CS Professional · Drafting, Pleadings and Appearances

Laws relating to Drafting and Conveyancing: formula sheet

Full chapter guide

Key formulas

Drafting vs conveyancing: Conveyancing = drafting of documents that transfer or create rights in property (a part of drafting); Use this one line to answer the difference question.
Core principles: Clarity + Precision + Completeness + Consistency + Brevity + Legality + Logical order; Learn as a checklist and apply each to the facts.
Usual deed layout: Title → Date and place → Parties → Recitals → Operative part → Covenants → Schedule → Testimonium → Signatures and attestation; Exact names vary, but the order is standard.
Mortgage by deposit of title-deeds (Transfer of Property Act, 1882, s. 96): Provisions for simple mortgage apply, so far as may be, to a mortgage by deposit of title-deeds; Stated in the official text; do not add other details unless sure.
Spoiled stamp allowance (Indian Stamp Act, 1899, s. 49): Collector may make allowance for spoiled stamps on application within the period prescribed in s. 50, if satisfied as to the facts; Applies to cases listed in s. 49, such as a document written out but not signed by any party.
Section 5: distinct matters: Duty = Duty on matter 1 + Duty on matter 2 + ... + Duty on matter n; Compute each as if it were a separate instrument, then add. Applies to one instrument relating to several distinct matters.
Section 4(1): several instruments, one transaction: Total duty = Schedule I duty on principal instrument + ₹1 × number of other instruments; Only for sale, mortgage or settlement. The ₹1 figure is changed by some States, so check any State given in the question.
Section 4(2): choice of principal instrument: Duty on chosen principal instrument = highest duty chargeable on any of the instruments; Parties choose the principal instrument, but the duty cannot be lower than the highest of the instruments.
Section 4(3): securities: Principal instrument = instrument chargeable under section 9A; duty on other instruments = nil; Applies to issue, sale or transfer of securities.
Section 74: sale of stamps: State Government rules cover: supply and sale; who may sell; duties and remuneration of sellers; Rules cannot restrict sale of ten naye paise or five naya paise adhesive stamps.
Bar on unstamped instruments (Section 35): Chargeable instrument + not duly stamped → not admissible in evidence, not acted upon, registered or authenticated; Applies to any person with authority to receive evidence and to public officers. It is a bar until cured, not a declaration that the document is void.
Central cure under Section 35 proviso (a): Payment = proper duty (or deficit) + penalty of ₹5, or 10 × proper duty (or deficit) if that is more than ₹5; Penalty is the higher of ₹5 and ten times the duty or deficit. In Uttar Pradesh the penalty is ten times the duty or deficient portion, by State amendment.
Collector's power under Section 40(1)(b): Proper duty (or deficit) + penalty of ₹5, or, if he thinks fit, an amount not exceeding 10 × proper duty (or deficit), whether above or below ₹5; The Collector has discretion up to ten times. The court's Section 35 penalty is fixed, the Collector's is a ceiling.
Duty to impound (Section 33): Instrument chargeable with duty, produced before authority, appears not duly stamped → authority shall impound it; Examine against the law in force when the instrument was executed or first executed. Police officers are excluded.
Unstamped receipt (Section 35 proviso (b)): Penalty of ₹1 payable by the person tendering the receipt; Applies where a stamped receipt could have been demanded, an unstamped one was given, and the receipt if stamped would be admissible against the giver.
Correspondence contracts (Section 35 proviso (c)): Contract by two or more letters, any one letter properly stamped → contract deemed duly stamped; Only one letter needs the proper stamp.
Other exceptions (Section 35 proviso (d) and (e)): Criminal Court (other than Chapter XII or XXXVI proceedings of the 1898 Code) → admissible; Government instruments or those bearing Collector's certificate under Section 32 → admissible; Chapter references are to the Code of Criminal Procedure, 1898, as the text reads. Uttar Pradesh substitutes sections 125 to 128 and 145 to 148 of the 1973 Code.
Delivery after endorsement (Section 42): Endorsed instrument is admissible and may be registered and acted upon; where admitted in evidence on duty and penalty under Section 35, it is not delivered before one month from impounding, or while the Collector's certificate of further detention stands; The endorsement states duty, penalty and the name and residence of the payer.
Collector's certificate (Section 40(2)): Certificate under Section 40(1)(a) = conclusive evidence of the matters stated; Covers certifying that the instrument is duly stamped or not chargeable.
Compulsory registration test (section 17): Non-testamentary instrument + creates, declares, assigns, limits or extinguishes a right, title or interest in immovable property + value ₹100 or more ⇒ compulsory; Gifts of immovable property are compulsory whatever the value. Leases from year to year, for more than one year, or reserving a yearly rent are also compulsory.
Optional registration (section 18): Value below ₹100 in immovable property, leases up to one year, instruments on movable property, wills, and other documents not covered by section 17 ⇒ optional; Under section 18(b), instruments acknowledging the receipt or payment of consideration for the creation, declaration, assignment, limitation or extinction of such a right, title or interest may be registered. Section 17(1)(b) and (c) governs the compulsory case.
Sale of immovable property (section 54, Transfer of Property Act): Tangible immovable property of ₹100 and upwards, or reversion or intangible thing ⇒ registered instrument only; Below ₹100 for tangible property: registered instrument or delivery of possession. Delivery means the seller places the buyer in possession.
Contract for sale: Contract for sale of immovable property does not, of itself, create any interest in or charge on the property; This is the wording of section 54. Registration of the later sale deed is what transfers ownership.
Time for presentation (section 23): Present within 4 months from the date of execution; For a decree or order, the period runs from the date of the decree or order, or from when it becomes final if an appeal lies. Wills may be presented at any time.
Delay (section 25): Late by up to a further 4 months: fine not exceeding 10 times the proper registration fee; The Registrar may direct acceptance on payment of the fine where delay is due to urgent necessity or unavoidable accident. After the further four months, the document cannot be accepted.
Place of registration (sections 28 and 29): Immovable property: sub-registrar of the sub-district where the property (or part) is situated. Other documents: any sub-registry office; Check the property location first, not where the parties live.
Who presents (section 32): Executant, claimant under the document, or their representative or agent holding a valid authority; Admission of execution before the registering officer is a key step in the procedure.
Section 48 rule: Duly registered non-testamentary document on any property (movable or immovable) > any oral agreement or declaration on that property; Exception: the oral agreement or declaration was accompanied or followed by delivery of possession and constitutes a valid transfer under any law in force.
Section 48 proviso: Mortgage (section 58, Transfer of Property Act, 1882) takes effect against a mortgage-deed subsequently executed and registered on the same property; The earlier mortgage prevails over a later registered mortgage-deed.
Section 50(1) rule: Duly registered document (s.17(1)(a)-(d), s.18(a)-(b)) > every unregistered document on the same property, other than a decree or order; It applies whether or not the unregistered document is of the same nature.
Section 50(2) exclusions: No priority for: leases exempted under proviso to s.17(1); documents in s.17(2); registered documents without priority under law at commencement of the Act; Name all three in an answer.
Section 49 effect of non-registration: Compulsorily registrable document, if unregistered: cannot (a) affect immovable property, (b) confer power to adopt, (c) be received as evidence of the transaction; Applies to documents required to be registered under section 17 or the Transfer of Property Act, 1882.
Section 49 proviso: Unregistered document may be received as evidence of (i) a contract in a suit for specific performance, (ii) a collateral transaction not required to be effected by registered instrument; The document still does not affect the property.
Sale defined: Sale = transfer of ownership + price paid, promised or part-paid and part-promised; Section 54. Without a price it is not a sale. It may be a gift.
Mode of sale of immovable property: Tangible immovable property worth ₹100 and above, or reversion or intangible thing: registered instrument only; Section 54. Below ₹100 (tangible): registered instrument or delivery of possession.
Delivery of possession: Delivery = seller places buyer (or his nominee) in possession; Section 54. It applies only to tangible immovable property below ₹100.
Contract for sale: Contract for sale does not, of itself, create any interest in or charge on the property; Section 54. A buyer under a mere contract has no ownership.
Registered documents versus oral agreements: Registered non-testamentary document takes effect against an oral agreement, unless the agreement was accompanied or followed by delivery of possession and constitutes a valid transfer under law; Section 48, Registration Act, 1908. Mortgage as defined in Section 58 of the TPA takes effect against a mortgage-deed later executed and registered on the same property.
Stamp duty burden (absent contrary agreement): Conveyance: grantee. Mortgage-deed: person executing. Lease or agreement to lease: lessee. Counterpart of lease: lessor. Exchange: parties in equal shares; Section 29, Indian Stamp Act, 1899. Uttarakhand adds instrument of gift: donee. Check state law.

Quick revision

Section 17(1) makes registration compulsory for gifts of immovable property.
Section 17(1)(b) covers non-testamentary instruments creating, declaring, assigning, limiting or extinguishing rights in immovable property of value ₹100 and upwards.
Section 17(1)(d) covers leases from year to year, for a term exceeding one year, or reserving a yearly rent.
Wills are testamentary, so section 17 compulsory registration does not apply to them.
Section 17(2) exempts items such as composition deeds, instruments relating to shares, and most court decrees or orders.
A court decree on a compromise covering property outside the suit's subject-matter is not exempt.
Section 17(1A) requires registration of contracts to transfer immovable property for the purposes of section 53A of the Transfer of Property Act; otherwise they have no effect for that section.
Section 49: an unregistered document that requires registration cannot affect the property or be received as evidence of the transaction.
Under the section 49 proviso, such a document may be received as evidence of a contract in a suit for specific performance or of a collateral transaction.
Section 48: registered non-testamentary documents take effect against oral agreements, unless followed by delivery of possession that makes a valid transfer.
Some states, such as Kerala, Orissa, Rajasthan and Gujarat, have amended section 17, so read the question for the state.
Stamp issues follow a sequence: chargeability, duty, adjudication, impounding, penalty.

Common mistakes

Treating drafting and conveyancing as the same thing. Fix: State that conveyancing is drafting of documents dealing with transfer or creation of rights in property. Give one example of drafting that is not conveyancing, such as a notice.
Listing principles with no explanation or link to the facts. Fix: Write one line on why each principle matters and show it in the case, such as describing the property exactly in the schedule.
Charging full duty on every instrument in a single sale. Fix: Charge the principal instrument fully and the others one rupee each, unless a State amendment changes the figure.
Applying section 5 to several instruments. Fix: Section 5 is one instrument with several distinct matters. Section 4 is several instruments for one transaction.
Writing that an unstamped document is void Fix: Say it is inadmissible and cannot be acted upon until the duty and penalty are paid. The defect is curable.
Stating the penalty as a flat ₹5 Fix: Penalty is ₹5, or ten times the duty or deficit when that exceeds ₹5. Mention that Uttar Pradesh fixes it at ten times by amendment.
Saying every document relating to immovable property must be registered. Fix: Always check the value, the nature of the right created and the section 17 exceptions before concluding.
Treating a will as compulsorily registrable. Fix: A will is listed in section 18 as a document that may be registered. Registration of a will is optional.
Saying Section 48 covers only immovable property. Fix: Section 48 says any property, movable or immovable. Quote those words.
Applying Section 48 to wills. Fix: State that Section 48 applies to non-testamentary documents only.

Exam tips

Write definitions in your own words in one or two lines, then move to principles. Examiners look for structure.
For a 'distinguish' question, give at least three points of difference, with an example for each side.
Always tie principles to the facts of the case-based question, then close with stamping and registration.
Do not quote a section number unless you are sure. Explain the rule in plain words instead.
Practise drafting the layout of a deed from title to attestation, because drafting questions reward correct order.
Begin with the section number and quote the rule in one line, then apply it to the facts.
Show the arithmetic line by line. Marks go to the working.
State clearly whether the question is a section 5 or a section 4 situation before calculating.