Basic of Conveyance and Drafting:
Conveyancing is an art of drafting deeds and documents e.g. sale deed, mortgage deed, lease deed, gift deed, promissory note etc. whereby any right, title or interest in an immovable property is transferred from one person to another. Conveyancing is an art based on law or legal principles evolved over years. The accomplishment of the objectives of Conveyancing cannot be possible without a thorough knowledge and understanding of legal provisions obtaining on the subject matter.
Definition of conveyance:
Section-2 (10) of the Stamp Act, 1899 states that “conveyance” 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 for by Schedule.
Conveyance in the context of section 2 (xxiv) of the Gift Tax Act, 1958 (now repealed) means transfer of ownership.
Conveyancing has been practiced as a fine art in England by a class of trained lawyers who have specialized as conveyancer after intensive study of the law relating to contracts and real property. In Bangladesh it is in the hands of scribes i.e. deed writers. The Registration Act also admits the tradition and authorizes the Inspector-general of Registration to make rules for that purpose under section 80 G..
The terms ‘Conveyancing’ and ‘drafting’ are not inter-changeable. Conveyancing is restricted to documents or instruments or deeds concerned with the transfer of property whereas ‘drafting’ carries a general meaning of preparing all types of legal documents used in courts and commercial purposes. Pleading is another terms that is applicable for filing a petition or answer to that petition before the court known as plaint and written statements.
Legal drafting means composition and preparation of legal documents.
The essence of drafting includes- (i) law, (ii) effect, and (iii) language.
Types of drafting:
- Contentious e.g. Pleadings and other Court Procedure
- Non Contentious-
- General Deeds and Documents;
- Commercial Deeds and Documents;
- Organizational Deeds and Documents; and
- Property Deeds and Documents
General Deeds and Documents such as-
(i) Acknowledgement;
(ii) Adoption;
(iii) Affidavits;
(iv) Arbitration;
(v) General Agreements;
(vi) Notices;
(vii) Power of Attorney;
(viii) Security, Bonds;
(ix) Vetting/ Opinion;
Commercial Deeds and Documents such as-
(i) Banking forms;
(ii) Commercial Agreements;
(iii) Hypothecation and Pledge;
(iv) Negotiable Instruments;
(v) Foreign Collaboration Agreements;
(vi) Joint-venture Agreements;
(vii) Labour Agreements;
Organizational Deeds and Documents such as-
(i) Corporate documents;
(ii) Partnership deeds;
1.Property Deeds and Documents such as-
(i) Gift deeds;
(ii) Lease;
(iii) Licence;
(iv) Mortgage;
(v) Partition;
(vi) Releases;
(vii) Sale deeds;
(viii) trust deeds;
(ix) Wakfs;
(x) Wills;
Requirements of deeds of transfer in general:
A conveyance begins with the names of the parties and ends with the execution and attestation clauses. The following are the necessary parts of a deed of transfer:
(i) Description of the deed;
(ii) Date on which it is executed;
(iii) Parties to the deed;
(iv) Recitals;
(v) Habendum;
(vi) Covenants;
(vii) Testimonium;
(viii) Testatum;
(ix) Operative words;
(x) Parcel;
(xi) Exceptions and reservations;
(xii) Completion of transaction;
A brief discussion on the above requirements of a deed are mentioned in the below:
(i) Description of the deed
“This Deed of Sale”, “This Deed of Mortgage”, “This Deed of Lease” etc. may be written in capital letters.
(ii) Date on which it is executed
“This Deed of Mortgage made on the 1st day of January 2009”. In this way the date of the execution of various deeds are mentioned which is most material for the purpose of limitation, mutation, registration and passing of title. When several persons execute a deed, the date of execution by each person may be noted under his signature.
(iii) Parties to the deed
The transferor should be mentioned first and then the transferee. The name comes first, then the surname and thereafter the addresses followed by other description such as “son of (S/O)” “Wife of (W/O)”, “daughter of (D/O)” etc. Where a woman is divorced, she is described as “feme sole”. Cast and religion are to be mentioned.
- Their profession or occupation comes next e.g. “grocer” or “Medical Practitioner” etc. Change in a name is nevertheless a blot on the title.
- In the case of judicial persons, e.g. company or registered societies, after their names- registered under the Company Act, 1994 or Societies registration Act, 1860 or incorporated under special statute with address of the head office are to be stated.
- In the case of persons under disability, e.g. minor, lunatics and others- represented by “so and so”.
- In the case of Government- name of the Particular ministry represented by the Secretary of the Ministry or other authorized persons.
- In the case of Trustes- their name and the date of their appointment either by the settler or by the Court.
- In the case of Firm, all the partners and the managing partner on behalf of all the partners.
(iv) Recitals
Recitals should be short and intelligible. Recitals are of two kinds i.e. (i) narrative recitals i.e. facts and circumstances which show the nature of interest to be dealt with and (ii) introductory recitals which show the motive or intention behind the execution of the deed and are immediately followed by the operative part. The doctrine of estoppel has an important bearing on recitals. A recital of seisin is a cornerstone of a conveyance. It acts as warranty of the title.Introductory recitals may contain facts culminating in the executionof the deed beginning from the agreement up to the motive for transfer, if any.
(v) Habendum
It is that part of the deed which states the interest that the purchaser is to take in the property such phrases as “To Have and to Hold” are used but not essential to make the transfer effective.
(vi) Covenants
The relevant provisions on covenant have already discussed in the “ Equitable principles on the Transfer of Property Act” chapter. A covenant is an agreement under seal, whereby one or more of the parties to the deed stipulated for the truth of certain facts, or is bound to do or not to do a specified thing. A covenant may be express or implied.
(vii) Testimonium
It states that the parties have signed the deed. Attestation is necessary for gift, mortgage, lease and will. Before a deed is executed, the executant should read the deed. If he cannot, then it should be read over and explained to him by a competent person. The facts of so explaining should be endorsed on the deed itself.
(viii) Testatum
This is the witnessing clause saying “the deed witnesseth”. The word “witnesses” may be adequate. Addresses of each witness must be written under each signature.In the case of conveyance it contains two essentials-consideration and receipt of the purchase money.At the conclusion of the testatum, a statement of the character in which the vendor is conveying the property, e.g. as trustee, executor, receiver or mortgagee is necessary.
(ix) Operative words
They differ in cases of different kinds of transfer. In the case of sale, such operative words are used as are necessary to pass the estate of the vendor unto the purchaser.
(x) Parcel
It means the description of the property following the operative words. The easements or legal incidents should be included if intended. Boundaries on al sides must be given. It s safe always so say “now or lately butted and bounded” and to add at the end of the schedule “or howsoever otherwise the same may be butted, bounded, called, known, numbered, described or distinguished.” Any ambiguity must be resolved before the final wording is agreed.
(xi) Exceptions and reservations
These are possible only in the cases not prohibited either by the letter of policy of law. In any event they must not be uncertain, repugnant or contrary to the grant, e.g. sale of a house without land. The common exceptions are easements, natural resources, reciprocal easements, simultaneous conveyances of dwelling house and land adjacent by the same owner to different purchasers.
(xii) Completion of transaction
The deed should be properly stamped under the Stamp Act, 1899 and registered where registration is necessary under the Registration Act, 1908 or of other enactments.
If all the formalities are complied with, the transfer will be successful and the ownership as well as possession shall be delivered or transferred to the vendee or transferee.
