SYLLABUS Session: Jan. to April 2014 DRAFTING, PLEADING AND CONVEYANCING Course Teacher: Dr. Aneesh V. Pillai Introduction:
By the art of legal drafting (also commonly called the legal composition) we mean the art of composing or writing all documents which are either expressly intended to be, or which frequently become the subject of legal interpretation. It is concerned chiefly therefore, although not exclusively, with the documents which declare or regulate rights. This at once distinguishes the art of legal composition from the art of ordinary composition or literature, which deals not with rights but with thoughts or facts. Of course the bases of literary composition and legal composition are all the same, grammar and logic. The latter,
perhaps, more strictly than the former kind o composition is bound by t he rules of the grammarian and logician but we do not intend, except incidentally, to touch on the rules of grammar or logic. It is composition as legal - as dealing with or affecting rights - which we
have in view. This differs so much from literary composition that, though they have a common basis, same rules do not apply to both. The style of good legal composition (for it
has a style of its own) is free from all colour, from all emotion, from all rhetoric. It is impersonal as if the voice, not of any man, but of the law, dealing with the necessary facts. It disdains emphasis and all other artifices. It uses no metaphor or figure of speeches. It is always consistent and never contradicts itself. It never hesitates or doubts. It says in the plainest plainest language, language, with the simplest, simplest, fewest fewest and fittest fittest words, words, precisely precisely what it means. means. These are qualities which might be used to advantage more frequently than is common in literature, and unfortunately they are not to be found in many legal compositions, but they are essential to good legal composition and not essential to literary composition. Pleadings are statement in writing drawn up and filed by each party to a case, stating that his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. The function of pleadings is not simply for the benefit of the parties, but also and perhaps primarily for the assistance of the court by defining with precision the area beyond which, without the leave of the court and consequential amendment of the pleadings, the conflict must not be allowed to extend. The purpose of rules regarding pleadings is to advance justice and to prevent multiplicity of proceedings. proceedings.
Conveyancing is the process by which legal title to property is transferred. As a consequence, over time, a conveyancing has become the description for the document effecting such transfer. In many ways conveyancing is like Shakespeare’s character, Autolycus in The Winter’s Tale, ‘a snapper -up of unconsidered trifles’. Like this amiable rogue, conveyancing takes from here, there and everywhere, from within the full gamut of the law. Conveyancing rests and has been built upon the three foundations of land law, contract law and equity and trusts. Because of this, a confident appreciation of land law is crucial for success in conveyancing. You will also need to have a prior knowledge and understanding of the details concerning the formation of contracts, the formalities of written contract, misrepresentation and remedies for breach of contract. A detail understanding of the influence of equity as well as trust will always be a prerequisite for a successful conveyancer. So, the key to understand the nature of conveyancing is to appreciate how it calls upon various disparate areas of law. It means that you must abandon a discrete approach to
applying the separate elements of the law. Conveyancing requires you to blend your knowledge. Conveyancing does not relate just to the transfer of ownership of residential
properties. It covers the transfer of title to both houses and flats, new and second-hand properties and commercial property of all kinds. When students reach the legal practice course they should have developed a general critical approach to the new law and to problem solving. The object of this course is to present substantive law in the context of pleadings and conveyancing and to show how those transactions are influenced by the legal considerations. A well drafted document instantly attracts the attention of the court. Any failure however little, in bringing out the material issues would be
fatal to the matter under consideration. Therefore, it is pertinent that one has an accurate understanding of the concerned issues, so that, relevant question are brought before the court for successful adjudication. Pleadings assists student’s in their endeavor to enter active practice. This course is created to help student’s understand the basics of pleadings and conveyancing.
Module I
Pleadings
1. Meaning and Importance -Functions of Pleadings - Order 6 of CPC - Essentials of Pleading - Particulars of Pleading – Sriking out pleadings- Signing and verification- Amendment in Pleadings - Applicability of Order 6 CPC in Other Proceedings. Suggested References: 2. Murali Manohar, Conveyancing and Pleading , 2nd Edn -2004, EBC, Lucknow. [Part II Chapter’s 1-5] 3. KS Gopalakrishnans Pleadings and Practice, ALT Publications, Hyderabad, 2004. [Part I Chapter’s 1-3, 24] 4. MC Agarwal & GC Mogha, Mogha’s Pleading , 17th Edn - 2006, EBC, Lucknow. [Part I Chapter’s 1-10] 6. GF Harwood, Odgers on Pleadings and Practice, 20th Edn- 1971, Universal Law Publishing Co. Pvt Ltd., Delhi. [ Chapter 6] Cases 1. Lakshmi Narayan Deo Vasti Temple vs. Narayan F. Marathy (1995) 2 Bom CR 610 2. Prabodh Verma vs. State of UP (1984) 4 SCC 251 3. Someswer vs. Tribhuban AIR 1934 PC 130 4. Narinder Nath vs. Jaswant Singh AIR 1994 P&H 111 5. Syed Muhammed vs. Fattah Muhammed ILR 22 Cal. 324 (PC) 6. Viswanath vs. Ram Narayan AIR 1940 All 405 7. Tika Khawas vs. Pasupathi AIR 1986 Sikk. 6 8. Motilal vs. Yudhistir AIR 1950 PC 73 9. Brijlal vs. Parvathy AIR 1982 Del. 114 10. Firm Gopal & Co. Ltd vs. Firm Hazarilal AIR 1963 MP 37 11. Keshab Rao vs. Chandrabhan AIR 1980 Bom 380 12. Onkar Nath vs. Vedvyas 1978 Ren.CR 408 (HP) 13. Iyakku Matho vs. Julius Elias Metropolitan AIR 1962 Ker 19 14. Rooplal vs. Nachhittar AIR 1982 SC 1559 15. A K Gupta vs. DVC AIR 1967 SC 961 16. G. Nagamma vs. Siromanamma (1996) 2 SCC 25
Statutes 1. Civil Procedure Code,1908
Module II
Civil Pleadings - Substantive Aspects and Drafts
1. Plaint (Order 7 of CPC) 2. Written Statement (Order 8 of CPC) 3. Notice under Sec.80 of CPC 4. Injunction Application 6. Interlocutory Application 6. Revision Petition 7. Review Petition 8. Appeals Suggested References: 1. Justice Thakker, Code of Civil Procedure, 5th Edn - 2007, EBC, Lucknow 2. MC Agarwal & GC Mogha, Mogha’s Pleading , 17th Edn - 2006, EBC, Lucknow. [Part II] 3. KS Gopalakrishnans Pleadings and Practice, ALT Publications, Hyderabad, 2004. [Part II] 4. Murali Manohar, Conveyancing and Pleading , 2nd Edn -2004, EBC, Lucknow. [ Part I,II] Cases 1. Phula Devi vs. Mangtu Maharaj AIR 1969 Pat 284 2. Jagjiban Das vs. Gunan Bhai AIR 1967 Guj 1 3. N.Naidu vs. K.Naidu AIR 1969 Mad 329 4. N.Naidu vs. K.Naidu AIR 1969 Mad 329 5. Jogeshwar vs. Sheopujan AIR 1986 Pat 35 6. State of Maharatsra vs. Glaxo 1979 Bom CR 321 7. Raghunath Das vs. Union of India AIR 1969 SC 674 8. State of MP VS. Lajjaram AIR 1961 MP 339
Statutes 1. Civil Procedure Code, 1908 2. Specific Relief Act, 1963
Module III
Criminal Pleadings - Substantive Aspects and Drafts
1. Meaning - Criminal Pleadings in India 2. Complaint(Sec.2d of Cr PC) 3. Application for Bail (Sec.436, Sec. 437 of Cr PC) 4. Anticipatory Bail (Sec.438 of Cr PC) 5. Application U/S. 125 of the Code of Criminal Procedure, 1973 Suggested References: 1. KNC Pillai, Lectures on Criminal Procedure, 3rd Edn - 2004, Ashok Law House, Hyderabad. 2. Dr. Amit Sen, Leagal Language, Legal Writing and Legal Drafting , 2nd Edn - 2006, Kamal Law House, Kolkata. [ Chapter’s 23,26,28] 3. KS Gopalakrishnans Pleadings and Practice, ALT Publications, Hyderabad, 2004. [ Part II] Statutes 1. Criminal Procedure Code, 1973
Module IV
Other important Pleadings - Substantive Aspects and Model Forms (No. of Lectures 8)
1. Complaints Under Sec.138 of Negotiable Instruments Act 2. Petition for Dissolution of Marriage under Hindu Marriage Act 3. Suit for Permanent Injunction 4. Application for Temporary Injunction 5. Writ Petition under Article 226 of Constitution of India Suggested References: 1. MC Agarwal & GC Mogha, Mogha’s Pleading , 17th Edn - 2006, EBC, Lucknow.[Part II] 2. KS Gopalakrishnans Pleadings and Practice, ALT Publications, Hyderabad, 2004. [ Part II] 3. Murali Manohar, Conveyancing and Pleading , 2nd Edn -2004, EBC, Lucknow. [ Part I,II] 4. Dr. Amit Sen, Leagal Language, Legal Writing and Legal Drafting , 2nd Edn - 2006, Kamal Law House, Kolkata. [ Chapter 27] 5. GC Mathur, Shiva Gopal’s Conveyancing , Precedents and Forms, 6th Edn - 2004, EBC, Lucknow.[Chapter’s 39,42]
Statutes: 1. Negotiable Instruments Act, 1881 2. Indian Divorce Act, 1869 3. Hindu Marriage Act, 1955 Module V
Conveyancing (No. of Lectures 6-8)
1. Conveyancing - Meaning and Definition 2.
Sale Deed
3.
Mortgage Deed
4.
Lease Deed
5. 6.
Gift Deed Partnership Deed
Suggested References: 1. CR Datta, MN Das, D’ Souza’s Conveyancing, 13th Edn-1999 , Eastern Law House, New Delhi. [Chapter 1] 2. NS Bindra, Conveyancing , Vol.1, Delhi Law House, Delhi, 2008 [ Chapter 1] 3. DK Gupta, A Guide to Conveyancing, Drafting and Deeds, Vol. 1, 2nd Edn - 2005, Kamal Law House, Kolkata. [ Chapter 4] 4. MT Tijoriwala & SN Vimadalal, Law and Practice of Conveyancing , 4th Edn-2002, Snow White Publications, Mumbai.[Part I] 5. GC Mathur, Shiva Gopal’s Conveyancing , Precedents and Forms, 6th Edn - 2004, EBC, Lucknow.[Chapter 1] 6. Murali Manohar, Conveyancing and Pleading , 2nd Edn -2004, EBC, Lucknow. [Part I Chapter 1] 7. JM Srivastava & MC Agarwal Mogha’s Indian Conveyancer , 13th Edn - 2004, Eastern Law House, Delhi. [Part I, II, III] Statutes 1. 2. 3. 4. Cases 1. 2. 3. 4. 5.
The Registration Act, 1908 The Indian Stamp Act, 1899 Indian Contract Act, 1872 Transfer of Property Act, 1882
State of Bombay vs. United Motors AIR 1955 SC PS Santhi vs. SB Bhagwandas Kripalini AIR 1991 SC Sonia Bhatia vs. State of UP AIR 1981 SC 1274 Sakunthala vs. State of Haryana AIR 1979 SC 843 Sasi vs. Shanker 54 CWN 936
Further Readings 1. DK Gupta, A Guide to Conveyancing, Drafting and Deeds, Vol. 2- 8 , 2nd Edn - 2005, Kamal Law House, Kolkata. 2. NS Bindra, Conveyancing , Vol.2-7, Delhi Law House, Delhi, 2008 3. GF Harwood, Odgers on Pleadings and Practice, 20th Edn- 1971, Universal Law Publishing Co. Pvt Ltd., Delhi. 4. Rodney D. Ryder , Corporate and Commercial Agreements Drafting Guidelines, Forms and Precedents, Universal Law Publishers, New Delhi 2005.
