucid

i.e. he should use familiar, concrete, single & short words in active voice and prefer the usage of saxon word instead of the Roman words to avoid any complications.

2. Sketch or scheme of the draft document:
Every draftsman should prepare a sketch of the contents of a document before taking up its drafting i.e. he should conceive its design & outline to make sure that nothing is left undone which ought to be done.

3. Skeleton draft and its self – appraisal:
The draftsman should prepare the structure of the draft which should be filled in as he proceeds with his work. Then, he should do a self – appraisal of the document to identify any irregularities.

4. Special attention to be given to certain documents:
It must be ensured that the contractual obligations are not contrary to the concerned law. In case of transfer of property, it’s necessary to ensure the perfect title of the transferor to such property.

5. Expert’s opinion:
The draftsman should take expert’s opinion wherever necessary, to ensure the suitability & legal fitness of the document.
In short, the draftsman should put himself in the place of the reader and make sure that it carries sense.

Some Do’s & Don’ts of Drafting

Some Do’s:

1. Reduce the group of words to single word;
2. Use simple verb for a group of words;
3. Avoid round-about construction;
4. Avoid unnecessary repetition;
5. Write shorter sentences;
6. Express the ideas in fewer words;
7. Prefer the active to the passive voice sentences;
8. Choose the right word;

Some Don’ts:

1. Avoid the use of words of same sound. For example, the words “Employer” and “Employee”;
2. When the clause in the document is numbered it is convenient to refer to any one clause by using single number for it. For example, “in clause 2 above” and so on.
3. Negative in successive phrases would be very carefully employed.
4. Draftsman should avoid the use of words “less than” or “more than”, instead, he must use “not exceeding”.

Guidelines for use of words & phrases
The following principles may be prescribed for the guidance of draftsman for using any particular words and phrases :

• For general words, refer to ordinary dictionary e.g. Oxford dictionary.
• For legal terms refer to legal dictionary e.g. Wharton’s lax lexicon.
• Use the current meaning of words as far as possible and quote the relevant case laws.
• Technical words should be used only after ascertaining their full meaning.

Interpretation of deeds and documents
Though, there is no law in India on the interpretation of documents, but the following set of principles of interpretation of documents commands wide acceptance by the judiciary all over India.
1. Rules under informal agreements:
Here, the rule of reasonable expectation applied i.e the agreement is to be interpreted

• in the sense in which
• the party who used the words in question should reasonably have apprehended
• that the other party may apprehend them.

2. Rules under formal agreements:

• The document itself is the primary evidence. Other evidences will be secondary.
• If the words used are clear & unambiguous then such words should be given their normal meanings unless the contract gives a different meaning to those words.
• In case of ambiguous words, the intention of the parties as disclosed by the whole document should be considered.
• Earlier clause prevails: An obligation created by an earlier clause can’t be destroyed by a latter clause.
• Interpretation of documents that have been accepted in the past should not be departed from.
• An invalid clause in the deed cannot render the whole deed void unless it’s impossible to severe that invalid clause from the rest.
• Executed contract prevails over the executory contract.
• Judicial interpretation of similar documents in the past can just be an aid in the interpretation of documents.

Need for knowledge of drafting & conveyancing for corporate executives

• To aid in obtaining legal consultations & legal advice.
• For carrying out documentation departmentally.
• To study & interpret documents.

Document
As per General Clauses Act, 1894, Document means:

• any matter expressed or described
• upon any substance
• by means of letters, figures or marks
• for the purpose of recording that matter Features of a Document:
• Provides information
• Acts as a proof or evidence of anything

Examples of Document:

• A writing
• Words printed or photographed
• An inscription on a metal plane or stone
• A caricature (i.e. caricature means a hand – made sketch of a person)

Instrument
As per 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

Examples of Instrument:

• Awards made by industrial Courts
• A will
• Instrument includes decree
• Instrument does not include acts of parliament unless there is a statutory definition to that effect in the act.

Deed
Deed is :

• an instrument
• by which two or more persons.
• agree to effect any right or liability.

Examples of Deeds :

• Gift Deed
• Sale Deed
• Partnership Deed
• Lease Deed

A deed is of non – testamentary character. Deeds are in writing, signed, sealed and delivered.

Kinds of deeds:

S. No.	Type of Deed	Particular
1.	Good deed	Conveys a good title
2.	Good & sufficient deed	Passes a good title
3.	Inclusive deed	Purports to convey
4.	Latent deed	Kept for 20 years or more in a strong box
5.	Pretended deed	Is apparently or prima facie valid
6.	Warranty deed	Contains a covenant of warranty
7.	Lawful deed	Conveys a good or lawful title

Some Other Terms Connected With Deeds:
(a) Deed Pool
It’s
. a deed between 2 or more parties
. where as many copies are made as there are parties
. so that each party may possess a copy
No. of copies = No. of parties

(b) Deed poll
A deed made and executed by a single party e.g. power of Attorney.

• It’s drawn in first person usually.

(c) Indenture

• Such type of deeds involve two or more parties.
• It was written in duplicate upon one piece of a material and two parts were severed so as to leave a vary (uneven edge) edge. As a result, forging such documents was difficult.
  

(d) Cyrographum

• It’s similar to indenture.
• The only difference is that here, the word ‘cyrographum’ was written and torn in between so as to make it very difficult for any person to forge another deed that would fit exactly into this cutting with the same zig zag lines.
  Deed
  

(e) Deed Escrow
A deed signed by one party will be delivered to another as an ‘escrow’.

• It will operate from the date when it’s last signed.

(f) Components of deeds
A deed is divided into different paragraphs. Under each part, the related information is put in that paragraph in simple language. The usual components of a deed are as follows:

Particulars
(i) Non – Operative Part

1. Description of the Deed title
2. Place and Date of execution of a Deed
3. Description of parties to the Deed

(ii) Operative Part

1. Recitals (Short Story)
2. Testatum
3. Consideration
4. Receipt Clause
5. Operative Clause
6. Description of Property
7. Parcels Clause
8. Exceptions and reservation
9. Premise and Habendum
10. Covenants and Undertakings

(iii) Formal Part

1. Testimonium Clause
2. Signature and Attestation
3. Endorsements and supplemental deeds
4. Annexures or Schedules

• Description of the Deed Title
• Place and Date of Execution of a Deed
• Description of parties
• Recitals (Short Story)
  1. Narrative Recitals
  2. Introductory Recitals
• Testatum
• Consideration
• Receipt
• Description of Property
• Operative Clause
• Parcels Clause
• Exceptions and Reservations Clause
• Premises and Habendum
• Covenants and Undertakings
• Testimonium Clause
• Signature and Attestation Clause
• Endorsements and Supplemental Deeds
• Annexures or Schedules

Engrossment and Stamping of a Deed

• The draft of the document is required to be approved by the parties.
• After approval, the document is engrossed i.e. copied fair on the non-judicial stamp paper of appropriate value as per Stamp Act.
• In case, the document is drafted on plain paper but approved without any changes, it can be lodged with the collector of stamps for adjudication of stamp duty.
• An improperly stamped document is rendered inadmissible.