PLEADING AND CONVEYANCING

Drafting, Pleading and Conveyancing are the three common terms used in the law sector. Drafting refers to the act of

preparing legal documents like agreements, contracts and deeds. In drafting besides seeking right words, the

draftsman seeks the right concepts. Conveyancing refers to the transferring of a real property to its new owner by

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means of deeds and whereas pleading refers to a legal document filed in a law suit. This can be a document

pertaining to the initiation of litigation or a document in response to this initiation.

(a) Pleadings:

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The art of drafting the pleading has not yet fully developed in spite of the increase in the civil litigation. Many dead

sure win cases drag on for years in the Courts only because of the faulty drafting. Hence it is important to

understand that pleading is an art, of course, and which requires not only technical and linguistic skill but also an

expert knowledge of the law on the given point brought before a lawyer. Even the experienced lawyers and attorneys

are not infallible and sometimes they also make mistakes. However, in the matter of pleading, longer experience and
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great linguistic acumen are both essential ingredients and ultimately what matters is how clearly and systematically

have the facts been presented before the court of law.

According to Lord Halsbury – “Where a system of pleadings may exist, the sole object of it is that each side may be

fully alive to the questions that are brought to be argued in order that they have an opportunity of bringing forward

such evidence as may be appropriate to the issue”.

When a person comes to seek the assistance of court of law in any matter, he has to prepare a statement of his

claims, and the facts on which such claims are founded. Such statements fully drawn up, setting out all contentions

are called “pleadings”. Thus pleadings are the foundations of all sort litigation. No judicial system in the world can do

justice in any matter unless and until the court of justice is fully aware as to the claims and contentions of the

plaintiffand of the counter claims and defences of the defendant. There can be Civil Pleadings like Plaint,

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Interlocutory Applications, Execution Petition, Affidavits etc. and Criminal Pleadings like Complaint, Bail Application

etc. When the civil codes came to be drafted, the principles of pleadings were also given statutory form. Vide Order VI

Rule 1 “pleading” – shall mean plaint or written statement. The elaborated definition of pleading is that pleadings are

statements, written, drawn up and filed by each party to a case, stating what his contentions will be at the trial and

giving all such details as his opponent needs to know in order to prepare his reply for the same.

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Objectives of Pleadings:

The whole object of pleadings is to give fair notice to each party of what the opponent‟s case is. Pleadings bring forth

the real matters in dispute between the parties. It is necessary for the parties to know each other‟s stand, what facts

are admitted and what facts are denied, so that at the trail they are prepared to meet them. Pleadings also eliminate

the elements of surprise during trail besides eradicating irrelevant matters which are admitted to be true. The facts
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admitted by any parties need not to be pursued or proved.

Thus, pleadings save the parties much bother, expense and trouble of adducing evidence in support of matters

already admitted by a party, and they can concentrate on their evidence to the issue framed by the court in the
lights of facts alleged by one party and denied by other party.

Another advantage of pleadings is that parties come to know beforehand what points the opposite party will raise at

the trial and thus are prepared to take them and are not surprised, which could certainly be the case if there was no

obligatory rules of pleadings where by the parties are compelled to lay bare there cases before the opposite party

prior to the commencement of the actual trial.

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Fundamental Rules of pleadings under Civil Procedure Code:

(1) Pleadings shall contain only statement of facts and not law.

(2) Pleadings shall contain material facts and material facts only.

(3) Pleadings shall state only facts on which the party pleadings relies and not the evidence by which they are to be

proved.

(b) Conveyancing: KA
(4) Pleadings shall state such material facts concisely, but with precision and certainty.

Conveyancing is an art of drafting deeds and documents whereby any title, right or interest in an immovable property
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is transferred from one person to another. Such person can be natural or artificial i.e. Corporate, the Company, the

Society or the Corporate Sole as the case may be.

Conveyancing is based on law and legal principles which have been evolved in the sphere of conveyancing over years

or rather centuries. The objective of Conveyancing cannot be possible without a thorough knowledge and
understanding of the legal provisions applicable on the subject matter of transfer of property or right therein.

In the present world, the scope of conveyancing has become very wide and extensive in use and advantage to

different fields of business, profession and industries. Drafting document is now a legal task and not merely a

technical

Principles of drafting a document may be classified into 4 parts:

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(1) Clarity of expression

(2) Design of Draft

(3) Precision of language

(4) Communicability of the intention of the parties to the document

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PLAINT

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A plaint is a legal document which contains the written statement of the plaintiff's claim. A plaint is the first step

towards the initiation of a suit. In fact, in the very plaint, the contents of the civil suit are laid out.

Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible causes of action that can

arise out of the suit. A plaintiff which is presented to a civil court of appropriate jurisdiction contains everything,
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including facts to relief that the plaintiff expects to obtain.

Although it hasn't been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff , which

outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint implicit in itself are those only

material facts, and not all facts or the law as such is to be stated, the facts should be concise and precise, and no

evidence should be mentioned.

Particulars Of A Plaint:

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1. The name of the particular court where the suit is initiated.

2. Name, place, and description of the plaintiff's residence

3. Name, place, and description of the defendant's residence.

4. A statement of unsoundness of mind or minority in case the plaintiff the defendant belongs to either of the

categories.

5.

6.

7.

8.

9.
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The facts that led to the cause of action and when it arose.

The facts that point out to the jurisdiction of the court.

The plaintiff's claim for relief.

The amount allowed or relinquished by the plaintiff if so

A statement containing the value of the subject matter of the suit as admitted by the case.
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Additional Particulars:

1. Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be obtained from the

defendant if the case is so. On the other hand, if the exact amount cannot be arrived at, as is then case with mesne
profits, or claim for property from the defendant, an approximate figure must be mentioned by the plaintiff Order VII,

Rule 3 states that when immovable property is the subject matter of the plaint, the property must be duly described,

that is sufficient in the ordinary course to identify it.

2. Order VII, Rule 3 states that when the plaintiff has initiated the suit in a representative capacity, it has to be

shown that he/ she has sufficient interest in doing the same as well as has taken the required steps to ensure the

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same.

3. The plaint should adequately show the involvement of the defendant, including his/ her interests in the same

and thereby justifying the need to bring him/ her forward.

4. If the plaintiff files the suit after the expiration of the period of limitation, he/ she must show the reason for

which such an exemption from law is being claimed.

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Procedure For Admission Of The Plaint:

When the court serves the summons for the defendant, according to Order V, Rule 9, the plaintiff must present copies

of then plaint according to the number of defendants, and should also pay the summons fee, within seven days of

such a summons.
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The Particulars Of A Plaint Can Be Divided Into Three Important Parts Such As Heading And Title, Body Of The Plaint,

And Relief Claimed.

Heading And Title:

Name Of The Court:

The name of the court should be written as the heading. It is not necessary to mention the presiding officer of the

court. The name of the court would be sufficient. Eg. In the Court of District Judge, Kolkata.

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Parties To The Suit:

There are two parties to every suit, the plaintiff ffs and the defendants. For the purpose of the suit, the name, place,

and description of the residence of both the plaintiffs and the defendants have to be mentioned in the particular

plaint.

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When there are several plaintiffs, all of their names have to be mentioned and have to be categorically listed,

according to their pleadings, or in the order in which their story is told by the plaintiff .

Minors cannot sue nor can be sued. So if one of the parties is a minor or of unsound mind, it will have to be

mentioned in the cause title.

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Title Of The Suit:

The title of the suit contains the reasons for approaching the court and the jurisdiction before which the plaint Is

initiated.
Body Of The Plaint

This is the body of the plaint wherein the plaintiffdescribes his/ her concerns in an elaborative manner. This is

divided into short paragraphs, with each paragraph containing one fact each. The body of the plaint is divided into

two further parts which are:

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Formal Portion:

The formal portion contains the following essentials:

1. A statement regarding the date of cause of action. It is necessary for every plaint to contain the date when the

cause of action arose. The primary objective behind this is to determine the period of limitation.

2.

4.

5.
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There should be a statement regarding the jurisdiction of the court. The plaint must contain all facts that point

out the pecuniary or territorial jurisdiction of the court.

3. The value of the subject matter of the suit must be stated properly in this part of the plaint.

Statement regarding minority.

The representative character of the plaintiff

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6. The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of

limitation.

Substantial Portion:
1. This portion of the plaint must contain all the necessary and vital facts, which constitute the suit. If the plaintiff

wishes to pursue a course of action on any other grounds, such grounds must be duly mentioned.

2. It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be

called upon by the court.

3. If there is more than one defendant, and if the liability is not joint, then the individual liability of each and every

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defendant must be shown separately.

4. In the same way, if there is more than one plaintiff , and their cause of action is not joint, then too, the same

has to be mentioned separately.

Relief:

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The last part of the plaint is the relief. The relief claimed must be worded properly and accurately. Every plaint must

state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or

damages of any other kind. This has to be done with utmost carefulness because the claims in the plaint cannot be

backed by oral pleadings.

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Signature And Verification:

1. The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not present due to any

legitimate reason, then the signature of an authorised representative would suffice.

2. The plaintiff should also be duly verified by the plaintiff . In case the plaintiff is unable to do so, his/ her

representative may do the same after informing the court.

3. The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has verified by his/ her

own awareness of the facts, and what has been verified as per information received, and subsequently believed to be

true.

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4. The signature of the plaintiff ff/ verifier, a Where the language of the plaint is beyond the comprehension of the

plaintiff , the same has to be translated, or made known to the plaintiff , and only after that can he/ she put his/her

signature and get the plaint verified by the Oath Commissioner.

Return Of Plaint

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Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is unable to

entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.

The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that

the trial court itself did not have the appropriate jurisdiction in the first place.
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Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such

decision would be nullified.

Dismissal Of Suit

If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the

parties can arrive for this purpose.

This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate

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jurisdiction, the proper course is to return the plaint and not to dismiss it.

When Can A Plaint Be Rejected?

1. A plaint can be rejected under the following scenarios

2. Where the cause of action is not disclosed

3.

4.

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When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being

instructed by the court to do so.

When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been

stamped sufficiently and fails to do so even after the court's instruction.

5. Where the suit stems from a statement which has been essentially barred by law
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Conclusion

A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care

has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized.
It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence

and mention the kind of relief envisaged so that the plaintiff is duly benefited.

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 Written statement
Introduction:

First of all, we should know that what is written statement. Actually, it is a pleading of the defendant in the answer of

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the plaint led by the plaintiff against him. It is a reply statement of the defendant in a suit specifically denying the

allegations made against him by the plaintiff in his plaint. The provision regarding the written statement has

provided in the Code of Civil Procedure, 1908.

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Meaning:

The expression Written Statement has not been defined in this code. It is a term of specific meaning ordinarily

signifying a reply to the plaintiff led by the plaintiff. In other words, it is the pleading of the defendant wherein he

deals with the material fact alleged by the plaintiff in his plaint and also states any new fact in his favour or takes

legal objections against the claim of the plaintiff.

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Who may be written statement:

A written statement may be filed by the defendant or by his duly authorised agent. In the case of more than one

defendant, the common written statement led by them must be signed by all of them. But it is succinct if it is verified
by one of them who is aware of the facts of the case and is in a position to le an adavit. But a written statement led by

one defendant does not bind other defendants.

Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on him. The said period,

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however, can be extended up to ninety days,(Rule -1). A defendant should present a written statement of his defence in

the said period.

Defences in written statement:

In written statement the defendant can specifically deny the allegations made in the plaintiff against him. Besides

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this, he also can claim to set-o any sums of money payable by the plaintiff to him as a counter defence (Order 8 Rule

6). Further, if the defendant has any claim against the plaintiff relating to any matter in the issue raised in the plaint,

then he can separately le a counter-claim along with his written statement. It is provided in Order 8 Rule 6A to 6G of

the code.
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Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and artistically. Before proceeding to draft a

written statement it is absolutely necessary for the defendant to examine the plaintiff carefully.
Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written statement:

1. New facts, such as the suit is not maintainable, or that the transaction is either void or voidable in law, and all

such grounds of defence as, if not raised, would take the plaintiff by surprise, or would raise issues of fact not arising

out of the plaint, such as fraud, limitation, release, payment, performance or facts showing illegality, etc. must be

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raised. (Order 8 Rule 2)

2. The denial must be specie. It is not succinct for a defendant in his written statement to deny generally the

grounds alleged by the plaintiff, but he must deal specially with each allegation of fact which he does not admit,

except damages.

3. The denial should not be vague or evasive. Where a defendant wants to deny any allegation of fact in the plaint,

4.

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he must do so clearly, specially and explicitly and not evasively or generally.

Where every allegation of fact in the plaint, if not denied specially or by necessary implication, or stated to be

not admitted except as against a person under disability. The court may, however, require proof of any such fact

otherwise than by such admission.

5. Where the defendant relies upon several distinct grounds of defence or set-o or counterclaim founded upon
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separate and distinct facts, they should be stated separately and distinctly.

6. Any new ground of defence which has arisen after the institution of the suit is a presentation of a written

statement claiming a set-o or counterclaim may be raised by the defendant or plaintiff in his written statement as the

case may be.

7. If the defendant fails to present his written statement within the time permitted or relaxed by the court, the

court will pronounce the judgement against him or pass such order in relation to the suit as it thinks t and a decree

will be drawn up according to the said judgement.

8. No pleading after the written statement of the defendant other than by way of defence to set-o or counterclaim

can be led.

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 SALE DEED
Sale deed is a legal document describing the transfer of right, title and ownership of property by a seller to a

purchaser at a price fully paid or to be paid in instalments at a future date. The entire amount of sale transaction

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also known as sale consideration is paid at the time of registration of sale deed.

It is pertinent for the draftsman to study the following provisions before incorporating the Sale Deed:

∙ Sale can be of immovable property and moveable property. Sale of immovable property is defined in section

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54 of the Transfer of Property Act, 1882 as a transfer of ownership in exchange for a price paid or promised or

part paid and paid promised. Sale of goods (moveable property) is defined in section 4 of Sale of Goods Act,

1930 as a contract whereby property in goods is actually transferred by the seller to the buyer for a price.

∙ Money consideration is essential in a transaction of sale and if that consideration is not money but some

other valuable consideration, the transaction may termed as an exchange and not a sale. The law does not
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require that the consideration should be immediately ascertainable in money. It is sufficient if it is

ascertainable at the time when payment is made. The actual payment of price is not essential to the

completion of a sale. The sale gets complete as soon as the sale deed is registered even if the payment of price

is promised on a future date provided it has been ascertained or made certain able.

∙ Immovable property as per section 2(26) of the General Clauses Act, 1987 states that immoveable property shall
include land and things attached to the earth or permanently fastened to anything attached to earth. Section

3 of the General Clauses Act, 1987 states that moveable property means property of every description except

immoveable property. Tangible property means something that can be touched i.e. material object but all the

abstract rights are incapable of being touched and are hence intangible. Some examples of intangible

property are goodwill of business, mortgagee or lessee‟s rights or interest of a partner in a Partnership Firm

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etc.

∙ What can be transferred or sold?

Generally, the right to property includes the right to transfer it to other person. Section 6 of Transfer of

property Act provides that property of any kind can be transferred, except as provided by this act or by any

other law for the time being in force.

Exceptions:

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(1) The chance of an heir- apparent succeeding to an estate, the chance of a relation obtaining a legacy on the

death of a kinsman or any other mere possibility of a like nature, cannot be transferred.

(2) A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the

owner of the property affected thereby.

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(3) An easement cannot be transferred apart from the dominant heritage.

(4) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(5) A mere right to sue cannot be transferred

(6) A public office cannot be transferred nor can the salary of a public officer whether before or after it has
become payable.

(7) Stipends allowed to military, naval, air force and civil prisoners of the government and political pensions

cannot be transferred. ∙ Section 7 of the Transfer of property Act deals with the competency to carry out a

transfer. Transfer must be done by persons who are:

1.) Competent to make a contract.

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2.) Have title to the property or authority to transfer it if not his own.

∙ Consequences of transfer :

Section 8 of the transfer of Property Act states that all interest which the transferor is capable of passing

passes forthwith to the transferee, if the property is land, the easements annexed, the rents and profits

accruing after the transfer and all things attached to the earth pass to the transferee and if the property is

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machinery attached to the earth, the moveable parts thereof. In case of a house, the easements annexed

to it and the rents, doors, locks, keys, windows, bars and all other things provided for permanent use therein

pass to the transferee. If the property is a debt or other actionable claim, the securities thereof but not arrears

of interest accrued before the transfer. If the property is money or other property yielding income, the interest

or income accruing after the transfer passes to the transferee. But is open for the parties to decide among
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themselves other terms and consequences other than mentioned at the time of transfer.

∙ Section 55 of Transfer of Property Act lays down the rights and liabilities of a buyer and a seller. These

conditions are implied in every transfer and it is not necessary to mention them in the deed of transfer.

∙ Section 10 to 14 of the Transfer of Property Act lays down the unlawful conditions which may not be included in
the deed of transfer. So this should be kept in mind while drafting a Sale Deed.

Modes of transfer by sale:

There are only two modes of transfer of property by sale and those are:

(1) By registered instrument

(2) By delivery of possession

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Such transfer in case of tangible immoveable property of the value of 100 rupees or upwards or in the case of

reversion or other intangible thing can be made only by registered instrument. In case of tangible immoveable

property of a value less than 100 rupees, such transfer shall be either made by a registered instrument or by

delivery of the property.

In case of registration the ownership is deemed to pass not on the date of registration but on the date of the

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instrument. But in case where the vendor refuses to deliver the property or the registered deed, because he

had not paid the price, it may be inferred that there was no transfer of ownership because there was no

intention to transfer. In case of delivery it must be actual and not constructive. Ordinarily ownership passes

when registration is compulsory, on the execution of sale deed and where delivery is the proper method by

delivery of possession of the property.

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Contents of Sale Deed:

A sale deed is usually executed as deed poll by the vendor/ seller and written in the first person. The law does

not require execution by the purchaser also. Sometimes a deed is executed between a vendor and a purchaser,

particularly when it contains covenants binding on the purchaser.

A sale deed must contain apart from the description of the deed and date, details of the following elements:

(i) The name of the parties to the deed with their full address

(ii) The capacity and capability of the vendor to transfer the party.

(iii) The vendor title to the property.

(iv)The property and its capability of being transferred and also the details of the property.

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(v) The encumbrances and charges if any upon the property and whether the sale is subject to encumbrances

and whether any money was being left with the purchaser to pay off the encumbrances.

(vi)The Price settled, how and when to be paid (earnest money if paid to be set off)

(vii) The other terms agreed upon

(viii)Delivery of possession, actual or constructive

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The signing of the deed signifies that the process of sale has been completed. The seller transfers the right of

ownership to the buyer through sale deed. As soon as the document is signed, the buyer becomes the complete

owner of the property. Usually the sale deed is executed only when both the sellers and buyers are fully

satisfied and are ready to comply with the terms and conditions as mentioned in sale agreement. Though not

required by law, a sale deed is usually attested by two witnesses.

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Stamp Duty:

The sale deed is drafted on a non-judicial stamp paper of value as set by the State Government in which the

property transaction is taking place. Every state has predetermined value of stamp paper that are used for

drafting immoveable property. Stamp duty in a sale deed is chargeable under section 23 schedule of the Stamp
Act.

Also, an outstanding amount can be paid through challan or stamping for legalizing the sale deed.

Registration of a Sale Deed:

A sale deed is registered in accordance with the Registration Act, 1908. Both the parties have to be present in

person along with two witnesses with all the relevant documents in the sub registrar‟s office to sign the sale

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deed and close the deal.

The certified copy of the registered deed with the name of the buyer can be obtained from the registrar‟s

office. The original documents have to be produced within four months from the date of registration of the

deed. It is the buyer who pays the stamp duty and the registration charges while seller needs to clear all other

payments related to the property such as property tax, cess, and water and electricity charges before the deed

is signed

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It is also necessary for the vendor/seller to have clarity in mind regarding the Sale deed and Agreement for

sale.
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 Gift Deed

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A gift deed is a legal document used to transfer ownership of property voluntarily without monetary consideration. It

must comply with the provisions of the Transfer of Property Act, 1882, and adhere to certain requirements.

Key Features:

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1. Definition:

A gift is the transfer of existing movable or immovable property by the donor (giver) to the donee (receiver) without

monetary exchange.

2. Essentials of a Valid Gift:

○ The transfer must be voluntary and without coercion, fraud, or undue influence.
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○ It must involve existing property, not future property.

○ The gift must be accepted by the donee during the donor's lifetime.

3. Competence to Gift:

○ The donor must be legally competent (not a minor or of unsound mind).

○ Minors cannot make gifts but can receive them through guardians.
4. Acceptance of Gift:

○ The donee must accept the gift while the donor is alive.

○ If the one dies before acceptance, the gift becomes void.

5. Registration Requirements:

○ For immovable property, the gift deed must be registered, signed by the donor, and attested by at least two

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witnesses.

○ For movable property, either delivery or registration suffices.

6. Void Gifts:

○ Gifts made by incompetent persons (minors, lunatics).

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○ Gifts of unlawful property or those made under impossible conditions.

○ A gift involving both present and future property.

Special Types of Gifts:

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1. Onerous Gift:

A gift that comes with an obligation for the donee. The donee must accept it entirely or reject it.

2. Gifts under Personal Laws:

○ Hindu Law: Delivery of possession is required; writing is optional.

○ Muslim Law: Requires declaration, acceptance, and delivery of possession. Registration is not mandatory.
Key Clauses in a Gift Deed:

1. Date and place of execution.

2. Details of donor and donee (name, address, relationship).

3. Property description (movable/immovable).

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4. Free will of the donor.

5. Delivery of possession.

6. Rights and liabilities of the donee.

7. Revocation clause (if applicable).

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