LexisNexis Student Series

Drafting and
Conveyancing
SPAggarwal
Pad.Dr. D.Y. Patil
Law College Pimpri, Pune

01809
Library

LexisNexis
Butterworths
CHAPTER 1

General Drafting and

Conveyancing

Conveyancing means to convey/transfer a property or a title to property by

way of a deed which is also called a document or an instrument. It is
considered to be an art acquired by experience.
A deed/document can be defined as an instrument reduced into writing
admitting, concurring or consenting to certain terms / assurances to a
transaction. It is the effect of a deed that is important and not the document
as it is the intention which is gathered from the contents of a document/
deed which decide the transaction involved in the deed. The correct
construction of a deed/document has assumed importance because of
increasing commercial transactions and ever increasing change in the
economy.
The drafting or a construction of a document in our country is generally
have no
done by scribes who are also called deed writers, who generally
skill and mostly it has
by experience
but
professional qualification acquire
been seen that they copy a document from another by changing
names

of parties, however only complicated

documents are drafted through

advocates have knowledge of

document/deed is required to
A person drafting a
Act, and intentions
Transfer of Property Act, Stamp Act and Registration
of the parties to the document.
called deed poll and a
one party is generally
document executed by
A or more, is
called an indenture.
document executed by two with
to be divided
into paragraphs starting
A document is required
 D r a f f i n ga n dC o n v e y a n i n g

c o n t e n t s
f aa
of documen
tne
understanding

in

as it helps the most importan

most
is
word in capital, in a
deed

is
document
agu
terms

contractual the
casily. the without
which

therein and
and shows
recorded
I n c o r p o r a t i n g
deed/document
are
The form in
r e q u i r e m e n t
of a

terms
berween
the parties
between
them.
which
be avoided.
relations
contractual

can
the contractual

of ambiguity
the rules
the r.l
that the based on
the
significance
important
so
are
generally of
is document
as it is
it is
drafted
of a the
Circumstances

of
of
construction
under orosl
the c o u r tor others
Rules
which may begiven construed by
interpretation document
will be
thata
the
interpretation
circumstances.
of the stamp
paid on
It,
amount

deed and
the
any given construçeion
.A
in

The
nomenclature
ofa the question
of
c o n c l u s i v e on
deed releasing
the righ. ght,
though
relevant, are not as a
release
though styled favour of the release
instrument in
registered in any property
interest of the
executant
if it clearly discloses
title and as a
conveyance,

consideration, may operate Kottiah Ramunni

for valuable Mammo v
right, title and
transfer-7Thayil
intention to effect
a
an release deed, releasing
instrument styled of
A registered as transter by way
consideration may operate
interest of releasor
without and is signed
etfect transter
document clearly
shows intention to
when witnesses.A release
gift attested by at least two
of releasor and
by or on behalf as form of conveyance
by person having
some

can be usefully employed

a limited estate
and relese then operates
another having
right or interest, to deed called a deed of release can,
as enlargement of limited estate-but a
words of sufficent amplitude transter title to one having no
title
by using Chetiar and anr."
Chettiar v ASPA Arumugam
before transter-Kuppusuwam1
The true nature of a document cannot be disguised by labeling it
something else-Shantabai v State of Bombay and ors."
Document must disclose intention to create charge-family arrangement

providing for of personal debt of donor out of share ot another

discharge
did not create a charge on property in favour of the creditor-MC Chacko
v State Bank ofTravancore.
When the words are clear and unambiguous there is no scope for drawing
upon hypothetical considerations or supposed intentions of the parties-
Union of India v Kishorilal Gupta and Bros.
The test to be applied in determining if a document is a lease or
mortgage
1AIR 1966 SC 337.
2 AIR 1967 SC 1395.
3 AJR 1958 SC 532.
4 AIR 1970 SC 504.
5 AIR 1959 SC 1362.

4
 General Drafting and Conveyancng

of the property by
the transaction is enjoyment
the purpose of of debt by
is whether intended to s e c u r e the
repayment
whether it is Kunhamina Umma
v
the transteree o r property--Mangala
of interest in
the
transter 6
Amma and ors."
Puthiyaveettil Paru
not
gathered from its
terms,
be
of the document may
The
true import Pradesh v Orient Paper
other
documents-State of Madhya
from rulings on

license. real is to
Mills Lid document creates lease or
test

whether the cases where

To find out
in mind that in
intention of the parties, keeping thin.
find out the
between lease and license is very
exclusive possession
isgiven, the line from the document
itself.
of the parties is to be gathered used
The intention the meaning and the words
from
intention is to be gathered
that document is
a
Mainly, it is alleged and proved
document except where
in the the agreement between
the of the document evidencing the conduct of
camoutlage. It
terms
circumstances and
not clear, the
surrounding
the parties are the real relationship
be borne in mind for ascertaining
to the
the parties have also
to
arises between the very parties
between the parties.
If the dispute from the
document
intention is to be gathered
written instrument,
the Sundar Ganeriwalla.
International Limited v Shyam
whole-Delta or special-
read as a of--whether general
attorney-construction sales
Power of in favour of its
divisional

execution of power of attorney by company

matters relating
suit, and to
reterences to filing of However
managerdeed making to filing of complaint.
excise-no reference
to sales tax
and central to ratiy
which company undertaking
clause
general by on behalt
deed containing a attorney-complaint
done by
all deeds and things lawtully
acts,
construction

after execution of power of a t t o r n e y - o n

of company filed just Court erred in construing power
circumstances, held, High the
of deed and in powers and
not general powers on

conterring only special is indicative

adequate value
of attorney as
of
engrossed on stamp paper
attorney-deed
n a t u r e - A t u l Mathur
v Atul Kalra. View
therein-Park
of its used
Article to be understood by plain language
Nadu."
State of Tamil consider document
Enterprises (MI)
v
must
parties--court
Ascertainment of intention of under which particular
circumstances
into account

as a whole and also take

used-Ramkishorelal and a n r v Kamalnarayan.
words were

1575.
6 AIR 1971 SC
687.
7 AIR 1977 SC
2607.
8 AIR 1999 SC
9 (1989) 4 SCC 514.
251.
10 AIR 1990 Mad
890.
11 AIR 1963 SC
 Drafting and Conryancing

When parties have entered into a formal contract, that contrac.

onstrued according to its own terms and not be explained or in.stb
ditterently-Bomanji Ardeshir Wadia v Secy of State.
Gift deedrules for construction, indicatedgift
of land to
preamble stating that object of gift was establishment of hospitaly
by donee-operative part stating that gift was for use of land for land
charitable need-operative part must prevail-donee can use land f public
public charitable necd-Muslim Educational Society v KA Paryaryi3 any
It the words plain and
are
unambiguous, they must in the light of th.
evidence of surrounding circumstances be given their true legal effectthete
there is ambiguity in the
language employed, the intention may be
ascertained from the contents of the deed with such extrinsic
evidence .

may be permitted by law to be adduced to show in what manner as

the
language of the decd was related to existing facts .The description of thee
document as one of an absolute sale and the
the appearance of a
right of repurchase bearinp
right in relation to the exercise of which time was of the
essence were not decisive of the
true nature of the
Waman Joshi v
transaction-Bhaskar
Shrinarayan Rambilas Agarwal."
Decd-lease-construction--court must construe it with reterence to
its object and all of its and
terms look at words-if they are clear,
must
they must be accepted-Provash Chandra Dalui v Biswanath
In Banerjee."
construing a document, whether in English or in vernacular, the
fundamental rule is to ascertain the intention from the
words
surrounding circumstances are to be considered but that is onlyused;
the
for the
purpose of finding out the intended
meaning of the words which have
actually been employed-Ram Gopal v Nand Lal.
Whether a guarantee is enforceable or not
which the guarantor bound himself. To depends upon the terms under
this, there are some
case of ambiguity,
when all other rules of exceptions.
In
construction fail, the courts
interpret the guarantee contra proferentem that is,
use the recitals to
control the meaning of the
against the guarantor or
possible. But whatever the mode employed, the operative part where that is
cardinal rule is that the
guarantor must not be made liable beyond the terms of his
State of Maharashtra v MN Kaul (Dr) engagement-
(dead) by his legal representatives."
Surrounding circumstances such as are clearly required to show in what
manner the
language of the documents were related to existing facts are to
12 AlR 1929 PC 34.
13 AIR 1987 Ker 80.
14 AIR 1960 301.
15 AIR 1989 SC
1834.
16 AIR 1951 SC
139.
17 AIR 1967 SC
1634.
 General Drafting and Comveyancing

Bahadur Narasingerji Gyanangerji v Raja

be taken into consideration-Raja
Parthasaradhi Rayanim Garu and ors."
Panuganti

COMPONENTS OFA DEED

with various
Components of a
deed include general requirements of a deed
instrument of or consent requires to
concurrence
clauses. Deed, being
an
of contractual terms and
avoid any ambiguity in
respect
be drafted to construction of deeds carries the
the importance and the correct
therefore, divided into the
of the parties. A deed can conveniently be
intention
following parts-
of the Deed.
(1) Description
(2) Date.
Parties to the Deed.
(3)
(4) Recitals.
(5) Testatum:
(i) Consideration;

(ii) Receipt;
(ii) Operative words
(iv) Parcels;
(v Habendum;
reservations and;
Exceptions and
(vi)
Covenants and undertakings.
vii)
(6) Testimonium and
Attestations.
and
(7) Signatures

the Deed
Description of Description of
document.
the nature of the
the
of a deed shows evidence. However,
it
Description transaction which
the
nature of the
deed and
the deed depends upon termed to reveal the
c a n n o t be whole
n a m e given
to a deed from the
document as a
be gathered dominant
the true n a t u r e
of the deed can to the deed play
intentions of the parties name, that
that also, the a particular
and for
document has
been described using description
if a transaction. The
role. Even of the
of the nature involved in
conclusive proof the transaction
is n o t the cover

the n a m e of
the deed m u s t
of the deed or
that regard. o n it,
confusion in the stamp paid
avoid any of
the deed to
the a m o u n t

nomenclature of a deed and

The

PC 226.
18 AIR 1924
7
 Drafiig

on
the
question of co.
of constructicon-The

htelevan
conclusive
not 9
are
relevant,
rhough
Kottiah
Mammo v n a C of the o
Mammo v
Ramunni."

thereot
d o

hRoadlines v Oriental Fire

ofthe
are
e
c

televa
u m e n t
but the
Roadline
conte

document-Prakash
nomenclature

and
n
The
construing

nsurance Company."
the 20

in
th8a
determining
Cenero
mortgage or leas. it a
document is a
of
be applied
is
enjoyment

ease
oftydebby e
to transaction the
Test
the purpose ofthe to
secure

i n t e n d e d
repaymeent
whether
whether
it is mere
The m e description ofthe deed
transteree or in the
property.

of tthe essence of the tr.

of
isive
transaction
decisive

transter
of
interest

will not
be
ttil Paru
Paru Amma 21
Amma,21
kuzhikanam Puthiyaveettin

Umma v what
kanam
Kunhamina

is n o t
sure as to na
name
.
or descripi
Mangala
When the
writer ofa
document

n o t give any
name to itand simply start UOn
and

be given
deed, he may
to a
this Documenr
Agreement,
of
etc. With
'this Deed',
this the
construction a
document Woula
the word laid down
courthas and ot
not upon the
labels thar
The apex
and
substance

Karam Ch
Sayal v Karam
that
Chand Thaba the
its pith
Singh Sayal
v
depend upon
it-Inderjit pa
parties may put
upon documen
right to cut
granting righr
ent granting
an
While interpreting nature of
a
unregistered
ent cannor
document cannot be . trees,
that 'the true
Bombay23 e
it has been
held
else-Shanti
Bhai v State of
it something
by labeling

Date
the date of
execution of the document/deed is insen
inserted
After the description, document. However,
the absence
date,
.

it is essential part of the

and an
the document, as evidence.
will not invalidate de
orerroneous date, was executed because oral evideno.e can
date when it
given to prove the Date also assumes imnors
execution of the document. ance
prove the date of Act 1908, accordi
23 of the Indian Reg1stration ing
in a document as per s within four months of i
to which a
document must be registered
execution.Section 23 of the said
Act reads:

in sections 24, 25, and 26, no document other

Subject to the provisions contained
than a will shall be accepted for registration unless presented for that purpose to the

proper officer within four

months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months
from the date on which the decree or order was made, or, where it is appealabe
within four months from the day on which it becomes final.
19 AIR 1966 SC 337.
20 (2000) 10 SCC 64.
21 AIR 1971 SC 1575.
22 AIR 1996 SC 247.
23 AIR 1958 SC 532.

8
 General Drafing and Conveyancing

The date in a document/deed further assumes importance to extend the

application of law of limitation to the same.

The date of a deed is the date on which the parties have signed it while
executing it. However, if there are difterent parties to a decd and it has
been signed on different dates. then the last date is considered to be the
date of execution
In order to avoid any risk of forgery, the date should, be written both in

figures and in words.

Parties to the Deed

After describing the name of the document and the date of its execution,
parties to the document are described. Generally, the name of the executing
party (transferor) is given first and then the name of the claiming party
(transferee) and the general practice should be to give father's name/
husband's name, age, address of the parties and in case of not living parties,
ie legal entities, alongwith the name of the person signing it on behalt of
the legal entity be also given.
Similarly, a minor or a lunatic can be described through his guardian as
a minor attains majority on completion of 18 years, but if a guardian 1s
appointed by the court for the minor, then he attains majority at 21 years,
as per s 3 of the Indian Majority Act 1975 which reads:
Age of Majority of persons domiciled in India.-Subject as aforesaid, every minor
of whose person or property, or both, a guardian, other than a guardian for a suit
within the meaning ofChapter XXXI of the Code of Civil Procedure, has been or
shall be appointed or declared by any Court ofJustice before the minor has attained
the age of eighreen years, and every minor, ofwhose property the superintendence
has been or shall be assumed by any Court ofWards before the minor has attained
that age shall, notwithstanding anything contained in the Indian Succession Act or
in any other enactment, be deemed to have attained his majority when he shall
have completed his age of rwenty-one years and not before.
Subject as aforesaid, every other person domiciled in India shall be deemed to have
attained his majoriry when he shall have completed his age ofeighteen years and
not before.

Although, the transferee is not a necessary party in all deeds of transfer,

however, under s 107 of the Transfer of Property Act, a lease deed is required
to be executed by both transferor and transteree ie lessor and lessee.
Sometimes, it becomes necessary to have concurrence of a third person
in a deed, then his name may also be mentioned alongwith the transferor.
An idol is considered to be a living person in the temple and theretore,

9
 Drafing and Conveyancing
a deed/document executed by the idol but may be
be signed by
acting behalf of the idol.

NS Omebod
on

A person under disability Cannot enter into a car

cannot execute a document and no document can
be and therefore
favour. As such, a lunatic cannot execute a document ha
as guardian of the lunatic can execute the same.
out a executed in th
erson apPOmt ed
Trustees can execute documents themselves if the .
trustees. In the case firm, althoug every
of a
partner has
erty vests
act for on behalf of the firm and bind the firm, however dan aurh in
for transfer may be executed by all the partners jointl authoriinty thtoe
tldee
Recitals
The next paragraph in a document/deed is on
recitals, which
events about the subject matter of the
conveyance and it serves ns tracing
one is tracing the title of the serves two
executing party, show the interest
purposes
executing partry in the subject matter. Narrative recit interpose
of the
citals explain the
history of the subject matter of conveyance and
the motive for execution of the introductory recitalPaspast
document/deed..
In narrative
recitals, the ownership of the transferor is
introductory recitals, the agreement being executed for the recited and in
is recited. subiect
natter
Recitals should always be arranged in the order of occurrence
or
relating to an account of events in the order of their containino
sequence. and
occurrence and
Recitals generally begin
with the word "WHEREAS'
paras may begin with the word AND
and subsequent
en
WHEREAS.
Testatum
Testatum follows the recitals and
contains the operative part of a deed. For
example, to give the details as to what is being
the consideration and conveyed and it also contains
word 'NOW THIS DEED acknowledgment of the same and it starts with the
The
WITNESSES AS FOLLOWS'.
subject matter of transfer is
required to be
whatever specifications it can specifically described
under testatum with
dimensions and boundaries. be mentioned
inclu
Testatum can be further
classified as consideration, ceipt/
acknowledgment, operative words, parcels, habendum,
rece and
reservations, covenants and exceptto ons

undertakings.

10
 General Drafting and Conveyancing
Consideration
in testatum which is also
It is necessary to include consideration
always
on a document. Section 2(d) of
necessary to decide stamp duty payable
interpretationclause of the Indian Contract Act 1872, defines consideration
as:

has done or
When, at the desire ofthe promisor, the promisee or any other person
to do or to
abstained from doing, or does or abstains from doing, or promises
is called a
abstain from doing, something, such act or abstinence or promise
consideration for the promise.
Consideration means a reasonable equivalent or other valuable benefit passed
Adequate consideration means
on the promisor to the promisee.
by
consideration sufficient and valuable.

Receipt
of consideration may be incorporated in the
deed itself, instead of
Receipt is executedd
even if a separate receipt
executing separate receipt, however,
in the document/deed, is also
for consideration, incorporating the receipt
advisable.

Operative Words
conveyed/transferred/sold and it
Operative words contain what being
is
and according to the subject matter
varies from document to document
involved in the deed/document.

Parcels
Parcels is in fact, a
subject matter ie, the
description of the property
of the property with numbers etc, being transferred
complete description immovable property, it is always
by way
said deed and in case of
of the
or in the alternative, a
schedule.
advisable to attach a site plan of the property
be given in describing the property
Description by boundaries can also
being transferred.

Habendum
and hold the subject
allows the transferee to have
In habendum, transteror
are given.
or to use the same
matter of the conveyance

Exceptions and Reservations

the subject matter of transfer

attached to the property or
Any exceptions the deed as an exception is a matter in
existence on

be mentioned in will stand

of minerals, if accepted,
must
extraction
the date of transter eg,
transferred with the conveyance.
11
 D r a f f i n g a n d C o n v e y a m c i n g

conveyance
must
be
ioned in the
at
the
time
ot

p r o p e r t y
r e q u i r e s

c o n d i t i o n
toD mentioned
to
hene transter,
be
be
to
.

in t
transfe te
reservation a
over
as a
Any right operates
reservation in
in a
deed, it
d o c u m e n t
eg.
any

as
reservation

there
is a must be
and whenever

d o c u m e n t

that
a d v i s a b l e
also.
t r a n s f e r e e

always
the
signed by
C o r e n a n s a n d U n d e r t a k i n g s
of a leed
deed
must be
entered
e x e c u t i o n

of
at
the
time
hereby
covenants
coVenants with
with
the vendes
covenants
entered

like
the
vendor
or the ransferor hereby
the tra. o
Any itselt the
purchaser;

document
with
of each off them
of each o
in the c o v e n a n t s c o v e n a n t s

must be
seller hereby and the
the transferee

with the
c o v e n a n t s

incorporated separately¥

Testimonium

signed the deed

and
that the parties have
last
Testimonium
describes
written as in witness che
whereof rhe .

parties
document and generally and year first ah
part of a
month
date,
deed on the day,
have signed this
mentioned.'

Signatures and Attestations

When the document is complete upto

the testimonium, then it requires to
be signed and attested and if the executant is either a legal entity or-a
juristic person, then the person authorised to Sign on behalt of the juristic
person or legal entity may put his signatures on the document.
Sign is considered to be acknowledging the authorship of a document
and includes a mark. The document must be
signed by the party to the
document or by anybody authorised to do so in case
of any disability.
A deed is
required to be signed on the right side of the document and
attesting witnesses may sign on the left side. After
document may be attested. obtaining signature, the
Transfer of Attestation has been defined under s 3 of the
Property Act 1882 and s
for attesting wills. 63 of the Indian
Succession Act 186
Section 3 of Transfer
of
Attested, in relation to an
Property Act 1882 reads:
mcant attested instrument, means and shall be
by two or more
or
affix his mark to the witnesses each of deemed always to nahave
whom has seen the
presence and byinstrument,
in the
the
or has
seen some
other executant g
executant a
personal direction of the person sign instr
Sign the instrumer
of such
other
person, and each of of his acknowledgment
executant,
signature
or has receivea
ceived from the
i
whom has or
mark,, or
or of the signatn
signed the instrument in sB sence
the
12
pie
 General Drafing and Conveyancing
of the executant; but it shall not be necessary that more than one ofcach witnesses
shall have been present at the same time, and no particular form of attestation shall
be necessary.

Section 63 of The Indian Succession Act:

Execution of unprivileged wills.-Every testator, not being a soldier employed in

an expedition or engaged in actual warfare or an airman so employed or engaged or
a mariner at sea, shall execute his will according to the following rules
a) the testartor shall sign or shall affix his mark to the will, or it shall be signed by
some other person in his presence and by his direction.
(6) the signature or mark of the testator or the signature of the person signing for
him shall be so placed that it shall appear that it was intended thereby to give
effect to the writing as a will.
t h e will shall be attested by rwo or more witnesses, each ofwhom has seen the
testator sign or affix his mark to the will or has seen some other person sign the
will, in the presence and by the direction of the testator, or has received from
the testator a personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shall sign the will in
the presence of the testator but it shall not be necessary that more than one
witness be present at the same time, and no particular form of attestation shall
be necessary.

The object of attestation is to ensure that there is no fraud or other such

circumstance in the execution of the deed. A party to a document cannot
attest the same-Gomathi v Krishna."*
Attestation is not merely to subscr1be one's name to the instrument as
having been present at its execution. It includes also, essentially, the presence
at its execution of some disinterested persons capable of giving evidence to
what had taken place--Federal Bank v Shree Hanuman Jute Mils."
The party who sees the document executed is in fact a witness to it; if he
subscribes as a witness, he becomes an attesting witness-Algappa v Ko
K a l a26

lunatic or an insane person

Anybody can act as an attesting witness but a
witness. A minor is not disqualified from
is incompetent to act as attesting
the minor understands the requisites
acting as an attesting witness provided
that attesting witness
of an attesting witness. However, it is not necessary
document.
must be very conscious about the execution of the
act done and be
An witness must see and be conscious of the
attesting

24 AIR 1954 Mad 126.

25 (1994) 1 CLJ 85.
26 AIR 1940 Rang 134.

13
 Drafing andConveyancing

that the
witness was prese

able to prove
it by
their
own

time of
evidence

execution
ofthe
the.document. meno
at the
and physically

deed mav.n
P R E C A U T I O N S

to the
that the parties ave
be
drafted
The de
teed. The deed A
A deed should
resile
so

from
what is
written

rights and
in the
should
shoy
of ththe parties
liabilities of
naerson es
Teadianrigsino
chance to that the
manner

the face of it and a

drafted in such a on
be writ large while acting in good faith T
good faith. Th nn
out of the deed may
understand
the deed while acting
The
the same and asdeed is
able to instead of raising
may be
meant for avoiding
than
the ambiguity
one meaning
avoided. AnSUch
e avoided,
may be An
ambigi
of more
anyword capableon document nt should
should always
always avoided
be .

the face of the

that is apparent material facts and intentio
intentions
contain all the the
The deed should words. lt may be possible to
be made clear in simple give
party should used in the deed, Tha The words
words and expressions
natural meaning to the
intention can be
hat the intenti
used in the document
should be clear so that gathere
extraneous enquiry.
without referring
to any
construed, the intention must be gathered
When a document has to be d
in the first place, from the document itself. If the words are express and
and
clear, effect must be given to them and any extraneous enquiry into whar
was thought or intended is ruled out. The real question in such a case is
not what the parties intended or meant but what is the legal effect of the
words which they used. If, however, there is ambiguity in the language
employed, then it is permissible to look to the surrounding circumstances
to determine what was intended-Chunchun Jha v Ebadat Ali and 27

GENERALRULES

Rules of construction ofa document plays important role in

document. The words used in the interpreting a
document should be clear and
unambiguous as the words prevail over the intentions.
always be avoided as when the terms and Uncertainty shou
reduced into conditions of a document area
writing in the form of a
admissible in respect of the document, then no oral evidence
same, as per s 92 of the
When the terms of
Evidence Act 2: 1d
any such contract,
mater grant or other
required by lawto be reduced to the disposition of property Oany
according to the last form of a document, have been ed
section, no evidence of prov
any oral agreement or hall be
27 AIR 1954 SC
345.
statement sile

14
 General Drafting and Conveyancing

in
instrument or their representatives
admitted, as between the parties to any such
to, or subtracting from,
interest, for the purpose of contradicting, varying, adding
its termsS
would invalidate any document,
or
Proviso (1).--Any fact may be proved which
decree or order relating thereto; such
as
which would entitle any person to any
want of due execution, want
of capacity in any
fraud, intimidation, illegality,
or law.
failure of consideration, or mistake in fact
contracting party, want or
of oral agreement as to any matter on
Proviso (2).-The existence any separate be
and which is not inconsistent with its terms, may
which a document is silent, Court shall have
whether or not this proviso applies, the
proved. In considering
the of tormality of the document.
degree
regard to condition
oral agreement, constituting a
Proviso (3).-The existence of any separate
under any such contract, grant or
precedent to the attaching of any obligation
disposition of property, may proved.
be
to rescindor
distinct subsequent oral agreement
Proviso (4)-The existence ofany
of property, may be proved, except
modify any such contract, grant disposition
or
is by law required
in which such contract, grant or disposition of property
in cases
for the time
to the law in force
or has been registered according
to be in writing,
of documents.
being as to the registration mentioned in
Proviso (5).-Any usage or
custom by which incidents not expressly
that description, may be proved:
contract are usually
annexed to c o n t r a c t s of
any or
incident would not be repugnant to,
Provided that the annexing
of such
terms of the
contract.
inconsistent with, the express

be proved which shows in what m a n n e r the language

Proviso (6).-Any fact may
facts.
of a document is related existing
to

not admissible
for the purpose of construing
Oral evidence of intention is deed. Oral evidence
the intention of the parties to the
a deed or ascertaining whether a particular
deed was
show
for example, to
was not allowed, lease-Balkishen v Legge.28
to be a sale or
intended by the parties m a n n e r the language
of
show as to in what
The document must clearly Bahadur Narasingerji
is related to the existing facts-Raja
the document Garu and ors.2
Parthasaradhi Rayanim
Gyanangerji Raja Panuganti
v
deed should obtain necessary
and proper
draft to a
their
A person required the properties,
as to the description of
instructions from the parties consideration and the
to convey the property, the
to receive
capacity and capabiliy and it is always necessary
and method of conveyancing
mode n a t u r e and
kind of conveyance.
instructions as to the
specific and clear

Bom 523.
28 (1899) ILR 2
226.
29 AIR 1924 PC
15