DRAFTING, PLEADING, CONVEYANCING AND PREPARATION OF DEEDS

Introduction

Drafting is writing any legal document, it can be pleading for civil court or Complaint to a Criminal court or petitioning before High Court or drafting a Will.

The provisions of Advocates Act, 1961 confers a monopoly right of pleading and practising law only on enrolled or registered Advocates. Section 30 of the Advocates Act confers such a right to practice on a ‘pleader’ and/or ‘Advocate’ after he gets himself enrolled as such.

Section 30 reads :-

“30. Right of Advocates to practise :- Subject to the provisions of the Act, every Advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the Territories to which this Act extends, –

(i) in all Courts including the Supreme Court;

(ii) before any Tribunal or person legally authorized to take evidence; and (iii) before any other authority or person before whom such Advocate is by or under any law for the time-being in force entitled to practise.”

Section 33 of the Advocates Act confers an exclusive and monopoly right on the enrolled Advocate or pleader to plead and practice in Court of law. The said provision contained in Section 33 reads :

“33. Advocates alone entitled to practise :- Except as otherwise provided in this Act or in any other law for the time-being in force, no person shall, on or after the appointed day, be entitled to practice in any Court or before any authority or person unless he is enrolled as an Advocate under this Act.”

The provisions of Order III, Rule 1 read with Sees. 32 and 33 of the Advocates Act have been construed thus :-

“It has to be noticed that Section 33 of the Act uses the word ‘practise’ while Section 32 uses the word ‘to appear’ in the Courts etc. The word ‘practise’ means appear, act and plead, unless there is anything in the subject or context to limit its meaning. Therefore, the word ‘appear’ is only one aspect and does not take in the concept of ‘pleading’ without which, it cannot be equated to ‘practising’. The right to appear in Court and plead for a principal as also the right to practise in Courts have to be distinguished from the other acts, which a power of Attorney can perform under Order 3, Rule 1, C.P.C. So far as the signing or verifying or doing other acts are concerned, these could be done by the power of Attorney duly authorised, therefore but so far as appearing or practising in Court are concerned, they are subject to the provisions of Sections 32 and 33 of the Advocates Act. As such the power of Attorney holder cannot plead or practise in Court for a principal unless specially authorised by the Courts in that behalf u/s 32 of the Advocates Act (1961)”

Section 4(5) of Code of Civil procedure says-

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating—

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

Signing of Pleading

Order 6 Rule 14 of the Code, which require that ever pleading shall be signed by the party and his pleader and where a party has reason of absence or for any good cause is unable to sign the pleading, the same may be signed by any person authorized by him to sue and defend on his behalf. If there is any defect in signing of the pleading, the said defect can be rectified and defect as such is not treated as fatal.

Model form for plaint of a Money Suit

Money Lent

In the court of…….

Title suit/ Original suit no……

AB [Full description of the Plaintiff]

CD [ Full description of Defendant/s]

Most respectfully

A.B., the above-named plaintiff, states as follows :

On the . . . . . . . . . . . . . . . . . . day of 20 . . . . . . . . , . . . . . . . . . . . . . . . . . . he lent the defendant rupees repayable on the . . . . . . . . . . . . . . . . .day of . . . . . . . . . . . . . . . . . .

The defendant has not paid the same, except . . . . . . . . . . . . . . . . . .rupees paid on the . . . . . . . . day of . . . . .. . . . . . . . . . . .20 . . . . . . . . .

[If the plaintiff claims exemption from any law of limitation, say :]

The plaintiff was a minor [or insane] from the . . . . . . . . . . . . . . . . . day of till . . . . . . . . . . the . . . . . . . . . . . . . .. . .day of . . . . . . . . . . . . . . . . . .

[Facts showing when the cause of action arose and that the Court has jurisdiction.]

The value of the subject-matter of the suit for the purpose of jurisdiction is . . . . . . . . . . . . . . . . . .rupees and for the prupose of court-fees is . . . . . . . . . . . . . . . . . .rupees.

The plaintiff claims . . . . . . . . . . . . . . . . . .rupees, with interest at . . . . . . . . . . . . . . . . . .per cent. from the . . . . .

Therefore in the above circumstance the the plaintiff prays for the following reliefs

Pay rupees..
Interest…
Cost of the suit
4. any other equitable relief/s

And for this act of grace the plaintiff shall remain grateful and duty bound before your honour

Verification

I……….

Affidavit

I AB have filed the above suit and verified the plaint and solemnly affirming that I am conversant with the facts of the suit

. . . . . . . . . . . .day of . . . . . . . . . . . . . . . . . .20 . . . . . . . . .

Remember in Every Suit the Plaintiff has to pay Court Fees and Valuation of the Suit to be decided for Jurisdiction.

Read more – How to write plaint for a suit

Pleadings

The Apex Court in Madan Gopal Kanodia Vs. Mamraj Maniram and Others, , held that the pleadings are loosely drafted in the Court, and Court should not scrutinize the pleadings with such meticulous care so as to result any genuine claim being defeated on trivial ground. The Apex Court while dealing with the matter relating with the life and liberty of a citizen guaranteed by Article 22(5) of the Constitution, in a criminal appeal arising out of a writ of habeas corpus petition in Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, held that the Court was not justified in dismissing a habeas corpus petition merely on the ground of imperfect pleadings of the petitioner.

From the ratio laid down by the Apex Court in the cases discussed above, it is crystal clear that the pleading in the habeas corpus writ petition and counter-affidavit have to be interpreted not with formalistic rigour but with latitude or awareness of low legal literacy of the citizen of India. Therefore, the submissions of Mr. Ph. Sanajaoba, learned Counsel for the petitioner regarding imperfect pleading in the counter-affidavit of the respondents in the present habeas corpus is not sustainable in the eye of law.

Meaning and Importance -Functions of Pleadings – Order 6 of CPC – Essentials of Pleading – Particulars of Pleading – Striking out pleadings- Signing and verification- Amendment in Pleadings – Applicability of Order 6 CPC in Other Proceedings.
Necessary Parties and Proper Parties
Joinder ,Non joinder and Misjoinder of parties
Jurisdiction of the Civil Courts-Pecuniary, Territorial and Subject matter jurisdiction
Cause of Action

Civil Pleadings – Substantive Aspects and Drafts

Plaint- Meaning of plaint, Ingredient of Plaint and Draft of Plaint (Order 7 of CPC)
Written Statement- (Order 8 of CPC) – Set off and Counter Claim
Notice to Government official under Sec.80 of CPC
Temporary Injunction Application ( Order 39, r-1)
Appeals –First Appeal and Second Appeal( Section 96- Section 100)

Specific Pleading
specific Denial
The Limitation to file a cause
pleading in writ petition [ Bharat Singh and Others Vs. State of Haryana and Others AIR 1988 SC 2181 ]
Counter Affidavit
Subscription and verification of pleading
Amendment of pleading

Cases Laws

Lakshmi Narayan Deo Vasti Temple vs. Narayan F. Marathy (1995) 2 Bom CR 610
Prabodh Verma vs. State of UP (1984) 4 SCC 251
Someswer vs. Tribhuban AIR 1934 PC 130
Narinder Nath vs. Jaswant Singh AIR 1994 P&H 111
Syed Muhammed vs. Fattah Muhammed ILR 22 Cal. 324 (PC)
Viswanath vs. Ram Narayan AIR 1940 All 405
Tika Khawas vs. Pasupathi AIR 1986 Sikk. 6
Motilal vs. Yudhistir AIR 1950 PC 73
Brijlal vs. Parvathy AIR 1982 Del. 114
Firm Gopal & Co. Ltd vs. Firm Hazarilal AIR 1963 MP 37
Keshab Rao vs. Chandrabhan AIR 1980 Bom 380
Onkar Nath vs. Vedvyas 1978 Ren.CR 408 (HP)
Iyakku Matho vs. Julius Elias Metropolitan AIR 1962 Ker 19
Rooplal vs. Nachhittar AIR 1982 SC 1559
A K Gupta vs. DVC AIR 1967 SC 961
G. Nagamma vs. Siromanamma (1996) 2 SCC 25

Cases Laws

Phula Devi vs. Mangtu Maharaj AIR 1969 Pat 284
Jagjiban Das vs. Gunan Bhai AIR 1967 Guj 1
N.Naidu vs. K.Naidu AIR 1969 Mad 329
N.Naidu vs. K.Naidu AIR 1969 Mad 329
Jogeshwar vs. Sheopujan AIR 1986 Pat 35
State of Maharatsra vs. Glaxo 1979 Bom CR 321
Raghunath Das vs. Union of India AIR 1969 SC 674
State of MP VS. Lajjaram AIR 1961 MP 339

Criminal Pleadings – Substantive Aspects and Drafts

Meaning – Criminal Pleadings in India
Complaint(Sec.2d of Cr PC)
Application for Bail (Sec.436, Sec. 437 of Cr PC)
Anticipatory Bail (Sec.438 of Cr PC)
Application U/S. 125 of the Code of Criminal Procedure, 1973

Other important Pleadings – Substantive Aspects and Model Forms

Complaints Under Sec.138 of Negotiable Instruments Act
Petition for Dissolution of Marriage under Hindu Marriage Act

Conveyancing

Rules of Drafting
Uses of Legalese in Drafting
Interpretation of Deeds & Documents
Transactions for which Written Documents are not necessary

Proof of Deeds and Documents

Analysis of a Deed
Signature and Attestation of Deed
Searches and Investigation of Title
Stamp Duty
Registration of Documents
Compulsory Registration of Documents
Effect of Registration and Non-registration
Rectification, Modification, Revocation and Cancellation of Deeds & Agreements

Sale Deed-Meaning of sale and Its essentials
Mortgage Deed-Meaning of mortgage and Its kinds
Lease Deed-Meaning of lease and Distinction between Lease and Licence
Gift Deed- Meaning of gift and Distinction between Sale and Lease

Cases laws

State of Bombay vs. United Motors AIR 1955 SC
PS Santhi vs. SB Bhagwandas Kripalini AIR 1991 SC
Sonia Bhatia vs. State of UP AIR 1981 SC 1274
Sakunthala vs. State of Haryana AIR 1979 SC 843
Sasi vs. Shanker 54 CWN 936

Civil Suits-Nature and Scope

Format of Pleading

CONVEYANCING AND DEED WRITING

Conveyance-to convey [ to move]

“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” [Indian Stamp Act, 1899]

“Conveyance, unless a contrary intention appears, includes assignment, appointment, lease, settlement, and other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property”[Conveyancing and Law of Property Act 1881 [UK ]

What are Deeds

A deed is a written legal document, signed by the maker and attested by the witness, properly stamped and if necessary registered. it can be in the form of contract or in the form of monogram such as Wills. A deed is also called ‘Instrument’. In Farshi an instrument is called Kobala. Kobala is either Saf( with obligation) or Kat( without obligation)

A maker of Deed must be competent under Indian Contract Act. Every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject.[ Indian Contract Act]

All advocates are licencesed for writing Deed. When they draft it …they write ….. “drafted in my chamber/ office” and signed-sealed it.

Basic Vocabulary

“Attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary; [Transfer of Property Act]

“Transfer of property” defined.—

In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. [Transfer of Property Act]

Testamentary Document– Example Wills

“Instrument” means a non-testamentary instrument;

Negotiable Instrument- A piece of paper on which authoritatively written certain amount of Debt and capable of exchanging.

Title Deed– Document showing the ownership of the Immovable property

Property, unless a contrary intention appears, includes real and personal property, and any estate or interest in any property, real or personal, and any debt, and any thing in action, and any other right or interest:

Land, unless a contrary intention appears, includes land of any tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, also an undivided share in land: In relation to land, income includes rents and profits, and possession includes receipt of income : [Conveyancing and Law of Property Act 1881 [UK ]

Capacity of Parties to a Deed

Minor
Lunatics
Insolvent
Trustee
Pardanashin Ladies
Disqualified Transferee
Limited Owners
Unborn Persons
Juridical Person
Court
Wakf and Mutawalli
Partnership and Partnership Firm

Coparcener and Hindu joint family under Hindu Law
Joint family — Concept of Ownership — under
Mahomedan Law

Basic Laws