In my last post I was discussing about the documents that has to be produced at the time at th time of taking the loan to the bank and now today we will be discussing about those documents seperately :
Title deed :
Title Deeds are those documents which are Conclusive Legal proof that aperson owns a particular property.
According to Wikipedia , “A deed is any legal instrument in writing which passes, or affirms or confirms something which passes, an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions sealed.”
General Clauses Act,1897 “Document” shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose or recording that matter.
The Law Commission Report states –
“Deed – a written document which is executed with the necessary formality, and by which an interest, right or property passes or is confirmed, or an obligation binding on some person is created or confirmed. A common example is a conveyance or transfer of land.”
Para 2.6 of The Law Commission defines the Deed as – “A deed may be defined as a written instrument which is executed with the necessary formality, and by which an interest, right, or property passes or is confirmed, or an obligation binding on some person is created or
Kinds and/or of Deed:
There are two kinds of Deeds as the following :
a. Deed Poll:
Deed Poll are those in ehich there are one party only and are so called because they wre at one time polled or cut level at the top.
Eg : Power of Attorney where there is only a party granting the power.
Indentures are Bilateral contracts.There are two or more parties in the indenture. Indenrutes were so called as at one time they were indented or cut with an uneven edge at the top, this was an old practice.
Parts and/or Divisions o the Deed:
A deed of transfer generally as prctice divied into the following parts :
- Description of the Deed,
- Names and or name Parties
- Operative Words
- Exceptions and Reservation (if any)
- Covenants (if any),
- Signature and Attestation.
Each of these parts are discussed below :
1.Description of the Deed :
At the inception of the deed it describes the nature of te deed such as-” THIS DEED OF MORTGAGE” , “THIS DEED OF SALE” , THIS DEED OF LEASE” .
After the nature of the deed is described then the deed states the date of excution of the deed. The date of the registration is written is teh date of execution such as ” The Second day of April Two Thousand and Twelve (the 2nd April 2012).
After the date is mentioned then the names of the parties whether he is a third party,Firm, Government, Juridical person, Idol, Minor, Trustee, Insolvent, Hindu Copercenary, Insolvent, Mentally disabled person, Persons with disability etc and there particulars such as- age(where applicable),address etc are mentioned. It should also be mentioned that whether he is a transferee or transferor.
Recitals can be divided into two parts are as follows:
- Narative Recitals:
This part of the deed states the histrory of the property trasferred and/or the subject matter of the deed. It staes the transfer flow of the property.
- Introductory Recitals:
It explains the reason and/or motive behind the preparation and execution of the deed.
Generally The Recitals starts with the word “Whereas”.
This is the operative part of the deed.This part begins with ” Now this deed witnesses”.
6. Consideration : quid pro que:
Section 10 of the Indian Contract Act,1872 states ” What agreements are contracts.- All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in 1[ India] and not hereby expressly repealed by which any contract is required to be made in writing 2[ or in the presence of witnesses, or any law relating to the registration of documents.” Therefore according to the section in every deed consideration should be there. Section 27 of the Stamp Act states that consideration should be truly and fully stated. The penalty of such omission to comply with this requirement will be charged with a fine which may extend to Rs.5000. The consideration should be written both in words and in number.
Acknowledgement of the receipt of the consideration may be embodied in the deed itself instead f passing a separate receipt. It generally starts as follows:
“Now this deed witnesses that in pursuance of the aforesaid ageeement and in consideration of Rs in words (in number) paid by the purchaser to the vendor before the execution hereof , the receipt of which the vendor hereby acknowledges”.
8. Operative Words :
After receipt real operative words follow. The operative words explains the real nature of the transaction .
This is the technical expression meaning description of the property transferred and it follows the operative words.
10. Exceptions and Reservations:
All the exceptions and reservation should me mentioned in the deed.Unless all the exceptions (something existing at the date of the execution) expressly excepted in the deed it would pass with the property as described in the parcel.
Reservations are something relating to the subject property which are not there at the date of execution but is newly created by the rant etc.
Habendum is Latin word which means “to have and to hold”. The deed will expressly mention the property which the transferee will have and hold . This confers the whole right in the property to the transferee.
12. Covenants and Undertaking :
Covenants and Undertaking must be entered after Habendum.
13. Testimonium :
This is not an mandatory part of the deed but this is general tradition to mention the testimonium . Testimmonium sets forth the fact that the parties have signed and sealed the deed in presence of the witnesses as named in the deed.The companies,firms etc use their seal in the deed. It states as follows: “In the witness whereof the parties hereto have hereunto set their respective hands and seals the day and year first above written”.
14. Signatures and Attestation:
The Parties must put their signature and the date of the same.
The witnesses must do the attestation by putting their signatures attesting that the parties have put their signatures and seals in the presence of the witnesses as named in the deed.