ESSENTIALS OF A DEED

An instrument Or deed usually consists of three parts: -

 The non-operative part,

 The operative part, and

 The format part

The non-operative part contains: -

 A) Description or name - It is usual but not necessary to begin a deed by

giving it a name. The name has to be chosen with great case. The name
should be indicative of the true contents of the deed, sometimes in
construing a deed. The name has also to be taken into consideration. The
nature of the transaction depends entirely upon the terms of the deed.
 B) Date of the deed - It is usual to give the date on which a deed is
executed either after the name or at the end before the signatures. The date
is stated thus:

 This deed of sale made on the fifth day of September, one thousand nine
hundred and eighty-two (5th day of September) between ………….

 If the deed does not mention the date on which it will come into effect a
presumption arises that it will come into effect from the data of execution.
Certain deeds take effect from the date if delivery of the deed. In such cases
it is the date of delivery which is the date of the deed. Wills take effect not
from the date of execution. Certain deeds take effect from the date of
delivery of the deed. In such cases it is the date of delivery which is the date
of the deed. Wills take effect not from the date of execution but from the
date of the death of the executants (testator)
 D) Parties to the deed: -

 After the name and date of the deed the names of the parties to the deed are
setout. The names name and particulars of the parties should be given in such
detail from which the parties can easily be identified. It is usual to describe
parties by their name, age, parentage, occupation and residence. In cases
where it is intended that the successors of the parties will also be bound by
the deed, it is usual to add a clause after the description of the parties
stating;

 The parties shall include their heirs, successors, assigns and legal
representative it is necessary for the draftsman to determine the parties who
should be joined before drafting a deed.
 E). Recitals: These are a narrative of what has led to the necessity or
desirability of executing the deed or document. They contain a brief history
or in short form the motive for making the deed.
 Recitals begin with the familiar words "whereas the parties are desirous of or
have agreed on some particular course of action, etc." Recitals usually show
the reasons and the history of title designed to show that the grantor is
entitled to make the disposition. These must be set out in such a manner as
to show a complete unbroken chain and is such order that they are properly
connected and consistent.
 Where the operative part of a deed is unambiguous the recitals have no effect
on the construction of the deed but if the operative part is ambiguous, the
recitals govern the construction.
The operative part contains:-
 1.) Testatum or premises: - After the recitals the operative parts of the
deed begin generally with the words
 
 "Now this deed witnesses that". 'This part gives effect to the intention of the
parties and sets out in detail the transaction between the parties. It sets out
the capacities in which the parties are acting and the payment and receipt of
consideration. Words like "grants", "agrees", "confirms", "sells", "transfers",
"conveys", "assigns" etc. are used to denote the purpose and object of the
deed. In this part the property which is the Subject of the deed is also
described.
 2) Hebendum: Next follows the habendum. This part of the deed used to be
introduced by the words "to have and to hold", now generally shortened to "to
hold". This purpose of the habendum is to define the interest conveyed and to
set out the limitation on the property involved.
 It shows whether or not it is the creation of a trust or an absolute sale. It
mentions whether the property is encumbered or not. It also names the
grantee again.
 The habendum is not an essential or necessary part of a deed.
 3) Exception and reservations: In this part of the deed all the exceptions
and reservations which are intended to be attached to the transfer should be
clearly stated.
 For example, if it is desired to lease out a parcel of land the transferor may
desire to retain the right to extract minerals therefrom, or again a person
may reserve the right to pass rainwater over the land demised-all such
exceptions and reservations must be clearly set forth in this part of the deed.
 4) Covenants:- Almost every document, whether a sale, lease or mortgage
must contain terms by which the parties bind themselves.
 It is not necessary to mention such covenants as are attached by law to a
particular transaction, but if any special terms or agreements are made at
variance with the implied covenants then these must be clearly 'state’.
 For instance, a lease under the transfer of property Act implies the right to
sublet, but the parties may impose conditions against subletting.
 In such a case the terms must clearly be given in the deed.
The formal part contains:
 1) The Testimonium: - This set forth the fact that the parties have signed
the deed. It usually begins with the words:

 In witness whereof the parties aforesaid, namely, have on the day and year
just above- mentioned put their signatures in the presence of the witnesses.

 It the date of the execution of the deed has not been given in the beginning it
is to be given in this part. In place of the words "the day and year just above-
mentioned" the words "this day of ………….20 …………." are to be substituted;
 2) Signature and attestation: -Immediately following the testimonium the
parties put their signatures. There after the witnesses put their signatures if
the deed requires attestation then the executants must sign in the presence
of the witnesses and the witnesses must sign in the presence of the
executants. In such a case after the signatures of the executants the
following words are written:
 
 Signed by the above-named parties in our presence and we have signed in his
presence.

 Then follows the signature of the witnesses. Where a document consists of

more than are page the-parties and witnesses must sign each page.
 3) Parcels of description of the property: - the property is described in
detail accurately and correctly either at the foot of the deed or in schedules
annexed to the deed.
 The object of the description is to make the property easily identifiable.
 Sometimes a plan is attached and made part of the deed.
 Some guidance in this respect may be taken from the provisions of sec. 21
and 22 of the Registration Act, 1908.
Sec. 21- Description of property and maps or plans: -

 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

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

 Other houses and lands shall be described by their names, if any, and as being in the territorial
division in which they are situate, and by their superficial contents, the roads and other
properties on which they about and their existing occupancies, and also, whenever it in
practicable by reference to a government map or survey.

 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 time copies of the map or plan
as are equal to the number of such districts.
Sec. 22 Description of the houses and land by
reference to government maps or survey: -

 Where it is, in the opinion of the state Government practicable to describe

houses, not being houses in towns, and lands by reference to a government
map or survey, the state Government may, by rule made under this Act,
require tat such houses and lands as aforesaid shall, for the purpose of sec.
21 be so described.

 save as otherwise provided by any rule made under sub-section (i) failure to
comply with the provisions of sec 21, sub sec. (2) or sub-section (3), shall not
disentitle a document to be registered if the description of the property to
identify that property.
Attendant requirements of execution:

 It is essential for the draftsman before putting pen to paper to consider whether
the parties to a deed are free to contract in the capacity in which they intend to
contract. For instance, a minor cannot contract except through a guardian,
natural or one appointed under the provisions of the Guardian and wards Act, 1890
and sometimes the leave of the court has to be taken before the deed can be
executed. These and such like impediments have to be taken into account and the
draftsman would be well advised to thoroughly study this aspect of the matter.

 After the deed has been drafted, if the parties are illiterate the deed should be
read out to them and thoroughly explained to them. Execution includes
attestation and the necessary number of witnesses must be present at the time
when the parties put their signature or mark or cause the same to be put upon the
deed. Thereafter the witnesses must be sign in the presence of the parties.