CONVEYANCING OF SALE DEED AND ITS REQUIREMENTS
Conveyancing has been practiced as a fine art in England by a class of trained lawyers who have specialized as conveyancers after an intensive study of the law relating to contracts and real property. Though the term conveyancing used by most of the England Lawyers for drafting the documents of their clients but as the years rolled by Conveyancing got its own importance even in India too. In Modern India Draftsman plays an important role while drafting any legal documents or deeds and he can do so if he is high qualified in the field of law so draftsman must keep in mind all the legal principles before preparing any legal documents or deeds.
The word ‘CONVEYANCING’ means lend transfer inter-vivos i.e. two living persons. Conveyancing is an art of drafting deeds and legal documents whereby any right, title or interest in tangible immovable property is transferred from one person to another. Conveyancing is not just an ordinary art but it is thoroughly based on legal knowledge and principles evolved over years. The term conveyancing is restricted to deeds and documents concerned with the transfer of property whereas drafting carries a general meaning that of preparing any legal documents or deeds or any other business oriented documents.
The word ‘SALE’ defined under Section 54 of “The Transfer of Property Act, 1882” is a transfer of ownership in exchange of price paid or promised or part-paid and part-promised. It means absolute transfer of tangible immovable property by the vendor to the purchaser by entering into a contract for sale wherein both the parties will settle the terms and conditions of transfer. In a sale of immovable property an ‘Encumbrance Certificate’ will be passed to the purchaser by the vendor whereby all the statutory rights i.e. easementry rights, beneficiary rights, actionable claims as well as vested interest in the immovable property will be transferred in-toto.
The word ” SALE DEED” otherwise called as ‘Conveyance Deed’ is a legal written document executed by the vendor and the purchaser which evidences the sale and transfer of ownership of the tangible immovable property. A Sale Deed which is governed by ‘The Registration Act, 1908’, always executed after the execution of the agreement to sell, based on the terms agreed between seller and buyer mutually. A sale deed is the legal document which assists in identifying the title of the seller and consideration amount agreed between parties. A sale deed acts as a main document for the further sale of the property by the purchaser as it establishes the proof of ownership of property.
Requirements of Sale Deed
A draftsman must include certain clauses while preparing the construction of the sale deed which are as follows:
v Parties to Sale Deed: An absolute sale deed must contain the names, age and respective addresses of parties to the transaction and both the parties i.e. seller and buyer must be competent to enter into a contract so that it will not affect the validity of the valid sale. It is very much important that the sale deed is duly signed and executed by both the parties with their bona-fide intention. A valid sale deed must start with clear name of the deed and description of the parties.
v Agreement to Sell: An agreement to sell which protects interest of the buyer and seller has to be executed on a non-judicial stamp paper and the same has to be duly signed by both the parties. It can be considered as legally valid evidence in a court of law. The seller must state all the material defects of a property and consideration amount paid as advance in the agreement and it is the right and duty of the buyer to investigate the title before buying the property. A Sale consideration clause must also be included in the agreement to sell along with the mode of payment.
v Description of the Property Sold: A valid sale deed must contain full description of the property which is the subject matter of sale. It must include identification number, total plot area, construction details as well as its location with its surrounding areas. A schedule of the property must be included in the sale deed which will define the exact location where the property is actually situated.
v Passing of the Title: A sale deed should contain the clause when the original title of the property to be passed to the purchaser. A time limit should be given to the seller for the transfer of the title. Once the title of the immovable property is transferred, all the rights will pass to the purchaser along with the possession.
v Indemnity Provision if any: A seller must clear all the statutory charges i.e. property tax, electricity charges, water bills, cess, society charges, maintenance charges and all other charges relating to the property before the execution of the sale deed. In case there is any encumbrance on the property, the seller needs to repay the loan amount and get the property papers cleared of the encumbrance.
v Execution and Testatum: A drafted sale deed shall be executed by affixing thumb impression or full signature of the parties. Each page should be signed by the seller and buyer. Any alteration, addition or deletion is to be authenticated by full signature of the parties. Execution of the sale deed requires to be witnessed by two witnesses with their addresses.
v Registration: According to Section: 17 of ‘The Registration Act, 1908’, the registration of a tangible immovable property is compulsory if the value of the property exceeds Rs: 100/- and it is the registration of the property which makes the sale valid. Both the parties must be present before the jurisdictional sub-registrar office with the original documents within four months from the date of execution. A stamp duty has to be paid by the purchaser to the sub-registrar whereby registrar will issue a certified copy of registration to purchaser.
v Original Documents: Once the property gets registered under the registration act all the original documents of the sold property to be hand over by the seller to the purchaser. All the statutory rights along with ownership, possession, title, interest will get vested in favour of the purchaser.
v Default clause: An agreement for sale of immovable property should include the clause stating if there is any default by the vendor or the purchaser then the party who rescinds the contract need to pay damages to the other party for the breach of contract so that it will not affect to the execution of the sale deed.
DHAWESH PAHUJA ADVOCATE BANGALORE
Mob:09008793791
E-mail:advocatedcp@yahoo.com
DHAWESH PAHUJA ADVOCATE 