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:
Nature of the Deed
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 of the concerned revenue departments. The date of execution of the
document may vary from the date of registration, since the documents can be presented
anytime within four months from the date of execution for registration.
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 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 legal parlance.
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 sale deeds.
Covenant
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, addresses and signature.This clause is also very important for the
reason that the witnesses also play an important role to prove execution of the
document.However, it is advisable that both the witnesses are from
purchaser/transferee's 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 favor 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 detail 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 and if such
documents fall within this 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.
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