Learning Objectives of Drafting

Drafting, in the legal sense, is the preparation of legal documents such as agreements,
contracts, and deeds by effectively combining law, facts, and precise language. A clear
understanding of drafting requires recognizing the close relationship between these three
elements. Conveyancing is an art of drafting documents through which rights, title, or interest
in immovable property are transferred from one person to another. Knowledge of drafting and
conveyancing is important for corporate executives for obtaining legal advice, carrying out
departmental documentation, and interpreting legal documents. The study of drafting aims to
help learners understand the meaning and distinction between drafting and conveyancing, the
general principles of drafting deeds, and related legal requirements such as stamping and
engrossment.

Drafting – Its Meaning

Drafting may be defined as the synthesis of law and facts expressed through appropriate
language. It involves the clear formulation of legal rights, duties, and obligations in a definite
form. Legal drafting includes the preparation of various legal instruments such as statutes,
contracts, wills, leases, and conveyances. The process of drafting operates on two levels—
conceptual and verbal—requiring correct legal concepts as well as suitable wording. Thus,
drafting is essentially an exercise of legal thinking followed by careful composition.

Pleading, Its Object and Fundamental Rules (C.P.C. 1908, India)

Pleadings are written statements filed by each party to a suit stating the facts on which they
rely and the contentions they intend to prove at the trial. Their object is to clearly inform the
opposite party of the case to be met and to narrow down the issues in dispute. Under Order
VI Rule 1 of the Code of Civil Procedure, 1908, “pleading” means a plaint or written
statement.

Fundamental Rules of Pleadings

The fundamental rules of pleadings are well settled. A pleading must contain only statements
of facts and not law. It should include all material facts and only material facts necessary to
establish the claim or defence. Pleadings must state facts relied upon, not the evidence by
which those facts are to be proved. Further, material facts should be stated concisely, clearly,
and with precision to avoid ambiguity and unnecessary details.
Plaint and Its Necessary Contents

Pleading refers to the plaint and written statement. A plaint is the written statement of the
plaintiff’s claim in which facts constituting the cause of action are stated. Through the plaint,
the plaintiff seeks relief from the court by mentioning necessary particulars as required under
the Code of Civil Procedure, 1908.

Necessary Contents of Plaint

Order VII Rule 1 CPC provides that a plaint must contain:

1. Name of the court.

2. Name, description, and residence of the plaintiff.
3. Name, description, and residence of the defendant.
4. Statement regarding minority or unsoundness of mind.
5. Facts constituting cause of action and when it arose.
6. Facts showing jurisdiction.
7. Relief claimed.
8. Set-off or relinquishment, if any.
9. Valuation for jurisdiction and court-fees.
10. Plaintiff’s verification.

In specific cases, it must also state:

1. Exact or approximate money claim.

2. Proper description of immovable property.
3. Interest and authority in representative suits.
4. Grounds for limitation exemption.
5. Separate causes of action distinctly.
6. Relief claimed, simple or alternative.

Written Statement (Meaning)

A written statement is the defence of the defendant, filed as a reply to the plaint. In it, the
defendant admits or denies each allegation paragraph-wise. The defendant may also raise
additional pleas stating new facts or grounds to defeat the plaintiff’s claim. If the defendant
has an independent claim against the plaintiff, it can be raised by way of set-off or
counterclaim under Order VIII Rules 6 and 6A CPC.

Drafting of Written Statement

Before drafting, the defendant must study the plaint and supporting documents. A paragraph-
wise reply should be prepared addressing each allegation. Order VIII CPC governs the filing,
contents, and manner of a written statement.

Interlocutory Application

Interlocutory proceedings regulate rights pending final judgment. They include:

 a. Application for extension of time.
b. Seeking directions from the court.
c. Compelling the other party to comply with court orders.
d. Application for interim relief such as injunction, interim payment, or compensation.

Some Common Interlocutory Applications

Some common interlocutory applications are:

a) Application for extension of time to comply with court directions or orders. For example,
the plaintiff may apply, with substantial reasons, to extend the deadline for filing a reply to a
defence.

b) Application for further and better particulars to obtain detailed information about the
other party’s pleadings.

c) Application for striking out pleadings wholly or partly. Grounds include: (i) disclosure
of no reasonable cause of action or defence, (ii) scandalous, frivolous, or vexatious pleadings,
(iii) prejudice, embarrassment, or delay to a fair trial, and (iv) abuse of court process.

d) Application for amendment of pleadings: Each party may amend once without court
permission; further amendments require approval. If amended without permission, the other
party has 14 days to respond. The court may specify time for amendments requiring approval.

e) Closure of pleadings occurs when all facts are presented in statements of claim, defence
(or counterclaim), and replies.

f) Application for disclosure of documents from the other party (see discovery section).

g) Interlocutory applications may also be made to preserve rights or settle/dispose of

matters before a full trial.

It should be noted that some interlocutory proceedings involve technical issues and require
legal advice. Misuse of such procedures is discouraged, as it wastes time and resources.
Proper use allows parties to obtain justice more efficiently and economically without
unnecessary pre-trial applications.
Differences between Original Petition and Interlocutory Petition/Application

An Original Petition initiates a proceeding in court, stating the origin of disputes and
seeking specific reliefs. As per CPC Rule 3(9), it is “a petition whereby any proceeding other
than a suit, appeal, or execution of a decree or order is instituted.” It marks the point of
origination of a dispute.

An Interlocutory Petition/Application, defined under Civil Rules of Practice, Rule 2(j), is

“an application to the court in any suit, appeal, or proceeding already instituted, excluding
execution proceedings.” Rule 2(c) defines “application” broadly to include execution
applications, execution petitions, and interlocutory applications, both written and oral.

Key distinction: Original petitions initiate proceedings; interlocutory applications arise

during ongoing proceedings to seek interim or procedural relief.

Differences between Original Petition and Interlocutory Petition/Application

An Original Petition is filed to initiate a court proceeding, stating the origin of disputes and
seeking specific reliefs. As per CPC Rule 3(9), it means “a petition whereby any proceeding
other than a suit, appeal, or execution of a decree or order is instituted.” It marks the point of
origination of a dispute and forms the basis for the court’s intervention.

An Interlocutory Petition/Application, under Civil Rules of Practice, Rule 2(j), is “an

application to the court in any suit, appeal, or proceeding already instituted, excluding
execution proceedings.” Rule 2(c) defines “application” broadly to include execution
applications, execution petitions, and interlocutory applications, both written and oral.

Key distinction: Original petitions initiate proceedings, while interlocutory applications are
made during ongoing proceedings to seek interim, procedural, or additional relief without
starting a new dispute.

Affidavit

An affidavit is a written sworn statement of facts voluntarily made by a person (deponent or

affiant) under oath or affirmation administered by a legally authorized officer, such as a
notary public or commissioner of oaths. The term originates from Medieval Latin meaning
“he/she has declared upon oath.” It serves as a verified statement, providing evidence of
truthfulness under oath or penalty of perjury, often required for court proceedings.

The deponent declares that the contents are true, complete, and not misleading. The affidavit
may be signed directly or in the presence of an authorized officer. In India, while affidavits
are recognized as evidence under Section 3 of the Evidence Act, courts generally do not
admit them as proof unless specifically allowed. Affidavits can be drafted in the first or third
person and are often executed on stamp paper.
Appeal and Revision

An appeal is the judicial re-examination of a judgment, decree, or order by a higher court.

Although not explicitly defined in the Code, it essentially allows a superior court to review
decisions of an inferior court in a suit or case.

Revision, by contrast, is a discretionary review by the High Court of decisions from

subordinate courts where no appeal lies. It involves critical examination to correct errors,
usually limited to jurisdictional or legal errors, unlike appeals which can challenge both facts
and law.

Key Differences:

1. Appeals lie to a superior court, revisions only to the High Court.

2. Appeals are from decrees or appealable orders; revisions are from decisions where no
appeal exists.
3. Appeals are substantive rights; revision is discretionary.
4. Appeals may abate if parties are not brought on record; revisions do not.
5. Appeals concern fact and law; revisions mainly jurisdictional errors.
6. Filing of appeal memorandum is mandatory; revision application is not.
7. Appeals involve rehearing; revisions do not.
8. Appeals are considered part of original proceedings; revisions are not.
9. Appeals are a right-based remedy; revisions are discretionary.

Legal Provisions:

 CrPC: Appeals – Sections 372–394; Revisions – Sections 397–405

 CPC: Appeals – Sections 96–112; Revisions – Section 115

Complaint Case: Sections 200 to 204, CrPC

A criminal complaint is defined under Section 2(d), CrPC as any allegation made orally or
in writing to a Magistrate, claiming that a person, known or unknown, has committed an
offence, excluding police reports. However, a police report disclosing a non-cognizable
offence is treated as a complaint, with the reporting officer deemed the complainant.

Courts receive many frivolous or ill-founded complaints. Sections 200–203, CrPC provide a
procedure to scrutinize complaints at the outset, ensuring that only substantial cases summon
the accused, avoiding harassment. These provisions apply when cognizance is taken under
Section 190(1)(a), not for complaints based on police reports (Section 190(1)(b)).

Upon receiving a complaint, the Magistrate may:

1. Record statements of complainant and witnesses (Section 200)

2. Dismiss the complaint if no sufficient ground exists (Section 203)
3. Issue process if sufficient ground exists (Section 204)
4. Postpone issuing process for inquiry or police investigation (Section 202)

Even if an investigation under Section 156(3) is conducted and a police report under Section
173 submitted, the Magistrate is not bound by police conclusions. He may proceed under
Sections 200–204 based on the original complaint. This ensures the complaint remains
effective and is not nullified by prior investigation, preserving judicial discretion.

Conveyancing

Conveyancing is the legal process of transferring the title of real property from one person to
another or granting an encumbrance, such as a mortgage or lien. It typically involves two
stages: exchange of contracts, creating equitable interests, and completion (settlement),
when legal title passes and equitable rights merge.

A conveyance is essentially a contract; both buyer and seller are legally bound to fulfill their
obligations. Failure to do so allows the aggrieved party to seek enforcement or claim
damages in court. Conveyancing ensures the buyer is aware of any restrictions on the
property, such as mortgages or liens, and provides assurance of a clear title. Title insurance is
often purchased to guard against fraud.

Legally, conveyancing also refers to the drafting of deeds and documents transferring land
or property interests. Mitra’s dictionary defines conveyance as both the act and the instrument
of transfer. Under English law (Law of Property Act 1925, Section 205), conveyance
includes mortgages, leases, releases, and other property assurances, except wills. In India, the
Indian Stamp Act 1899 (Section 2, Clause 10) and Transfer of Property Act 1882
(Section 5) adopt a similarly wide definition, covering inter vivos transfers of movable or
immovable property.

Deed

A deed (historically called “an evidence”) is a formal legal instrument in writing that creates,
affirms, or transfers a right, interest, or property. It must be signed, attested, delivered,
and in some jurisdictions, sealed to be valid. Deeds carry a strong presumption of
authenticity and enforceability, stronger than ordinary contracts. They may be unilateral
(one party bound) or bilateral (both parties bound). Common examples include
conveyances, licenses, commissions, patents, diplomas, and sometimes powers of attorney
executed as deeds. Deeds evolved from medieval charters, with delivery symbolically
replacing the old livery of seisin, and are central to transferring property or legal rights.

Various Kinds of Deeds

a) General Warranty Deed – Guarantees ownership and full interest of the property. The
grantor promises protection against defects caused by himself or any previous owners.

b) Bargain and Sale Deed – Confirms that consideration is paid and conveys property;
contains no warranties.

c) Quitclaim Deed – Releases all rights, title, or interest of the grantor in the property
without warranties.

d) Special Warranty Deed – Guarantees title only against defects arising from the grantor’s
actions or those claiming under him; does not cover prior defects or claims.
Deeds are essential in conveyancing, ensuring clarity of ownership and legal protection for
all parties involved.

Essential Deed Elements

a) Written Form – A deed must be in writing. Although printed forms are common, no
specific format is legally required as long as all essential elements are present.

b) Capacity – The grantor must have legal capacity to convey property, and the grantee must
be capable of receiving it. Competence to contract generally suffices for a grantor.

c) Identification of Parties – Both grantor and grantee must be clearly identifiable.

d) Property Description – The property must be described with sufficient detail to avoid
ambiguity.

e) Operative Words of Conveyance – The deed must contain clear language indicating
transfer of ownership.

f) Signature of Grantor(s) – All grantors must sign the deed, especially when multiple
owners exist.

g) Delivery – The deed must be delivered to the grantee or an authorized representative.

h) Acceptance – The grantee must accept the deed for it to be effective; in rare cases,
delivery can be rejected.

These elements ensure the deed is legally valid, enforceable, and protects the interests of all
parties in a conveyancing transaction.

Sale Deed

A sale deed is the primary legal document by which a seller transfers ownership of
immovable property to a purchaser, granting absolute title. It is also referred to as a
conveyance deed. Before execution, the buyer must verify the seller’s title to ensure clear
ownership.

Requirements of a Sale Deed:

1. Name of Deed – The parties must specify the type of deed (e.g., Sale, Lease,
Mortgage) based on the transaction.
2. Parties – Must include names, ages, addresses, and competence to contract. The deed
must be executed voluntarily with clear description of parties.
3. Property Description – Full details including identification numbers, plot area,
construction, location, and schedule to precisely identify the property.
4. Agreement for Sale – Terms and conditions mutually settled between parties; the
sale deed follows the agreement to sell.
5. Sale Consideration – Exact sale amount clearly mentioned, including advance
payments, balance, and mode of payment (cash, cheque, or draft).
6. Passing of Title – Clause specifying when legal title transfers to the purchaser.
 7. Possession – Delivery of property upon registration; date of physical possession
stated.
8. Indemnity – Seller must clear taxes, bills, encumbrances, and debts; buyer should
verify encumbrance certificate.
9. Execution – Signed/thumb-imprinted by parties on all pages; witnessed by two
witnesses with full particulars.
10. Registration – Mandatory under Section 17 of Registration Act, 1908. Both parties
present before sub-registrar within 4 months; stamp duty paid; certified copy
obtained.
11. Testatum – Confirms execution; attested by witnesses from both sides.
12. Original Documents – Delivered to purchaser after registration, transferring all
rights, title, and possession.
13. Default Clause – Covers breach by either party; damages payable for non-
performance without affecting sale deed validity.

This ensures the transaction is legally valid, protects both parties, and establishes
unambiguous ownership.

Mortgage Deed

A mortgage deed is a legal document through which a mortgagor (borrower) transfers an

interest in property to a mortgagee (lender) as security for a loan. It creates a lien, giving the
lender the right to retain and, if necessary, foreclose on the property in case of default.

Definition:
It evidences the interest transferred by the mortgagor to the mortgagee to secure repayment,
serving as proof of the lender’s security rights.

Purpose:
The deed protects the lender and ensures enforceability of foreclosure if the mortgagor fails
to repay.

Example:
If Mr. McGillicuddy buys a house for $200,000 and borrows $150,000, he signs a mortgage
deed granting the lender a lien on the property, with the right to foreclose on default. The
deed may be combined with the loan note and is filed as a public record, held by the lender
until the loan is fully repaid.

Gift Deed – A gift deed is a legal document describing the voluntary transfer of property
from a donor (owner) to a donee (receiver) without any exchange of money. The donor must
be solvent, and the deed cannot be used for tax evasion or any illegal purpose. It formalizes
the gift, provides legal protection to both parties, and ensures that ownership and rights are
clearly transferred to the donee.

Promissory Note – A promissory note is a written financial instrument in which one party
(the maker or issuer) promises to pay a specific sum of money to another (the payee) either
on demand or at a fixed or determinable future time, under agreed terms. If unconditional and
transferable, it becomes a negotiable instrument. Promissory notes are widely used in loans,
credit transactions, and commercial dealings, giving legal enforceability to debt obligations.
Power of Attorney (POA) – A POA is a legal document where one person (the principal)
authorizes another (the agent or attorney-in-fact) to act on their behalf. The agent may have
broad powers to manage property, finances, or legal matters, or limited powers for specific
tasks. POAs are used when the principal is absent, ill, or unable to act, ensuring their affairs
are legally and efficiently managed. Proper execution protects the principal’s interests and
validates the agent’s actions.

Drafting and Conveyancing

a) Drafting refers to the preparation of legal documents, while conveyancing focuses on
documentation related to the transfer of property from one person to another.
b) Drafting is applied across various laws, such as the General Clauses Act, 1897, the Indian
Sale of Goods Act, 1930, or the Companies Act, 2013. Conveyancing, however, is the
science of creating legally valid transfers of property, as defined in the Indian Stamp Act or
Bombay Stamp Act.
c) Drafting relies on skill in preparing documents and agreements, which are intellectually
demanding. Conveyancing depends on knowledge of the rights that can exist in or over
specific property types.
Examples: Drafting – Arbitration Agreement; Conveyancing – Sale Deed.

FORMAT

Format of an Interpleader Suit

Civil suits, including interpleader suits, follow a standard format under Order VI (Pleading)
and Order VII (Plaint) CPC.

Conditions for an Interpleader Suit:

1. There must be a debt, sum of money, or property (movable or immovable) in

dispute.
2. Two or more persons must claim the same property adversely.
3. The plaintiff must have no interest in the disputed property, either wholly or
partially.
4. There must be no pending suit where rival claimants’ rights can be adjudicated.

Plaintiff’s Statement (Order 35 CPC):

 Plaintiff claims no interest in the subject matter except for charges and costs.
 Claims must be made severally by the defendants.
 There must be no collusion between the plaintiff and any defendant.

Restrictions (O. 35, R. 5 CPC):

 An agent cannot sue his principal, nor a tenant his landlord, to compel interpleader
with parties outside the chain of title.