viva drafting and pleading

DRAFTING, PLEADING AND CONVEYANCING

INDEX

I. General principles of Drafting, pleading and conveyancing

1) Pleading- 

Meaning - formal statement of the cause of action or defence eg.

Definition - not defined

Object

Importance

Rules of pleading (explain 4 rules with exceptions) - 

1.facts, not law 

2.only material facts 

(material facts - main and important facts on which the parties relies for his claim or defence )

3. only facts not evidence

2) Drafting

Meaning - preliminary or initial stage document for purpose of discussion and correction

Distinction between Pleading and drafting

3) Conveyancing

Meaning - an instrument or deed through which a living person transfer property in present or future to one or more living persons.

Definition

Advantages

Distinction between conveyancing and drafting

4)Deed

Meaning

Definition

Essentials of deed(explain)

Types of deeds

II. Exercise of Drafting

Plaint - is pleading of the plaintiff. Order VII and rule 1 CPC 1908 essentials- 

1 -the heading and title

2- body of the plaint, 

3- relief claimed 

4-signature and verification

Written statement -  pleading of the Defedent . Order VIII and rule 1 CPC 1908 ,reply to the plaint. Defedent deals with every material facts alleged by the plaintiff in the plaint

admission or denials - admit or deny all the material facts serially 

essentials - heading and title 

,body of written statement,

signature and verification

Affidavit -statement or declaration in writing mode on oath or affirmation .

ammendment - 

at the instance of court itself,

at the instance of the opposite party ,

one's own pleading with the leave of court   

complusory ammendment 

 voluntary amendment

Caveat

Execution petition

Appeal (civil

Revision civil

Application under motor vehicle act

Divorce petition

Adjournment application

PIL petition

Complaint

Appeal (criminal) Revision ( criminal)

Criminal Miscellaneous petition Maintenance u/s 144 of BNSS

Bail application    -  word derived from the french verb bailier - give or deliver , latin word - bajulare - bear a burden - in english common law - freeing or setting at liberty of one arrested or imprisoned upon any action either civil or criminal on surety taken for his appearance on certain day and place named. 

authorites competent to grant bail -

 police officers -

, magistrates, courts and government

bailable offence and non-bailable offences

anticipatory bail-

III. Exercise on conveyancing (deeds) 

 Agreement to sale-

Sale deed

Mortgage deed

Lease deed

Gift deed

Power of attorney

Promissory note

Will and codicil

Trust deed

Partnership deed

Guarantee deed

Leave and license deed

Adoption deed

Partition deed

Deed of Declaration 

contents of deed 

date

parties to the deed

recitals (A recital is a statement in a legal document that provides background information or context about the document, such as the purpose of the document, the parties involved, or the terms and conditions. Recitals are often found at the beginning of legal agreements, such as contracts or leases, and are also known as "whereas" or "preamble" clauses. )

testatum - witnessing clause .operative portion of the deed starts with testatum . starts with " Now this deed witnesses" as follows : 

consideration - valuable consideration is the basis of legal obligation.

reciept - an acknowlegement in writing of consideration , which may be incorporated in the deed itself. 

operative words- very important component of the deed which may varry according to the nature of the property and transaction.-the motive and intentions of the parties and should not be ambigous.

parcel- technical term -description of the actual property transferred.

general words- after Parcel -every minute details od the ceasements and legal incidents intended to be conveyed.-begain- together with buildings ,fixtures ,fences,appurtenances"

exceptions and reservations- if any -exclusion of anything which is not intended to be trasffered alongwith property.reservation- someting not in existance but it is newly created by the grant.

Habendum-"To have and to hold"followed by the deatils of the different particulars of the properties transffered and then ends with the words and all premises herein before expressed to be hereby granted or assigned or dismissed.

covenants- any agreement ,convention or promise of two or more parties , by deed in writing signed sealed and delivered by which either of the parties pledges himself to the other that something is either done or shall be done or stipulates for the truth of certain facts.

he who thous promises is called convenantor. whom it is made the conventee.

Testimonium- last and final clause - sets forth the fact of the parties having singned the deed.it is written in the following form-

"In witness whereof the parties hereto have set their respective hands and seals the day and year first above written."

Signature and Attestation:- at the end the deed should bear the signatures of the parties and also of the attesting witnesses.

SALE DEED

sale is the transfer of property for price. 

transfer of ownership - seller to buyer.

MORTAGE DEED

mortgage is the transfer of an interest in specific immovable property for securing the payment of money,or a present of future debt.it may be-

(i) simple without possecision (ii) usufructuary with possesion