CONVEYANCING:
Essentials of Conveyancing: Drafting deed or an instrument is one of the important works of a solicitor. To attain proficiency in drafting lawyer must have wide experience of law and life. It cannot be acquired over night. In order to draft a deed there are certain essentials. They are: 1) Complete knowledge of facts 2) Law 3) Effect 4) Language. The first and foremost duty of a lawyer with respect to drafting deeds is that lawyer must know the facts (oral and document) which would suggest or disclose rights, interests, claims or liabilities of the parties. Lawyer after ascertaining the transaction parties want to reduce into writing, should study the legal ways and means of translating the parties idea or intention into writing. For this purpose lawyer must have a clean understanding of niceties of relevant law and it operation in real world (legal, social and business life). Thereafter, he shall explain the legal hurdles and remedial ways and then go for drafting the deed or instrument. Lastly and importantly, Lawyer must use words after fully knowing and considering the purpose for which the same is meant. The fundamental elements of a deed are like this:
1) Description of the deed
2) Date on which it is executed
3) Parties to the deed
4) Recitals
5) Habendum
6) Covenants
7) Exceptions and reservations
8) Completion of transaction
9) Execution
10) Attestation.
Let us study the same with the aid of a Sale deed.
SALE DEED:
This Deed is executed on 27.04.2012 By G.Bhaskar S/o Surya Rao, Age: 30 years, Occ: Mess Supervisor, Nalsar Mess, R/O Adarash Nagar, Shameer Pet, R.R District. (Hereinafter called as Vendor) And M.Suresh S/o M.Rambabu, Age:38 years, Occ: Office Sub-ordinate Nalsar, R/O NALSAR University, Shameer Pet, R.R Dist. (Hereinafter called as Vendee)
The vendor is the absolute owner and possessor of the property admeasuring 150 SQ yards (One hundred fifty Square yards) of land situated in survey no.25 of Shameer Pet Village and Mandal, Ranga Reddy District, which is fully described in the schedule. He inherited the said property from his father upon his death being the sole legal heir. In view of urgent family and personal necessities vendor sells and absolutely transfers all the title, interests, rights in the above property to the vendee for an amount of Rs.50,000/-(fifty thousand only). Vendor received the sale consideration and put the vendee in the possession of the property and same is acknowledged by the vendee. This is not the assigned land of the government. Parties agreed to abide by rights and liabilities enumerated under Transfer of Property Act.
Schedule of Property: Property admeasuring one hundred fifty square yards of land bearing Survey no.25 of Shameerpet Village and Mandal, Ranga Reddy District and bounded as under:-
East: thirty feet road; West: House of Ravi Kiran;
North: twenty feet road; South: Sreenivas Reddy House;
Vendor/Purchaser.
Enclosure: Sketch map of Site plan is enclosed
a) Legal requirements:
To constitute sale, sale deed shall fulfill provisos of S.54 of the Transfer of Property Act
The following are the essentials of sale. They are like this: 1) the parties 2) the subject matter 3) the delivery of possession 4) fixation of price and its payment at the time of sale or at future date(it must be (specific).
1) The parties: The parties are the seller and buyer. The seller must be a person competent to transfer and has a title or power to sell the property. Buyer may be any person who is not disqualified to be a transferee.
2) The subject matter: It is transferable immovable property. In case of sale there is a transfer of ownership. Under Ownership there is an absolute transfer of all rights in the property. No rights are left in the transferor. In a lease, there is a partial transfer or demise and the rights left in the transferor are called the reversion. In a mortgage there is a transfer of an interest as a security for the purpose of obtaining loan.
3) The transfer or conveyance: A sale is completed upon registration and delivery of possession.
4) The price or consideration: Price is the essence of contract of sale. Otherwise, it is a void and unenforceable contract, even if the instrument is registered. Thus it is necessary in a sale deed about the fixation of price though price is paid or promised or part paid or part promised.
Every sale deed shall conspicuously disclose the above ingredients to call it as a sale deed. Once S.54 is satisfied parties are free to vary with terms and conditions lay down under S.55. If the parties don’t want to vary with the terms of conditions a sale deed meeting the essentials of S.54 is sufficient. However, no condition in the contract can vary with mandatory provision of any law, otherwise it is void.
b) Structural requirements: The following are the necessary parts of the deed of transfer: 1) description of the deed 2) Date on which it is executed 3) Parties to the deed 4) Recitals 5) Habendum 6) Covenants 7) Testimonium 8) Testaum 9) Exceptions and reservations 10) completion of transaction 13) Execution
1) Description of deed: Every deed shall contain the description of the deed such as sale deed, lease deed, gift deed, will deed etc. Generally it is written in capital letters. The object behind writing description is to spell out the purpose and contain and matter that is dealt in the deed so as to rule out any kind of confusion. It must also be mentioned that if the title speaks something but contents speaks about the essential are some other transaction then described such deed is what actually the contents of the document but not on the basis of description mentioned in the beginning. IN the given deed, therefore it is necessary to call it as Sale deed.
2) Date on which it is executed: Every deed shall expressly set out the date on which it is executed. The date has a vital role in deciding limitation passing of title especially when vendor executed several sale deeds with respect to same property. Hence, date is mentioned expressely.
3) Parties to the Deed: Under common law only parties to the contract are bind by the contract. Therefore, it is very much necessary to describe the particulars of transfer or transferee and any other party who is confirming the transfer. Generally the name of the transferor and his description are mentioned first and thereafter transferee description is set out. Accordingly, the names of the parties are described with full particulars.
4) Recitals: Recitals means preliminary parts of a contract or deed that only declare or explain particular background facts of a transaction but prescribed no conditions. Generally they appear on the first page of the deed. Recitals contain a short history of the property up to its vesting in the transferor. Recitals should be short and intelligible. They are two kinds: narrative recitals and introductory recitals.
Narrative Recitals: Narrative recitals refer to facts and circumstances which show the nature of interest to be dealt with.
Introductory Recitals: Introductory recitals explain the motive behind the execution of the deed. Thus they contain facts culminating in the execution of a deed beginning from the agreement up to motive for transfer.
In the given case reason for making transfer by Bhaker i.e., urgent need of money for personal and family necessities and mode of his acquisition of property come under the category of Recitals.
5) Habendum: It is that part of the deed which speaks about interest the purchaser is going to take in the property. In the given case deed the (i.e, sale) the interest transferred is ownership to the property.
6) Covenants: A covenant is agreement between the parties to the deed stipulating about truth of certain facts are bound to do or not to do a specified thing. It can be implied or express. The statement in the sale deed that parties abide by S.55 of the T.P.Act falls under this category.
7) Testimoniam: This is the part of a deed which states that parties have signed a deed. This is generally not required in a sale deed.
8) Testatum: This is also known as witness clause. The witness clause shall clearly describe the names of the witness and the descriptive particulars. In a sale deed, it is not required; hence, need not be there in the given deed.
9) Completion of transaction: The deed should be properly stamped under the Indian stamp act and registered where registration is necessary under the Indian Registration Act or other enactment. Unless the agreement to contrary they expenses must be borne by the transferee.
10) Execution: It means signing by the parties. The signature of Vendor is the sufficient for completion of sale transition. The signature of the Bhaskar at the foot of the sale deed and also at the schedule comes under category of execution. In case anywhere in the map plan is annexed to the documents to same shall be also signed by the parties.