Before drafting any kind of deed of transfer, it is very important to incorporate all the necessary requirements for an effective enforcement of such deeds apart from giving legal sanctity, which requires due diligence and a thorough scrutiny. The following are the essential requirements:
The deed has to specify the description of the deed, such as This Deed of Sale, This Deed of Mortgage, This Deed of Agreement to sell, etc, which may not necessarily be in Bold letters, but is preferable in order to highlight the nature of the deed.
Date of Execution:
It is very important to mention the date of execution of the deed since the same is required for determining the limitation and also for registration of such conveyance in the revenue records by the concerned revenue departments. Further, the date of execution of the document may vary from the date of registration. However, the documents can be presented anytime within four months from the date of execution.
Parties to the Deed:
All the necessary persons having interest in the property intended to be conveyed have to be mandatorily made as parties to the deed in order to avoid any future legal disputes, likely to be raised by the parties having interest over the schedule property. It is also important to properly depict the status of each party to the deed.
Recitals
The deed shall contain the previous history pertaining to the property in a precise way, explaining the nature of the interest and motive behind the execution of such deed, which authenticates the title, which is called Recitals in the legal terminology.
Habendum
This part of deed speaks about the interest in the property that the purchaser is being conveyed such phrases as To Have and To Hold. This phrase can be seen in almost all the deeds.
Covenants
A covenant is an agreement wherein either or both the parties to the deed bind themselves to certain terms and conditions, which create an interest over the property, which may be express or implied. In recent times, with the advent of Apartment culture, it is very necessary to incorporate covenants of various types besides those for maintenance of common areas and facilities in the deed.
Testimonium
This is the part of the deed which states that the parties have signed the deed. This is very important in order to prove authentication of the execution of the deed and the involvement of the proper parties having interest in the property in legally conveying the property to the parties of the other part.
Testatum
This is the witnessing clause wherein the witnesses signing the deed are introduced, along with their names, address and signature. This clause is also very important for the reason that the witnesses also play an important role to prove the execution of the document. However, it is advisable that both the witnesses are from purchaser/transferees side
Operative Words
This part of the deed depends upon the nature of conveyance. However, operative words clearly depict the intention of the parties conveying the property in favour of the other party/ies, which is necessary for passing of the title.
Parcels
This means description of the property following the operative words. Anything intended to be conveyed/assigned has to be specifically mentioned. Every minute details about the identification of the property has to be clearly incorporated. Any ambiguity about the description of the schedule property may lead to serious problems.
Exceptions and Reservations
Property intended to be transferred must not fall within the ambit of those prohibited under the statute or by orders of the Government. This part of the deed speaks about the conditions restraining the alienation and assurance that such alienation does not involve any restrictions.
Exception refers to some property or definite right which is existing on the date of conveyance and the same would transfer if not expressly excluded.
Reservation refers to the right which is not existing but created at the time of transfer.
Completion of transaction
The deed can be enforceable only if the same is properly stamped under Indian Stamp Act. Apart from this, it is also necessary that the same has to be registered under the Indian Registration Act. Under the said Act, registration of certain documents are made compulsory if such documents fall within either of the category. Only after the registration of such documents, the right, interest and title over the property is validly transferred from the transferor to the transferee. However, registration of the documents depends upon the nature of the transfer.
Execution
Execution of the document will be complete only after the parties put their signature on the deed. Special care should be taken when any of the deed is signed by the party who is an illiterate or blind or Pardanashin lady. In case any document is signed by some person by putting thumb impression, the documents has to be signed by the person who has taken the thumb impression and if any map or plan sketch is annexed to the document, then the same has to be signed by the parties.
Attestation
Attestation, is not a mere formality, but is imperative to prove the proper execution of the document. Though there is no standard form for it, the essential conditions of a valid attestation is that two or more witnesses have seen the executant signing the instrument and that each of them sign in presence of the executant. However, a person who is a party to the deed or a Power of Attorney Holder cannot sign the deed as an attesting witness.
Possession of property
It is very important that the transferor transfers possession of the property in favour of the transferee. It is not necessary that actual possession has to be handed over to the transferee, but even constructive possession will transfer and create a right and interest over the property.
There are certain categories of documents which require compulsory registration. If the document need not be compulsorily registered, then the mere execution of the document incorporating all the necessary causes will complete the act of transfer. On the other hand, the documents requiring compulsory registration is enforceable only after completing the formalities of registration. The main reason for insisting for registration is to protect the intending transferee against fraud and to maintain a public register at the office of the Sub-Registrar.
Thus, the transfer or assignment of right, title and interest over the property, irrespective of the nature of transfer, entirely depends upon the deed of conveyance. Any ambiguity, inadvertent addition or deletion in the deed may give rise to lot of legal problems, thereby obstructing peaceful possession and enjoyment of the property. Thus, the above discussed are the clauses required to be incorporated in all the documents to safeguard the interest of the parties to the deed.
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