REQUIREMENTS FOR DRAFTING A DEED

(Advocates, Property advocates in Bangalore, Property lawyers in Bangalore)

Before drafting any kind of deed of transfer, it is very important to incorporate all the necessary requirements for an effective enforcement of such deeds apart from giving legal sanctity, which requires due diligence and a thorough scrutiny.The following are the essential requirements:

Nature of the Deed

The deed has to specify the description of the deed, such as "This Deed of Sale", "This Deed of Mortgage", "This Deed of Agreement to sell", etc, which may not necessarily be in Bold letters, but is preferable in order to highlight the nature of the deed.

Date of Execution

It is very important to mention the date of execution of the deed since the same is required for determining the limitation and also for registration of such conveyance in the revenue records of the concerned revenue departments. The date of execution of the document may vary from the date of registration, since the documents can be presented anytime within four months from the date of execution for registration.

Parties to the Deed

All the necessary persons having interest in the property intended to be conveyed have to be mandatorily made as parties to the deed in order to avoid any future legal disputes likely to be raised by the parties having interest over the property. It is also important to properly depict the status of each party to the deed.

Recitals

The deed shall contain the previous history pertaining to the property in a precise way, explaining the nature of the interest and motive behind the execution of such deed, which authenticates the title, which is called Recitals in legal parlance.

Habendum

This part of deed speaks about the interest in the property that the purchaser is being conveyed such phrases as "To Have and To Hold". This phrase can be seen in almost all the sale deeds.

Covenant

A covenant is an agreement wherein either or both the parties to the deed bind themselves to certain terms and conditions which create an interest over the property, which may be express or implied.In recent times,with the advent of Apartment culture, it is very necessary to incorporate covenants of various types besides those for maintenance of common areas and facilities in the deed.

Testimonium

This is the part of the deed which states that the parties have signed the deed. This is very important in order to prove authentication of the execution of the deed and the involvement of the proper parties having interest in the property in legally conveying the property to the parties of the other part.

Testatum

This IS the witnessing clause wherein the witnesses signing the deed are introduced, along with their names, addresses and signature. This clause is also very important for the reason that the witnesses also play an important role to prove execution of the document.However, it is advisable that both the witnesses are from purchaser/transferee's side.

Operative Words

This part of the deed depends upon the nature of conveyance. However, operative words clearly depict the intention of the parties conveying the property in favor of the other party/ies, which IS necessary for passing of the title.

Parcels

This means description of the property following the operative words. Anything intended to be conveyed/assigned has to be specifically mentioned. Every minute detail about the identification of the property has to be clearly incorporated.Any ambiguity about the description of the schedule property may lead to serious problems.

Exceptions and Reservations

Property intended to be transferred must not fall within the ambit of those prohibited under the statute or by orders of the Government. This part of the deed speaks about the conditions restraining the alienation and assurance that such alienation does not involve any restrictions.

Exception refers to some property or definite right which is existing on the date of conveyance and the same would transfer if not expressly excluded.Reservation refers to the right which is not existing but created at the time of transfer.

Completion of transaction

The deed can be enforceable only if the same is properly stamped under Indian Stamp Act. Apart from this, it is also necessary that the same has to be registered under the Indian Registration Act.Under the said Act, registration and if such documents fall within this category, only after the registration of such documents, the right, interest and title over the property is validly transferred from the transferor to the transferee.However, registration of the documents depends upon the nature of the transfer.

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Advocate S Selvakumar

Property transfer advisor