Part II- General Requirements of Deeds of Transfer

In this part it is proposed to deal with the general requirements ofalldeeds of transfer and to notice the various clauses, ofwhich a deed oftransfer is generally composed, and to show in what way each clauseshould be framed, The particular and special requirements ofparticularkinds oftransfer deeds and any modifications necessary in the case ofaparticular kind oftransfer will be noticed in the "preliminary note" to theprecedents relating thereto.

Division of Deed

.An.ordinary deedof transfer may conveniently be divided. into thefollowingparts:

Description of the deed; Date; Parties; Recitals; Testatum;Consideration; Receipt; Operative words; Parcels; Exceptions andReservations (ifany); Habendum; Covenants (ifany); Testimonium.

. The part ofthedeed which precedes the habendum is termed "thepr~mises"4.Eachofthese parts will now be separately considered:

a) Descriptio1toj the deed

Although the necessityofindenting was abolished long ago in Englandby Sec-. 5 of the Real Property Act, 1845; which section was laterreplaced by Sec. 56.ofthe Law of Property Act, 1925, deeds are stillsometimes described as indentures.such is the conservatism ofEnglishlawyers! Sec. 57 ofthe Law ofProperty Act, 1925 provides that a deedmay be described as a deed simply according to the nature of thetransaction. Insomeof the latest books on conveyancing this has beenfollowed and the word "indenture" has been discarded.

In India there never was any reason for calling a deed "indenture",but, as solicitors generally copied the English style ofconveyancing theword has come to be adopted here also. All deeds should now be

4 Black's Law Dictionary (1992 Edn) defines "premises" (in conveyancing) as"that part of a deed which precedes .he habendum, in which are set forth thenames of the parties with their titles and additions, and in which are recited suchdeeds, agreements, or matters of fact as are necessary to expalin the reasonsupon which the present transaction is founded; and it is here, also, the·considet:ation on which it is made is set down and the certainty of the thinggranted",

5DESCRIPTION OF THE DEED

1

6 INTRODUCTION

described by the name ofthe transaction which they evidence, such as"THIS DEED OF MORTGAGE", "THIS DEED OF SALE", "THISLEASE", "THIS DEED OF GIFT", etc.When the deed is ofa complexcharacterand evidencesdifferenttransactions known by different legalnames, or the conveyancer is not sure what name should properly begiven to it, itwould be best to describe it simply as "THIS DEED". Thedescription is usually writtenincapitals.

b) Date

After the description ofthe deed is stated, the date on which it isexecuted, thus:

"THIS LEASEmadeon the first dayofFebruary onethousandninehundred andninety nine."

The date is strictlyspeaking not an essential part ofthe deed and adeed is perfectly valid ifit is undated or the date given is an impossibleone, e.g. the 30th day ofFebruary, and ifno date is given, oral evidencewill always be admissible to prove the date ofexecution ifit becomesnecessary to determine it. It is, however, always a matter of greatimportance to know the date from which a particular deed operates. InIndia, as there is a shortperiodoffourmonths (see Sec. 23, RegistrationAct, 1908) from the dateofexecution withinwhichadeedwhich requiresto be registeredmust be presented for registration, the date ofexecutionis always the first matterforinquiry by theregistering officer. Similarly, inthe case ofa deed of transfer of land in respect ofwhich mutation ofnames is necessary, the date of execution is ascertained for mutationpurposes. Thedateis further important forthepurposes of the applicationof law oflimitatiol1. In view of the extreme importance ofthe date ofexecution, and ofthe great risk in leaving the same to be determined byoral evidence, adeedshouldalwaysbe dated,andthis shouldbe regardedas an essential requirement

The date ofa deed is the date on which it is signed by the party orparties executing it Whenthere is onlyonepartyto a deed, as in the caseofdeed poll, or when all the parties sign it on one and the same date, orwhen, thoughthere areseveralparties to a deed, alldo not sign and thosewho sign do so on one date,there is no difficulty. But ifseveral parties toa deed sign it on different dates, the question is which date should be

"Tee...._-------------------_........~

i)Transferee

After the date, the names and description ofthe parties to the deedare mentioned. Who are the necessary and proper parties to a deeddepends on the circumstances ofeach case. InEngland, the custom is tomake both the transferor and the transferee parties to all deeds of transfer.This was necessary in former times as no person could take an interestunder an indenture who was not named as a party therein but since thepassing of the Real Property Act, 1845 (later replaced by the Law ofProperty Act 1925) an estate or interest in any property and the benefitofa condition or covenant respecting the same may be taken, although thetransferee is not named as a party [see Sec.5 of'the 1845 Act, now Sec.56 of the 1925 Act]. The practice ofnaming the transferee as a party,however, still continues. In India, except in the case of leases which,under section107 of the Transfer of Property Act,1882, require to be

entered as the date of deed. The practice is to.regard the last of suchdates as the date of the deed. This does not, however, seem to beuniversally correct as there might be parties who execute a deed only forthe sakeof the formality and the deed operates even without their signature.For example, in the case ofa sale deed the transfer operates on its executionby the vendor and without the purchaser's signature on the deed, or whena person is impleaded as a party to a deed simply in order to give himnotice ofthe transacti on to obtain his consent though such consent is notlegally necessary to validate the transaction. In all such cases the dates onwhich such persons sign the deed may be discarded from consideration,because the date ofdeed is really the date on which the deed operates.

The date should, in order to avoid mistake and risk of forgery, bewritten in words and not in figures. Figures may be added withinparenthesis, ifdesired, thus-

"The First day ofMarch One Thousand Nine Hundred Ninety Nine(the l st March, 1999)".

Inevery case in which a deed is executed by more than one person,the date on which each signs the deed must be shownin the deed, preferablyagainst his signature.

c) Parties to the Deed

IiII

!iIII'Ii1,.

IIIiIiII'IiilI:iiIiI:i'

I'I:i

7PARTIES TO THE DEED

I~,

8 INTRODUCTION

executed both by the lessor and the lessee, the transferee is not a necessaryparty to any deed oftransfer, and in the forms used in Indian languagestransferees are not normally named as parties and do not execute thedeeds. But inall cases where any covenant has to be made by the transfereealso, he becomes a necessary party.5

But although a transferee is not a necessary party, and a deed willnot be invalid or ineffective ifhe is not mentioned as such, except in thecase ofa lease, he is certainly a proper party. It is always advisable tomake him a party.

ii)Third Person

Sometimes it is necessary or expedient, in order to validate a transferor to give a complete title to the transferee, or to avoid possible disputesor doubts in that regard, to obtain the consent or concurrence ofa thirdperson. In such cases, such third person may also bejoined as a party.For instance, prior to the enactment ofthe Hindu Succession Act 1956,[Sec. 14 (1)], a reversioner used to bejoined in the case ofa transfer bya Hindu widow ofabsolute title in her husband's property. Again, in thecaseof sale of lessee's right the lessor may bejoined ifthe lessee hasno power to transfer his rights without the lessor's permission. (Suchpermission is generally required under rent control laws; its absence mayresultin the lessee forfeiting his protection under such laws). Sometimesother persons also make some covenants in the deed and are joined forthis purpose. In all such cases the transferor is placed first, any personwhose concurrence is necessary or who enters into any covenant comesnext, and the transferee last Ifdifferent portions ofthe estate transferredare owned by different persons as the mortgagor and mortgagee, lessorand lessee, reversioner and life owner and full estate is transferred by allsuch persons, the person who has the legal estate should be placed first,and those who have the equitable estate next.

iii) Description

Full descriptionofthepartiesso asto prevent difficultyofidentificationshould follow the name. In India, parentage, occupation and residenceincluding municipal or survey number, streetand city and in the case of

5 In this context, see "Covenants and Undertakings", post.

resident ofa rural areathevillage, sub-division, tehsil andlor developmentblock aregenerally regarded assufficient to identify a man,but ifthere isany other description which issufficient, the samemaybenormally adopted.It shouldnot be considered necessary tospecifythe casteor religionas itisdesirable to discourage emphasison communal or castedistinctions inour republic. But where the transferoris a member ofa scheduledcasteor scheduledtribe forwhose protectionthe statuteplaces restrictionsonhis right to transfer it may be necessary to mention such caste or tribewhilerecitingthe fact ofpermission forthetransferhavingbeenobtainedfrom thecompetent authority.

ivy Juridical Person

A party to a transfer need not be a living individual but may be acompany, orassociation orbodyofindividuals (Sec. 5,TransferofPropertyAct, 1882), or an idol? or a corporationsoleor aggregate", orin fact,anyjuridicalpersoncapableofholdingproperty andenteringinto contracts.A court is not ajuridical person capableofholdingproperty or enteringinto contracts, andsecuritybondswhicharegiven tocourts must, therefore,be made in favourofa named officerofthe courtand not in favourofthecourt.'Careshould be takenthatcompanies, associations andcorporationsare described by their correct names. It is better also to refer to the Actunderwhich they areregisteredor incorporated thus:

"The Bengal SugarMillsLimited, a company withinthemeaningofthe Companies Act, 1956,and havingits registeredofficeat Howrah";

6 Bhopatrao v, Shri Ram Chandra, 96 IC 1004; see Angurbala v. Debabrata,. A 1951 SC293 (Ina Hindu religious endowment the entire ownership of the

dedicated property is transferred to the deity or the institution itself as ajuristicperson, and the shebait or mahant-unlike a trustee under the English Law inwhom the property vests for the benefit ofcestui que trust-is a mere manager).

7 Board of Trustees, Ayurvedic and Unani Tibia College v. State a/Delhi,A 1962 SC 458 (para 9). A company is a Corporation aggregate (Sec. 34,Companies Act, 19:'05); it has a legal personality distinct from its shareholders(Charanjit Lal v. Union ofIndia, A 1951 SC 41, para 43). For illustrations ofcorporation sole see the Administrators-General Act 1963 (Sec. 5) and theCharitable Endowments Act 1890 (Sec. 3). Universities, State Electricity Boards,Life Insurance Corporation of India and nationalised banks are instances ofcorporations aggregate.

8 Raghuber Singh v . Jai Indra Bopander Singh, A 1919 PC 55: ILR 42 All 158,(See precedent No. 10 under BOND).

PARTIES TO THE DEED 9

10 INTRODUCTION

"The Arya Pratinidhi Sabha, a society registered under the SocietiesRegistration Act, 1860";

"The University ofLucknow a body incorporated under the U'P.State Universities Act 1973".

v) Idol

As an idol has to act through some natural person," the name ofthelatter should be disclosed,thus:

"The idol ofSri Kishori Ramanji Maharaj installed in the temple atBrindaban, district Mathura, acting through its Sarbarkar, Ram Lal, son ofShiam Lal of Brindaban".

vi) Persons under Disability

Persons under disability (namely minors, persons ofunsound mindand persons disqualified fromcontracting by any law to which they are

• subject) cannot enter into acontract and cannot therefore transfer property(See Sec. 7 Transfer ofProperty Act read with Sees. 11 and 12 ContractAct and Sec. 3 Majority Act)IO. They cannot by themselves even take atransfer, ifthe same involves entering into any covenant, as all contractsmade by them are void. But ifno promise is made bythe person underdisability as a consideration ofthe transfer or where there remains nothingfor the minor to do there is nothing to make the contract unenforceable athis instance. II However some statutory obligations attach to a transfereeeven in the absence ofa specific covenant on their part, e.g., in Transfer ofProperty Act, Sec. 55 (5) in a case of sale and Sec. 109 in a case oflease. Thus a lease in favour of a minor is not enforceable even at hisinstance ifhe himself and not his guardian is the executant. 12 Sec. 68,

9 Angurbala v. Debabrata, A 1951 SC 29310 See discussion of case law in Manik Chandra v. Ram Chandra, A 1981 SC 519,

(l980)4SCC2211 Raghava Chariar v, Srinivasa, (1917) 40 Mad 308 (FB) (ifminor has fulfilled his

part of the contractthe other party cannot resist its enforcement on the groundof voidness); Zafar Ahsan v. Zubaida Khatun, (1929) 27 All LJ 1114;Bhaggabhor Mandalv. Mohini Mohan, A 1918 Cal 1027; Daniel v , Mariamma,A 1951 Mad 466; Bholanath v. Balbhadra,A 1964 All 527; The Greal AmericanInsurance Co. v. Mandanlal, (1935) 59 Bom 656 (per Beaumont C.J.)

12 Jaykant v, Durgashankar, A 1970 Guj 106

Contract Act lays down an exception to the effect that a person whosupplies necessaries to a person under disabilityis entitledto reimbursementfrom the latter'sproperty.'

vii) Minors

Minors are persons-male or female-who are below the age of 18years. A transfer ofhis immovable property can (except short-term leasefor which no permission is required, as hereinafter stated) be made onlyby his natural guardian or guardian appointed by will or other instrumentor appointed or declared by the court under the Guardians and WardsAct with the permission ofthe court. Even for transfer ofmovables or forlease for a short-term it is ncessary that the transfer should be for thebenefit ofthe minor or for the realisation, protection or benefit ofhis estateand that there should be no personal covenant binding the minor.The powers ofa testamentary guardian may be further restricted by theterms ofthe will (Sec. 28, Guardians and Wards Act).

The usual form is .......

"AB, arninor, acting through CD his guardian."

The authority ofthe guardian should be eitherrecited in the recital,thus:

"The Vendor is a minor and the said CD is the certificated guardianofhis property appointed by order ofthe District Judge ofAgra dated

PARTIES TO THE DEED 11

"

Or it may be shortly stated in the heading itselfthus :

"AB, aminor, actingthrough CD his guardian appointedby the DistrictJudge, Agra, byorder dated ",

Or"AB, aminor, acting through his father and natural guardian CD."

In case oftransfer ofa minor's property the circumstances whichgive the guardian orKarta power to make the transfer should be mentionedin the recitals, e.g. in case ofnatural guardian or manager of a Hindufamily, the legalnecessity ofthe transfer (except a lease for a period notexceeding five years) without the sanction ofthe court (Sec. 29, Guardianand Wards Act). The powers ofanatural guardian ofa Hindu minor arenow defined in Sec. 8 ofthe Hindu Minority and Guardianship Act, 1956.In fact, it gives statutory recognition to certain powers enjoyed by natural

12 INTRODUCTION

A transferofimmovable property by a guardian in contravention ofsub-sec. (1) or sub-sec. (2) of Sec. 8 of the Hindu Minority andGuardianshipAct or Sec. 28 or Sec. 29 ofthe Guardiansand WardsActisvoidable, atthe instance ofthe minoror anypersonclaiming underhim.The other party as well as a minor, however, can enforce a contract forsaleofpropertyenteredintoby anaturalguardian ifthe contractis forthebenefit of'the minor. 13 Therestriction imposed under Sec. 8 is againstalienation ofminor's property by a natural guardian but the latter canpurchase anyproperty without Court's permission if the purchase is fortheminor's benefit. 14

viii) Mentally III Persons

A mentallyill personmeansapersonwho is in needoftreatment byreasonofany mental disorderother than mentalretardation. A managerappointed by the courtcan alonetransfersuchperson's propertywith thepermission of the court (Sec. 59, Mental Health Act 1987). Theabovementioned directions about guardian ofaminorapplytothemanagerofthe propertyofa mentally illperson as well.

13 Manik Chand v, Ram Chander, A 1981 SC 519.14 Than Singh v. Barelal, A 1974MP 24.

ix) Insolvent

The property of an insolvent vests in the official assignee in thePresidency towns and in the official receiver elsewhere, and the officialassignee or the official receiver alone can transfer it (Sec. 68, PresidencyTowns Insolvency Act,1909, and Sec. 59 ofthe Provincial InsolvencyAct, 1920).

As the property vests in the official receiver (Sec.56) or the officialassignee (Sec.51), the transfer should be made by him in his own name,and the fact ofthe insolvency of'the owner and the vesting ofthe propertyin the transferor should be mentioned in the recitals.

PARTIES TO THE DEED 13

x) Trustees

Ifa property vests in trustees, the transfer should be by the trusteesthemselves in their own name, as

"AB, CD and EF trustees ofthe estate ofXY",

The facts showing how the estate came to be vested in the trusteesshould be mentioned in the recitals.

The powers oftrustees in regard to transfer oftrust property dependon the tenus ofthe trust deed. See precedents of"Miscellaneous Clausesand Conditions ofTrust" under TRUSTS; post.

xi) Hindu Coparcenary

The manager or Karta may execute the deed in his name alone or allmembers of the coparcenary may join it. In either case the fact of theproperty beingjoint family property should be mentioned in the recitals.See "(d) Recitals", post.

xii) Attorney

An attorney may be made party either in his own name (Sec. 2,Power ofAttorneyAct, 1882), thus:

"AB attorney ofCD",

or the name of.the.principal may be shown as a party, thus:

"CD acting by his attorney AB."

The latter form is preferable., ,

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14 INTRODUCTION

xiii) Firm

Every partner has, under Sec. 19 ofthe Partnership Act, 1932, animplied authority to bind the finn by acts done to carry on the business ofthe firm in the usual way. In case of emergency a partner may do anyreasonable act (Sec. 21). The acts mentioned in Sec. 19(2), includingtransfers ofimmovable property must be done by all the partners; otheracts done and instruments executed by one partner must be done andexecuted by him in thefirm's name or in any other manner expressingor implying an intention to bind the firm (Sec. 22), thus:

"AB, etc., a partner ofand acting for and on behalfofthe finn carryingon business under the name and style of-- (firm's name)"

"Finn--acting through AB, etc., its managing partner".

It may, however, be added that strictly speaking, a finn, unlike acorporation, is not ajuridical person" and only its partners are juridicalpersons. Hence if it is desired to execute a deed oftransfer in the filmname it should be ensured that the deed is signed either by all its partnersor by a partner holding a power ofattorney on behalfofall partners. Asregards Sec. 19 it is to be noted that it does not confer an implied authorityon any partner to buy or sell property for or on behalf of the firm.Commercial agreements may, however, be entered into by the managingpartner in the ordinary course ofbusiness.

xiv) Government

Contracts made in exercise of the power of the Union and allassurances ofproperty vested in the Union are to be expressed in thename ofthe President while those relating to a State are to be made in thename ofthe Governor'? ofthat State, as laid down by Article 299(1) ofthe Constitution. Notifications under Article 299(1)authorising Secretaries

15 SeeDullichandv.C.l.T.,A 1956SC354.16 While the agreement or the deed of lease, sale etc. may at the outset mention the

President or the Governor so that it may be expressed in his name it is customaryto add within brackets the words "(hereinafter called the Government ofIndia/the State Government/the said Government)", as the case may be, so that theoffice of the. President or the Govemormay not have to be referred to repeatedlyin subsequent clauses. It is sufficient to give it only in the beginning for fulfillingthe constitutional requirement. See, e.g., the agreement quoted in Laxmanrao v.Telecom Distt. Manager, A 1998 Kant 67 (para 5).

ofthe various Ministries ofthe Government ofIndia and the Secretaries toGovernment ofthe various departments in the States as well as someheads ofdepartment and various other officers for entering into contractsor executing assurances of property on behalf of the President or theGovernor, as the case may be, have been issued from time to time.

Ifthe contract or transfer is not made in accordance with Article 299ofthe Constitution, it is void. 17 Such a contract is not capable ofbeingratified, nor does estoppel become applicable, nor can there be impliedcontract between the Government and another person," A formal contractin accordance with Article 299 is, however, necessary only whenGovernment acts in its executive capacity and not when a particularstatutory authority, as distinguished from the Union or the States, entersinto contract in exercise ofa statutory power, such as a contract wherebya licence is granted for vend ofliquor after acceptance ofbid at an auctionunder the relevant State excise law,19 unless the statutory provision itselfcontemplates or requires that a formal deed between the contractor andthe Government be executed.' Moreover, absence ofa formal contractwith Government or a public corporation will not stand in the way ofacitizen pleading promissory estoppel against the Government or suchcorporation on the basis that on the assurance or promise made by thelatter he has acted to his prejudice.2 Estoppel is however inoperative to .

17 Bihar Fishermen Society v. Sipahi Singh, (1977) 4 SCC 145; Bhikraj Jaipuriav. Union ofIndia, A 1962 SC 113, (1962) 2 SCJ 479, (1962) 2 SCR 880; State ofW. Bengalv, B.K. Mandal, A 1962 SC 779; State of UiP. v. MurariLal& Bros.,A 1971 SC2210,(1971) 2 SCC449; UnionofIndiav. NK. Private Ltd., A 1972SC915, (1973) 1 SCJ 107; K.P. Chowdhry v. State ofMP., A 1967 SC 203; K.NVidhyadharan v.State ofKerala, A 1980 Ker 212.

18 Mulamchand v. State ofM.P., (1968) 3 SCR 214, A 1968 SC 1218; State ofHaryanav. Lal Chand, (1984) 3 SCC 634 (para 10).

19 State ofHaryana, supra (para 10).1 K.P. Chowdhry, supra; Mulamchand, supra; (distinguished on this ground in

State ofHaryana, supra, para 11).2 MotilaIPadampatSugar Mills v. State ofU.P., A 1979 SC 621, (1979) 2SCC 409;

GujaratSiF'C, v. Lotus Hotel, A 1983 SC 848, (1983) 3 SCC 379; Union ofIndiav. Godfrey Philips, A 1986 SC 806; State ofBihar v. Usha Martin IndustriesLtd., 1987 (Supp) SCC 710.

PARTIES TO THE DEED 15

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16 INTRODUCTION

defeat astatutory obligation ofanunconditional character. Invalidity basedonpublic policy is a good defenceto the objectionofconsent.'

It iswell settled thatArticle299doesnotby itselfprohibita contractwith Governmentcominginto existence withouta formal deed as it can,notwithstanding theuseoftheword"executed" in thatArticle, resultfromcorrespondence between an authorised officer ofGove:inment, actingexpressly on behalfofGovernment, and a private party, e.g., when atenderforpurchaseofgoodsinpursuance ofaninvitation issuedby or onbehalfofGovernmentis acceptedinwritingby the authorisedofficeronbehalfof'Govemment.'

However, as clause (I)ofArticle 299 adds that all such contractsandallassurances ofpropertyshallbe executed onbehalfofthePresidentor the Governorby such persons andin suchmanner as he may directorauthorise, it is open to the Government concerned todirect that contractsofa specifiedclass shall be made only throughformal deed. Even in theabsence of a valid contract, where a party has done something for orsuppliedsomething to the Government underan informalagreementandthe Government has takenadvantage thereof, the latterc~be requiredtocompensate theotherparty(theformer) underseetion65 and70 ContractAct.'

xv) Reference Labels ofParties

In order to avoid the repetition of'the full name and description atevery place, the parties are generallyreferred to in the body ofthe deedby some easy and convenient names which generallyhave reference tothe character in which they join in the deed, such as "the vendor", "thepurchaser", "thelessor", "thelessee". InEngland, inordertoavoid mistakesin writing words resembling each other for opposite parties, e.g., acombination of"mortgagor" and"mortgagee'rorvvendor" and"vendee",they prefer to use a combination of "borrower" and "mortgagee", or"vendor" and"purchaser". Ifno suchname is adopted, the parties can bereferred to as"the party ofthe firstpart" (or"the firstparty") , "the partyof the second part" (or "the second party") , "the said AB", "the said

3 Union Carbide Corporation v. Union ofIndia, (1991)4 SCC 584 (para 107).4 Union ofIndia v. A.L. Rallia Ram, A 1963SC 1685.5 State «w. Bengalv. BX. Monda!, A 1962SC779,(1962)2 SCI479, (1962)2

SCR 880; New Marine Coal Co. v. Union ofIndia, A 1964 SC 152.:

RECITALS 17

CD", but it is always preferable to give each party some short name forreference. Whatever short name is adopted the party sh iuld be referredto throughout by the same name.

The form, in which the parties will be described in the beginning ofthe deed. would thus be as follows:

"This SALEDEED is made on the----<layof----BETWEENAB, etc. (hereinafter called 'the vendor') ofthe one part and CD, etc.,(hereinafter called 'the purchaser'), ofthe other part."

Ifthe transferor alone is made a party, this clause will run as follows:

."This SALEDEED is made on the dayof-.--.BYABetc., (hereinafter called 'the vendor')."

Ifthere are more than two parties, instead ofthe words "ofthe onepart" and "ofthe other part" the words "of'the first part", "ofthe secondpart", "ofthe third part", etc., should be used.

d) Recitals

Recitals are oftwo kinds: (I) Narrative recitals, which relate thepast history ofthe property transferred and set out facts and instrumentsnecessary to show the title and the relation ofthe parties to the subjectmatter ofthe deed; and (2) Introductory recitals, which explain the motivefor the preparation and execution ofthe deed.

i) Narrative Recitals

Ifthe transferor is an absolute owner ofthe property transferred, histitle and the mode in which he acquiredit need not generally be recited,but when he is not an absolute owner, recitals showing the extent ofhisinterest and the title under which he holds it will be necessary. So alsowhen the transferor transfers under some power given to him by anotherinstrument or by any special law, such instrument or law must be recited;e.g., in the case of a transfer by a guardian of a minor the fact of hisappointment as such guatdianby a deed or order ofcourt and, in the lattercase, the fact ofhis having obtained the permission ofthe court to make.the transfer, must be recited. Similarly, in a transfer of leasehold ormortgagee rights, the lease or mortgage under which the transferor holdsshould be recited. When the transferor is authorized to transfer only in

_.

18 INTRODUCTION

certain circumstances, itwouldbe advisable tonarrate thosecircumstancesin therecital to avoid futuredisputes, althoughtheiromissionin therecitalcannot estopthe transfereefromprovingthem if the transferis impugned.For instance, in case ofaKarta ofaHindu coparcenary he should betterrecite the legalnecessity forwhich the transfer is being made.

ii) Introductory Recitals

Among the introductory recitals, which come after the narrativerecitals, the chiefone is ofthe agreement which the deed is intended togive effect to. Ifthe agreement is in writing, it is not necessary to giveparticulars ofthe dateandplaceof suchagreement but itmay be expressedin briefand general terms. Any other recitals which may be necessary toconnect the narrative recitals with the rest ofthe deed by showing whyandhow the stateofthings previouslyexistingis aboutto be alteredby thedeed should also be entered.

Caution

Recitals should be inserted with great caution because they maycontrol the operative part ofthe deed ifthe same is ambiguous, and mayoperate as estoppel by estopping the parties and their representativesfromshowing the existenceofa differentstateof things from that stated inthe recitals. In any case, they may be good evidence ofthe facts recited,either as admissions under Sec. 210r as substantive evidence under Sec.32 or corroborative previous statements under Sec. 157of'the EvidenceAct, though as admissions they arenot ordinarily admissible in evidenceagainst persons not parties to the document." If, however, the operativepartofthe deed is clearand unambiguous nothing contained in the recitalwill control it. Conveyancers should therefore take the greatest care toavoid unnecessary recitals and to ensure that all recitals are both correctand judicious. The tendency ofthe modem conveyancers is to do awaywithrecitals, andinsimplecasesofsale, leaseorgiftno recitals aregenerallyneeded. But recitals arenecessarywheneverthe deeditselfdoesnotclearlyimplyforwhatpurposeanypersonjoiningin it ismade apartyor wheneverthe covenants intowhichhe enters showthat hehas onlya qualified interestin the property transferred. It is unnecessary to recite conclusions oflawor negative events.6 Abdul' Rahim Khan v.Fakir Md. Shah, A 1946 Nag 401, ILR 1946 N 518.

I

!

Order ofRecitals

Ifit is necessary to have numerops and lengthy recitals, they shouldbe inserted in chronological order. In the case ofnarrative recitals, thedifferent instruments and actswhich ultimatelyresult investing the propertyin the transferor should be recited in strict, chronological order. When theproperty comes to the transferor partly underone and partly under anothertitle, each title should be traced separately and in chronological order.

Facts and events contained in the introductory recitals also shouldbe inserted in the sequence in which they have happened or occurred.

Form ofRecitals

Recitals generally begin with the word "Whereas", but, when thereare several recitals, one can either repeat the word before every one ofthem, by beginning the second and subsequent ones with the words "AndWhereas", or divide the recitals into numbered paragraphs with the word"Whereas" at the top thus:

"Whereas--

TESTATUM 19

I

1.

2.

etc."

e) Testatum

The next division of a deed consists of the operative part. Itcommences with a witnessing clause termed the "testatum", which refersto the introductory recitals ofthe agreement (ifany) and also states theconsideration (ifany) and recites acknowledgement ofits receipt. Thewitnessing clause usually begins with the words "Now this deedwitnesses". These words oftestatum areofno importance as affecting theoperation ofthe deed and their sole use is to direct attention to the objectwhich the deed is intended to effect. Ifthe deed is intended to serve severalobjects, use the words "as follows" after the testatum, thus:

"NoW this deed witnesses as follows:

1.

2.

etc."

20 INTRODUCTION

''","--------

j) Consideration

As contracts are necessarilyfor consideration (Sec. 1°ContractA\Ct), it is advisable to express the consideration. This is necessary inmany cases oftransfer for ascertaining the stamp duty payable on thedeed as Sec. 27 ofthe Indian Stamp Act requires that the considerationshouldbe fullyandtrulysetforth in thedeed.The penaltyforomissiontocomply withthisrequirement isafinewhichmay extend to Rs.5 ,000(videSec. 64).

g) Receipt

Acknowledgment ofreceiptofconsiderationmay be embodied inthe deed itself insteadofpassing a separate receipt. Thus:

"Now this deed witnesses that in pursuance of the aforesaidagreement and in considerationofRs.--paid by the purchaser to thevendor beforetheexecution hereof, thereceipt ofwhichthevendorherebyacknowledges".

II) Operative Words

Then follow the real operative words which vary according to thenatureofthe estateand ofthe transaction. What words arenecessaryin aparticular kind oftransaction will be dealt with in thepreliminarynote tothe precedents relatingto that kind of transaction.

i) Parcels

This is a teclmicalexpressionmeaning descriptionofthe propertytransferred andit follows theoperative words. Caremust be taken, on theone hand, to include in theparticulardescriptionor in generalwords, allthe lands, etc.,which moe intendedto pass so thatno doubtmay ariseas tothe extent and operation ofthe deed; and, on the other hand not insertwordswhich will passmore thanwhat is intended. Ifthe description is ash011 one, it may be given in the body ofthe deed in fullbut ifit is a longone it is better to give it in details in a schedule at the foot of the deed,describing it shortly in thebody ofthe deed andreferring to theschedule,thus:

"The house known as Glenco and situated at Naini Tal and fullydescribed in theSchedule hereto". I

PARCELS 21

The practice of entering the full description in a schedule is aconvenient one and should generally be followed as it makes the readingofthe deed easier and clearer.

Map: Sometimes it is necessary to have a map or a plan of theproperty in order to avoid mistake about its identity and to indicate theactual property conveyed with greater definiteness and precision. Insuch cases such plan or map should be appended to the deed and referredto in the parcels, stating how the property transferred has been shown onit, e.g., by being coloured, or by coloured boundaries or by letters, etc.,thus:

"Which land isfor greater clarity (or, byway offurther identification),delineated on the plan annexed hereto and thereon shown as coloured red(or, with its boundaries coloured blue) (or, thereon marked with lettersABCDE)".

It is always desirable to make it clear whether the description in thedeed controls the plan or vice versa. The words "for greater clarity" or"by way offurther identification" are added to indicate that the descriptioncontrols the plan. Ifplan is intended to control description, we may saythus:

"All that portion ofthe compound ofhouse known as No. -­-Clyde Road, Lucknow, which is indicated by letters ABCD on the planannexed hereto and which contains an area of1500 sqm. approximately".

A map referred to in a transfer deed is treated as incorporated inthe deed, andif'it is drawn to scale and demarcates the boundaries clearlyit is not permissible to attempt to correct them with reference to revenuerecords. 7

Great care should be taken in describing the property, as a slightmistake or omission may cause immense lossto a party and ifthe propertyis described both in the body and the schedule, a conflict between the twoshould be carefully avoided.

In English conveyancing, different technical words are used to denotedifferent kinds ofproperty, For example :

i/Messuage denotes a dwelling house with outhouses and gardens.

7 K.S Nanji & Co. v. Jatashankar, A 1961 SC 1474.

22 INTRODUCTION

................... ..........__,0'"

ii) Tenement properly means land and anything which is subject totenure but is generally used as equivalent to a messuage.

iii) Hereditament applies to all interests in land.

iv)Land includes not only the surface ofearth but everything underit or over it such as mines, woods and houses.

v) Water is used to denote only the right to water and not t'ie land itcovers, while "pool" cover both water and the land.

In India, however, there is no need. to use such technical words.Instead, words ofordinary use which are commonly understood, such as,land, house, trees, etc., should be used, and so long as the description issufficient to show with certainty what the subject-matterofa conveyanceis, it is ofno concern what words are employed, but care should alwaysbe taken that the whole interest conveyed is clearly and fully described.

General Words: After a specific description of the propertyconveyed, there formerly came what were known as the "general words"giving minute details ofthe easements and legal incidents intended to beconveyed, but this is unnecessary in India in view of the provision ofSec. 8 ofthe Transfer ofPropertyAct.

Sec. 8 is subject to a different intention expressed or necessarilyimplied. Hence ifit is intended to exclude any easement or legal incident itshould be expressly mentioned. Likewise ifit is intended to include in thetransfer any right the inclusion ofwhich is not implied by these provisions,the same should be specifically mentioned, e.g., ifa garden attached to ahouse is transferred with the house the same should be specificallymentioned. No fixed rule can be laid down as to how a particular kind ofproperty should be described in the parcels, but care should be taken thatthe description used is full, sufficient, precise, definite and unambiguous.

As laid down in Sec. 3, Transfer ofProperty Act, standing timber,growing crops or grass are not included in immovable property, hence ifthey are also to be transferred specific mention should be made in that

behalf.

The following are the particulars usually necessary for the descriptionofdifferent kinds ofproperty in India-

Agricultural land : The numbers and areas of the plots, and thenames ofthe village, pargana, tahsil and district should be given. The tenure

on which the land is held, with the amount ofrevenue, ifany, fixed on theland should be given. Ifthe land is a partofa plot, the area transferred andits position with reference to a map (to be annexed to the deed) should beclearly stated and, ifpossible, boundaries may also be given.

Non-agricultural land : The exact situation, area and boundariesofthe land should be given. Ifanynumber is assigned to it in municipal orvillage register, the same should also be given.

House: should be described by its name, ifany. The number of thehouse, ifthere is one, and the name ofthe street in which it is situate shouldalso be given as well as its boundaries. Ifthere are any separate out­houses, stables,garages or gardens or open land attached to it, the sameshould be mentioned unless the description ofthe house as given in thedeed is wide enough to include them. Sometimes the area ofthe land isalso given. Ifhouse alone is transferred (and not the land covered by it,e.g., when the land belongs to another person), the fact should be madeclear in the deed, by adding the words "but without the land occupied bythe said house" after the description ofthe house. Sometimes the lengthand breadth ofthe house or ofthe whole compound are also entered. Itis not necessary to mention specifically the fixturesand fittings 0 fthe house,e.g., doors, windows, etc., and other things provided for permanent usetherewith, nor any easement annexed to it (Sec. 8 of the Transfer ofProperty Act), but ifthere are any machineries fixed in the house and theyare included, they should be specifically mentioned.

Trees: pass with the land on which they stand, but if they areseparately transferred, they should be described correctly by their positionand their species.

Grove: The name, ifany, with the correct position ofthe grove andthe number, ifany, in village or municipal registers should be given. Thearea and the boundaries should also be mentioned.

Area: Wherever area is given, care should be taken that it is correct.To be on the safe side, it is advisable that after the area the word"approximately" or the words "more or less" maybe added so that theremay not be any trouble ifthe area is found to be incorrect.

The normal rule is that in case ofconflict, a description by fixedboundaries should be preferred to a description by area which would berejected as falsa demonstratio. 8 Where, however, in a deed the

8 PlestinK.A.B. Co-op. Society v. Govt. ofPalestine, A 1948 PC 207.

PARCELS 23

j

IIII,I.I.I,

I

II

I,

fiI'

I!I:;'1

-

24 INTRODUCTION

boundaries ofthe land conveyed and the area marked in the plan disagreedbut the parties had always treated the area marked in the plan as the truearea conveyed, this conduct of the parties was held to be relevant forupholding the plan in preference to the boundaries recited." The boundariesstated in the description of the property at the foot ofthe deed should beread along with the document as a whole including any plan annexed theretoand also, iftwo conveyances have been simultaneously executed in respectofadjacent properties, the terms ofthe other conveyance so executedsimultaneously.

Description of the property to be conveyed should, as far aspracticable, be the same as in former title deeds. If the description informer title deeds is found to be wrong or has been changed owing tochange ofcircumstances, the correct present description should be givenand a reference may, ifnecessary, be made connecting the parcels with. .

the former description, thus:

','The house now known as Had Bhawan situate at Naini Tal whichwas formerly known as Endcliffe,"

. .

.' For forms of'parcels.see under General Forms post,

DExceptionsand Reservations

AUexceptions and reservations out ofthe property transferred shouldfollow the parcels.

An exception is something in existence at the date oftransfer which,ifnot expressly excepted, would pass with the property as described inthe parcels, such as trees..

A reservation is something not in existence at the date ofthe transfer.but is newlycreated by the grant, e.g. when the vendor reserves a right ofway over the property. But since both "excepting and reserving" are usedin practice it is immaterial whether what follows is an exception or areservation.

Strictly speaking, as a reservation operates as a new grant by thetransferee to the transferor, deed should be executed by the transferee

9. Watchman v. Attorney General ofEast Africa Protectorate, (1919) AC 53JPC;referred to with approval in Godhra Electricity Co. v . State ofGujarat, (1975) I

SCC 199 (para 13).

also, otherwise onreservation ofaneasement no legaleasement is createdbutonlyan equitable right.'0

k) Habendum

This is the familiar "to have and to hold" (in Latin, habendum ettenendum) clauseofthe English precedents. In India such phrases as "tohave and hold" or such an expression ':'3 "to the use ofthe purchaser" arenot strictly necessary but there is no harm in continuing the establishedpractice.

SeePreliminary Notesto SALE,post on"Habendum, when SeveralPurchasers".

COVENANTS AND UNDERTAKINGS 25

I) Covenants and Undertakings

Iftheparties to a transfer enterintocovenants, suchcovenants shouldbe enteredafterthe Habendum. While drafting covenants,regard shouldbe had to thestatutorilyimplied covenantswhich operate subject to anycontract to the contrary. For instance, Sec. 55 (sale), Sees, 65 and 67(mortgage), Sec. 108 (lease) of the Transfer ofProperty Act should bekeptinmind.

Whereseveralcovenantsfollow eachother, they may run on as onesentence, eachbeingintroduced withthewords"and also"orby thewords"First", "secondly", etc. or they may be sent out in paragraph form withtheheading:

"The vendorherebycovenantswith thepurchaseras follows->"

It is better to put in-the transferor's and the transferee's covenantsseparately, and any covenants mutually entered into by the parties witheachothermay be inserted separately. If the transferor's and transferee'scovenants are~parately mentionedin the deed,care shouldbe taken thatno covenantwhichshouldreallybe the covenantofoneparty is enteredinthe covenants oftheother. For example, ifa lesseeis giventhe rightto cuttrees ofacertain kind and not to cut trees ofa different kind, the lattercovenant is a covenantby the lessee and the former is a covenant by thelessorandboth shouldnot be insertedin one covenantby either. When itis foundinconvenient or awkwardto splitup, whatreally is one covenant

10 May v. Beloona, (1905) 2 Ch. 605.

26 INTRODUCTION

into two parts, it is better to insert such a covenant as a mutual covenantby the parties.

Sometimes the terms and conditions of a transfer cannot beconveniently separated into transferor's covenants and transferee'scovenants. In such cases, it would be better to include all the covenantsunder one head as parties'covenants thus: "The parties aforesaid heretohereby mutually agree with each other as follows:"

m]Testimonium

The last part ofa deed is the testimonium which sets forth the fact ofthe parties having signed the deed. This is not an essential part of thedeed, but as it marks the close ofthe deed there is no harm in continuingtheestablishedpractice. The usualEnglishformoftestimoriiumisas follows:

"In witness whereof the parties hereto have hereunto set theirrespective hands and seals the day andyearfirst above wri tten."

The use ofseals is not common in India except in cases ofcompaniesand corporations, and the proper form in simple language would besomewhat as follows:

"In witness whereofthe parties hereto have signed this deed on thedate first above written."

11) Signatures and Attestation

After testimonium should follow the signatures ofthe executants andthose ofattesting witnesses. Ifthe executant is not competent to contractor is a juristic person, the deed must be signed by the person competentto contract on his or its behalf. Thus ifthe deed is executed:

i) on behalfofa minor or a mentally ill person it must be signed byhis natural guardian orwhere a guardianhas been appointedby a competentcourt, then by such guardian, as guardianof--

ii) by a firm, then by any partner or partners ofthe firm, authorised(impliedly under Sec. 19 Partnership Act or expressly by power ofattomey), on behalfofthe firm;

iii) by a corporation such as a university or alocal authority or otherstatutory corporatiort, then by a person or the persons authorized in this

i

behalfbyor underthestatuteincorporating suchbody. Whetherit is alsoto be sealed depends on the provisionsofsuch statute;

iv) by a company or co-operative society or a society registeredunder the Societies Registration Act, 1860, thenby a personauthorized inthisbehalf by orunderthearticles ofassociation or rulesor regulations orbye-laws,as the casemay be Sec.48 CompaniesAct 1956requires thatthecommonsealofthe companyshouldbe affixed in thecaseofa powerofattomey. Suchsealisnotrequired forother agreements andconveyances(Sec. 54);

v)by a trusteeor mutwalli, then by such person describinghimselfas such;

vi) by an attorney, then by such person describing himselfas suchandmentioning the date ofthe deed ofthe power ofattomey;

vii) by the Government, thenby the personauthorized in this behalfunder Article 299 ofthe Constitution ofIndia, by and on beha1fofthePresident or the Governor, as the case may be, specifying the officialdesignation andpreferably notification orgovernment orderunderwhichtheauthority is conferred. (Theotherpartymaywell insiston seeingsuchnotification orauthorization).

SIGNATURES AND ATTESTATION Z7

Sign

Theword"sign"means "towriteone's nameon,as inacknowledgingauthorship". Sec.3 (56),General Clauses Act, 1897, extends itsmeaning,with refernece to a person who is unable to write his name, to include"mark". The documentmust be signed by a person in such a way as to

.'acknowledge thathe is the partycontracting, andit isnot veryrnaterial inwhat part ofthe document the signature appears.

The executionofa deedisnecessaryunder theTransferofProperty.Act in casesofmortgage, lease(except atenancyfrommonth to month orfor a term up to one year which may be created orally, accompanied bydelivery of possession, Sec. 107 Transfer of Property Act), gift!' ofimmovable property andtransferofactionable claims, andtheomissionofthesignature0 f the executant willthereforemakethedeed invalid. But in11 The Transfer o/Property Act is, however, not exhaustive, nor is it universally

applicable. Muslim gifts are thus governed by Muslim law.vide Sec. 129, Transferof Property Act. A deed is not necessary for a gift by a Muslim, but ifdeed isexecuted it requires registration.

~-------'~

28 INTRODUCTION

case ofsale there is no such necessityiftheproperty is movable or if theimmovableproperty is sold for less thanonehundredrupees.

A deedoftransfer neednotbe signed by the transferee, even thoughhe is mentioned asa party. Allconditions andcovenants arebindinguponhimwithouthis executing the conveyance ifhe consentsto it by enteringupon the landgrantedunderthe conveyance. But ifthe deedcontainsanyspecial covenantbythetransferee oranyreservation (which legally amountsto a re-grantby the transferee), it is alwaysproperto have it signedby thetransferee also.

Attestation isnecessaryin caseofsome deeds, e.g.,mortgage,gift,bond,willandrevocation ofwill. Inothercases, thoughitis notnecessary,it is exceptin the caseofnegotiable instruments, alwayssafetohave thesignature ofthe executants attested. Attestation inIndia, whenever requiredby law, should be by at least two witnesses, who should have seen theexecutant sign the deed or should have received from the executant apersonalacknowledgment ofhis signature butit is not necessary thatboththe witnesses should have been present at the same time. (See definitionof"attested" in Sec. 3 ofthe Transfer ofProperty Act and also Sec. 63,IndianSuccession Act).

A deed is normally signed at the end on the right side of its lastpage and the attesting witnesses may sign on the left side. Ifboth theparties sign, transferormay sign on the right andthe transfereeon the theleftandwitnesses toeachsignaturemaysignbelow thesignautre, However,asnotedearlier, theplaceatwhichthesignatures occurhasno legal effect.It is also expedient to ensure that preceding pages are also initialled orsignedby the parties.

Farms ofAttestation

There is no particular form ofattestation but it shouldappearclearlythat a witness intended to sign as an attesting witness. The practice inIndianforms is towritetheword"Witness"above thesignature. InEnglishf0l111S between the signaturesofthe executantsand witnesses the words"in the presence of' are added. Ithas been held that the signature ofthescribe or of an identifying witness or of a third party approving thetransaction or ofthe registering officer at the bottom ofa deed does notby itself, an10unt to att~station.12 Ifthe scribeintends to signasan attesting12 Sarkar Barnardv, AlakManjary, A 1925 PC 89, 26 BLR 737,83 IC 170; Girja

Duttv. Gangotri, A 1955 SC 346; M.L. Abdul Jaffarv, Venkatashastri, A 1969

SC1147.