RECIPE FOR GOOD DRAFTING:-

My own Philosophy For Your own Good.

CONDITION of the Brain = Quality of Drafting

CLEAR Thinking = Clear language

Scrambled, confused or cluttered Scrambled, gibberish, ambiguous,

thinking =
muddled, repetitive, unintelligible
language incapable of conveying
intent.

Hyper, Tense condition of the Not conducive to good drafting

brain =

Marshalling of thoughts in a clear Paves way for good drafting

manner

LANGUAGE IS THE TOOL OF COMMUNICATION

(A) Essentials of Good Drafting

(a) Clear thinking.

(b) Command over the language.

(c) Clarity

(d) Precision and conciseness

(e) No ambiguity

(f) No repetition

(B) ESSENCE OF DRAFTING

(+) YES (-)Absolute No-No

Clear Must not give rise to multiple

interpretations.

Unambiguous Not Verbose, not lengthy.

Definite-Conclusive No tautology

Coherent Not repetitive

Precise Not confused

Concise Devoid of superfluous words.

Anglo-Saxon Language must be No Roman/Latin language

used
(C) The Three Essential Characteristics of Legal Drafting are:

(a) Law,

(b) Facts, and

(c) Language

Drafting is nothing but the synthesis of law and facts in the form of a

language. Law is the foundation, Facts are the Structure and the Language

is the Architecture.

(D) Process of Drafting

(a) Master the facts

(b) Ascertain the applicable law

(c) Marshall your thoughts

(d) Arrange the facts chronologically, from past to the present.

(e) Conceive a plan or design of the draft.

(f) Nothing relevant should be omitted or admitted at random.

(g) A necessary result should not be stated or overstated.

(h) The format must be logical

(i) Language must be precise, accurate and unambiguous, capable of

clear meaning and not multiple interpretations.

(j) Avoid repetition, tautology of words and superfluous words.

(k) Use the familiar word to the far-fetched, concrete word to abstract,

single word to circumlocution, Saxon word to Roman.

 This subject is at the core or the essence of legal practice, be it lit or

non lit. Legal Practice hinges on the art of Communication and the

hallmark is EFFECTIVE Communication. Eff. Comm. can be oral or

written. However, written comm. precedes oral comm. (i.e: submissions),

that is, by way of pleadings. Likewise, non lit writing encompasses

contracts - commercial, jt-ventures, collabs, general agreements and

documentation relating to real estate / property transactions- which in

legal parlance is known as “Conveyancing”. The crux of property

transactions is “legal title or legal interest in property. Therefore, the

question is HOW does legal right or title or interest get transferred from

person to person.

As far as pleadings are concerned, their nature will depend upon the

law under which the cause of action arises. The scope is therefore wide.

However, the bedrock of documentation relating to transfer of title or

interest in immovable property is confined to the Transfer of Property Act,

The Registration Act, The Stamp Duty Act, The Easement Act and land

laws. Similarly, drafting of Wills will be governed by the Hindu Law of

Succession or the Indian Succession Act. Therefore, knowledge of all

these substantive laws is extremely essential for the subject of

conveyancing.
 The Right to Property is well recognized and guaranteed in our

constitution. Likewise, the corner-stone of trade and commerce is contracts

which spell out the terms and conditions of the business relationship.

The important question, therefore, is how do property and business

transactions take place? It will be too simplistic to say that property and

business transactions can be done orally. Likewise, it cannot be forgotten

that both property and business transactions involve questions of law. It is

true that in ancient India and even in Hindu Law there was no prerequisite

of written documentation. Moreover, when the British landed in India

various changes were introduced in the administration of the country and

slowly and gradually various statutes made introduced in India. The most

important being The Transfer of Property Act, The Trust Act, The Contract

Act, The Evidence Act, The Succession Act, and The Registration Act. The

other revolutionary development which took place was the 1865 Act by

which three Charter Courts were established in Calcutta, Madras and

Bombay and British Barristers and Lawyers enrolled themselves in these

Courts and started practice in India. It is as a result of these twin factors,

namely, introduction of laws and establishment of the three Charter courts,

that a system evolved and gradually took roots in India whereby property

and business transactions came to be documented.

The core factor in every property is the title or the interest of the

owner in the property so the cardinal question which arises is, how can title

or interest be transferred from one person to another. The well settled

modes of transfer of ownership or interest are: Sale, Gift, Lease, Mortgage,

Trust and Assignment. All these forms of transfer are governed by

substantive laws and therefore, there is need to document such transfer.

This documentation in legal language is known as “Conveyancing”.

What is meant by Conveyancing?

Conveyancing is the art (in writing) of: creating, transferring, effecting

or extinguishing interest in property from one party to another. In other

words, it is the law and practice or system of documenting property and

business transactions. It is, therefore, the system of effecting property and

contractual transactions. The latter part of the 18 th century and the

beginning of the 19th century saw the advent of Conveyancing in India. In

the initial stages, conveyancing came to be introduced in India by

investigation of title and documentation. This was particularly so in the

presidency towns of Calcutta, Madras and Bombay and around 1925 when

much important legislations were passed in England, transactions began to

be recorded in documents gradually outside the Presidency Towns. An

interesting aspect which you must remember is that in England only

authorized persons are allowed to do documentation whereas in India there

is no such law.

In countries where the Rule of Law forms the bedrock and where the

right to property is recognized there are laws which govern the rights and

obligations of the parties who own property or business. As a sequiter, all

transactions and dealings have to be inconsonance with the governing law

and therefore, every transaction has to be based on that law. It is, therefore,
obvious that the rights and obligations of the parties have to be

documented. It is because of these reasons that Conveyancing has become

an important branch of the legal system. It goes without saying that every

document is governed by the applicable law. A well drafted document can

save many disputes and many a litigation in a Court of Law. Conveyancing

also protects the rights of the owners and establishes their legal right to

property.

What we are likely to forget and unable to see through, can be seen and

understood by creating documents which are a source of evidence. Writing

solves doubts which would otherwise arise. In order to write, we require

language which is an effective tool of communication.

COMPONENTS OF A DEED:
 Beginning part: Name of Deed,
Place, Date, Parties (Individuals, Company,
Partnership)

 RECITALS: narration of the factual history concerning

the matter in chronological order. past to
present.
 OPERATIVE PART

 (a) Testatum: “NOW THIS DEED WITHNESSTH AND IT IS

HEREBY AGREED BY AND BETWEEN THE
PARTIES AS FOLLOWS:”

 (b) Operative clause: Consideration

Description of property
All estate clause (conveys the property)

Habendum clause (to have and to hold)

Exceptions and Reservations,

Rights and Duties
Covenants (Title, Encumbrance, Right to
convey, Quiet and peaceful possession,
Further assurances, Title deeds,
Right of Way).

 TESTIMONIUM: “IN WITNESS WHEREOF the parties have set

their respective hands to these presents the
day and the year first hereinabove
mentioned.”

 Schedule of property

 Execution and Signing Clause

(Individuals Company)

 ATTESTATION: Mandatory attestation by TWO Witnesses required

in-
Will, Deed of Gift, Mortgage Deed.

(a) Language is the most effective tool of communication, the importance

of which cannot be underestimated. It is also the ladder to success.
(b) The Thinking process of a person (the brain power) is directly
correlated to language. HOW you think is reflected in the language
you use.

(c) We live in a globalised world and the window to globalization is the

english language. As a corollary, it must be said that English
language is the escalator to success. English is also the Court
language as also the medium of documentation – contracts, real estate
documents, international agreements and corporate minutes are all in
english. Hence, it is imperative that you have a good command over
the english language.
If thinking is a prerequisite of language then it follows that everyone
MUST, THINK in the english language! Therefore, the slogan for each
one of you is:
“THINK English,
Talk English”
Whatever be your mother tongue, you must THINK in english.

(d) The foundation of correct language usage is grammar, syntax (the

grammatical arrangement of words) and comprehension (the act of
understanding).

(e) You must inculcate the art of learning and using language in an
effective manner by making it a habit.
How does one do this:-
practice is the key.
practice reading good books.
Practice writing.
Practice precis of passages. Hence, until you reach the goal of
improving your language skills keep practicing.
Language is an effective means of communication and the most important

tool for thinking and self expression. In a larger context, language is more

than grammar and vocabulary as it embodies a distinctive world view and is

connected with experiences, perception, reference and source of information.

Indeed, without language, we could not have a cultured, civilized society. It

is a unifying and creative force empowering people to understand problems

and to solve them. And therefore, there is a strong interconnection between

the thinking process and language.

It is well said that

“From writing come names;

From names come words; and

Words express all the meaning”