The Art of Drafting and Conveyancing in India
History of Drafting and Conveyancing.
Conveyancing in India has its origins in the presidency towns and adjoining mofussil areas where drafting was done by solicitors trained in the English System of conveyancing. The work since the earliest days was done by the scribes who had no formal knowledge of the law but were conversant with certain set forms of various deeds prevalent at that time in the country and had acquired experience by adapting them to the needs or requirements of the people.
The origin of these vernacular forms are not known but were handed down from generation to generation. These lawyers who generally had no education in conveyancing, generally got hold of some English forms from a solicitor in Calcutta or Bombay and adapt to their need or take help of some books containing english precedents of conveyancing. The art of conveyancing has developed without the assistance of a formalised legislation, in contrast to the legislative solutions available in England, laying down what a conveyance should and what is should not contain. And providing a set of authority forms. In the last decade, global legal traditions have benefited from interaction . India has benefitted no less in exchanging drafting techniques with the rest of the world.
Conveyancing has been defined in various texts, its has been described as the “art of creating, transferring and extinguishing interests in property both in dealing with substantive law and providing examples to illustrate its principles”
Difference between Deed and Agreement.
There is a difference between the words “agreements” and “deeds”. The Indian Contract Act defines what an agreement is and agreement precedes the contract. In simple terms, the offer from one party and the acceptance of the offer by another party is called an agreement or they are said to be in an Agreement, when these terms are entered into in accordance with law and not opposed by public policy etc then it is called as a Contract. That’s why there is a principle that all agreements are not contracts but all contracts are agreements.
The Deed normally refers to the document pertaining to the alienation of some immovable property from one person to another. While referring to the documents in which the understanding between the persons is recorded legally, the works like agreement, deed, supplemental agreement are all the same. However, it is to be understood that the word deed refers to the document pertaining to alienation of immovable property in accordance with the legal requirements.
Technically there is a difference between or amongst agreement, contract and deed. And in practice too for many transactions in the real world, there will be an agreement and then the contract. For example, there will be an agreement for the sale of immovable property and when the terms of agreement are finalised then there will be a sale deed which is nothing but a contract. And again, there can be transactions wherein the parties directly enter into a contract or a deed without any agreement. Thus, logically there is no difference between an agreement and contract but technically there is a difference.
For example – an agreement for purchasing a flat cannot be referred to as a deed, again when the flat is finally bought and all the requirements are complied with, then, we use the term Deed and not an agreement. A deed is nothing but a contract while the term contract is general, the term deed is specifically referring to the document recording the alienation of immovable property in accordance with the legal requirements.
Significance of Drafting a Deed and the Implications of bad Drafting
With the social and technological advancements and with evolution, drafting occupied great significance unlike in the past where all these issues were handled mechanically. Now there are new laws and concepts.
For example – A complicated apartment law which contains some special rights and obligations on the parties concerned which is absent from the Transfer of Property Act which traditionally deals with the issues of alienation of immovable property.
The significance of drafting the agreements preceding the deeds and deeds lie in the stakes involved, the evolution, social changes and the implications of bad drafting . The mechanical incorporation of clause in an agreement preceding the deed or drafting a deed containing mechanical clauses changing the names of the parties, consideration and the schedule will not hold good now. The justification for pleading equity unreasonably is less now. As the clauses contained in an agreement or the deed and the law prevails and nothing an be done if a necessary clause is not incorporated the implications of a bad drafting will be disastrous at times.
There cannot be a standard forms of conveyance but the laws deals only with the requirements to be complied with in the course. The substance of the document is given priority but certainly not the form. For example – assuming there is a deed with the title “lease deed” but the text referring to some, permanent alienation then the permanent alienation of property is looked into but not the title “lease deed”. The traditional forms may be a guide needing many changes and certainly it is not possible to have a standard form. Even practice of adopting evolution and giving priority to the agreements and the deeds are growing and as such there cannot be any standard form.
Fuzakkal Kuttappu V/S Bhargavi, AUR 1977 SC 105 (1977)
The Supreme Court was pleased to observe that “in construing a document, it is always necessary to find the intention of the party executing it. The intention has to be gathered from the recitals and the terms in the entire document and form the surrounding circumstances. How the parties or even their parties or even their representatives-in-interest treated the deed in question may also be relevant. It is also well settled that the nomenclature given to a document by the scribe or even by the parties is not always be conclusive. When there is a document of a composite character disclosing features of both a mortgage and a lease it need not necessarily be taken as lease. The court will have to find out the predominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction.
Bishwanath Prasad Singh V/S Rajendra Prasad (2006) 4 SSC 432
The Supreme Court was pleased to observe that “a deed must be construed having regard to the language used therein, reading it as a whole. A sentence or term used here and there may not be determinate of the real nature of the transaction”
Canbank Financial Services Ltd V/S Custodian (2004) 8 SSC 355
The Supreme Court was please to observe that “the legal effect of a document cannot be taken away even if the property is chosen to conceal by a device the legal relation” further the court went observing that “a contract may be unlawful or partly lawful or partly unlawful. If it is lawful, it will. Be given effect to whereas in case it is wholly unlawful being opposed to the public policy, it would not be. In case a transaction is partly lawful and partly unlawful, if they are severable, the lawful part shall be given effect to”
Punjab, Haryana, J&k, H.P and union territory of Chandigarh V/S M/s Panipat Woollen and General Mills Co. Ltd AIR 1976 SC 640
The Supreme Court observed “the court in order to construe and agreement has to look into the substance or the essence of it rather than to to its form. A party cannot escape the consquences of law merely by describing an agreement in a particular form through in essence and in substance it may be a different transaction”
Drafting of Agreements and Deeds requires skill and years of practice. The person drafting an agreement must know the provisions of recent laws in force. This saves the document from being void or voidable due to some laws or public policy. The language used should not necessarily be British english with latin maxims, though this language makes the document more impressive, however the main purpose of the document is to imprint the promise make by the parties towards one another and the obligations that they have to follow. The agreement must be easily understood by the parties to that agreement has to be the main objective of the drafter. The person drafting should necessarily be a legal practitioner as they can forsee the implications of various conditions in the agreement. Not every agreement is a contract but all contracts are agreements, deeds are a nomenclature given to the contracts which deal with transfer of immovable property. In order to have a mastery on drafting and conveyancing it is necessary that the person drafting should have a lot of practice in drafting, having a good vocabulary and is updated with the provisions of law in force.