“DRAFTING OF DEED, WILL
AND DOCUMENTATION
AND
ITS LEGAL IMPORTANCE”
“Reputation and learning are akin to capital assets,
like the good will of an old partnership… For many,
they are the only tools with which to hew a
pathway to success. The money spent in acquiring
them is well and wisely spent.”
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Lawyers:
“Persons who write a 10000 word document and call
it a brief”
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“There are two kinds of lawyers: those who know
the law and those who know the judge.”
POINTS OF DISCUSSION
1. WHAT IS A DOCUMENT?
2. VARIOUS STATUTORY DEFINITIONS OF “DOCUMENT”
3. DRAFTING OF DOCUMENTS: IMPORTANT INITIAL
ASPECTS:
4. DOCUMENTS GENERALLY REQUIRED TO BE
PREPARED UNDER VARIOUS ACTS:
5. IMPORTANT PRINCIPLES AND SUGGESTIONS FOR
GOOD DRAFTING:
6. COMMON FEATURES OF A DOCUMENT:
7. DOCUMENTATION IN CYBER WORLD:
8. DOCUMENTS AND EVIDENCE ACT:
9. OFFENCES RELATING TO DOCUMENTS UNDER INDIAN
PENAL CODE:
10. STAMP ACT (FAQs)
11. WILL
12. SOME IMPORTANT DOCUMENTS & STAMP DUTY
1. WHAT IS A DOCUMENT?
A document is something that furnishes
evidence and shall also include 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 of
recording that matter.
2. VARIOUS STATUTORY
DEFINITIONS OF “DOCUMENT”
Statute Section Definition
General S. 3(18) “Document” shall include any matter written,
Clauses Act 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 of recording that matter.
Companies S. 2(15) “Document” includes summons, notice,
Act requisition, order, other legal process and
registers, whether issued, sent or kept in
pursuance of this or any other Act or
otherwise.
Indian S. 3 The word “document” denotes any matter
Evidence expressed or described upon any substance
Act by means of letters, figures or marks, or by
more than one of those means, intended to be
used, or which may be used, as evidence of
that matter.
Information S. 2 “Document” includes an electronic record as
Technology defined in clause (t) of sub-section 1 of Sec. 2
Act, 2000 of The I. T. Act, 2000
Registration Sec “Document” means a document which is
Act 50 legally enforceable.
3. DRAFTING OF DOCUMENTS:
IMPORTANT INITIAL ASPECTS:
• A document is intended to be an evidence and has to
stand the test of law. Hence, knowledge of law is the
basic essential requirement. Since the laws are many
and multiple, the concept of super specialization within
some branches involves specialization in the specific
branch of law or practice.
• The drafting professional should conceive the sketch or
skin of the draft so that no important aspects or omitted
or irrelevant aspects get admitted randomly.
• The paragraphs in the draft should come in strictly
logical order highlighting the purpose and scheme of the
document.
• Since a document is intended to operate within a legal
framework, use of legal language is indispensable but it
should be to utmost possible extent precise and accurate.
The draft must be readily intelligible to layman.
• The drafting professional should appreciate and use
precise words to convey what he means to say, what he
does not mean to say and what he need not say.
• Document should be self-explanatory and unambiguous.
• Prefer separate documents where subject matters are
distinct or applicable rules of law are different.
• Before releasing the draft, it be reconsidered/verified to
satisfy that before it is too late, the draft means what it
intends and terms are clear and definite.
4. DOCUMENTS GENERALLY REQUIRED
TO BE PREPARED UNDER VARIOUS
ACTS:
(i) Indian Contract Act:
Agreements, MOUs, guarantees, indemnities, power of attorneys
and all other documents not specifically covered elsewhere.
(ii) Companies Act:
Memorandum and Articles of Association, resolutions, minutes,
proceedings relating to takeovers, mergers, scheme of
amalgamation, demergers and connected documentation,
Prospectus.
(iii) Indian Partnership Act:
Partnership deeds, reconstitution, resolution, retirement of
partners
(iv) Transfer of Property Act:
Sale deeds, lease deeds, gift deeds, exchange of property, mortgage,
documents, agreement for sale, construction and development
agreements, release deeds.
(v) Intellectual Property rights:
Copyright, relinquishment of copyright, trademarks and its assignments,
patents’ registration and assignment, registration of designs, franchise
agreements, etc.
(vi) Banking transactions, related documentation:
Sanction letters, board resolutions, hypothecation and mortgage
documents, consortium documents.
(vii) Industrial and labor laws:
Appointment, apprenticeship, disciplinary proceedings, charge sheets,
departmental inquiries, retrenchment, schemes for gratuity, provident
fund trust, contract labor, etc.
(viii) Insurance laws:
Insurance policies, assignments and other connected documents
(ix) Arbitration laws:
Arbitration agreement, international arbitration agreements, notices for
arbitration, submissions before arbitrators, proceedings for challenge to
arbitration award, etc.
(x) International agreements:
Agreements between the parties/corporates having different nationality
and governed by different laws, treaties and protocols, conventions
applicable to and governing the situation.
(xi) Testamentary and family laws:
Will, codicil, cancellation of will, family settlement, creation of trust, family
partition, marriage and divorce, intervous and testamentary succession,
adoption deed.
(xii) Other financial transactions:
Commercial papers, related documentation, standby facility,
consequences of default
(xiii) Other miscellaneous documents:
Formation of societies, NGOs, S. 25 companies, financial collaborations,
joint ventures, bonds, agency, consultancy, supply.
(xiv) Pleadings:
The petitions, applications and written submissions made
before any authority who has power to adjudicate
normally comes within pleading. It contains the material
fact on which the party pleading relies for his claim or
defense. Generally, it follows the following chronology:
• Original application/plaint/suit/petition usually filed by
plaintiff/applicant initiating action.
• Upon notice, the other side has to file Written
Statement/affidavit-in-reply.
• Thereupon the petitioner can file rejoinder in reply to the
contentions in the W.S.
• Affidavit-in-sur-rejoinder by the other side followed by
additional affidavits depending on the issues involved.
• Affidavits required to be filed
The list is merely illustrative and not exhaustive