1 GENERAL PRINCIPLES OF

DRAFTING & RELEVANT

SUBSTANTIVE RULES
THIS CHAPTER INCLUDES
! Introduction; ! Guidelines for Use of Particular Words and
! Drafting, its Meaning; Phrases for Drafting & Conveyancing;
! Conveyancing, its Meaning; ! Use of Appropriate Words and Expressions;
! Drafting and Conveyancing: Aids to Clarity and Accuracy;
! Distinguished; ! Legal Implications and Requirements;
! Distinction between Conveyance and ! Deed and Document;
Contract; ! Various Kinds of Deeds;
! General Principles of Drafting all sorts of ! Components of Deeds;
Deeds and Conveyancing & other Writings; ! Engrossment and Stamping of a Deed.
! Some Do’s & Don’ts;
Marks of Objective, Short Notes, Distinguish Between, Descriptive & Practical Questions

Legend
Objective Short Notes Distinguish Descriptive Practical

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8.1
 8.2 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

CHAPTER AT A GLANCE

Topic Important Highlight

1. Drafting - Its • It's the development and preparation of
Meaning legal documents such as constitutions,
statutes, contracts, wills, deeds, leases
etc. Its important element are :
 Knowledge of LAW
 Knowledge of FACTS
 To put those facts in a LANGUAGE
• It involves THINKING & COMPOSING, so
as to give a correct presentation of legal
status, rights & duties of the parties, terms
& conditions, remedies etc. in a self
explanatory manner without any
ambiguity.
2. Conveyancing - Conveyance means:
Its Meaning • An act of conveyancing or transferring
• Any property, whether movable or
immovable
• From one person to another
• Within the legal structure of the country
• But does not include acquisition by
inheritance
The transfer may be :
• by sale
• by lease
• by giving gift
• by exchange
• by will
 [Chapter  1] General Principles of Drafting &... O 8.3

3. Drafting v/s Conveyancing

Drafting Conveyancing
Preparation of documents for Preparation of documents for
• Transfer of property, and • Transfer of property
• Others
Both drafting & conveyancing are a type of documentation.
4. Conveyance v/s Contract
S. Basis Conveyance Contract
No.
I. Meaning It deals with the transfer It remains to be performed
of property. & its specific performance
may be sought.
II. Rights It just transfers the It may / may not create a
ownership of existing right of action.
right without creating
any right.
III. Act Transfer of Property Indian Contract Act,
Act, 1882. 1872.
5. General Principles • Ascertain the names, addresses etc. of
of Drafting & parties
Conveyancing • Express the intention of the parties clearly
& concisely
• Use legal language wherever possible
• No information is to be omitted or admitted
at random
• The draft must be readily understandable
by laymen
 8.4 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

• Understand the legal provisions on the

subject matter
• Document should be supported by
schedules
• The document should be self explanatory
• Use of active voice
• Document should be properly numbered
• Avoid negative language.
6. Some Important 1. Fowlers' five rules of drafting:
Rules of Drafting Every writer should endeavour to be:
• Direct
• Simple
• Brief
• Vigorous
• Lucid
i.e. he should use familiar, concrete, single
and short words in active voice and prefer
the usage of saxon word instead of the
Roman words to avoid any complications.
2. Sketch or scheme of the draft document:
Every draftsman should prepare a sketch
of the contents of a document before
taking up its drafting i.e. he should
conceive its design and outline to make
sure that nothing is left undone which
ought to be done.
3. Skeleton draft and its self - appraisal:
The draftsman should prepare the
structure of the draft which should be filled
in as he proceeds with his work. Then, he
should do a self - appraisal of the
document to identify any irregularities.
4. Special attention to be given to certain
 [Chapter  1] General Principles of Drafting &... O 8.5

documents:
It must be ensured that the contractual
obligations are not contrary to the
concerned law. In case of transfer of
property, it's necessary to ensure the
perfect title of the transferor to such
property.
5. Expert's opinion:
The draftsman should take expert's
opinion wherever necessary, to ensure the
suitability and legal fitness of the
document.
In short, the draftsman should put
himself in the place of the reader and
make sure that it carries sense.
7. Some Do's and Some Do’s:
Don'ts of Drafting 1. Reduce the group of words to single word;
2. Use simple verb for a group of words;
3. Avoid round-about construction;
4. Avoid unnecessary repetition;
5. Write shorter sentences;
6. Express the ideas in fewer words;
7. Prefer the active to the passive voice
sentences;
8. Choose the right word;
Some Don’ts:
1. Avoid the use of words of same sound.
For example, the words “Employer” and
“Employee”;
2. When the clause in the document is
numbered it is convenient to refer to any
one clause by using single number for it.
For example, “in Clause 2 above” and so
on.
 8.6 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

3. Negative in successive phrases would be

very carefully employed.
4. Draftsman should avoid the use of words
“less than” or “more than”, instead, he
must use “not exceeding”.
8. Guidelines for use The following principles may be prescribed for
of words & the guidance of draftsman for using any
phrases particular words & phrases :
• For general words, refer to ordinary
dictionary e.g. Oxford dictionary.
• For legal terms refer to legal dictionary
e.g. Wharton's law lexicon.
• Use the current meaning of words as far
as possible and quote the relevant case
laws.
• Technical words should be used only after
ascertaining their full meaning.
9. Interpretation of Though, there is no law in India on the
deeds and interpretation of documents, but the following
documents set of principles of interpretation of documents
commands wide acceptance by the judiciary all
over India.
1. Rules under informal agreements:
Here, the rule of reasonable expectation
applied i.e the agreement is to be
interpreted
 in the sense in which
 the party who used the words in
question should reasonably have
apprehended
 that the other party may apprehend
them.
 [Chapter  1] General Principles of Drafting &... O 8.7

2. Rules under formal agreements:

• The document itself is the primary
evidence. Other evidences will be
secondary.
• If the words used are clear &
unambiguous then such words should
be given their normal meanings unless
the contract gives a different meaning
to those words.
• In case of ambiguous words, the
intention of the parties as disclosed by
the whole document should be
considered.
• Earlier clause prevails : An obligation
created by an earlier clause can't be
destroyed by a latter clause.
• Interpretation of documents that have
been accepted in the past should not
be departed from.
• An invalid clause in the deed cannot
render the whole deed void unless it's
impossible to severe that invalid
clause from the rest.
• Executed contract prevails over the
executory contract.
• Judicial interpretation of similar
documents in the past can just be an
aid in the interpretation of documents.
10. Need for knowle- • To aid in obtaining legal consultations &
dge of drafting & legal advice.
conveyancing for • For carrying out documentation
corporate departmentally.
 8.8 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

executives • To study & interpret documents.

11. Document As per General Clauses Act, 1894,
Document means:
• any matter expressed or described
• upon any substance
• by means of letters, figures or marks
• for the purpose of recording that matter
Features of a Document:
• Provides information
• Acts as a proof or evidence of anything
Examples of Document:
• A writing
• Words printed or photographed
• An inscription on a metal plane or stone
• A caricature (i.e. caricature means a hand
– made sketch of a person)
12. Instrument As per Indian Stamp Act, 1899, Instrument
includes :
• every document
• by which any right or liability
• is, or purports to be
• created, transferred, modified, limited,
extended, suspended, extinguished or
recorded
Examples of Instrument:
• Awards made by industrial Courts
• A will
• Instrument includes decree
• Instrument does not include acts of
parliament unless there is a statutory
definition to that effect in the act.
 [Chapter  1] General Principles of Drafting &... O 8.9

13. Deed Deed is :

• an instrument
• by which two or more persons.
• agree to effect any right or liability.
Examples of Deeds :
• Gift Deed
• Sale Deed
• Partnership Deed
• Lease Deed
A deed is of non - testamentary character.
Deeds are in writing, signed, sealed and
delivered.
14. Kinds of deeds:
S. No. Type of Deed Particular
1 Good deed Conveys a good title
2 Good & sufficient Passes a good title
deed
3 Inclusive deed Purports to convey
4 Latent deed Kept for 20 years or more in a strong
box
5 Pretended deed Is apparently or prima facie valid
6 Warranty deed Contains a covenant of warranty
7 Lawful deed Conveys a good or lawful title

15. Some Other Terms Connected With Deeds:

(a) Deed Pool It's
• a deed between 2 or more parties
• where as many copies are made as there
are parties
• so that each party may possess a copy
No. of copies = No. of parties
8.10 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

(b) Deed poll A deed made and executed by a single party

e.g. power of Attorney.
 It's drawn in first person usually.
(c) Indenture • Such type of deeds involve two or more
parties.
• It was written in duplicate upon one piece
of a material and two parts were severed
so as to leave a vary (uneven edge) edge.
As a result, forging such documents was
difficult.

(d) Cyrographun • It's similar to indenture.

• The only difference is that here, the word
'cyrographun' was written and torn in
between so as to make it very difficult for
any person to forge another deed that
would fit exactly into this cutting with the
same zig zag lines.
Deed
 [Chapter  1] General Principles of Drafting &... O 8.11

(e) Deed Escrow A deed signed by one party will be delivered to

another as an 'escrow'.
 It will operate from the date when it’s last
signed.
(f) Components A deed is divided into different paragraphs.
of deeds Under each part, the related information is put
in that paragraph in simple language. The
usual components of a deed are as follows:
S. No. Particulars

(i) Non - Operative Part

1. Description of the Deed title

2. Place and Date of execution of a Deed
3. Description of parties to the Deed

(ii) Operative Part

4. Recitals (Short Story)
5. Testatum
6. Consideration
7. Receipt Clause
8. Operative Clause
9. Description of Property
10. Parcels Clause
11. Exceptions and reservation
12. Premise and Habendum
13. Covenants and Undertakings

(iii) Formal Part

14. Testimonium Clause
15. Signature and Attestation
16. Endorsements and supplemental deeds
17. Annexures or Schedules
8.12 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

16. Components • Description of the Deed Title

of Deed • Place and Date of Execution of a Deed
• Description of parties
• Recitals (Short Story)
(i) Narrative Recitals
(ii) Introductory Recitals
• Testatum
• Consideration
• Receipt Clause
• Description of Property
• Operative Clause
• Parcels Clause
• Exceptions and Reservations Clause
• Premises and Habendum
• Covenants and Undertakings
• Testimonium Clause
• Signature and Attestation Clause
• Endorsements and Supplemental Deeds
• Annexures or Schedules
17. Engrossment • The draft of the document is required to be
and approved by the parties.
Stamping of • After approval, the document is engrossed i.e.
a Deed copied fair on the non-judicial stamp paper of
appropriate value as per Stamp Act.
• In case, the document is drafted on plain
paper but approved without any changes, it
can be lodged with the collector of stamps for
adjudication of stamp duty.
• An improperly stamped document is rendered
inadmissible.
 [Chapter  1] General Principles of Drafting &... O 8.13

SHORT NOTES

2010 - Dec [5] Write a note on the following :

(i) Habendum (4 marks)
Answer:
Habendum :
Habendum is a part of deed which states the interest yet to be taken by the
purchaser. Habendum clause starts with the words "TO HAVE AND TO
HOLD".
Formerly in England in case of a gratuitous transfer, the equitable
interest wherein remained with the transferor and the transferee was not
deemed to be the owner of the beneficial interest.
It was therefore, necessary to indicate in the deed that it was being
transferred for the use of the transferee if it was intended to confer an
equitable estate in him.
It was for that reason that the habendum commenced with the words: “to
have and to hold to the use of...............”. Now it is not necessary to express
it so. In the modern deeds, however, the expression “to have and” are
omitted.
The habendum limits the estate mentioned in the parcels. The transferee
is mentioned again in the habendum for whose use the estate is conveyed.
If the property conveyed is encumbered, reference thereto should be
made in the habendum. If the parties to transfer enter into covenants, they
should be entered after the habendum.
Space to write important points for revision

2010 - Dec [7] (b) Write a note on ‘covenants and undertakings’.

(5 marks)
Answer:
Covenants and Undertakings : The term “covenant” is defined as an
agreement under seal, which stipulates for the truth of certain facts. In
Whaston Law Lexicon, a covenant has been explained as an agreement or
 8.14 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

convention or promise by the parties, by deed in writing, signed, sealed and

delivered, by which either of the parties, pledged himself to the other that
something is either done or shall be done for stipulating the truth of certain
facts. Covenant clause includes undertakings also. Usually, covenant is
stated first.
In some instances the covenants and “undertaking” are mixed, i.e. can
not be separated in that case, they are joint together, words put for this as
"The Parties aforesaid hereto hereby mutually agree with each other as
follows." Such covenants may be expressed or implied.
Space to write important points for revision

2013 - June [8] (b) Write a note on ‘covenants and undertakings’.

(4 marks)
Answer:
Please refer 2010 - Dec [7] (b) on page no. 27
Space to write important points for revision

2013 - Dec [4] Write a note on the following:

(i) Habendum and reddendum (4 marks)
Answer :
Habendum
(i) Habendum is a part of deed which states the interest, the purchaser
is to take in the property. The habendum clause starts with the words.
“TO HAVE AND TO HOLD”
(ii) Formerly in England, if there was a gratuitous transfer, the transferee
was not deemed to be the owner of the beneficial estate in the
property.
(iii) The habendum limits the estate mentioned in the parcels.
(iv) In India, such Phrases as “to have and to hold” or such an expression
as “to the use of the purchaser” can very well be avoided as in cases
except those of voluntary transfers, such an expression is superfluous.
 [Chapter  1] General Principles of Drafting &... O 8.15

Reddendum
This is peculiar to a deed of lease. Here is mentioned this mode and time
fixed for payment. It begins with the word “rendering or paying” with
reference to the reserved rent is payable during the terms of the lease. Place
where payable and instalment where mentioned. If there is apportionment of
rent that is also mentioned.
Space to write important points for revision

2014 - Dec [3A] (Or) Write notes on the following:

(i) Covenants and undertakings. (4 marks)
Answer:
Please refer 2010 - Dec [7] (b) on page no. 27
Space to write important points for revision

2018 - June [3A] (Or) Write notes on the following:

(iv) Habendum (4 marks)
Answer:
Habendum
Habendum is a part of deed which states the interest, the purchaser is to
take in the property. The genesis of this clause can be traced to gratuitous
transfer of property in ancient England. It is usually starts with the words
“THE HAVE AND TO HOLD”. The habendum limits the estate mentioned in
the parcels. The transferee is again mentioned in the clause for whose use
the estate is conveyed. Whatever precedes the habendum is called the
premises.
Space to write important points for revision

2018 - Dec [2] Write notes on the following :

(a) Recitals
(d) Expert’s opinion. (4 marks each)
Answer:
 Recitals contain the short story of the property up to its vesting into its
transferors.
 8.16 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

 Recitals may be of two kind. One narrative recitals which relate to the
past history of the property transferred and sets out the facts and
instrument necessary to show the title and relation to the party to the
subject matter of the deed as to how the property was originally acquired
and held and in what manner it has developed upon the grantor.
 The extent of interest and the title of the person should be recited. It
should be written in chronological order, i.e. in order of occurrence.
 This forms part of narrative recitals. This is followed by inductory recitals,
which explain the motive or intention behind execution of deed.
 Recitals carry evidentiary significance in the deed. It is an evidence
against the parties to the instrument and those claiming under and it may
operate as estoppel [Ram Charan v. Girija Nandini, 3 S.C.R. 841(1965)].
 Recital normally begins with the words “Whereas” and when there are
several recitals instead of repeating the words “Whereas” before each
and every one of them, it is better to divide the recitals into numbered
paragraphs. For example, “Whereas”_
1.
2.
(d) Drafting of legal documents is a skilled job. The duty of a draftsman is to
express the intention of the parties clearly and concisely in technical
language. If the draft document has been prepared for the first time to
be used again and again with suitable modification depending upon the
requirements of each case it should be got vetted by the experts to
ensure its suitability and legal fitness if the corporate executive feels it
so necessary.
Expert opinion comes from the professional who has acquired
knowledge and skills through study and practice over the years, in a
particular field or subject, to the extent that his or her opinion may be
helpful in fact finding, problem solving, or understanding of a situation.
Space to write important points for revision

2018 - Dec [3A] (Or) Write note on the following:

(i) Components of Deed (4 marks)
Answer:
 [Chapter  1] General Principles of Drafting &... O 8.17

The elements of deeds are as follows:

– Description of the Deed Title.
– Place and Date of execution of a Deed.
– Description of Parties to the Deed.
– Recitals.
– Testatum.
– Consideration.
– Receipt Clause.
– Operative Clause.
– Description of Property.
– Parcels Clause.
– Exceptions and Reservations.
– Premises and Habendum.
– Covenants and Undertaking.
– Testimonium Clause.
– Singature and Attestation.
– Endorsements and Supplemental Deeds.
– Annexures or Schedules.
Space to write important points for revision

DISTINGUISH BETWEEN

2009 - June [3] (a) Distinguish between the following :

(i) ‘Conveyance’ and ‘contract’. (4 marks)
(ii) ‘Instrument’ and ‘deed’. (4 marks)
Answer:
(i) ‘Conveyance’ and ‘contract’.
Contract Conveyance
(a) Under the contract which (a) It alters the ownership of existing
enables party to the contract to right.
take action in case of non
 8.18 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

performance or breach of
contract to take action against
the party who breaches the
contract. Hence one party who
suffers can demand
compensation or special
performance. So right of action is
created in contract ,whereas in
conveyance, right of action is not
created. (b) Whereas it is governed by the
(b) Provisions of Indian Contract Transfer of Property Act, 1882.
Act, 1872 governs any contract. (c) Conveyance passes on the title
(c) Contract remains to be of property to another person.
performed and its specific
performance may be sought. (d) The deed of mortgage or sale
(d) A contract to mortgage or sale would operate as conveyance of
would not amount to activate thus such interest.
per of interest in the property.
(ii) Instrument : The word "instrument" includes every document by which
any right or liability is, or purports to be, created, transferred, modified,
limited, extended, suspended, extinguished or recorded.
Deed : The term deed describes all the instruments by which two or
more persons agree to effect any right or liability. For example, Gift
Deed, Sale Deed, Deed of Partition, Partnership Deed, Deed of Family
Settlement, Lease Deed, Mortgage Deed and so on. A bond is also
included in the wide field of expression ‘Deed’.
Note: A deed may be defined as a formal writing of a non-testamentary
character, which purports and operates to create, confirm assign, limit or
extinguish some right, title or interest.
Space to write important points for revision

2009 - Dec [4] (b) Distinguish between the following :

(i) ‘Document’ and ‘deed’. (3 marks)
 [Chapter  1] General Principles of Drafting &... O 8.19

Answer :
Document Deed

(i) Document has been defined by (i) There is no specific definition of

General Clauses Act, 1897. deed in any act.

(ii) It means any matter expressed or (ii) Deed usually describes all the
described upon any substance by instruments by which two or
means of letters figures or marks, more persons agree to effect
or by more than one of those any right or liability.
means which is intended to be
used, or which may be used for
the purpose of recording that
matter.

(iii) E.g. a writing, a map or plan, (iii) E.g. partnership deed, deed of
words printed, photo graphed etc. family, lease deed etc.
Space to write important points for revision

2011 - June [7] (b) Distinguish between the following :

(i) 'Endorsements' and 'supplemental deed'. (4 marks)
Answer :
Endorsement and Supplemental deed
Endorsement means to write on the back or on the face of a document
wherein it is necessary in relation to the contents of that document or
instruments. The term endorsement is used with reference to negotiable
documents like -
(a) Cheque
(b) Bill of exchange
(c) Hundies etc.
(d) Promissory notes.
For e.g. - On the back of the cheque to sign one name as payee to obtain
cash is an endorsement on the cheque.
 8.20 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

Supplemental deed - is a document which is entered into between the

parties on the same subject on which there is a prior/ex documents existing
an operative for adding new fact to the document on which the parties to the
document have agreed which otherwise cannot be done by way of
endorsement. Thus supplemental deed is executed to give effect to the new
fact in the deed.
Space to write important points for revision

2011 - Dec [7] (b) Distinguish between the following:

(i) ‘Conveyance’ and ‘contract’. (3 marks)
Answer:
Please refer 2009 - June [3] (a) (i) on page no. 31
Space to write important points for revision

2013 - Dec [7] (b) Distinguish between the following:

(i) ‘Legal document’ and ‘instrument’. (3 marks)
Answer :
Legal Document:
(i) “Document” as defined in Section 3(18) of General Clause
Act, 1894, means any matter expressed or described upon any
substance by means of letters, figures or marks.
(ii) Which may be used for the purpose of recording that matter.
Example:
A writing is a document.
Words printed, lithographed or photographed are document.
Instrument:
The word “instrument” includes every document by which any right or liability
is, or purports to be, created, transferred, modified, limited, extended,
suspended, extinguished or recorded.
Space to write important points for revision

2014 - June [2A] (Or) Distinguish between the following :

(i) ‘Indenture’ and ‘deed escrow’. (4 marks)
 [Chapter  1] General Principles of Drafting &... O 8.21

Answer:
Indenture: Indenture are those deeds in which there are two or more parties.
It was written in duplicate upon one piece of parchment and two parts were
severed so as to leave an indented or vary edge, forging being then,
rendered very difficult. Indentures were so called as at one time they are
indented or cut with uneven edge at the top.
In olden times, the practice was to make as many copies or parts as they
were called, of the instruments as they were parties to it, which parts taken
together formed the deed and to engross all of them of the same skin of
parchment.
Deed Escrow: A deed signed by one party will be delivered to another as an
“escrow” for it is not a perfect deed. It is only a mere writing (Scriptum)
unless signed by all the parties and dated when the last party signs it. The
deed operates from the date it is last signed.
Escrow means a simple writing not to become the deed of the expressed to
be bound thereby, until some condition should have been performed.
Space to write important points for revision

2015 - June [2A] (Or) Distinguish between the following:

(iii) ‘Habendum’ and ‘reddendum’. (4 marks)
Answer:
Please refer 2013 - Dec [4] (i) on page no. 28
Space to write important points for revision

2015 - Dec [2A] (Or) Distinguish between the following:

(i) ‘Supplementary deeds’ and ‘endorsements’. (4 marks)
Answer:
Endorsement
Endorsement means to write on the back or on the face of a document
wherein it is necessary in relation to the contents of that document or
instruments. The term endorsement is used with reference to negotiable
documents like:
(a) Cheque
(b) Bill of exchange
 8.22 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

(c) Hundies etc.

(d) Promissory notes.
For e.g. On the back of the cheque to sign one name as payee to obtain
cash is an endorsement on the cheque.
Supplementary is a document which is entered into between the parties on
the same subject on which there is a prior/ex-documents existing an
operative for adding new fact to the document on which the parties to the
document have agreed which otherwise cannot be done by way of
endorsement. Thus, supplemental deed is executed to give effect to the new
fact in the deed.
Space to write important points for revision

2016 - June [2] Distinguish between the following :

(a) ‘Endorsement’ and ‘engrossment’. (4 marks)
Answer:
Endorsement Engrossment

Endorsement means to write on the The draft of document is required to

back or on the face of a document. be approved by the parties. In case
The term endorsement is used with of companies it is approved by Board
reference to negotiable instruments of Directors in their meeting or by a
like cheques, bill of exchange etc. duly constituted committee of the
For example on the back of the board for this purpose by passing
cheque to sign one’s name as payee requisite resolution approving and
to obtain cash is an endorsement on authorising of its execution.
the cheque.
Endorsement is used to give The document after approval is
significance to a particular document engrossed i.e. copied fair on the non-
with reference to new facts to be judicial stamp-paper of appropriate
added in it. Endorsement is also used value as may be chargeable as per
to express definite approval to a Stamp Act.
particular document.
Space to write important points for revision
 [Chapter  1] General Principles of Drafting &... O 8.23

2016 - Dec [2] Distinguish between the following:

(d) ‘Operative clause’ and ‘testimonium clause’. (4 marks)
Answer:
‘Operative clause’ and ‘testimonium clause’
Operative clause is followed by the real operative words which vary
according to the nature of the property and transaction involved therein. The
words used in operative parts will differ from transaction to transaction. For
example, in the case of mortgage the usual words to be used are “Transfer
by way of simple mortgage” (usual mortgage) etc. The exact interest
transferred is indicative after parcels by expressing the intent or by adding
habendum. (The parcel is technical description of property transferred and
it follows the operative words).
Testimonium is the clause in the last part of the deed. Testimonium signifies
that the parties to the document have signed the deed. This clause marks
the close of the deed and is an essential part of the deed.
The usual form of testimonium clause is as under:
“In witness whereof, parties hereto have hereunto set their respective hands
and seals the date and year first above written”. This is the usual English
form of testimonium clause. In India, except in the case of companies and
corporations seals are not used and in those cases testimonium clause
reads as under:
“In witness whereof the parties hereto have signed this day on the date
above written”.
Thus testimonium clause can be worded according to the status and
delegation of executants.
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2017 - Dec [3] Distinguish between the following:

(d) Conveyance and Contract (4 marks)
Answer:
Please refer 2009 - June [3] (a) (i) on page no. 31
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 8.24 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

2018 - Dec [3] Distinguish between the following :

(a) Drafting and Documentation (4 marks)
Answer:
 Drafting may be defined as the synthesis of law and fact in a language
form. It is the development and preparation of legal instruments such as
constitutions, statutes, regulations, ordinances, contracts, wills,
conveyances, indentures, trusts and leases, etc.
 The process of drafting operates in two planes: the conceptual and the
verbal. Besides seeking the right words, the draftsman seeks the right
concepts. Drafting, therefore, is first thinking and second composing.
 Drafting may cover all types of documents in business usages.
 Drafting, in legal sense, means an act of preparing the legal documents
like agreements, contracts, deed etc.
 Commercial houses, banks and financial institutions have been using the
term “documentation” in substitution of the words “drafting and
conveyancing”
 Documentation refers to the activity which symbolizes preparation of
documents including finalisation and execution thereof.
 Documentation is a set documents provided on paper, or online, or on
digital or analog media, such as audio tape or CDs. Examples are user
guides white papers, on-line help, quick-reference guides, Proper
documentation provides evidence of what has transpired as well as
provides information for researching discrepancies. Supporting
documentation may come in paper or electronic form.
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DESCRIPTIVE QUESTIONS

2009 - June [1] {C} Attempt the following :

(i) Define 'document'.Explain various kinds of deeds. (5 marks)
 [Chapter  1] General Principles of Drafting &... O 8.25

Answer :
Document : Document according Section 3(18) of General Clauses
Act, 1897 means any matter written expressed or described upon any
substance by means of letter figure or marks or by more than one those
means word the has to be omitted, intended to be used, or which may be
used, for the purpose of recording that matter. As for instance, a writing is a
document, words printed, lithographed or photographed are documents; a
map or plan is a place or stone is a document. A caricature is a document.
Thus, document is a paper or other material thing affording information, proof
or evidence of anything.
Various kinds of Deeds :
1. A good deed is one which conveys a good title, not one which is good
merely in form.
2. A good and sufficient deed is marketable deed; one that will pass a good
title to the land it purports to convey.
3. An inclusive deed is one which contains within the designated
boundaries lands which are expected from the operation of the deed.
4. A latent deed is a deed kept for twenty years or more in man's escritoire
or strong box.
5. A lawful deed is a deed conveying a good or lawful title.
6. A pretended deed is a deed apparently or prima facie valid.
7. A voluntary deed is one given without any "valuable considerations".
8. A warranty deed is a deed containing a covenant of warranty.
Space to write important points for revision

2009 - June [5] (a) Explain in detail the general principles of drafting and
conveyancing and other writings. (12 marks)
Answer :
Drafting of legal documents requires skill, At the very first instance, the
names, description and the addresses of the parties to the instrument must
be ascertained by a draftsman. He must obtain particulars about all
necessary matters which are required to form part of the instrument. He must
also note down with provision any particular directions or stipulations which
are to be kept in view and to be incorporated in the instrument. The duty of
 8.26 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

a draftsman is to express the intention of the parties clearly and concisely in

technical language. With this end in view , he should first form a clear idea
of what these intentions are.
A corporate executive, therefore, must note down the most important
requirements of law which must be fulfilled while drafting complete
instrument on the subject. Knowledge of law of the land in general and
knowledge of the special enactments applicable in a particular situation is an
essential requirement for a draftsman to ensure that the provisions of the
applicable law are not violated or avoided. A limited company can do only
that much which it is authorised by its memorandum. Further, a company
being a legal entity, must necessarily act through its authorised agents. A
deed, therefore, should be executed by a person duly authorised by the
directors by their resolution or by their power of attorney.
It is also to be ensured that the format of documents adopted adheres
to the customs and conventions in vogue in the business community or in the
ordinary course of legal transactions. For any change in the form of such
document, use of juridical and technical language should invariably be
followed. The statements of negatives should generally be avoided. The
order of the draft should be strictly logical. Legal language should be, to the
utmost possible extent, precise and accurate. The draft must be readily
intelligible to layman.
Document should be supported by the schedules enclosures or
annexures in case any reference to such material has been made in that.
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2009 - Dec [1] {C} Attempt the following :

(b) Define ‘deed’. What are the components of a deed in general ?
(5 marks)
Answer:
A deed is a writing-
(a) paper, vellum or parchment,
(b) sealed and
 [Chapter  1] General Principles of Drafting &... O 8.27

(c) delivered, whereby an interest, right or property passes, or an obligation

binding on some persons is created or which is in affirmance of some act
whereby an interest, right or property has been passed.
A deed is a present grant rather than a mere promise to be performed
in the future.
Deeds are in writing, signed, sealed and delivered.
Deeds are instruments, but all instruments are not deeds.
A deed is divided into different paragraphs. Under each part relevant
and related information is put in paragraph in simple and intelligible
language. The usual parts or components or clauses of deeds in general
are mentioned as follows:
(1) Description of the Deed Title
(2) Place and Date of execution of a Deed
(3) Description of Parties to the Deed
(4) Recitals
(5) Testatum
(6) Consideration
(7) Receipt Clause
(8) Operative Clause
(9) Description of property
(10) Parcels Clause
(11) Exceptions and Reservations
(12) Premises and Habendum
(13) Covenants and undertakings
(14) Testimonium Clause
(15) Signature and attestation
(16) Endorsements and supplemental Deeds
(17) Annexures or Schedules.
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2009 - Dec [5] (b) Explain habendum. What does a habendum clause signify
in a document? (4 marks)
 8.28 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

Answer :
Habendum is a part of deed which states the interest, the purchaser is to
take in the property. Habendum clause starts with the words ”TO HAVE AND
TO HOLD”.
Formerly in England if there was a gratuitous transfer, the transferee was
not deemed to be the owner of the beneficial estate in the property, the
equitable estate wherein remained with the transferor as a resulting trust for
him.
It was therefore, necessary to indicate in the deed that it was being
transferred for the use of the transferee if it was intended to confer an
equitable estate in him.
It was for that reason that the habendum commenced with the words: “to
have to hold to the use of ............”. Now it is not necessary to express it so.
In the modern deeds, however, the expression “to have and” are omitted.
The habendum limits the estate mentioned in the parcels.
The transferee is mentioned again in the habendum for whose use the
estate is conveyed. Whatever precedes the habendum is called the
premises.
The parcels or the description of the property usually again included in
the premises.
If the property conveyed is encumbered, reference thereto should be
made in the habendum. If the parties to transfer enter into covenants, they
should be entered after the habendum.
In India such phrases as “to have and to hold” or such an expression as
“to the use of the purchaser” can very well be avoided as in cases except
those of voluntary transfers such an expression is superfluous.
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2010 - June [1] {C} (b) What are the do’s and don’ts which should be
considered while drafting documents? (5 marks)
(c) Explain the following:
(i) Deed pool
(ii) Deed poll
(iii) Indenture
 [Chapter  1] General Principles of Drafting &... O 8.29

(iv) Cyrographum
(v) Deed escrow. (2 marks each)
Answer :
(b) The essence of the process of drafting is synthesis of law and fact in a
languages. A proper understanding of drafting cannot be realised unless
the nexus between the law, the facts and the language is fully
understood and accepted. This requires serious thinking followed by
prompt action to reduce the available information into writing with a legal
meaning.
Some Do’s :
1. Reduce the group of words to single word;
2. Use simple verb for a group of words;
3. Avoid round-about construction;
4. Avoid unnecessary repetition;
5. Write shorter sentences;
6. Express the ideas in fewer words;
7. Prefer the active to the passive voice sentences;
8. Choose the right word;
9. know exactly the meaning of words and sentences you are writing;
and
10. Put yourself in the place of reader, read the document and satisfy
yourself about the content, interpretation and the sense it carries.
Some Don’ts : The following things should be avoided while drafting the
documents :
(a) Avoid the use of words of same sound. For example, the words
"Employer" and "Employee".
(b) When the clause in the document is numbered it is convenient to
refer to any one clause by using single number for it. For example,
"in clause 2 above" and so on.
(c) Negative in successive phrases would be very carefully employed.
(d) Draftsman should avoid the use of words "less than" or "more than”,
instead they must use "not exceeding".
(e) If the draftsman has provided for each of the two positions to
happen without each other and also happen without, "either" will not
 8.30 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

be sufficient; he should write for the "either or express the meaning

of the two in other clauses.
In writing and typing the following mistakes always occur which
should be avoided:
1. "And" and "or";
2. "Any" and "my";
3. "Know" and "now";
4. "Appointed" and "Applied";
5. "Present" and "Past" tense.
(c) (i) Deed Pool : It is an arrangement wherein as many copies are made
as there are parties, so that each party may be in possession of a
copy.
(ii) Deed Poll : A deed made and at the same time executed by single
party e.g. power of attorney, is called a deed poll because in olden
times, it was polled or cut level at the top. It had a polled or clean cut
edge. It is generally used for the purpose of granting powers of
attorney and for exercising powers of appointment or setting out an
arbitrator's award. It is drawn in first person usually.
(iii) Indenture : Indenture are those deeds in which there are two or
more parties. It was written in duplicate upon one piece of
parchment and two parts were severed so as to leave an indented
or vary edge, forging being then, rendered very difficult. Indentures
were so called as at one time they are indented or cut with uneven
edge at the top. In olden times, the practice was to make as many
copies or parts as they were called, of the instruments as they were
parties to it, which parts taken together formed the deed and to
engross all of them of the same skin of parchment.
(iv) Cyrographum : This was another type of indenture in olden times.
The word "Cyrographum" was written between two or more copies
of the document and the parchment was cut in a jugged line through
this word. The idea was that the difficulty of so cutting another piece
of parchment that it would fit exactly into this cutting and writing
constituted a safeguard against the fraudulent substitution of a
different writing for one of the parts of the original. This practice of
indenting deeds also has ceased long ago and indentures are really
 [Chapter  1] General Principles of Drafting &... O 8.31

now obsolete but the practice of calling a deed executed by more

than one party as an "indenture" still continues in England.
(v) Deed Escrow : A deed signed by one party and delivered to
another as an "escrow" for it is not a perfect deed. It is a mere
writing (Scriptum) unless signed by all the parties and dated when
the last party signs it. The deed operates from the date it is last
signed. Escrow means a simple writing not to become the deed of
the expressed to be bound thereby, until some condition should
have been performed (Halsbury Laws of England, 3rd Edn., Vol. II,
p. 348).
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2010 - Dec [1] {C} (c) What is meant by ‘recitals’ as a component in a deed?
What is its evidentiary value? (5 marks)
Answer:
Recitals :
Recitals contain the short story of the property up to its vesting into its
transferors. Care should be taken that recitals are short and intelligible.
Recitals may be of two types.
One, narrative recitals which relates to the past history of the property
transferred and sets out the facts and instrument necessary to show the title
and relation to the party to the subject matter of the deed as to how the
property was originally acquired and held and in what manner it has
developed upon the grantor or transferor.
The extent of interest and the title of the person should be recited.
It should be written in chronological order i.e. in order of occurrence.
This forms part of narrative recitals.
This is followed by introductory recitals, which explain the motive or
intention behind execution of deed.
Recitals should be inserted with great caution because they precede the
operative part and as a matter of fact contain the explanation to the operative
part of the deed.
 8.32 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

If the same is ambiguous, recitals operate as estoppel. Recital offers

good evidence of facts recited therein. Recitals are not generally taken into
evidence but are open to interpretation by the courts. If the operative part of
the deed is ambiguous anything contained in the recital will help in its
interpretation or meaning.
In the same sense, it is necessary that where recitals contain
chronological events that must be narrated in chronological order.
Recital generally begins with the words "Whereas" and when there are
several recitals instead of repeating the words "Whereas" before each and
every one of them, it is better to divide the recitals into numbered paragraphs
for example, "Whereas"-
1.
2.
3.
etc.
It has been held that "Recitals" carry evidentiary importance in the deed. It
is an evidence against the parties to the instrument and those claiming under
and it may operate as estoppel [Ram Charan v. Girija Nandini, 3 SCR 841
(1965)].
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2010 - Dec [2] (a) Explain the following :

(ii) Testimonium (2 marks)
(iv) Deed escrow (2 marks)
Answer :
(ii) Testimonium Clause : The clause of the deed is marked by this
clamps and is an integral part of the deed. Testimonium is the clause
in the last part of the deed. Testimonium signifies that the parties to
the document have signed the deed. This clause marks the close of
the deed and is an essential part of the deed.
The usual form of testimonium clause is as under:
"In witness whereof, parties hereto have hereunto set their
respective hands and seals the date and year first above written". This
 [Chapter  1] General Principles of Drafting &... O 8.33

is the usual English form of testimonium clause. In India, except in the

case of companies and corporations seals are not used and in those
cases testimonium clause reads as under:

"In witness whereof the parties hereto have signed this day on the
date above written."
Thus testimonium clause can be worded according to the status
and delegation of executants.
(iv) Deed Escrow : A deed signed by one party and delivered to another
as an "escrow" for it is not a perfect deed. Until and unless the deed
is signed by all the parties are dated when the last party signs it. It is
merely writing (Scriptum). The deed operates from the date it is last
signed. Escrow means a simple writing not to become the deed of the
expressed to be bound thereby, until some condition should have
been performed. (Halsbury Laws of England, 3rd Edn., Vol. II, p. 348).
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2010 - Dec [6] (a) Define the term ‘deed’. Explain any seven usual clauses
in a deed. (8 marks)
(b) Whether an unburnt fresh hard disk in a computer is a ‘document’ within
the meaning of Section 3 read with Section 65B of the Indian Evidence Act,
1872 ? Discuss with reference to case law. (4 marks)
Answer :
(a) Please refer 2009 - Dec [1] {C} (b) on page no. 40
Answer:
(b) The issue whether hard disc of a computer is a document within the
meaning of Sections 3 and 65B of the Evidence Act, 1872 was
decided in the case Dharamvir v. CBI [148 (2008) DLT [288].
In this case, it was held that hard disc is a document. The Court held
that as long as nothing at all is written on to a hard disc and it is
subjected to no change, it will be a mere electronic storage device like
any other hardware of the computer.
Once the hard disc is subject to any change, then even if it restored
to the original position by reversing that change, the information
 8.34 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

concerning the two steps, viz., the change and its reversal will be stored
in the subcutaneous memory of the hard disc and can be retrieved by
using software designed for that purpose.
Therefore, a hard disc that is once written upon or subjected to any
change is itself an electronic record even if it does not at present contain
any accessible information.
In addition there could be active information available on the hard
disc which is accessible and convertible into other forms of data and
transferable to other electronic devices.
The active information would also constitute an electronic record.
Given the wide definition of the words ‘document’ and ‘evidence’ in the
amended Section 2(o) and 2(t) of IT Act, there can be no doubt that an
electronic record is a document.
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2011 - June [1] {C} (a) In India, there is no law on conveyancing or

interpretation of documents. Explain how disputed ambiguous formal deeds
can be judicially decided then. (8 marks)
Answer :
Principles of interpretation of deeds and documents are:
(A) Formal Agreements:- The following rules of interpretation may be
applied:
(i) Under Section 91 of the Evidence Act provides that a deed constitute
the primary evidence of the terms of a Contract, or of a grant or of any
other disposition of property.
(ii) In case of uncertainty, the rule embodied in provisions 2 and 6 of
Section 92 of the Evidence Act can be invoked for construing a deed.
(iii) The cardinal rule is that clear and unambiguous words prevail over
any hypothetical consideration.
(iv) Sometimes a contract is completed in two parts:-
(a) An executory contract is executed
(b) An executed contract
(v) The Court must interpret the words in their popular, natural and
ordinary sense, subject to certain exceptions as,
 [Chapter  1] General Principles of Drafting &... O 8.35

(a) Where the contract affords an interpretation different from the

ordinary meaning of the words; or
(b) Where the conventional meanings are not the same with their
legal sense.
(vi) All mercantile documents should receive a liberal construction.
(vii) If certain words employed in business, or in a particular locality have
been used in particular sense, they must prima facie be construed in
technical sense.
(viii) The ordinary grammatical interpretation is not to be followed, if it is
repugnant to the general context.
(ix) If the main clause is clear and the contingency mentioned in the
proviso does not arise, the proviso is not attracted at all and its
language should not be referred to for construing the main clause in
a manner contradictory to its import.
(x) As a general rule of construction of documents, the recitals are not
looked into, if the terms of the deed are otherwise clear. If in a deed
the operative part is clear, or the intention of the parties is clearly
made out, whether consistent with the recitals or not, the recitals have
to be disregarded.
(xi) Sometimes a standard form is used, particularly in contracts with
government departments on big corporations. In these standard
printed forms, words not applicable are deleted according to the
requirements of individual transactions.
(B) Informal Agreements:
In interpretation of informal agreements the rule to be applied is that of
reasonable expectation; that is to say the agreement is to be interpreted
in the sense in which the party who used the words in question should
reasonably have apprehended that the other party may apprehend them.
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2011 - June [2] (b) Discuss how Section 8 of the Transfer of Property Act,
1882 regarding operation of transfer has simplified 'parcels clause' in a deed.
(8 marks)
 8.36 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

Answer :
The parcel includes words such as:
(a) Messuages,
(b) Tenements,
(c) Hereditaments,
(d) Land,
(e) Water etc.
According to Section 8, operation of transfer-unless a different intention
is expressed or necessarily implied, a transfer of property passes
immediately to the transferee. all the interest which the transferor is Capable
of passing in the property and in the legal incidence, thereof.
Such incidence includes-
(i) Where the property is land, the easements annexed there to the rents
and profits thereof occurring after the transfer and all things attached
to the earth.
(ii) Where the property is machinery attached to the earth, the movable
parts thereof.
(iii) Where the property is house, the Easements annexed thereto, the rent
thereof accruing after the transfer and the locks, keys, doors windows,
etc.
(iv) Where the property is a debt or other actionable claim, the securities
there of but not arrears of interest accrued before the transfer.
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2011 - Dec [1] {C} (a) “All instruments are legal documents, but all legal
documents are not instruments.” Critically evaluate with reference to leading
cases. (10 marks)
Answer :
According to Section 3 of the Indian Evidence Act, 1872, defines
Document as “any matter expressed or described upon any substance by
means of letter, figures, or marks, or more than one of these means,
intended to be used or which may be used for purposes of recording that
matter.
 [Chapter  1] General Principles of Drafting &... O 8.37

Examples:
(i) Writings;
(ii) Prints;
(iii) Maps;
(iv) A caricature
(v) Photo
(vi) Video etc.
However, an instrument is a specific type of legal document used or intended
to be so used or capable of being used as evidence of:
— Financial / monetary / legal right or liability.
— Purports to be so created, transferred.
modified, limited, extended, suspended, extinguished or recorded those
rights and liabilities.
The word instrument has been interpreted in different judgements by
different courts with reference to the different enactment.
Example :
1. As per Section 2(b) of the Notaries Act, 1952 and Section 2(14) of the
Indian Stamp Act, 1899, the word “instrument” includes every document
by which any right or liability is or purports to be created, transferred,
modified limited, extended, suspended, extinguished or recorded.
2. “Instrument” include awards made by Industrial Court. (Purshottam v.
Potdar).
3. “Instrument” does not includes Act of Parliament unless there is a
statutory definition to that effect in any Act. (V.P. Sugar Works v. C.I. of
Stamps).
4. A will is an instrument (Bishun v. Suraj Mukhi).
5. The word “instrument” in Section 1 of the Interest Act is wide enough of
cover a decree (Savitribai v. Radhakishna).
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2011 - Dec [2] (a) Explain the following:

(i) Fowler’s five rules of drafting. (4 marks)
 8.38 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

Answer:
Fowler’s Five Rules of Drafting : As per “anyone who wishes to become
a good writer should endeavour, before he allows himself to be tempted by
more showy qualities, to be direct, simple, brief, vigorous and lucid.”
The principle referred to above may be translated into general in the
domain of vocabulary as follows :
(a) Prefer the familiar word to the far fetched (familiar words are readily
understood).
(b) Prefer the concrete word to the abstract (concrete words make meaning
more clear and precise).
(c) Prefer the single word to the circumlocution (single word gives direct
meaning avoiding adverb and adjective).
(d) Prefer the short word to the long (short word is easily grasped).
(e) Prefer the Saxon word to the Roman (use of Roman words may create
complications to convey proper sense to an ordinary person to
understand).
(f) Always prefer active voice to the passive voice in the drafting of
documents.
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2011 - Dec [8] (b) What do you mean by —

(i) Inclusive deed
(ii) Latent deed
(iii) Pretended deed
(iv) Voluntary deed
(v) Warranty deed (2 marks each)
Answer :
(i) Inclusive Deed An inclusive deed is one which contains within
the designated boundaries lands which are
expected from the operation of the deed.
(ii) Latent Deed Is a deed kept for 20 years or more in man’s
escritoire or strong box.
 [Chapter  1] General Principles of Drafting &... O 8.39

(iii) Pretended Deed A pretended deed is a deed apparently or

prima facie valid.
(iv) Voluntary Deed A voluntary deed is one given without any
valuable consideration.
(v) Warranty Deed A warranty deed is a deed containing a
covenants of warranty.
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2013 - June [2] (a) Explain the following:

(i) Parcels clause as a component of a deed. (4 marks)
Answer :
Parcels Clause
This is a technical expression meaning methodical description of the
property. It is necessary that in case of non-testamentary document
containing a map or plan of the property shall not be accepted unless it is
accompanied by the True Copy. Usually the Parcel Clause starts with the
words All Those.......................... And further or description covers as per the
type of property subjected to transfer under the deed. This clause includes
words such as : Messuages, Tenements, Hereditaments, Land, Water etc.
But use of these words has been rendered unnecessary in view of Section 8
of Transfer of Property Act, 1882. This Section has cut down the length of
the deeds and done away with description of minute details of the incidents
of the property intended to be conveyed.
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2013 - Dec [5] (a) “Drafting may be defined as the synthesis of law and fact
in a language form.” Explain. (8 marks)
Answer :
Drafting may be defined as the synthesis of law and fact in a language form
[Stanley Robinson: Drafting its application to conveyancing and commercial
document 1980]
 8.40 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

(i) All three characteristics rank equally in importance.

(ii) Legal drafting is the crystallization and expression in definitive form
of a legal right, privilege function, duty or status.
(iii) Legal instrument such as constitution, status, regulations, ordinances,
contract, wills, conveyances, indentures, trusts and leases.
NOTE: The process of drafting operates in two planes the conceptual and
verbal besides seeking the right words Drafting therefore is first thinking
and second composing.
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2014 - June [2] Explain the following :

(a) Reasons for drafting recitals in a deed with due caution.
(c) Drafting and conveyancing have the same meaning though these are not
interchangeable. (4 marks each)
Answer:
(a) Recitals should be inserted with great caution because they precede the
operative part and as a matter of fact contain the explanation to the
operative part of the deed. If the same is ambiguous recitals operate as
estoppel. Recital offers good evidence of facts recited therein. Recitals
are not generally taken into evidence but are open for interpretation for
the courts. If the operative part of the deed is ambiguous anything
contained in the recital will help in its interpretation or meaning. In the
same sense, it is necessary that where recitals contain chronological
events that must be narrated in chronological order.
Recitals carry evidentiary importance in the deed. It is an evidence
against the parties to the instrument and those claiming under and it may
operate as estoppel [Ram Charan v. Girija Nandini, 3 SCR 841 (1965)].
Answer:
(c)
Distinction between Both the terms "drafting and conveyancing"
drafting and provide the same meaning although these terms
conveyancing: are not interchangeable. Conveyancing gives
more stress on documentation much concerned
[Chapter  1] General Principles of Drafting &... O 8.41

with the transfer of property from one person to

another, whereas "drafting" gives a general
meaning synonymous to preparation or drafting
of documents, Documents may include
document relating to transfer of property as well
as other "documents" in a sense as per
definition given in Section 3 (18) of the
General Clauses Act, 1897 which include any
matter written, expressed or described upon any
substance by means of letters figures or mark,
which is intended to be used for the purpose of
recording that matter. For example, for a banker
the document would mean loan agreement,
deed of mortgage, charge pledge, guarantee,
etc. For a businessman document would mean
something as demanded under Section 2(4) of
the Indian Sale of Goods Act, 1930 so as to
include a document of title to goods i.e. "Bill of
lading, dock warrant, warehouse-keepers
certificate, wharfingers certificate, railway receipt
multi model transport document warrant or order
for the delivery of goods and any other
document used in ordinary course of business
as proof of the possession or control of goods or
authorising or purporting to authorise, either by
endorsement or by delivery, the possessor of
the document to transfer or receive goods
thereby represented". The Companies Act,
2013 defines vide Section 2(3b) the term
"document" in still wider concept so as to
include "summons, requisitions order, other
legal process and registers, whether issued,
sent or kept in pursuance of this or any other
Act, or otherwise". Thus, drafting may cover all
types of documents in business usages.
 8.42 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

In India, the commercial houses banks and

financial institutions have been using the term
“documentation”. In substitution of the words
“drafting and conveyancing”. Documentation
refers to the activity which symbolises
preparation of documents including finalisation
and execution thereof.
Space to write important points for revision

2014 - June [3] In the light of judicial pronouncements, discuss the

following :
(d) Testamentary disposition is personal; it cannot be delegated to any other
person. (4 marks)
Answer:
 Testamentary disposition is the disposition or transfer of property that
takes effect upon the death of the person making it. The testator retains
almost entire control of the property until death.
 In short, it is the gift of property which takes effect at the time of the
death of the person making the disposition. The transfer can be made
by deed, by an inter vivos transaction, or by will.
 All instruments used to make testamentary dispositions must comply
with the requirements of the statute of wills.
 Testamentary disposition also used to refer to the process of dead
persons’ will being complied with by announcing the division of the
assets of the dead person amongst the people whose name has been
mentioned in the will.
 Section 59 of the Indian Succession Act, provides for the persons
capable of making wills. Accordingly, every person of sound mind not
being a minor may dispose of his property by will.
 The testamentary capacity is recognized only in a sound disposing state
of mind. Soundness of mind denotes the mental capacity of the testator
as to what he is doing, his capability of understanding his extent of his
 [Chapter  1] General Principles of Drafting &... O 8.43

property, the person who is the object of his bounty and the persons who
are thereby excluded.
 Testamentary disposition is personal, it cannot be delegated to any other
person. A testator cannot confide to another the right to make a will for
him. (Tienouth v. Mulroney 227 P.2d 590 (1951).
Space to write important points for revision

2014 - Dec [2] Explain the following:

(a) Drafting of legal documents is a skilled job requiring observance of many
do’s and don’ts. (4 marks)
Answer:
Please refer 2010 - June [1] {C} (b) on page no. 42
Space to write important points for revision

2015 - June [1] (a) “Drafting of documents is very important part of legal
documentation. Documents are subject to interpretation when no clear
meaning could be inferred by a simple reading of documents.”
Explain this statement with reference to the rules relating to interpretation of
formal legal documents. (10 marks)
Answer:
Where the agreement is formal and written, the following rules of the
interpretation may be applied:
(1) A deed constitutes the primary evidence of the terms of a contract, or of
a grant, or of any other disposition of property (Section 91 of the
Evidence Act). The law forbids any contradiction of, or any addition,
subtraction or variation in a written document by any extrinsic evidence,
though such evidence will be admissible to explain any ambiguity
(Section 92 of the Evidence Act).
(2) In cases of uncertainty, the rules embodied in provisos 2 and 6 of
Section 92 of the Evidence Act can be invoked for construing a deed.
(3) The cardinal rule is that clear and unambiguous words prevail over any
hypothetical considerations or supposed intention. But if the words used
are not clear and unambiguous the intention will have to be ascertained.
 8.44 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

(4) In case the terms are not unambiguous it is legitimate to take into
account the surrounding circumstances for ascertaining the intention of
the parties. The social milieu, the actual life situations and the prevailing
conditions of the country are also relevant circumstances.
(5) Sometimes a contract is completed in two parts. At first an executory
contract is executed and later on an executed contract. In case of any
difference between the preliminary contract and final contract, the terms
of the latter must prevail.
(6) If in a deed an earlier clause is followed by a later clause which destroys
altogether the obligation created by the earlier clause, the latter clause
is to be rejected as repugnant and the earlier clause prevails.
(7) The Court must interpret the words in their popular, natural and ordinary
sense, subject to certain exceptions as,
(i) where the contract affords an interpretation different from the
ordinary meaning of the words; or
(ii) where the conventional meanings are not the same with their legal
sense.
(8) Hardship to either party is not an element to be considered unless it
amounts to a degree of inconvenience or absurdity so great as to afford
judicial proof that such could not be the meaning of the parties.
(9) All mercantile documents should receive a liberal construction.
(10) No clause should be regarded as superfluous, since merchants are not
in the habit of inserting stipulations to which they do not attach some
value and importance. The construction adopted, should, as far as
possible, give a meaning to every word and every part of the document.
(11) Construction given to mercantile documents years ago and accepted
in the mercantile world should not be departed from, because
documents may have been drafted in the faith thereof.
(12) If certain words employed in business, or in a particular locality, have
been used in particular sense, they must prima facie be construed in
technical sense.
(13) The ordinary grammatical interpretation is not to be followed, if it is
repugnant to the general context.
 [Chapter  1] General Principles of Drafting &... O 8.45

(14) Antecedent facts or correspondence, or words deleted before the

conclusion of the contract cannot be considered relevant to ascertain
the meaning.
(15) Evidence of acts done under a deed can, in case of doubt as to its true
meaning, be a guide to the intention of the parties, particularly when
acts are done shortly after the date of the instrument.
(16) Unless the language of two documents is identical, and interpretation
placed by courts on one document is no authority for the proposition
that a document differently drafted, though using partially similar
language, should be similarly interpreted.
(17) If the main clause is clear and the contingency mentioned in the proviso
does not arise, the proviso is not attracted at all and its language should
not be referred to for construing the main clause in a manner
contradictory to its import.
(18) The fact that a clause in the deed is not binding on the ground that it is
unauthorised cannot ipso facto render the whole deed void unless it
forms such an integral part of the transaction as to render it impossible
to severe the good from the bad.
Space to write important points for revision

2015 - June [2] Explain the following:

(d) All instruments are legal documents but all legal documents are not
instruments. (4 marks)
Answer:
According to Black’s Law Dictionary an instrument is a written document, a
formal or legal document in writing, such as a contract, agreements, deed,
will, bond, or lease.
Under Section 2(b) of the Notaries Act, 1952, and Section 2(14) of
the Indian Stamp Act, 1899, the word “instrument” includes every document
by which any right or liability is, or purports to be, created, transferred,
modified, limited, extended, suspended, extinguished or recorded. In the
context of the General Clauses Act, it has to be understood as including
 8.46 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

reference to a formal legal writing like an order made under constitutional or

statutory authority.’

Whereas legal documents includes contract, agreements, deed etc.

which need not contain matters presumed or implied by law. It is better in
such an agreement to specify even such matters and all other matters so as
to make it a complete code, embodying the rights and duties of each party.
Thus, all instruments are legal documents but all legal documents are not
instruments.
Space to write important points for revision

2015 - Dec [3] Examine the following statement:

(a) Drafting is the synthesis of law and fact in a language form. (4 marks)
Answer:
Drafting may be defined as the synthesis of law and fact in a language form:
[Stanley Robinson: Drafting its application to conveyancing and commercial
document, 1980]
(i) All three characteristics rank equally in importance.
(ii) Legal drafting is the crystallization and expression in definitive form
of a legal right, privilege function, duty or status.
(iii) Legal instruments such as constitution, status, regulations, ordinances,
contract, wills, conveyances, indentures, trusts and leases.
NOTE: The process of drafting operates in two planes the conceptual and
verbal besides seeking the right words Drafting therefore is first thinking
and second composing.
Space to write important points for revision

2016 - June [1] Comment on the following :

(a) Conveyance is an act of transfer of any property. (5 marks)
Answer:
 [Chapter  1] General Principles of Drafting &... O 8.47

Mitra’s legal and commercial dictionary defines “conveyance” as the action

of conveyancing, a means or way of conveyancing, an instrument by which
title to property is transferred, a means of transport, vehicle.

“Conveyance”, as defined in Clause 10 of Section 2 of the Indian

Stamp Act, 1899, “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 by Schedule I” of the Act.
Section 5 of transfer of property act defines “transfer of property” as an
act by which a living person conveys property, in present or in future, to one
or more other living persons, or to himself, and one or more other living
persons; and “to transfer property” is to perform such act.
Thus, Conveyance is an act of by which movable or immovable property
is transferred by way of sale, lease, gift or exchange.
Space to write important points for revision

2016 - June [6] (a) “Recitals carry evidentiary importance in the deed. It is
an evidence against the parties to the instrument and those claiming under
and it may operate as estoppel.” Write a detailed note on this statement with
reference to the decisions of the courts. (8 marks)
Answer:
Recitals contain the brief history of the property up to its vesting into its
transferors. Care should be taken that recitals are precise and intelligible.
Recitals precede the operative part and as a matter of fact contain the
explanation to the operative part of the deed. Any inaccuracy in the recitals
may act as estoppels under section 115 of the Evidence Act. Recital offers
good evidence of facts recited therein. Recitals are not generally taken into
evidence but are open for interpretation for the Courts. If the operative part
of the deed is ambiguous anything contained in the recital will help in its
interpretation or meaning. In the same sense, it is necessary that where
recitals contain chronological events that must be narrated in chronological
order. Supreme Court in Provash Chandra Dalui v. Biswanath Banerjee
[1989 Supp (1) SCC 487] laid down the following proposition:
 8.48 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

“Ex praecedentibus et consequentibus optima fit interpretation.” The

best interpretation is made from the context. Every contract is to be
construed with reference to its object and the whole of its terms. The whole
context must be considered to ascertain the intention of the parties.
Thus, recital carry evidentiary importance in the deed. It is an evidence
against the parties to the instrument and those claiming under and it may
operate as estoppels [Ram Charan v. Girija Nandini, 3 SCR 841 (1965)].
Space to write important points for revision

2017 - Dec [1] Comment on the following statements:

(a) Things that should be avoided while drafting a document.
(b) Drafting and Conveyancing have same meaning and are
interchangeable words. (5 marks each)
Answer:
(a) The following things should be avoided while drafting the documents :
(a) Avoid the use of words of same sound. For example, the words
"Employer" and "Employee".
(b) When the clause in the document is numbered it is convenient to
refer to any one clause by using single number for it. For example,
"in clause 2 above" and so on.
(c) Negative in successive phrases would be very carefully employed.
(d) Draftsman should avoid the use of words "less than" or "more than”,
instead they must use "not exceeding".
(e) If the draftsman has provided for each of the two positions to
happen without each other and also happen without, "either" will not
be sufficient; he should write "either or express the meaning of the
two in other clauses.
In writing and typing the following mistakes always occur which
should be avoided:
1. "And" and "or";
2. "Any" and "my";
3. "Know" and "now";
4. "Appointed" and "Applied";
 [Chapter  1] General Principles of Drafting &... O 8.49

5. "Present" and "Past" tense.

(b)
Distinction Both the terms "drafting and conveyancing"
between drafting provide the same meaning although these terms
and conveyancing are not interchangeable. Conveyancing gives
more stress on documentation much concerned
with the transfer of property from one person to
another, whereas "drafting" gives a general
meaning synonymous to preparation or drafting
of documents, Documents may include
document relating to transfer of property as well
as other "documents" in a sense as per
definition given in Section 3 (18) of the
General Clauses Act, 1897 which include any
matter written, expressed or described upon any
substance by means of letters figures or mark,
which is intended to be used for the purpose of
recording that matter. For example, for a banker
the document would mean loan agreement,
deed of mortgage, charge pledge, guarantee,
etc. For a businessman document would mean
something as definded under Section 2(4) of
the Indian Sale of Goods Act, 1930 so as to
include a document of title to goods i.e. "Bill of
lading, dock warrant, warehouse-keepers
certificate, wharfingers certificate, railway receipt
multi model transport document warrant or order
for the delivery of goods and any other
document used in ordinary course of business
 8.50 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

as proof of the possession or control of goods or

authorising or purporting to authorise, either by
endorsement or by delivery, the possessor of
the document to transfer or receive goods
thereby represented". As per Section 2(36) of
the Companies Act, 2013 the term “document
includes summons, notice, requisition, order,
declaration, form and register, whether issued,
sent or kept in pursuance of this Act or under
any other law for the time being in force or
otherwise, maintained on paper or in electronic
form. Thus, drafting may cover all types of
documents in business usages.
In India, the commercial houses banks and
financial institutions have been using the term
“documentation”. In substitution of the words
“drafting and conveyancing”. Documentation
refers to the activity which symbolises
preparation of documents including finalisation
and execution thereof.
Space to write important points for revision

2018 - June [1] (c) Amino attestendi (5 marks)

Answer:
Amino Attestendi :
It is one of the usual parts or components of deed in general. After
attestation clause, signatures of the executants of the documents and their
witnesses attesting their signatures follow. It is essential that the attesting
witness should have put his signature, amino attestendi, intending for the
purpose of attesting that he has seen the executant sign or has received
from him, a personal acknowledgement of his signature.
Space to write important points for revision
 [Chapter  1] General Principles of Drafting &... O 8.51

2018 - June [2A] (Or) Explain the following :

(i) Legality of a written deed for performing a promise in near future.
(4 marks)

Answer:
A contract is an agreement enforceable by law. [Section 2(h) of the Indian
Contract Act, 1872]. For every contract, there should be an agreement that
is made by the free consent of parties competent to contract, for a lawful
consideration and with a lawful object. The agreement should not be
declared void hereby to form a contract. This definition of contracts as per
Indian Contract Act, 1872 is based on Sir Pollock’s definition which states
that every agreement and promise enforceable at law is a contract. Thus for
the formation of a contract, there must be an agreement and something in
addition to that, i.e., an agreement, and its enforceability at law.
Hence, parties may contract to perform a promise in future and the deed
containing such a promise will be legal in the eyes of law .
Space to write important points for revision

2019 - June [1] Comment on the following :

(d) Drafting and Conveyancing have same meaning and are
interchangeable. (5 marks)

Repeatedly Asked Questions

No. Question Frequency
1 Distinguish between of 'Conveyance' and 'contract'.
09 - June [3] (a) (i),
11 - Dec [7] (b) (i), 17 - Dec [3] (d) 3 Times
2 Write a note on ‘covenants and undertakings’.
10 - Dec [7] (b),
13 - June [8] (b), 14 - Dec [3A] (Or) (i) 3 Times
8.52 O Scanner CS Prof. Prog. M-III Paper 8 (2013 Syllabus)

3 Explain the following:

All instruments are legal documents but all legal
documents are not instruments.
11 - Dec [1] {C} (a), 15 - June [2] (d) 2 Times
4 Distinguish between the following:
Habendum’ and ‘reddendum’.
13 - Dec [4] (i), 15 - June (2A) (Or) (iii) 2 Times
5 Distinguish between the following:
‘Supplementary deeds’ and ‘endorsements’.
11 - June [7] (b) (i), 15 - Dec [2A] (Or) (i) 2 Times
6 Write notes on the following :
Habendum. 10 - Dec [5] (i), 18 - June [3A] (Or) (iv) 2 Times