CONVEYANCER

Deed of Transfer

The exact form and requirements of deed of transfer depends on the nature of the transaction. Deeds of transfer are required in different types of transfer of immovable property such as sale deed, mortgage deed, gift deed, lease deed etc. The object of writing a deed is to bound parties to the deed with the terms and condition agreed by them, hence from the plain reading of the document it should be clear that what is the true intention of the parties to the deed.

General Requirement of Deed of Transfer:-

1.Description of Deed.

2. Date.

3. Parties to the Deed.

4. Recitals.

5. Operative Part.

6. Consideration.

7. Acknowledgment

8. Description of the Property.

9. Testimonial.

10. Signature and Attestation.

Description of Deed:- The very first paragraph of the deed of transfer begin with the name of the transaction such as "This deed of sale", "This deed of Gift", ''This deed of mortgage'' and ''This deed of lease". etc as the case may be.

Date:- After the description of the deed ,the date on which deed is executed be written like this-

"This deed of..............made on the 12th day of March two thousand and eleven”. The date of execution must be mention in the deed. It is a very important and essential requirement of the law. The date shows from which date, the deed operates. Provision of Indian registration act 1908, under section 23 it is made clear that a document can be presented for registration within four month from the date of its execution. Date is also essential for determination of Limitation under the Limitation Act. In my view the date of execution must be written in words not in figure to avoid the mistake or forgery etc.

Parties to the Deed:- After the date, the names of the parties to the deed are mentioned. The transferor and the transferee is the essential parties to the deed of transfer. Third person may also be joined as a necessary party to the deed if his consent is necessary to confirm the title of the transferor.

first of all "name, father's name and permanent residential address of the transferor may be written in the deed and then the detailed particulars of the third person so joined as a necessary party and then at last the name, father's name and permanent residential address of the transferee" may be written in the deed. A party to the deed of transfer may be a person or may be a juridical person such as company, registered under the company registration act, society, registered under the society registration act, association or a corporation etc.

In Case of Minors- minors are a person whether male or female, below the age of 18. Minor cannot enter into the contract. Transfer of the minor's property can be made his natural guardian, guardian appointed by the court, with the prior permission of the court only.

Recital:- Recital is the most important part of the deed.There must be each and every detail of the subject matter.If the deed is related to the transfer of some sort of immovable property detail must be given its origin and how the transferor get the right of its transfer to other persons.When the transferor transfer the property under some power given to him by another instrument,details of such instrument must be given clearly.

Transfer by a guardian of a minor:- A minor can transfer his or her property through guardian with the permission of the court. The fact of appointment as such guardian or permission from the court to transfer the property must be recited.

In case of a KARTA of a Hindu coparcenary, the legal necessity for which the transfer is being made must recite.

Recitals begin with the word "whereas" but when there are several recitals subsequent one start with the words "And whereas".

Consideration:- It is necessary to mention the consideration in the deed ascertaining the stamp duty.Section 27 of the Indian Stamp Act requires that the consideration should be fully and truly set-forth in the deed.

Receipt:- It is an acknowledgment of receiving consideration full and final or as the case may be or as mention in the deed.

Description of the Property :- It is also the important part of the deed. It is generally written in the end of the deed under separate heading “Schedule of the property” The property descriptions must be in order. It is well established that a property can be identified either by boundary or by any other specific description. Even if there was any discrepancy, normally, the boundaries should prevail.

Section 21 in The Registration Act, 1908 says

(l) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.

(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified ) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts. State Amendments Gujarat: Amendment is the same as that of Maharashtra. [Vide Gujarat Act 11 of 1960, sec. 87 and Gujarat A.L.O., 1960]. Maharashtra: For sub-section (2), substitute the following, namely:— “(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered. In all city surveyed areas, houses and lands shall also be described by their cad-astral survey numbers as in the city survey maps and records.” [Vide Bombay Act 35 of 1958, sec. 4 (w.e.f. 24-4-1958)]. Note.—For omission of sub-section (4) of section 21, see sub-section (3) of section 70D inserted in the main Act by Bombay Act 17 of 1930. Comments Where a document comprises several properties and the description is sufficient as to some, but insufficient as to others, the registering officer must not refuse to accept the document for registration in its entirety; Kesava v. Kannusamy, (1904) 15 Mad LJ 30.

Testimonial :- In general the deed required two witnesses who must have seen the document executed.and signs it as a witness. "the essence of attestation is that the person must have seen the document executed." the learned Judges of the Bombay High Court in Ranu v. Laxmanrao, 33 Bom. 44: (1 I. C. 464). Their Lordships referred to the observation of Lord Campbell in the English decision in Burdett v. Spilsbury, (1843) 10 C. & F. 340 : (59 R. R. 105) :

" What is the meaning of an attesting witness to a deed: Why, it is a witness who has seen the deed executed and who signs it as a witness,"

and said this was the meaning of attesting witness in Section 68, Evidence Act. On this view of the law, they held that where the writer of the deed in concluding the writing of the body of the document stated that it was written by him he could not be treated as an attesting witness.

in order to be an attesting witness a person need not only see the execution and sign in the presence of the executant but must also sign as a witness.

Section 68, Evidence Act (I (1) of 1872), which declares that 'if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,

Signature and Attestation

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