UNIT-3 DRAFTING AND PLEADING

UNIT-3

Table of Contents

QUESTION-1 What is lease deed? Discus the essentials of lease deed.

Lease Deed:

A lease deed is a legal document or agreement between the lessor (the property owner) and the lessee (the tenant), in which the lessor grants the lessee the right to use and occupy a specific property for a particular period of time in exchange for rent. This agreement establishes the rights and obligations of both parties and typically includes details about the rental property, rent payment, and other relevant terms and conditions.

The lease deed must be executed on a stamp paper of appropriate value, as prescribed by the Stamp Act in the relevant jurisdiction. The document is then signed by both parties, and in some cases, it may require registration.

Essentials of a Lease Deed:

  1. Parties to the Lease:
    • Lessor: The property owner or the person who has the legal right to lease the property.
    • Lessee: The person who takes the property on lease (tenant).
  2. Description of the Property:
    • The lease deed must provide a clear and precise description of the property being leased, including its boundaries and other identifiers (address, size, etc.).
  3. Term of the Lease:
    • The duration of the lease must be clearly stated in the deed, which can be a fixed term (e.g., one year) or a periodic term (e.g., month-to-month).
  4. Rent and Payment Terms:
    • The deed should specify the amount of rent to be paid, the due date (monthly, quarterly, etc.), the method of payment, and whether the rent is subject to any increase during the lease period.
    • Details of any deposits or security payments must also be mentioned.
  5. Rights and Obligations of the Parties:
    • The rights and duties of both the lessor and the lessee should be clearly defined. This may include rights related to property maintenance, repairs, improvements, and conditions under which the lease can be terminated.
    • The lessee may be responsible for routine maintenance, while the lessor might have an obligation to ensure the property is habitable.
  6. Possession and Use of the Property:
    • The lessee’s right to use and occupy the property should be stated clearly, along with any restrictions on how the property can be used (e.g., no commercial activities in a residential lease).
  7. Renewal and Termination Clause:
    • The conditions under which the lease can be renewed, extended, or terminated should be included.
    • The notice period required for termination by either party should also be stated.
  8. Security Deposit:
    • A security deposit may be required by the lessor to protect against damages, unpaid rent, or breach of terms.
    • The amount of the deposit and conditions for its refund should be clearly mentioned.
  9. Rent Review Clause:
    • Many lease deeds include a provision for reviewing and possibly increasing the rent at specified intervals (e.g., every year, based on market rates).
  10. Subletting or Assignment:
  • The lease should specify whether or not the lessee has the right to sublet the property or transfer their lease to someone else. Any such rights may be subject to approval by the lessor.
  1. Insurance and Taxes:
  • The lease should specify whether the lessee or the lessor is responsible for paying property taxes, insurance premiums, or other expenses related to the property.
  1. Maintenance and Repairs:
  • The responsibilities for the maintenance and repair of the property should be outlined, including who will bear the cost for repairs to the structure, plumbing, electrical systems, etc.
  1. Dispute Resolution Clause:
  • In case of disputes, the lease deed should provide a mechanism for resolution, such as mediation, arbitration, or approaching the civil courts.
  1. Signatures and Witnesses:
  • Both the lessor and lessee must sign the deed. Additionally, witnesses may be required for validity, especially if the lease needs to be registered.
  1. Registration of Lease Deed (If Required):
  • While it is not mandatory for all leases to be registered, if the lease term exceeds 11 months, registration under the Indian Registration Act, 1908 is required. Registration helps ensure the validity and enforceability of the lease deed.
  • The Transfer of Property Act, 1882 governs leases in India under Section 105 to Section 117. According to Section 105, a lease is a transfer of a right to enjoy immovable property for a certain time, in exchange for a price (rent).
  • The Indian Contract Act, 1872 is also applicable to leases, as it governs general principles of contract formation.

Conclusion:

A lease deed is an essential legal instrument for regulating the relationship between a property owner and tenant. It protects the rights of both parties and helps avoid disputes by setting clear terms. For the lease deed to be legally binding and enforceable, it must fulfill all the necessary legal requirements, such as proper documentation, clear terms, and, where applicable, registration.

QUESTION-2 What si promissory note? Explain. 

Promissory Note:

A promissory note is a written, signed, and unconditional promise by one party (the maker or drawer) to pay a specific sum of money to another party (the payee or bearer) at a fixed or determinable future date or on demand. It is a financial instrument that signifies the maker’s promise to repay a debt or loan under the terms specified in the note.

A promissory note is a negotiable instrument under the Negotiable Instruments Act, 1881 (in India), which means it can be transferred from one person to another.

Key Features of a Promissory Note:

  1. Unconditional Promise to Pay:
    • The note must contain a clear and unconditional promise or order to pay a sum of money. The promise cannot be subject to any conditions (e.g., “I promise to pay… unless I change my mind”).
  2. Written Document:
    • A promissory note must be in writing. Oral promises are not considered valid.
  3. Amount to Be Paid:
    • The specific amount of money to be paid must be mentioned in the note. This amount must be definite and certain.
  4. Maker and Payee:
    • The maker (the person who promises to pay) and the payee (the person who is to receive the payment) must be clearly identified in the document.
  5. Time of Payment:
    • The promissory note must specify when the payment is due, either on a fixed date or on demand. It can be either:
      • Payable on demand: The payee can demand payment at any time.
      • Payable at a specified future time: The note states a specific date when the payment is due.
  6. Signature of the Maker:
    • The promissory note must be signed by the maker. This signature signifies the maker’s consent and obligation to pay.
  7. Stamping:
    • In India, a promissory note must be properly stamped under the provisions of the Indian Stamp Act, 1899. Without the appropriate stamp duty, the note is not legally enforceable in court.
  1. Negotiable Instruments Act, 1881:
    • A promissory note is defined under Section 4 of the Negotiable Instruments Act, 1881, which defines it as an instrument in writing containing a promise to pay a certain sum of money to the payee.
  2. Section 4 of the Negotiable Instruments Act, 1881 defines a promissory note as:”A promissory note is an instrument in writing (not being a banknote or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money, or to the order of a certain person, or to the bearer of the instrument.”

Types of Promissory Notes:

  1. Demand Promissory Note:
    • The note is payable on demand, meaning the payee can ask for the payment at any time.
  2. Time Promissory Note:
    • The note specifies a particular date or time frame after which the payment is due.

Difference Between Promissory Note and Other Instruments:

  1. Promissory Note vs. Bill of Exchange:
    • A bill of exchange involves three parties (the drawer, the drawee, and the payee) and is used to transfer funds. In contrast, a promissory note involves only two parties: the maker and the payee.
    • A bill of exchange is an order to pay, whereas a promissory note is a promise to pay.
  2. Promissory Note vs. Cheque:
    • A cheque is a type of bill of exchange that is drawn on a bank, while a promissory note is not necessarily drawn on a bank. A cheque is payable on demand, while a promissory note may or may not be.

Advantages of Promissory Notes:

  • Simplicity: A promissory note is simple to draft and does not require a lot of formalities.
  • Negotiability: Since it is a negotiable instrument, a promissory note can be transferred from one person to another.
  • Security: It provides legal security for the lender, as it is a written acknowledgment of the debt.

Disadvantages of Promissory Notes:

  • Limited Recourse: If the maker defaults on payment, legal proceedings may be necessary, which could be lengthy.
  • Non-transferable Debt: In certain cases, the promissory note may be non-transferable unless endorsed.

Enforceability of a Promissory Note:

In case of non-payment, the payee can file a suit for recovery of money in the court. The payee can present the promissory note as evidence of the maker’s debt. If the maker fails to pay the amount, the payee can claim damages for breach of contract.

Conclusion:

A promissory note is an important financial document that serves as a promise to pay a specific amount of money at a future date or on demand. It is widely used in business transactions and personal loans as a written acknowledgment of debt. Understanding the essential features and legal aspects of promissory notes helps parties engage in financial agreements with clarity and security.

QUESTION-3 What do you mean by will ? Draft a will

What is a Will?

A will is a legal document that allows a person (the testator) to outline how their assets, property, and belongings should be distributed after their death. It is used to express the testator’s wishes regarding their estate and can include details about guardianship of children, the distribution of property, and the appointment of an executor to ensure the will is carried out. A will only takes effect upon the death of the testator.

Under Indian law, a will is governed by the Indian Succession Act, 1925. There are two types of wills recognized:

  1. Holographic Will: Written entirely by the testator in their own handwriting and signed.
  2. Attested Will: Written by a third party (not the testator) but attested by two witnesses.

Essentials of a Valid Will:

  1. Testator’s Capacity: The testator must be of sound mind and at least 18 years of age.
  2. Free Will: The will must be executed voluntarily, without any coercion, fraud, or undue influence.
  3. Written Document: The will must be in writing.
  4. Signature: The testator must sign the will, or if the testator is unable to sign, their thumb impression should be used in the presence of witnesses.
  5. Witnesses: The will must be signed by at least two witnesses who are not beneficiaries of the will.

Draft of a Will (Hypothetical Example):

LAST WILL AND TESTAMENT

I, [Full Name], son/daughter of [Father’s Name], residing at [Address], being of sound mind and memory, do hereby declare this to be my Last Will and Testament, hereby revoking all previous wills and codicils made by me, on this the [Date], at [Location].

1. APPOINTMENT OF EXECUTOR:

I hereby appoint [Executor’s Full Name], residing at [Executor’s Address], as the Executor of my will. If [Executor’s Full Name] is unable or unwilling to act as Executor, I appoint [Alternate Executor’s Full Name], residing at [Alternate Executor’s Address], as the alternate Executor.

2. DISPOSITION OF PROPERTY:

(a) I give and bequeath my house located at [Address of Property] to my spouse, [Spouse’s Name], absolutely.

(b) I give and bequeath my bank accounts, specifically the account number [Account Number] with [Bank Name], to my children, [Child 1’s Name] and [Child 2’s Name], in equal shares.

(c) I give and bequeath my car, a [Car Make and Model], to my son, [Son’s Name].

(d) I give and bequeath the sum of [Amount] in cash to my sister, [Sister’s Name], who resides at [Sister’s Address].

(e) I give and bequeath all my personal belongings, jewelry, and other movable assets to my spouse, [Spouse’s Name], who shall distribute them according to her discretion among my children.

3. GUARDIANSHIP OF MINOR CHILDREN:

In the event of my death, I appoint [Name of Guardian], residing at [Address], as the guardian of my minor children, [Child 1’s Name] and [Child 2’s Name]. If [Name of Guardian] is unable to act as the guardian, I appoint [Alternate Guardian’s Name] as the alternate guardian.

4. PAYMENT OF DEBTS AND EXPENSES:

I direct that all my lawful debts, funeral expenses, and the costs of administering my estate be paid from my estate before any distribution is made to the beneficiaries.

5. RESIDUARY CLAUSE:

I give and bequeath the residue of my estate, including any property or assets not otherwise specifically disposed of in this Will, to my children, [Child 1’s Name] and [Child 2’s Name], to be divided equally between them.

6. ADDITIONAL INSTRUCTIONS:

(a) I direct that my remains be cremated and my ashes scattered at [Location].

(b) If any of the named beneficiaries predecease me, their share of my estate shall be distributed equally among the surviving beneficiaries.

7. EXECUTION:

In witness whereof, I, [Testator’s Name], have hereunto set my hand and executed this my Last Will and Testament on the [Date] at [Location], in the presence of the undersigned witnesses, who have also signed this document in my presence and in the presence of each other.

SIGNATURE OF TESTATOR:

[Testator’s Full Name]

WITNESSES:

  1. Witness 1:
    Name: [Witness 1’s Name]
    Address: [Witness 1’s Address]
    Signature: ______________________
  2. Witness 2:
    Name: [Witness 2’s Name]
    Address: [Witness 2’s Address]
    Signature: ______________________

Note: The above will should be executed in the presence of two disinterested witnesses who are not named as beneficiaries in the will, as required under Indian law.

QUESTION-4 Draft a Sale Deed in respect immovable property.

DRAFT SALE DEED

THIS SALE DEED is made and executed on this [Date] day of [Month], [Year], at [Place].

BY AND BETWEEN:

  1. [Seller’s Name], son/daughter of [Father’s Name], residing at [Seller’s Address] (hereinafter referred to as the “Seller”), of the FIRST PART.
  2. [Buyer’s Name], son/daughter of [Father’s Name], residing at [Buyer’s Address] (hereinafter referred to as the “Buyer”), of the SECOND PART.

WHEREAS:

A. The Seller is the absolute owner of the immovable property described hereunder, which is free from all encumbrances, legal dues, and charges.

B. The Seller has agreed to sell and the Buyer has agreed to purchase the immovable property described below for a total consideration of [Amount in Words] (Rs. [Amount in Numbers]), which has been fully received by the Seller.

NOW THIS DEED WITNESSES AS FOLLOWS:

1. DESCRIPTION OF THE PROPERTY SOLD:

The property being sold is more particularly described as follows:

  • Type of Property: [Residential/Commercial/Other]
  • Plot No.: [Plot Number]
  • Survey No.: [Survey Number]
  • Location: [Complete Address of the Property]
  • Boundaries:
    • East: [Boundaries to the East]
    • West: [Boundaries to the West]
    • North: [Boundaries to the North]
    • South: [Boundaries to the South]

2. SALE AND TRANSFER OF PROPERTY:

The Seller, in consideration of the sum of [Amount in Words] (Rs. [Amount in Numbers]), the receipt of which is hereby acknowledged, has this day sold, transferred, and conveyed the property described above to the Buyer, and the Buyer has accepted the property.

The Seller declares that the property is free from all encumbrances, mortgages, claims, litigation, and all other charges, and that the Seller has the absolute right to sell the property.

3. PAYMENT:

The Buyer has paid the full consideration amount of [Amount in Words] (Rs. [Amount in Numbers]) to the Seller, and the Seller acknowledges the receipt of the full payment. The receipt of the amount has been duly acknowledged by the Seller.

4. POSSESSION:

The possession of the property described above is being handed over to the Buyer at the time of execution of this Sale Deed. The Buyer has taken physical possession of the property and the Seller has no further rights to the property.

5. TITLE AND RIGHT TO TRANSFER:

The Seller warrants that he/she is the absolute owner of the property and has the right to transfer the same. The Seller confirms that the property is free from any legal disputes and is not mortgaged or encumbered in any way.

6. COVENANTS OF THE SELLER:

The Seller further covenants that:

  • The Seller has not sold, transferred, or disposed of the property to any other person.
  • The Seller will indemnify the Buyer against any claim, loss, or damage arising from any defect in the title or encumbrance on the property.

7. EXECUTION AND REGISTRATION:

This Sale Deed will be executed in the presence of witnesses and will be registered as per the provisions of the Registration Act, 1908 at the [Local Sub-Registrar Office Name].

8. GOVERNING LAW:

This Sale Deed shall be governed by and construed in accordance with the laws of India, and specifically under the provisions of the Transfer of Property Act, 1882 and the Indian Registration Act, 1908.

9. ADDITIONAL TERMS AND CONDITIONS:

  • If any arrears of property taxes or dues are applicable, the Buyer shall bear the responsibility from the date of possession.
  • Any outstanding dues or obligations, including but not limited to electricity, water, or municipal charges, will be settled by the Seller before the execution of this deed.

10. FURTHER ASSURANCE:

Both parties agree to sign any additional documents or take any necessary action required for the effective transfer of the property under the terms of this Sale Deed.

IN WITNESS WHEREOF, the parties have signed this Sale Deed on the day, month, and year first above written.

SIGNED AND DELIVERED BY:

The Seller: Signature: ___________________________
Name: [Seller’s Name]
Date: ___________________________

The Buyer: Signature: ___________________________
Name: [Buyer’s Name]
Date: ___________________________

WITNESSES:

  1. Witness 1
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________
    Date: ___________________________
  2. Witness 2
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________
    Date: ___________________________

Note:

  • Ensure that the document is executed in front of at least two witnesses who are not related to either party.
  • The Sale Deed must be registered with the Sub-Registrar to be legally valid.

QUESTION-5 Draft a general power of attorney in favour of ‘A’ for managing your House property.

GENERAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS that I, [Your Full Name], son/daughter of [Father’s Name], residing at [Your Full Address], (hereinafter referred to as the “Principal”), do hereby appoint [A’s Full Name], son/daughter of [Father’s Name], residing at [A’s Full Address], (hereinafter referred to as the “Attorney”), as my lawful attorney to act on my behalf for the purposes and in the manner described below concerning my property.

WHEREAS:

I am the absolute owner of the property described below, and I am desirous of appointing the Attorney to manage, maintain, and deal with all matters related to the said property.

DESCRIPTION OF THE PROPERTY:

The immovable property is more particularly described as follows:

  • Property Address: [Complete Address of the Property]
  • Type of Property: [Residential/Commercial]
  • Property Area: [Area in square feet/meters]
  • Boundaries:
    • East: [Boundary details]
    • West: [Boundary details]
    • North: [Boundary details]
    • South: [Boundary details]

NOW, THEREFORE, I AUTHORIZE THE ATTORNEY AS FOLLOWS:

  1. Management and Maintenance:
    To oversee, manage, and maintain the property mentioned above, including carrying out necessary repairs, renovations, and upkeep for the proper maintenance of the property.
  2. Renting Out the Property:
    To lease or rent out the property to suitable tenants on such terms and conditions as deemed fit, execute lease agreements, collect rent, issue receipts, and take necessary legal action for the recovery of arrears of rent or eviction of tenants.
  3. Representation Before Authorities:
    To appear and represent me before any government or local authorities, municipal corporations, or courts concerning the property for purposes such as payment of taxes, obtaining approvals, or complying with statutory requirements.
  4. Utility Connections:
    To apply for and manage utilities such as electricity, water, gas, and internet connections for the property, including payment of bills and addressing grievances.
  5. Legal Proceedings:
    To file, defend, and pursue any legal proceedings in relation to the property, including initiating or defending suits, filing claims, and making representations as necessary.
  6. Sale or Transfer of Property (Optional Clause):
    (Include this clause only if you wish to empower the Attorney to sell the property)
    To sell, transfer, or otherwise dispose of the property mentioned above for such consideration as deemed fit and to execute the necessary sale deeds and other documents required for the transfer of the property.
  7. Banking Transactions:
    To operate bank accounts related to the property, including depositing and withdrawing funds for expenses concerning the property.
  8. General Authority:
    To perform all acts, deeds, and things necessary or incidental to the management of the property, including signing documents, affidavits, and declarations.

LIMITATIONS:

This General Power of Attorney is limited to the scope of managing the property mentioned above and does not authorize the Attorney to use the property for personal purposes.

REVOCATION:

This Power of Attorney shall remain valid until expressly revoked by me in writing.

IN WITNESS WHEREOF, I have executed this General Power of Attorney on this [Date] day of [Month], [Year], at [Place].

SIGNED AND DELIVERED BY THE PRINCIPAL:
Signature: ___________________________
Name: [Your Full Name]
Date: ___________________________

ACCEPTED BY THE ATTORNEY:
Signature: ___________________________
Name: [A’s Full Name]
Date: ___________________________

WITNESSES:

  1. Witness 1
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________
  2. Witness 2
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________

Notes:

  1. Ensure the Power of Attorney is executed on non-judicial stamp paper of requisite value as per the local state laws.
  2. It should be notarized or registered with the Sub-Registrar if required, depending on its use and jurisdiction.
  3. Seek legal advice to customize the Power of Attorney as per specific needs and jurisdictional requirements.

QUESTILN-6-DRAFT A DEED OF LEASE OF HOUSE FOR A PERIOD MORE THAN ONE YEAR

DEED OF LEASE

THIS DEED OF LEASE is made and executed on this ___ day of _, 20, at [Place],

BY AND BETWEEN
[Name of the Lessor], son/daughter of [Father’s Name], aged ___ years, residing at [Full Address], hereinafter referred to as the “Lessor” (which expression shall, unless it be repugnant to the context or meaning thereof, mean and include his/her heirs, legal representatives, executors, administrators, and assigns) of the FIRST PART,

AND
[Name of the Lessee], son/daughter of [Father’s Name], aged ___ years, residing at [Full Address], hereinafter referred to as the “Lessee” (which expression shall, unless it be repugnant to the context or meaning thereof, mean and include his/her heirs, legal representatives, executors, administrators, and assigns) of the SECOND PART.

WHEREAS:

  1. The Lessor is the absolute owner and in lawful possession of the property described hereinbelow (hereinafter referred to as the “Demised Premises”).
  2. The Lessee has approached the Lessor to take the Demised Premises on lease for residential purposes for a period of more than one year, and the Lessor has agreed to lease the said property to the Lessee on the terms and conditions set forth in this Deed.

NOW THIS DEED WITNESSETH AS FOLLOWS:

1. Description of the Demised Premises

The property to be leased is described as:

  • Property Address: [Full Address of the Property]
  • Type of Property: [Residential]
  • Boundaries:
    • East: [Boundary Details]
    • West: [Boundary Details]
    • North: [Boundary Details]
    • South: [Boundary Details]

2. Term of the Lease

The lease shall commence on ___ day of _, 20, and shall be for a period of ___ years, ending on ___ day of _, 20.

3. Rent and Mode of Payment

  • The Lessee shall pay a monthly rent of ₹___ (Rupees ___ Only) on or before the ___ day of each calendar month.
  • The payment shall be made by [cash/cheque/bank transfer] to the Lessor or his/her authorized representative.

4. Security Deposit

  • The Lessee shall pay a refundable security deposit of ₹___ (Rupees ___ Only) at the time of execution of this Deed.
  • The security deposit shall be refunded to the Lessee without any interest upon the termination of the lease, subject to deductions for any damage to the property, unpaid rent, or other dues.

5. Purpose of Lease

The Demised Premises shall be used solely for residential purposes. The Lessee shall not use or allow the property to be used for any commercial or illegal activities.

6. Maintenance and Repairs

  • The Lessee shall keep the Demised Premises in good and tenantable condition during the lease period.
  • The Lessor shall be responsible for major structural repairs.
  • The Lessee shall be responsible for routine maintenance and minor repairs.

7. Alterations and Additions

The Lessee shall not make any structural alterations or additions to the Demised Premises without the prior written consent of the Lessor.

8. Subletting and Assignment

The Lessee shall not sublet, assign, or transfer the Demised Premises or any part thereof to any third party without the prior written consent of the Lessor.

9. Termination of Lease

  • Either party may terminate this lease by giving ___ months’ prior written notice.
  • Upon termination, the Lessee shall vacate the Demised Premises and hand over peaceful possession to the Lessor.

10. Indemnity

The Lessee shall indemnify the Lessor against any loss, damage, or liability arising from the misuse of the Demised Premises or any violation of terms by the Lessee.

11. Dispute Resolution

Any disputes arising from this lease shall be resolved amicably. If unresolved, the matter shall be referred to arbitration under the Arbitration and Conciliation Act, 1996, and the decision of the arbitrator shall be final and binding on both parties.

12. Registration and Stamp Duty

  • This Deed shall be executed on non-judicial stamp paper of requisite value and registered with the Sub-Registrar as per the Registration Act, 1908.
  • The cost of registration and stamp duty shall be borne by [Lessor/Lessee/jointly by both parties].

IN WITNESS WHEREOF, the parties hereto have signed this Deed on the day, month, and year first mentioned above.

SIGNED AND DELIVERED BY THE LESSOR:
Signature: ___________________________
Name: ___________________________
Date: ___________________________

SIGNED AND DELIVERED BY THE LESSEE:
Signature: ___________________________
Name: ___________________________
Date: ___________________________

WITNESSES:

  1. Witness 1
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________
  2. Witness 2
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________

Notes:

  1. Ensure the lease deed is executed on appropriate non-judicial stamp paper based on the value prescribed by state laws.
  2. Register the lease deed with the Sub-Registrar if the lease term exceeds one year.
  3. Seek legal advice to customize the deed as per specific requirements.

QUESTION-7 Draft DEED of gift of Property out of natural love and affection

DEED OF GIFT

THIS DEED OF GIFT is made and executed on this ___ day of _, 20, at [Place],

BY AND BETWEEN
[Name of the Donor], son/daughter of [Father’s Name], aged ___ years, residing at [Full Address], hereinafter referred to as the “Donor” (which expression shall, unless repugnant to the context, include his/her heirs, executors, administrators, legal representatives, and assigns) of the ONE PART,

AND
[Name of the Donee], son/daughter of [Father’s Name], aged ___ years, residing at [Full Address], hereinafter referred to as the “Donee” (which expression shall, unless repugnant to the context, include his/her heirs, executors, administrators, legal representatives, and assigns) of the OTHER PART.

WHEREAS:

  1. The Donor is the absolute owner and in possession of the property described hereinbelow (hereinafter referred to as the “Property”).
  2. Out of natural love and affection for the Donee, who is the [state relationship, e.g., son/daughter/relative] of the Donor, the Donor has decided to transfer the said Property to the Donee as a gift, without any monetary consideration.

NOW THIS DEED WITNESSETH AS FOLLOWS:

1. Description of the Property

The property that is the subject of this gift is described as follows:

  • Property Address: [Full Address of the Property]
  • Type of Property: [e.g., Residential/Commercial]
  • Area: [Area in square feet/meters]
  • Boundaries:
    • East: [Boundary Details]
    • West: [Boundary Details]
    • North: [Boundary Details]
    • South: [Boundary Details]

2. Transfer of Ownership

The Donor hereby voluntarily and without any coercion or undue influence transfers, conveys, and assigns the said Property to the Donee, to hold absolutely and forever, along with all rights, title, interest, privileges, and appurtenances attached thereto.

3. Consideration

This gift is made out of natural love and affection and without any monetary consideration.

4. Possession

The Donor has delivered peaceful and vacant possession of the said Property to the Donee on the date of execution of this Deed.

5. Covenants by the Donor

The Donor hereby covenants as follows:

  • That the Donor has absolute ownership and possession of the Property and the right to gift the same.
  • That the Property is free from all encumbrances, claims, or liabilities.
  • That the Donor shall execute any further documents, if required, to perfect the title of the Donee.

6. Acceptance of Gift

The Donee accepts the gift and acknowledges having taken possession of the Property, and agrees to hold and enjoy the same as absolute owner forever.

7. Registration and Stamp Duty

The parties agree to register this Deed of Gift with the Sub-Registrar’s office as required under the Registration Act, 1908, and the stamp duty and registration charges shall be borne by the [Donor/Donee/jointly by both parties].

8. Governing Law

This Deed shall be governed by the laws of India.

IN WITNESS WHEREOF, the Donor and the Donee have signed this Deed on the day, month, and year first mentioned above in the presence of the witnesses.

SIGNED AND DELIVERED BY THE DONOR:
Signature: ___________________________
Name: ___________________________
Date: ___________________________

SIGNED AND DELIVERED BY THE DONEE:
Signature: ___________________________
Name: ___________________________
Date: ___________________________

WITNESSES:

  1. Witness 1
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________
  2. Witness 2
    Name: ___________________________
    Address: ___________________________
    Signature: ___________________________

Notes:

  1. Execute this Deed on appropriate non-judicial stamp paper as per the applicable state laws.
  2. Register the Deed of Gift with the Sub-Registrar’s office to ensure its legality.
  3. Seek legal advice if there are any specific conditions or clauses to be added.

QUESTION-8 What is sale deed ? Discuss the essentials of sale-deed.

What is a Sale Deed?

A sale deed is a legal document that serves as evidence of the sale and transfer of ownership of immovable property from one party (the seller) to another (the buyer). It is one of the most important documents in a property transaction and is governed by the Transfer of Property Act, 1882 and the Registration Act, 1908 in India.

The sale deed must be executed on a non-judicial stamp paper of the appropriate value as prescribed by the state laws and must be registered with the Sub-Registrar’s office to be legally valid.

Essentials of a Sale Deed

  1. Parties Involved:
    • The deed must clearly mention the names, addresses, and details of the seller (vendor) and buyer (vendee).
    • Both parties must be competent to contract under the Indian Contract Act, 1872.
  2. Description of the Property:
    • A detailed and accurate description of the immovable property being sold, including its location, size, boundaries, and other specifics, must be included.
  3. Consideration:
    • The amount agreed upon as the sale price of the property must be explicitly mentioned.
    • Acknowledgment of the receipt of consideration by the seller should also be noted.
  4. Transfer of Ownership:
    • The deed must include a clause stating the transfer of ownership, rights, title, and interest in the property from the seller to the buyer.
  5. Encumbrances:
    • The deed should specify whether the property is free from encumbrances (such as mortgages, liens, or disputes). If there are any encumbrances, they should be disclosed.
  6. Delivery of Possession:
    • A statement confirming that the seller has delivered possession of the property to the buyer should be included.
  7. Indemnity Clause:
    • The seller should provide indemnity to the buyer against any claims, disputes, or defects in the title of the property.
  8. Execution:
    • The deed must be signed by both parties (seller and buyer) and must be attested by two witnesses.
  9. Stamp Duty and Registration:
    • The deed must be executed on non-judicial stamp paper and registered at the local Sub-Registrar’s office. The buyer generally bears the costs of stamp duty and registration unless agreed otherwise.
  10. Other Covenants:
    • The deed may also include other covenants such as:
      • Taxes or charges that need to be cleared before the transfer.
      • Any warranties provided by the seller about the property.
  11. Legal Compliance:
    • The sale deed must comply with applicable laws, such as:
      • Section 54 of the Transfer of Property Act, 1882 for the definition of a sale.
      • Section 17 of the Registration Act, 1908, which mandates registration for transferring ownership of immovable property worth more than ₹100.

Key Clauses in a Sale Deed

  1. Recitals:
    • Outlines the history of ownership and reasons for the sale.
  2. Habendum:
    • Confirms that the buyer has absolute ownership rights over the property after the execution of the sale deed.
  3. Covenants and Undertakings:
    • Contains promises by the seller that the property is free of any encumbrances and that they have the legal right to sell it.

Importance of a Sale Deed

  1. Legal Proof:
    • Acts as proof of ownership and a binding contract between the buyer and seller.
  2. Protection Against Fraud:
    • Ensures transparency in the transaction by clearly mentioning all terms and conditions.
  3. Registration Requirement:
    • Ensures compliance with legal requirements for transferring immovable property.

QUESTION- Draft a notice under, Section 80 of civil procedure code for filing a civil suit against the government.

Draft of Notice under Section 80 of the Code of Civil Procedure, 1908

(Notice to the Government before filing a suit)

To,
The Secretary,
[Name of the Department/Ministry],
[Address],
[City, State, Pincode].

Date: [Insert Date]

Subject: Notice under Section 80 of the Code of Civil Procedure, 1908, regarding filing of a civil suit against the Government

Sir/Madam,

This is a formal notice under Section 80 of the Code of Civil Procedure, 1908, requiring two months’ prior notice before instituting a suit against the Government.

I, [Your Full Name], residing at [Your Address], intend to file a civil suit against [Name of the Government Department/Agency] for [state the nature of the grievance, e.g., negligence, breach of contract, violation of rights, etc.].

Facts of the Case:

  1. On [specific date], [state the facts leading to the grievance, e.g., your property was acquired, contract breached, rights violated, etc.].
  2. [Provide other relevant details, such as the location of the incident, correspondence with government officials, and actions taken].
  3. Despite repeated attempts to resolve the matter, no satisfactory response has been received.

Relief Claimed:

I seek the following relief(s) from the competent court of law:

  1. [State the specific relief sought, e.g., compensation, damages, specific performance, injunction, etc.].
  2. [Include any other relief sought].

Legal Grounds:

  1. [State the relevant laws or provisions violated].
  2. [Mention legal precedents, if any, supporting your claim].

Conclusion:

In light of the above, I kindly request you to take cognizance of the matter and resolve it amicably within the statutory notice period. If the issue is not resolved within two months from the receipt of this notice, I shall be constrained to initiate legal proceedings against [Name of Government Department/Agency] in the competent court of law.

A copy of this notice is retained for reference, and proof of service will be provided during legal proceedings.

Thanking you,

Yours faithfully,
[Your Full Name]
[Your Signature]
[Your Contact Information]

Copy to:

  1. [Name and Address of Any Other Relevant Authority, if applicable].
  2. [Optional – Attorney/Legal Counsel, if engaged].

This notice complies with Section 80 CPC requirements, ensuring proper communication with the government before instituting a legal suit.

question – Explain the object and functions of conveyancing and ded of conveyancing.

Conveyancing: Objects and Functions

Conveyancing refers to the legal process of transferring ownership or interest in immovable property from one person to another. It involves drafting and executing legal documents, such as deeds, agreements, or contracts, to formalize the transaction. The term is primarily associated with property law but can also apply to other forms of asset transfer.

Object of Conveyancing

The primary objective of conveyancing is to ensure the lawful transfer of property rights from one party to another while safeguarding the interests of all involved parties. Specific objectives include:

  1. Legality:
    • To ensure compliance with applicable property and contract laws, such as the Transfer of Property Act, 1882, the Registration Act, 1908, and state-specific stamp duty laws.
  2. Clarity and Precision:
    • To clearly define the terms and conditions of the transfer, such as the nature of the property, ownership rights, obligations of parties, and consideration (payment).
  3. Protection of Rights:
    • To protect the rights of the buyer (vendee) by ensuring clear and marketable title to the property.
    • To protect the rights of the seller (vendor) by establishing that the agreed-upon consideration is received.
  4. Avoidance of Disputes:
    • To prevent future legal disputes by addressing potential ambiguities and documenting the agreement in a legally binding form.
  5. Preservation of Records:
    • To create a legal record of the transaction for future reference or in case of litigation.

Functions of Conveyancing

  1. Drafting Legal Documents:
    • Preparing documents such as sale deeds, lease deeds, gift deeds, mortgage deeds, or wills that are essential for transferring property rights.
  2. Verification of Title:
    • Ensuring the seller has a clear and marketable title to the property, free from encumbrances or legal disputes.
  3. Execution of Agreement:
    • Facilitating the signing of agreements or deeds by the parties involved.
  4. Stamp Duty and Registration:
    • Ensuring that the document is properly stamped and registered under the Registration Act, 1908, to make it legally valid.
  5. Adherence to Legal Requirements:
    • Complying with the provisions of laws such as the Indian Contract Act, 1872, and ensuring the document is enforceable in a court of law.
  6. Facilitating Transactional Clarity:
    • Documenting all terms and conditions to provide clarity to the parties and third parties involved.
  7. Safeguarding Future Interests:
    • Ensuring the document includes indemnity clauses, covenants, and warranties to protect against future disputes or claims.

Deed of Conveyancing

A deed of conveyancing is a formal document that transfers legal ownership or interest in property from one party to another. It includes specific clauses and follows legal protocols to ensure enforceability.

Essentials of a Deed of Conveyancing:

  1. Parties to the Deed:
    • Names, descriptions, and addresses of the transferor (seller) and transferee (buyer).
  2. Description of Property:
    • Detailed identification of the property, including its location, boundaries, and measurements.
  3. Consideration Clause:
    • Amount paid by the buyer to the seller as consideration and acknowledgment of receipt.
  4. Operative Clause:
    • Statement of transfer of ownership and interest in the property.
  5. Covenants and Warranties:
    • Declarations by the seller that the property is free from encumbrances and that they have the legal right to sell it.
  6. Indemnity Clause:
    • Clause ensuring the buyer is indemnified against future claims or disputes.
  7. Execution and Attestation:
    • Signatures of the parties, along with attestation by witnesses.
  8. Stamp Duty and Registration:
    • Details of stamp duty paid and registration with the local Sub-Registrar’s office.

Importance of Conveyancing

Conveyancing ensures that property transactions are lawful, transparent, and enforceable. It minimizes the risk of disputes, protects the parties’ interests, and ensures the smooth transfer of ownership in accordance with the law.

Question- Define Mortgage and also draft a model deed of Mortgage.

Definition of Mortgage

A mortgage is a legal arrangement under the Transfer of Property Act, 1882, where the owner of immovable property transfers an interest in that property to a lender as security for a loan or debt. The mortgagor (borrower) retains ownership, but the mortgagee (lender) holds the right to sell or foreclose on the property if the loan is not repaid.

Relevant Section:

  • Section 58(a) of the Transfer of Property Act, 1882, defines a mortgage as a transfer of interest in specific immovable property for securing the payment of money advanced, an existing debt, or the performance of an obligation.

Types of Mortgages

  1. Simple Mortgage (Section 58(b)): The property is not delivered, but the mortgagor binds themselves personally to repay the loan.
  2. Mortgage by Conditional Sale (Section 58(c)): Property is sold with the condition that it will revert to the mortgagor upon repayment.
  3. Usufructuary Mortgage (Section 58(d)): The mortgagee receives possession and rents or profits of the property.
  4. English Mortgage (Section 58(e)): The mortgagor transfers the property to the mortgagee, with a condition of reconveyance upon repayment.
  5. Mortgage by Deposit of Title Deeds (Equitable Mortgage) (Section 58(f)): Title deeds are deposited as security.
  6. Anomalous Mortgage (Section 58(g)): Any mortgage that doesn’t fall under the above categories.

Essentials of a Mortgage Deed

  1. Parties: Mortgagor and mortgagee.
  2. Description of Property: Specific details of the immovable property.
  3. Debt Amount: The principal amount and rate of interest.
  4. Security Clause: Declaration of property as security.
  5. Redemption Clause: Conditions under which the property will be redeemed.
  6. Foreclosure Rights: Conditions for the mortgagee to sell the property.
  7. Execution: Proper signatures and attestation.
  8. Stamp Duty and Registration: Complying with state-specific stamp duty laws and registration under the Registration Act, 1908.

Model Deed of Mortgage

DEED OF SIMPLE MORTGAGE

This Deed of Mortgage is made on this ___ day of , 20, at ___, between:

  1. [Name of Mortgagor], son/daughter of ___, residing at ___ (hereinafter referred to as “the Mortgagor”), which term shall include their heirs, executors, administrators, and assigns, of the ONE PART;
  2. [Name of Mortgagee], son/daughter of ___, residing at ___ (hereinafter referred to as “the Mortgagee”), which term shall include their heirs, executors, administrators, and assigns, of the OTHER PART.

WHEREAS:

  1. The Mortgagor is the absolute owner of the property described in the Schedule below.
  2. The Mortgagee has agreed to advance a loan of Rs. ___ (Rupees ___ only) to the Mortgagor at the interest rate of ___% per annum, and the Mortgagor has agreed to secure the repayment of the said loan along with interest by mortgaging the said property.

NOW THIS DEED WITNESSES AS FOLLOWS:

  1. Loan and Security:
    The Mortgagee has advanced a loan of Rs. ___ to the Mortgagor. The Mortgagor hereby mortgages the property described in the Schedule as security for the repayment of the said loan, along with interest.
  2. Covenant to Repay:
    The Mortgagor covenants to repay the loan amount of Rs. ___, along with interest at ___% per annum, on or before ___ (date).
  3. Right to Foreclose:
    If the Mortgagor fails to repay the loan amount and interest as agreed, the Mortgagee shall have the right to foreclose on the property and recover the amount due through its sale.
  4. Possession:
    The possession of the property shall remain with the Mortgagor, and the Mortgagee shall not interfere with the same unless the Mortgagor defaults.
  5. Redemption:
    Upon repayment of the loan and interest in full, this mortgage shall stand redeemed, and the Mortgagee shall execute a deed of release at the expense of the Mortgagor.
  6. Schedule of Property:
    (Detailed description of the property, including location, boundaries, survey numbers, etc.)
  7. Miscellaneous:
    • This deed shall be duly stamped and registered as per the applicable laws.
    • Any dispute arising out of this deed shall be subject to the jurisdiction of ___ courts.

IN WITNESS WHEREOF, the parties hereto have executed this deed on the day, month, and year first written above.

Signed and Delivered by the Mortgagor:
(Signature)
Name: ___

Signed and Delivered by the Mortgagee:
(Signature)
Name: ___

Witnesses:

  1. Name: ___, Address: ___
  2. Name: ___, Address: ___

This model can be adapted for other types of mortgages by modifying the relevant clauses.

Question- What is promissory note? Discuss in detail

What is a Promissory Note?

A promissory note is a legal document in which one party (the maker) promises in writing to pay a specific sum of money to another party (the payee) either on demand or at a future date. It serves as evidence of debt and creates a legal obligation to repay the amount stated in the note.

Under Section 4 of the Negotiable Instruments Act, 1881, a promissory note is defined as:
“An instrument in writing (not being a banknote or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to or to the order of a certain person, or to the bearer of the instrument.”

Characteristics of a Promissory Note

  1. Written Instrument: A promissory note must be in writing. Oral agreements are not valid.
  2. Unconditional Promise: The promise to pay must be unconditional.
  3. Specific Amount: The amount to be paid must be certain and mentioned clearly in the note.
  4. Parties:
    • Maker: The person who makes the promise to pay.
    • Payee: The person to whom the payment is to be made.
  5. Payable in Money: The payment must be in monetary terms and not in goods or services.
  6. Signed by Maker: The maker must sign the note to authenticate it.
  7. Payable on Demand or at a Future Date: The note must specify whether it is payable on demand or at a fixed date.
  8. Certainty of Parties: The note must clearly specify who the maker and payee are.

Essentials of a Valid Promissory Note

  1. Clear Terms: The document must state that it is a promissory note. Ambiguity in language may invalidate the note.
  2. Unconditional Undertaking: Phrases like “I promise to pay…” or “I undertake to pay…” must be included without conditions.
  3. Amount: The amount must be mentioned in figures and words.
  4. Date and Place: The note should indicate when and where it was created.
  5. Stamp Duty: The note must comply with the Indian Stamp Act, 1899 and carry the required stamp duty.

Types of Promissory Notes

  1. On-Demand Promissory Note: Payable when the payee demands the payment.
  2. Time-Bound Promissory Note: Payable at a specific future date.
  3. Joint Promissory Note: Made by two or more makers jointly.

Parties Involved

  1. Maker: The person who makes the promise to pay.
  2. Payee: The person in whose favor the promissory note is drawn.
  3. Holder: The person who lawfully possesses the promissory note.
  1. Section 4: Definition of a promissory note.
  2. Section 118: Presumption as to consideration. It is presumed that a promissory note was made for valid consideration unless proven otherwise.
  3. Section 121: Provides that a promissory note payable to bearer is illegal in India.

Advantages of a Promissory Note

  1. Legal Evidence of Debt: Serves as a written acknowledgment of debt.
  2. Ease of Enforcement: The payee can sue the maker in case of default.
  3. Customizable Terms: The note can include interest rates, repayment schedules, and other conditions.

Limitations of a Promissory Note

  1. No Collateral: Unlike a mortgage, a promissory note does not provide security.
  2. Risk of Default: If the maker defaults, the payee has to initiate legal proceedings.
  3. Stamp Duty: Non-compliance with the stamp duty requirement can invalidate the note.

Format of a Promissory Note

PROMISSORY NOTE

Place: ___
Date: ___

On demand, I, [Name of Maker], son/daughter of ___, residing at ___, promise to pay [Name of Payee], son/daughter of ___, residing at ___, or to his/her order, a sum of Rs. ___ (Rupees ___ only) together with interest at the rate of ___% per annum from the date hereof until repayment in full.

Terms and Conditions:

  1. The amount shall be payable on demand/by ___ (specific date).
  2. Interest shall be calculated and paid on a monthly/quarterly basis.

Signature:
(Maker’s Full Name and Signature)

Witnesses:

  1. Name: ___, Address: ___, Signature: ___
  2. Name: ___, Address: ___, Signature: ___

Promissory notes play a crucial role in financial transactions by formalizing the terms of borrowing and lending, ensuring clarity, and providing a legal basis for recovery in case of disputes.

Exit mobile version