Date and Time: Thursday 30 November 2023 9:23:00 AM IST

Job Number: 211553901

Documents (24)

1. 15.1 Introduction
Client/Matter: -None-
2. 15.2 Important concepts under Criminal Procedure Code
Client/Matter: -None-
3. 15.3 Criminal Complaints
Client/Matter: -None-
4. 15.4 Bail and Anticipatory Bail
Client/Matter: -None-
5. 15.5 Maintenance
Client/Matter: -None-
6. 15.6 Other Applications
Client/Matter: -None-
7. 15.7 Criminal appeals
Client/Matter: -None-
8. 15.8 Revision
Client/Matter: -None-
9. CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE
Client/Matter: -None-
10. 16.1 Conveyancing
Client/Matter: -None-
11. 16.2 Adoption
Client/Matter: -None-
12. 16.3 Arbitration
Client/Matter: -None-
13. 16.4 Gift
Client/Matter: -None-
14. 16.5 Indemnity
Client/Matter: -None-
15. 16.6 Lease
Client/Matter: -None-
16. 16.7 Leave and Licence
Client/Matter: -None-
17. 16.8 Mortgage
Client/Matter: -None-
18. 16.9 Partition
Client/Matter: -None-
19. 16.10 Partnership

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 Client/Matter: -None-
20. 16.11 Power of Attorney
Client/Matter: -None-
21. 16.12 Releases/Relinquishments
Client/Matter: -None-
22. 16.13 Sale Deed/Deed of Conveyance
Client/Matter: -None-
23. 16.14 Trust
Client/Matter: -None-
24. 16.15 Will and Codicils
Client/Matter: -None-

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 15.1 Introduction
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.1 Introduction

Criminal Pleading means the statements of facts in proper form and manner regarding any act of
commission or omission of an offence punishable under the Indian Penal Code, or any other penal
legislation for the time being in force.

The procedure to deal with criminal cases is provided for in the Code of Criminal Procedure, 1973 (CrPC)
and except otherwise so provided.

Some of the significant terms from the Code of Criminal Procedure are discussed below.

End of Document
 15.2 Important concepts under Criminal Procedure Code
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.2 Important concepts under Criminal Procedure Code

(1) Bailable and Non-Bailable

(2) Cognizable offence
(3) Non-Cognizable Offence
(4) Summons Case
(5) Warrant Case
(6) FIR
(7) Stages in case of cognizable offence
(8) Rights of an accused

15.2.1 Bailable and Non-Bailable

According to section 2(a) of CrPC “bailable offence means an offence which is shown as bailable in the
first schedule, or which is made bailable by any other law for the time being in force; and non bailable
offence means any other offence;”

Bailable offences are considered less serious in nature whereas non-bailable offences are more serious
in nature. It can be generally stated that bailable offences are those for which punishment is for or less
than three years but there are some exceptions to this rule. Such offences are tried by any Magistrate,
e.g., being a member of unlawful assembly etc. In non-bailable offences, all serious offences are
included where the quantum of punishment is for three years or more, e.g., murder, rape etc. In bailable
offences, bail can be claimed as a right under section 436 CrPC. In non-bailable offences, bail is not a
matter of right but only a privilege to be granted at the discretion of the court after considering the facts
and circumstances of the case. Section 437 of CrPC provides the conditions for grant of bail in non-
bailable offences. In case of bailable offence, if the accused produces proper surety after his arrest and
fulfills other conditions, it is binding upon the investigating officer to release him. In non-bailable offence,
the investigating officer must present the accused before the Judicial Magistrate/Judge within 24 hours of
the arrest. At that time the accused has a right to apply for the bail.
15.2.2 Cognizable Offence

As per section 2(c) of CrPC “cognizable offence means an offence for which, and cognizable case
means a case in which, a police officer may, in accordance with the first schedule or under any other law
for the time being in force, arrest without warrant;”

Cognizable offence means an offence for which a police officer may, in accordance with the first
 Page 2 of 3
15.2 Important concepts under Criminal Procedure Code

schedule or under any other law for the time being in force, arrest without a warrant. Offences which are
serious in nature are cognizable offences, e.g., murder, dowry death, kidnapping, rape etc. If a
cognizable offence has been committed, a police officer can investigate without the Magistrate’s
permission. As per section 154 of CrPC in case of cognizable offence, the police has to receive the First
Information Report (FIR) relating to cognizable offence which can be obtained without the Magistrate’s
permission. The police on entry in the General Diary can immediately start the investigation. An FIR sets
the criminal law in motion. The Supreme Court in Lalita Kumari v Government of UP1 held that “the police
must compulsorily register the FIR on receiving a complaint if the information discloses a cognizable
offence and no preliminary inquiry is permissible in such a manner.”
15.2.3 Non-Cognizable Offence

Section 2(l) of CrPC defines non-cognizable offence as an offence for which, and non-cognizable case
means a case in which, a police officer has no authority to arrest without warrant.

A non-cognizable offence or non-cognizable case has been defined in the CrPC as an offence for which
the police have no authority to arrest without warrant. Non-cognizable offences are less serious in nature,
e.g., defamation, forgery, cheating etc. As per section 155 CrPC, if a police receives information
regarding commission of a non-cognizable offence, he is supposed to enter the same in the Station Diary
and refer the informant to approach the concerned Magistrate. It is important for the police officer to
obtain the permission from the Magistrate to start investigation for non-cognizable offence.
15.2.4 Summons Case

Section 2(w) of CrPC defines summons case as a case relating to an offence and not being a warrant
case.
15.2.5 Warrant Case

Section 2(x) of CrPC defines, “warrant case means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.”
15.2.5.1 Procedure for Summons Case and Warrant Case

The Procedure for Summons Case is simpler and speedy. The procedure for warrant case is complex
and lengthy. In warrant cases, formal charges are framed under sections 240 and 246 of CrPC. In
Summons Cases, there is no necessity to frame formal charges against an accused (as per section 251
CrPC), instead only the substance of the allegation is stated. In warrant case the accused gets more than
one opportunity to cross-examine the prosecution witnesses while in summons case, he gets only one
opportunity to cross-examine the prosecution witnesses. The Magistrate is empowered to convert a
summons case into a warrant case but a warrant case cannot be converted into a summons case. A trial
in a warrant case commences either by filing FIR in police station or by filing it before Magistrate. A
warrant trial can be classified into (i) cases instituted on the police report and (ii) cases instituted
otherwise than on police report. However, there is no such categorization for summons cases. In
summons trial, an accused can plead guilty through post (i.e., without being physically present in the
court) if he is served summons for a petty offence. However, this is not possible in warrant cases. A
complainant can withdraw his complaint with the permission of the court in summons trial while he cannot
do so in warrant trial.
15.2.6 FIR

When information is given to police by any person, in respect of commission of a cognizable offence then
such information is termed as First Information Report or FIR. FIR in a criminal case sets the criminal law
in motion. It is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral
evidence at the time of trial. FIR in respect of some cognizable offences must be lodged as soon as
possible. The information given by the informant shall be definite and must not be vague to start
investigation.

FIR acts as a tool on which the police authorities base and commence their investigations. Section 154
CrPC states the provision regarding FIR. As per section 154(1), an FIR can be registered in cognizable
 Page 3 of 3
15.2 Important concepts under Criminal Procedure Code

offences only. In cognizable offences, the police officer can arrest an accused without a warrant because
of the serious nature of the offences.

Who Can Lodge FIR:- Any person who has information about the commission of a cognizable offence
can lodge an FIR. It is not necessary for the person lodging the FIR to be an eyewitness or that he/she
should be the victim. A police officer can lodge an FIR if he has knowledge about the commission of
cognizable offence.
15.2.7 Stages in Case of Cognizable Offence

Following are the stages in cognizable offence:—

(i) FIR
(ii) Recording of evidence of witnesses
(iii) Discoveries made
(iv) Punchanama
(v) Filing of charge sheet to the court

15.2.8 Rights of an Accused

(1) Under the Indian Penal Code, an accused is innocent unless his guilt is proved beyond
reasonable doubt.
(2) Any person who is arrested should be informed about the grounds of arrest, and should be
produced before a magistrate within 24 hours of his arrest.
(3) The accused has a right to cross-examine the prosecution witnesses; however, an accused
cannot be cross-examined.
(4) An accused has the right to be represented through a lawyer to defend himself and where he
cannot afford the fees of a lawyer, the state is duty bound to provide him with a counsel.
(5) The accused has a right to get himself medically examined.
(6) Last but not the least, the accused is entitled to an expeditious and fair trial.

1 Lalita Kumari v Government of UP, (2014) 2 SCC 1.

End of Document
 15.3 Criminal Complaints
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.3 Criminal Complaints

Section 2(d) of CrPC defines the word complaint. It “means any allegation made orally or in writing to a
Magistrate, with a view to his taking action under this code, that some person, whether known or
unknown has committed an offence, but does not include a police report.

The explanation added to section 2(d) states that a report made by a police officer in a case which
discloses, after investigation the commission of a non-cognizable offence shall be deemed to be a
complaint and the police officer by whom such report is made shall be deemed to be the complainant.”
15.3.1 Forms of Criminal Complaint

Criminal complaints can be broadly divided into two types namely public and private. In public complaint
the state is the aggrieved party, because it is the primary duty of the state to safeguard the person and
property of every citizen and therefore the state takes up the responsibility of prosecuting the offender.

In private complaints, the victim or where the victim is no more, his legal heirs become the complainants.
It is pertinent to note that the state is always the de facto complainant. Thus, the burden of proving the
commission of an offence rests on the state. The state is represented through Police station house in
charge and the Public Prosecutor. The Respondent is termed as accused in criminal complaint.

Dismissal of Complaint: As per section 203, if, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202,
the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the
complaint, and in every such case he shall briefly record his reasons for doing so.

In exercising his discretion under section 203, the Magistrate should not allow himself to be influenced by
consideration of the motive by which the complainant may have been actuated in moving in the matter;
nor by any other consideration outside the facts which are adduced by the complainant in support of his
complaint.2

Withdrawal of Complaint:- In a summons case the complainant can withdraw complaint with the
permission of the court (Section 257 CrPC).
15.3.2 Drafting of Criminal Complaints

A complaint under the Code of Criminal Procedure may be made orally or in writing.3

No form of complaint has been prescribed in the Code. The requisites of a complaint are:—

(i) an oral or written allegation;

 Page 2 of 18
15.3 Criminal Complaints

(ii) That person known or unknown has committed an offence;

(iii) It must be made to a magistrate so that he can take action regarding the same.4

15.3.3 Complaint for Criminal Trespass

The offence of criminal trespass is laid down under section 441 of the Indian Penal Code:

441. Criminal trespass–Whoever enters into or upon property in the possession of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon
such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to
commit an offence, is said to commit “criminal trespass”.

The ingredients of section 441 are as follows:—

(1) Entry into or upon property in the possession of another

(2) If such entry is lawful, then unlawfully remaining upon such property
(3) Such entry or unlawful remaining must be with intent—

(a) to commit an offence or

(b) to intimidate, insult or annoy any person in possession of the property.

From the above ingredients it can be seen that the original entry may be lawful, but if the person entering
remains on the property with the intent specified in the section he commits trespass.

The offence can be committed only against a person who is in actual physical possession of the property
in question. However, it is pertinent to note that the offence may be committed even when the person in
possession is at the time of trespass not present on the property.

The expression “property” here implies immovable property.

15.3.3.1 Specimen

Specimen No. I

Complaint for Criminal Trespass

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS AT _________

Cri. C. No._________/ 20____

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15.3 Criminal Complaints

Complaint for the offence of criminal trespass, hurt and threatening

The complainant above-named states most respectfully as under:—

(1) That the complainant is the “Factory Manager” of ________ Co. Pvt. Ltd. The _______ company
is having its manufacturing plant at _______ industrial area. The company manufactures various
electronic goods and components.
(2) That all the accused above-named are the workers in the said factory. That on ______ date, the
accused were sitting idle and were not doing any of the job/work assigned to them. The senior
supervisor repeatedly told them to stop chit-chatting, not to sit idle and to do their work. The
 Page 4 of 18
15.3 Criminal Complaints

Senior Supervisor Mr. ________ then reported the matter to the Factory Manager, i.e., the
complainant.
(3) The complainant submits that the complainant went to the shop floor around _______ and told
the workers, i.e., the accused herein that as they are not doing their work and are sitting idle, he
would make deductions in their salary.
(4) That the accused no. 1 and no. 2 thereafter started arguing with the complainant. The
complainant told all the accused that for the last three days they had not done any work so the
employer would not pay them for the same and left the shop floor at _________.
(5) The complainant submits that at around 6.30 in the evening on the same day, i.e., on ______
date, all the accused barged inside the cabin of this complainant and started abusing this
complainant and threatened him of dire consequences if he deducted their salary. The
complainant called upon all the accused not to use bad language and asked them to leave his
cabin immediately. On this the accused no. 2 caught the complainant by collar and told him to
keep shut and that the complainant should pay accused the salary without any deductions.
(6) The complainant submits that the accused no. 1 was carrying a dagger. He pointed the dagger to
the complainant and told him that he would cut the complainant into pieces if he took any action
against any of the accused. The complainant was shocked, horrified and was numb due to the
terrorizing attack by the accused. The secretary of this complainant by name _______ informed
the other officers and workers about the said attack.
(7) The complainant submits that only when other workers and officers came to the complainant’s
cabin that these accused left the cabin.
(8) That the complainant submits that none of the accused had obtained any permission at the gate
to enter the factory premises. Their shift was over at 4 O’clock in the afternoon. Thus the entry of
the accused into the factory premises and inside the cabin of this complainant is unlawful and
unauthorised. Thus, the accused have committed the offence of criminal trespass among other
offences punishable under the Indian Penal Code.
(9) That the offence has been committed within the territorial jurisdiction of this Hon’ble Court and
hence, this Hon’ble Court has territorial jurisdiction to try and entertain the present complaint.
(10)The cause of action arose on ______ date when the accused committed criminal trespass and
other offences. Hence, the complaint filed today is well within the limitation.
(11)That the complainant therefore prays that all the accused be dealt with according to the law and
such other orders may please be passed as deemed fit and appropriate in the interest of justice.

Place_______ Complainant

Date_______ Advocate for Complainant

15.3.4 Complaint for the Offence of Bigamy

This section is not applicable to Mohammedan males; however, the section is applicable to
Mohammedan females and to Hindus, Christians and Parsis of either sex.

Section 494 declares bigamy as an offence. A person is said to have committed the offence of bigamy
when—

(1) A person has wife or husband living at the time of solemnisation of the second marriage (subject
to the exceptions enumerated in section 494).
(2) The second marriage being void by reason of subsistence of first marriage.
 Page 5 of 18
15.3 Criminal Complaints

Section 494 of Indian Penal Code is as follows—

494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case
in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

15.3.5 Exception

This section does not extend to any person whose marriage with such husband or wife has been
declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the
life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall
have been continually absent from such person for the space of seven years, and shall not have been
heard of by such person as being alive within that time provided the person contracting such subsequent
marriage shall, before such marriage takes place, inform the person with whom such marriage is
contracted of the real state of facts so far as the same are within his or her knowledge.

Specimen No. II

Criminal Complaint for Bigamy

IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS

Place__At.__(Dist)_____

Criminal Complaint No. _______/20___

Complaint under section 494 of IPC, read with section 34 of IPC.

The complainant above-named most humbly submits as follows:—

(1) The complainant herein is the legally wedded wife of the accused no. 1 and the accused no. 2 is
the second wife of the accused no. 1.
(2) That the complainant states that the marriage between the complainant and the accused was
solemnised on ______ date according to Hindu Vedic rites and ceremonies at _________
(place).
(3) That the complainant states that the complainant and the accused co-habited together only for 3
months thereafter the accused under the false and flimsy grounds started avoiding the company
of the complainant.
(4) The complainant states that this complainant is a government servant and was transferred to
_____ (Place) on or about _______date. Thereafter, she joined her new posting at_______.
(5) The complainant submits that the accused had assured this complainant that he would travel to
the complainant’s place which is only 3 hours from their matrimonial home so that they would be
together during the week-ends.
(6) The complainant submits that till date the accused has not visited the complainant even once.
Whenever this complainant came to her matrimonial home to be with the accused no. 1, the
accused no. 1would immediately leave the house and avoid the company of this complainant.
(7) That the complainant thereafter from relatives and family friends learnt that the accused is seen
in the town with the accused no. 2 and to whom accused no. 1 wanted to marry but as the
accused no. 2 is from a different caste, the accused no. 1’s parents did not allow him to marry
accused no. 2 and therefore the accused no. 1 married this complainant.
 Page 6 of 18
15.3 Criminal Complaints

(8) The complainant states that the accused no. 1 had started staying with accused no. 2 at the
residence of accused no. 2 as husband and wife from ______ date. The complainant was also
informed that the accused no. 1 and the accused no. 2 are planning to get married soon.
(9) The complainant sates that the accused no. 1 on or about _____ date informed the complainant
that he intends to dissolve the marital tie between the complainant and the accused no. 1 by filing
a petition for divorce by mutual consent as he intends to marry accused no. 2.
(10)The complainant states that she was in a state of shock when she learnt that the accused no. 1
has married accused no. 2 on______date at ________ place. More than 50 people attended the
said marriage.
(11)The complainant submits that the marriage between the accused no. 1 and 2 was solemnised as
per Hindu Vedic rites and ceremonies. The complainant states that the marital tie between the
accused no. 1 and this complainant has not been dissolved by any court order. The complainant
states that, the accused no. 1 is guilty of the offence of bigamy. The complainant states that the
accused no. 1 and 2 have obtained marriage certificate from ______ office. The marriage
certificate and the photographs of the marriage solemnised between the accused no. 1 and 2 are
annexed herewith.
(12)That the second marriage was solemnised by the accused on _______date and therefore this
complaint filed today is well within the period of limitation.
(13)That the offence has been committed within local limits of the jurisdiction of this court hence this
Hon’ble court has jurisdiction to try and decide this complaint.
(14)That appropriate court fee stamp is paid herewith.
(15)It is therefore most humbly prayed that the accused no. 1 & 2 be tried for the offence of bigamy
punishable under section 494 read with section 34 IPC and be punished as per law.

Place______ Complainant

Date______ Advocate for Complainant

15.3.6 Complaint for the Offence of Defamation

Right to reputation is an inherent right of every person. All statements made orally or in writing or by
signs or visible representation which imputes the standing, reputation of a person and are made with the
intention of harming or with the knowledge or reason to believe that it will harm the reputation of such
person, then the person making or publicising such statements is said to have committed the offence of
defamation.

“Publication” of the defamatory matter means that there must be communication of the same to some
other person, than the person about whom the remarks are made. If the derogatory remarks or
defamatory matter is communicated, only to the person defamed it will not amount to publication of the
statement.

Sometimes the defamatory statement may not directly refer to the complainant but he is defamed in an
indirect manner. This is termed as innuendo. The complainant must prove how the defamatory
statements are addressed to him.

The offence of defamation is defined under section 499 of Indian Penal Code as under:

499. Whoever by words, either spoken or intended to be read, or by signs or by visible representations, makes or publishes
any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
 Page 7 of 18
15.3 Criminal Complaints

Explanation 1:—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the
reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2:—It may amount to defamation to make an imputation concerning a company or an association or collection
of persons as such.

Explanation 3:—An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4:—No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in
respect of his caste or his calling, or lowers the credit of that person, or causes it to be believed that the body of that person
is in a loathsome state, or in a state generally considered as disgraceful.

Specimen No. III

Complaint for the offence of Defamation

IN THE COURT OF JUDICIAL MAGISTARTE FIRST CLASS, (PLACE)

Criminal Case No. ______of _____

Complaint for the offence of defamation

The complainant above-named submits as under:—

(1) The complainant states that the complainant is working as Principal of ________school and is a
respectable member of the society residing at ________. The complainant is also the Managing
Trustee of ________ society which runs the ______ school. The complainant states that he
enjoys a certain degree of standing, status and reputation in the society.
(2) The complainant submits that one Miss._________ joined the complainant’s school on _______
date as a teacher. In a short span of time Miss.________ due to her job commitment and talent
impressed one and all. This complainant as head of the institution at a school function publicly
appreciated Miss._______ hoping that it would further encourage Miss.________ to continue to
work towards excellence and it would also motivate other school teachers to work with
commitment and efficiency.
(3) That the accused Mr._______ thereafter started spreading the rumor that the complainant is
having an affair with Miss._______ and that is the reason Miss._______ who is so junior and
inexperienced is appreciated publicly by the complainant.

In fact the accused is very jealous and upset as he was also competing with the complainant
for the post of Principal and finally this complainant was selected and not the accused for the
post of Principal of _____ the school.
(4) That on ______ date after the open house meeting with the parents, when the parents were
leaving the school premises the accused distributed hand-outs to the parents. The accused has
charged this complainant as a womanizer and a corrupt person and has made other false
allegations in the said hand-outs. At the end of the hand-out it was printed “Do you want such a
Principal/ Teacher for your ward?” The copy of the said hand-out is annexed herewith and the
same may please be read as part and parcel of this complaint.
(5) The complainant submits that the accused out of jealousy and frustration has leveled these highly
defamatory statements against the complainant. The complainant submits that all the allegations
 Page 8 of 18
15.3 Criminal Complaints

made by the accused in the said hand-outs are false, baseless and made out of malice and
without any proof.
(6) The complainant submits that all this has caused great harm to the standing and reputation of
this complainant and has further lowered his image in the eyes of right thinking members of the
society. The allegation that the complainant is having an extra-marital affair with Miss.______ has
definitely lowered the public image of this complainant. His colleagues, relatives are now trying to
avoid his company.
(7) That the accused has done all this only with the intention to defame the complainant and thereby
has brought this complainant to disrepute and discredit. All this has grossly maligned the image
of this complainant in the eyes of the staff of the school, the student body, the parents of these
students, relatives and friends.
(8) That all the imputations alleged in the said hand-out are false, highly defamatory and
objectionable and accused has intentionally done the same out of jealousy, ill will and hatred for
the complainant. One hand-out is annexed herewith and is marked as Exhibit ‘A’.
(9) That the accused by printing and circulating the said hand-outs has committed the offence of
defamation punishable under section 500 and section 501 of the Indian Penal Code.
(10)The complainant submits that the offence has been committed within local limits of the jurisdiction
of this court; hence, this Hon’ble Court has jurisdiction to try and decide this complaint.
(11)The defamatory matter, i.e., the hand-outs were circulated on ______ date; hence, the present
complaint is well within the period of limitation.
(12)The appropriate court fee stamp is paid herewith.
(13)That the complainant, therefore, prays that the Hon’ble Court may be pleased to issue necessary
process against the accused and the accused be dealt with according to law.

Place______ Complainant

Date______ Advocate for Complainant

15.3.7 Complaint for the offence of cheating (Section 420 of Indian Penal Code)

For an offence under this section, it must be proved that the complainant parted with his property acting
on a representation which was false to the knowledge of the accused and that the accused had a
dishonest intention from the outset.

Section 420 of Indian Penal Code lays down as under:

420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the
person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be
punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.

In Sonbhandra Coke Products v State of UP5 it was held that offence of cheating can be made out only if
it has been shown that the damage or harm has been caused to the person so deceived.

Specimen No. IV

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS ________

AT (PLACE)__________
 Page 9 of 18
15.3 Criminal Complaints

Criminal Case No._______/20___

Complaint for the offence of cheating under section 420 of IPC

The complainant above-named most respectfully submits as follows:—

(1) That the complainant is a small trader in garments having his shop at _______. The complainant
is the Proprietor of _________ and carries on the business under the said proprietorship at
_____________.
(2) That the complainant states that in the month of _______ the accused herein came to the shop of
this complainant and expressed his desire to buy garments from the complainant. The accused
informed the complainant that he is having his cloth shop at _______ village. The accused told
the complainant that he also purchases his stock of garments from the same wholesale trader in
Surat by name _______.
(3) The accused further told this complainant that as the wife of the accused was seriously ill and his
daughter is busy preparing for board exams, this festive season he could not go to Surat to make
any purchases and therefore he is buying from the complainant.
(4) That the complainant submits that the accused also phoned Mr._______ (partner) wholesale
trader of ________ and after greeting him over the phone called upon this complainant to talk to
Mr._______. That Mr._______ is a close business associate of this complainant. and thus the
complainant believed the accused and agreed to sell him certain quantities of garments.
(5) The accused purchased garments from the complainant on ______ date. The total price of the
garments purchased is Rs._________/-. That out of the said amount the accused gave
Rs._________/- in cash and he requested the complainant to give him two days time to make the
balance payment.
(6) That the complainant submits that the complainant had no reason to disbelieve the bona fides of
the accused and thus agreed to give the goods of Rs. _________/- on credit. The accused
signed on the copy of the bill book, thereby acknowledging receipt of garments worth
Rs.______/- and also gave in writing that he will pay in two days time.
(7) That the complainant submits that the accused also gave his address, his contact number and
also his business card to this complainant. The accused also invited the complainant to his shop
at ______.
(8) That the accused again on _______ date came to the complainant’s shop and again made
purchases worth Rs._____/-. This time again the accused paid Rs. ___ in cash and assured that
he will clear both the bills, i.e., of Rs. _____ and of Rs. ______ dated _______ and ______by
_________date.
(9) The complainant submits that the accused never came back to the complainant’s shop to make
any payment. The complainant then tried to contact the accused on the phone number given by
him, but it turned out to be the number of some other person and not of the accused.
(10)That the complainant, therefore, along with his sales staff Mr._____, went to personally meet the
accused on the address given by him. The landlady there informed that Mr._______ has left the
rented premises six months back and has cheated many people like this and complained that
even she has been duped of three months’ rent.
(11)That the complainant on further enquiries learnt that the accused is working as sales staff in
_______ shop and when the complainant met him there the accused told the complainant that
the garments sold by the complainant are defective and not up to the mark and he would make
 Page 10 of 18
15.3 Criminal Complaints

only part payment. However, no payment is made so far. The complainant states that the
garments sold to the accused were without any defect and were from the fresh stock. The
accused only to avoid payment is making these false allegations.
(12)That the complainant submits that the accused has cheated this complainant and is liable to be
tried for the offence of cheating. The garments supplied by the complainant were not defective or
old stock as alleged or otherwise and the complainant has all the receipts of the purchases
made. The accused has fraudulently taken from the complainant garments worth Rs. _______/-
and has not paid for the same and has refused to pay for the same.
(13)That the accused made false representation that he owns and runs a garment shop at _______
place, he made false representation that he makes his purchases from ________ (a wholesale
dealer), i.e., the same source from where the complainant has been purchasing. It is submitted
that the accused had no honest intention to pay the complainant for the purchases made by him.
The accused thus acted fraudulently and dishonestly and induced this complainant to part away
with all the said garments on _____ date and on _____ date and thus has cheated the
complainant.
(14)That the transaction took place and offence has been committed within the territorial jurisdiction
of this Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to try and entertain
the present complaint.
(15)That the cause of action arose on ______ date when the accused failed to pay the amount of Rs.
______/- to the complainant and hence the complaint filed today is well within the period of
limitation.
(16)It is, therefore, most humbly prayed that:-

i) An arrest warrant be issued against the accused and the accused be dealt with according to
law
ii) Order and direct the accused to pay compensation under section 357 of Criminal Procedure
Code 1973 in the end of justice
iii) Any other order in the interest of justice may kindly be passed.

Place______ Complainant

Date______ Advocate for Complainant

Specimen No. V

BEFORE THE HON’BLE JUDICIAL MAGISTRATE FIRST CLASS______

AT_______

Criminal Complaint No. ______/2019

 Page 11 of 18
15.3 Criminal Complaints

Criminal Complaint under section 420 of Indian Penal Code and under section 8, 13 of Maharashtra
Ownership of Flats Act, 1963

The Complainants abovementioned state and submit as under:

1. The complainant states that accused had floated a scheme / project of residential flats at
Village_____, at Survey No. _____, Hissa No. ____ under the name and style _____, and
consisting of_____ units. The complainants submit that based on the representations made by
the accused, in various advertisements and the brochures printed and published by accused that
the accused is developing the said project with the intention to construct 1 and 2 BHK luxury flats,
these complainants decided to purchase a flat from the accused.
2. The complainants state that on____ date, the complainants have booked a 2 BHK apartment
bearing flat No.___, Wing ____, total area admeasuring about____ sq. ft.; for the same the
complainant has paid an amount of Rs._____/- being the booking amount. Thereafter, the
 Page 12 of 18
15.3 Criminal Complaints

complainant also paid an amount of Rs._____/- at the time of agreement and towards stamp duty
and registration.
3. Following are the details of the payments made by the complainant to the accused:-

a) Rs. _____/- Cheque bearing _____ drawn on _____ Bank dated._____

b) Rs. _____/- towards ____% consideration amount before agreement, paid through Bank
RTGS on _____ Bank dated _____
c) Rs._____/- through RTGS from____Bank on dated ____ towards Stamp Duty and
Registration charges.
d) Rs._____/- Through RTGS from ____ Bank on dated _____ towards VAT and Service Tax

______________________

Total Rs. _____/-

4. The complainants further state and submit that, accordingly agreement to sale was executed with
the accused on _____ date at Haveli No.___, at Sr. No._____. At the time of the agreement to
sale, the accused had assured that the accused would hand over the possession of the said flat
to the complainant within ______ months from the date of the agreement, i.e., on or before _____
date.
5. The complainants state that it was specifically agreed by and between the accused and the
complainants that the mode of payment for total consideration amount would be as per the
schedule mentioned in the agreement. Accordingly, the complainant obtained loan from ______
bank and also paid Rs. ______ as processing fees for the loan and for property insurance. The
accused are well aware of these facts.
6. The complainants state and submit that the said loan was sanctioned in the name of
complainants by ______ bank. Further the accused on ______ date furnished commencement
certificate in respect of the said project stating that the building in which complainant has booked
a flat has been completed till plinth and further demanded an amount of Rs. _____/-. The
complainant after completing formalities with their banker paid an amount of Rs. _____/-, the said
amount has been paid through Bank Transfer on ______ date by NEFT UTR No. ______ to the
accused. It is pertinent to note that the complainant has paid an amount of Rs. ______/- as
interest on the bank loan obtained by them.
7. The complainants state and submit that they have invested in the said project from their
income/savings earned from hard labour. The complainants state that the accused have cheated
the complainants and the complainants now know that the accused’s tall claims about the project
were only empty promises. The complainants state that the accused have stopped the
construction work from ____ date and the whole project is stuck at plinth level, from ______ date.
The complainant repeatedly visited the construction site only to see that the construction has
been completely stopped.
8. The complainants state and submit that since last 1 year no progress beyond plinth level has
been made by the accused. The complainant asked for the cancellation of agreement and refund
of the amount through letter dated______. However, the accused promised that everything is in
control and work will commence in few weeks. The complainants state that contrary to the
assurance, the construction work was not commenced by the accused nor the amount was
refunded to the complainants. Hence, on ______ date the complainants sent email and cancelled
the agreement and asked the refund of the amount from accused via email.
9. The complainants state that these complainants have through mail dated______ and through
notice dated ______ have demanded the amount of refund which they have paid at the time of
 Page 13 of 18
15.3 Criminal Complaints

booking as well as all the amount paid towards all the expenses of stamp duty, registration, bank
loan processing fee, property insurance and compensation for deficiency in services, for mental
and physical pain, agony and harassment etc. totalling to Rs. ______.
10. The complainants state and submit that despite the email and notice sent to the accused, the
accused have not bothered to resolve the issue amicably nor have refunded any amount to these
complainants. The accused with dishonest intention to cheat these complainants have extracted
huge amounts from time to time from the complainants.
11. The complainants state and submit that as the accused are not responding to the repeated
requests and demands made by the complainants, the complainants are left with no alternative
but to file the present complaint before this Hon’ble Court.
12. That the transaction took place and offence has been committed within the territorial jurisdiction
of this Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to entertain, try and
decide the present complaint.
13. That the cause of action arose on _____ date when the Accused finally failed to repay the
consideration amount paid by the Complainants, hence the present complaint filed is well within
the limitation. Otherwise also, the act of the accused under the agreement is continuous one
therefore the present complaint filed is well within the limitation.
14. It is therefore prayed that,

a. The accused may be dealt and punished according to the provisions of law.
b. The matter may kindly be sent to the ______ Police Station for thorough investigation under
section 156(3) with the direction to investigate the matter in detail and the report in that
regard may kindly be called.

In alternate to that,

c. The issue process order may kindly be passed against the accused.
d. Accused shall refund a total amount of Rs. ______/- by way of fine and compensation under
section 357 of CrPC for the payment made by complainant, i.e., Rs. ______/- along with interest
at____% per annum from the date of receipt of the aforementioned amount along with the
monthly EMI the complainant is paying, and the mental and physical harassment to the
complainant.
e. Any other order in the interest of justice may kindly be passed by this Hon’ble Court.

Place______ Sd. Complainants

Date______ Sd. Advocate for Complainant

15.3.8 Complaint for Dishonour of Cheque

Section 138 of Negotiable Instrument Act lays down as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on
an account maintained by him with a banker for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of
the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
 Page 14 of 18
15.3 Criminal Complaints

(a) the cheque has been presented to the bank within a period of six months from the date on which
it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for
the payment of the said amount of money by giving a notice in writing, to the drawer of the
cheque, [within thirty days] of the receipt of information by him from the bank regarding the return
of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee
or, as the case may be, to the holder in due course of the cheque, within fifteen days of the
receipt of the said notice.

Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

The ingredients required to invoke section 138 are as follows:

(1) A person must have drawn a cheque for payment of money to another for the discharge of any
debt or other liability.
(2) That the cheque is presented to the bank within a period of 3 months from the date of issue.
(3) The cheque is returned by the bank unpaid, either because of insufficient funds or that it exceeds
the amount arranged to be paid from that account by an agreement made with the bank.
(4) The payee makes a demand for the payment of money by giving a notice in writing to the drawer
within 15 days from the date of receipt of information from the bank regarding dishonour/return of
the cheque.
(5) The drawer fails to make the payment within 15 days of receipt of the notice to the payee.
(6) If payment is not made then complaint can be filed under section 138 of the Negotiable
Instruments Act within 30 days from the date of expiry of 15 days specified in the notice.

As per RBI Guidelines, w.e.f. 1 April 2012, the validity period of cheques, D.D.’s, P.O.’s and Bankers
Cheque has been reduced from 6 months to 3 months from the date mentioned in the instrument.

Specimen No. VI

Complaint for Dishonour of Cheque

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS

AT ___________

Criminal Case No.______/___

Complaint under section 138 of the Negotiable Instruments Act

The complainant above-named states most respectfully as under:—

(1) That the complainant and accused were good friends and colleagues. Both of them are working
at ________which is a Private Limited Company.
(2) That the complainant states that the accused approached this complainant with a request to give
him a hand loan of Rs. 1,00,000/- as the accused had to meet certain expenses on account of his
 Page 15 of 18
15.3 Criminal Complaints

daughter’s marriage and towards the admission and other expenses of his son to Medical
College.
(3) That the complainant in view of the friendly relations and in pursuance of the promise made by
the accused to repay the loan amount in six-months time, gave Rs. 1,00,000/- to the accused on
_______ date by cheque bearing no.____ drawn on ______ bank. The accused has
acknowledged the receipt of the hand loan amount and his liability to repay the same by email
dated ______.
(4) The complainant submits that after 6 months the accused started avoiding this complainant under
one pretext or the other and now the complainant realised and understood the fraudulent
intention of the accused.
(5) The complainant submits that after a lot of persuasion and chase the accused met the
complainant and in order to repay the loan amount issued a cheque dated ______bearing
no.________ of Rs. 1,00,000/- drawn on _____ bank..
(6) That the complainant presented the cheque on ______ date for realisation. However, the same
was returned/dishonoured with the banker’s endorsement reading “Insufficient Funds”. The copy
of the cheque and the endorsement of the bank are produced along with this complaint.
(7) That the complainant over the phone tried to contact the accused but the accused avoided the
complainant. Therefore, the complainant issued a legal notice on ______ date to the accused
thereby informing him about the dishonour of the cheque and also called upon the accused
through the said notice to make the payment of Rs. 1,00,000/- (Rupees One Lakh only), i.e., the
cheque amount within 15 days. That the said notice was sent to the accused by R.P.A.D.
(8) That the accused has failed to respond to the notice and has not made any payment to the
complainant. The said notice was received by the accused on _____ date.
(9) The accused with dishonest and fraudulent intention issued the said cheque to the complainant
knowing fully well that the same will be dishonoured.
(10)That the accused has thus committed an offence punishable under section 138 of Negotiable
Instruments Act.
(11)That the complainant has complied with the statutory requirements under section 138 of the
Negotiable Instruments Act and also given the accused the statutory period to make the payment
as required by law.
(12)That the transaction took place and offence has been committed within the territorial jurisdiction
of this Hon’ble Court and hence this Hon’ble Court has territorial jurisdiction to try and entertain
the present complaint.
(13)The cause of action arose on ____ date when the accused failed to pay the amount of Rs.
______ to the complainant hence the complaint filed today is within the period of limitation.
(14)The accused is liable to be tried and prosecuted for the offences under sections 138 and 142(b)
of the Negotiable Instruments Act.
(15)That the complainant most respectfully prays that this Hon’ble Court may be pleased to:—

(i) register a case against the Accused

(ii) the accused be dealt with as per law and
(iii) order and direct the accused to pay compensation under section 357 of Criminal Procedure
Code, 1973 in the end of justice.
(iv) any other order in the interest of justice may kindly be passed.
 Page 16 of 18
15.3 Criminal Complaints

Place______ Complainant

Date______ Advocate for Complainant

15.3.9 Complaint under section 498A of Indian Penal Code

This section has been enacted to put a control on the menace of dowry deaths. Indian Evidence Act has
also been amended accordingly by inserting section 113A to raise a presumption regarding abetment of
suicide by a married woman,

It is not that every type of harassment or cruelty would attract section 498A. To attract the section 498A,
the complainant has to conclusively establish that the beating and harassment in question was with a
view to force her to commit suicide or to fulfill the illegal demands of dowry.

What is required to be established before the court is that, the woman soon before her death was
subjected to harassment, torture or cruelty by her husband or his family members with the intention to get
dowry from the said woman.

In the case of Deepak v State of Maharashtra,6 the wife had died due to strangulation. She was also
harassed for dowry. The defence that injury was caused by a falling object was held to be unnatural and
the accused was convicted.

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.

Specimen No. VII

Complaint under section 498A of Indian Penal Code

IN THE COURT OF JUDICIAL MAGISTRATE, FIRST CLASS

Place__At.__(Dist)_____

Criminal Complaint No. _______/20___

Complaint under section 498A read with section 34 of the Indian Penal Code

That the complainant above-named most humbly states as under:—

(1) That this complainant married the accused no. 1 as per Hindu Vedic rites and ceremonies on
______date at ________place.
 Page 17 of 18
15.3 Criminal Complaints

(2) That the accused no. 2 is the mother of the accused no. 1 and the accused no. 3 is the father of
the accused no. 1.
(3) That the maiden name of the complainant was _________.
(4) That the complainant submits that the accused no. 2 and accused no. 3 at the time of marriage
told the complainant’s father that all the marriage expenses should be incurred by the
complainant’s father including expenses incurred to give the gifts/presents to the business
partners of the accused no. 3 and their relatives.
(5) The complainant submits that the complainant’s father as desired and expected by the accused
no. 2 and accused no. 3 spent almost Rs. 8 lakhs on account of marriage and other incidental
expenses. The complainant’s father also gave ______ tolas of gold in the form of jewellery to this
complainant at the time of marriage.
(6) The complainant submits that, after fifteen days of the marriage the accused no. 2 took all the
jewellery from this complainant to keep it safe in a bank locker. The accused no. 1 pressurised
this complainant to withdraw Rs. 55,000/- from her account as he wanted to buy computer and a
printer for his office.
(7) The complainant submits that she soon realised that all the accused are very money minded,
spendthrift and greedy. As soon as all the money which complainant had got with her was spent
by the accused, all the accused started ill-treating and harassing this complainant. The accused
no. 2 told the complainant that during Diwali festival she should get silverware from her parents
and also some cash to buy new sofa set. The complainant submits that the complainant was
constantly under stress because of the constant dowry demands made by the accused under one
pretext or the other.
(8) The complainant submits that the accused no. 1 would continuously taunt her and insult her in
presence of family friends, relatives and neighbours. The complainant was labeled as a bad
cook, horrible at house-keeping with no intelligence. The accused no. 1 would constantly
humiliate the complainant by saying that he deserved a better life partner than the complainant.
(9) The complainant submits that the accused no. 2 & 3 pressurised this complainant to get
cash/jewellery/gifts from her parents every now and then. When this complainant expressed her
inability to do the same all the accused subjected her to mental and physical torture. That on the
auspicious day of _________ they asked the complainant to bring from her parents gold chain
and gold bracelet for the accused no. 1. When the complainant refused, all the accused abused
her and did not allow her to have meals.
(10)The complainant submits that the complainant was starved and was forced to do household work
even when she was running high-fever. On _______date when this complainant almost fainted,
she through her friend sent a message to her parents about her miserable condition.
(11)The complainant submits that, this complainant was admitted to the hospital by her father. After
15 days she was discharged from the hospital.
(12)The complainant states that neither her husband, i.e., accused no. 1 nor the accused no. 2 & 3
have bothered to meet this complainant.
(13)The complainant states that all the accused have subjected the complainant to harassment,
torture and mental and physical cruelty. The accused have made unreasonable dowry demands
time and again. The complainant’s valuables, jewellery and other articles are in the possession
and custody of the accused. The complainant, therefore, states that all the accused have
committed offence under section 498A of IPC read with section 34 of IPC.
(14)The complainant submits that this complainant due to the mental and physical torture and
harassment meted out to her by all the accused is left with no alternative but to stay with her
parents.
 Page 18 of 18
15.3 Criminal Complaints

(15)The complainant states that this complainant has filed complaint against the accused at ______
police station on ______ date.
(16)The complainant states that after the complainant was discharged from the hospital on _____
date and after obtaining necessary legal advice in the matter, the complainant has filed the
present complaint hence the same is well within the period of limitation.
(17)That the offence has been committed within the local limits of the jurisdiction of this court, and
hence this Hon’ble Court has jurisdiction to try and decide this complaint.
(18)That the necessary court fee is paid herewith.
(19)That the complainant therefore prays that

(i) all the accused may please be dealt as per law and punished accordingly;
(ii) any other just and equitable order as deemed fit may please be passed in the matter.

Place______ Complainant

Date______ Advocate for Complainant

2 KS Chockalingam v T Kannappan, 1977 Cr LJ 1382, 1386 (Mad).

3 Bhimappa v Laxman, AIR 1970 SC 1153.
4 J&K v Ismail Sher, 1979 Cr LJ 557.
5 Sonbhandra Coke Products v State of UP, 1994 Cr LJ 657(All).
6 Deepak v State of Maharashtra, (1995) 2 Cr LJ 2219 (Bom).

End of Document
 15.4 Bail and Anticipatory Bail
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.4 Bail and Anticipatory Bail

Bail means to set at liberty, a person arrested or imprisoned, on security being taken for his appearance
on a day and a place certain, which security is called ‘Bail.’

Bail connotes the process of procuring the release of an accused charged with certain offence by ensuring his future
attendance in the court for trial and compelling him to remain within the jurisdiction of the Court.7

“Bail” means the process by which a person is released from custody.8

The provisions regarding bail can be classified as (i) bailable cases and (ii) non-bailable cases.
Therefore, from the above provision it can be inferred that in every bailable offence, bail is granted as a
matter of right. It can be given either by the Police officer in charge of a Police station having the accused
in his custody, or by the court.
15.4.1 Grounds for Grant of Bail

(i) the nature and seriousness of the offence;

(ii) the stage of investigation;
(iii) a reasonable possibility of the presence of the accused not being secured at the trial;
(iv) a reasonable apprehension of evidence being tampered with or such other circumstances which
may be brought to the notice of the Court which might hamper proper investigation into the
matter.

The Calcutta High Court in the case of Legal Affairs v Amiya Kumar Roy Choudhury9 has
explained the principle behind giving bail: “The law of bails …has to dove tail two conflicting
demands, namely on one hand the requirements of the society for being shielded from the
hazards of being exposed to the misadventures of a person alleged to have committed a
crime and on the fundamental canon of criminal jurisprudence viz, the presumption of
innocence of an accused till he is found guilty.

The primary object of arrest and detention of the accused person is to secure his appearance
at the time of trial and to ensure that if he is found guilty he can be punished as per the
sentence. If the presence of the accused at the time of trial could be reasonably ensured
otherwise than by his arrest and detention it would be unjust and unfair to deprive the
accused of his liberty during the pendency of criminal proceedings against him. In cases
where a person is accused of a crime of a serious nature then he may be prone to abscond
or jump the bail so as to avoid the trial and the consequential sentence.
 Page 2 of 14
15.4 Bail and Anticipatory Bail

A person accused of a bailable offence can be released on bail under section 436 of CrPC. It
reads:

436. In what cases bail to be taken.—(1) When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and
is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail,
such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section
shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the
bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent
occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section
446.

Cancellation of Bail: The court has power to cancel a bail granted at any stage. The court can cancel the
bail granted by it under sections 437(5) and 439(2) of the CrPC.
15.4.2 Anticipatory Bail

Every individual’s liberty needs to be protected more so when someone is trying to take it away by falsely
implicating such an individual in the commission of an offence. Thus section 438 of the Code of Criminal
Procedure provides the guidelines for granting bail to a person apprehending arrest on the ground of
having committed a non-bailable offence.
15.4.3 Who can grant Anticipatory Bail

The High Court or the Court of Sessions is empowered under section 438 to grant anticipatory bail. The
courts on such an application directs that in the event of such arrest, the applicant shall be released on
bail.

Anticipatory bail may be granted on such conditions as the court may think fit and proper, depending on
the facts of the particular case, including:—

(1) a condition that the person shall make himself available for interrogation by a police officer as
and when required;
(2) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer;
(3) a condition that the person shall not leave India without the previous permission of the Court;
(4) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were
granted under that section.

Anticipatory bail is not to be granted as a matter of rule; it is only granted when a special case is made
out and the court is convinced that the person is of such a status that he would not misuse his liberty.10

Section 438 does not require that the offence in respect of which the anticipatory bail is asked for, have
been registered with the police. The filing of FIR is not a condition precedent to the exercise of the power
under section 438.11

Anticipatory bail can be granted in respect of non-bailable offences whether they are cognizable or non-
cognizable offences.
 Page 3 of 14
15.4 Bail and Anticipatory Bail

15.4.4 Distinction between Bail and Anticipatory Bail

Bail is granted after arrest and therefore means release from the custody of the police. In case of
anticipatory bail, it is granted on apprehension or anticipation of arrest and is therefore effective at the
very moment of arrest.

The power of anticipatory bail has to be exercised sparingly and in exceptional cases. The jurisdiction
under section 438 is not to be freely exercised without reference to the nature and granting of the offence
alleged, the possible sentence that may be ultimately imposed, the possibility of interference with the
investigation or the witness and the public interest.

Every petition for anticipatory bail should be supported by an affidavit.12

The distinction between an ordinary order of bail and an order of “anticipatory bail” is that where the
former is granted after arrest and, therefore, means release from the custody of the police, the latter is
granted in anticipation of arrest and is, therefore, effective at the very moment of arrest.13

The object of section 438 is to protect the life and the applicant and to protect him from unnecessary
trauma and defamation of frivolous and false charges and arrest. As opposed to bail, which is granted to
a person who is under arrest, in anticipatory bail a person is directed to be released on bail even before
arrest is made.

The power conferred under section 438 is of an extraordinary character only in the sense that it is not
ordinarily resorted to and it is only in exceptional cases where it appears that the person may be falsely
implicated or where there are reasonable grounds for holding that a person accused of an offence is not
likely to otherwise misuse his liberty then power is to be exercised under section 438.

Section 438 does not require that the offence in respect of which the “anticipatory bail” is asked for has
been registered with the police. The filing of FIR is not a condition precedent to the exercise of the power
under section 438.14

The words “may, if it thinks fit” used in section 438(I) and the absence of any specific restraints on the
exercise of the power to grant “anticipatory bail” clearly indicate that the legislature intended to confer
and has in fact conferred very wide discretion on the High Court and the Court of Session to grant
“anticipatory bail”. These courts in the exercise of their judicial discretion can grant “anticipatory bail” if
they consider it fit to do so on the particular facts and circumstances of the case and on such conditions
as the case may warrant. Similarly, these courts are free to refuse bail if the circumstances of the case
so warrant, on consideration similar to those mentioned in section 437 or which are generally considered
to be relevant under section 439 of the Code.15

If the application filed in the Court of Session for “anticipatory bail” is rejected, the applicant can again
approach the High Court under section 438(I) as there is no bar to do so.16

The provision of the anticipatory bail is abused many a times. The discretionary power vested with the
High Court and Sessions Court is being repeatedly invoked by persons accused of heinous offences.
Pre-arrest bail applications by murderers, rapists etc. are flooding the courts and the precious time of
High Court is being spent in dealing with these applications.

In the case of Sushila Aggarwal v State (NCT of Delhi)17 it was held that, conditions can be imposed by
the concerned court while granting pre-arrest bail order including limiting the operation of the order in
relation to a period of time if the circumstances so warrant, more particularly the stage at which the
anticipatory bail application is moved, namely whether the same is at the stage before the FIR is filed or
at the stage when the FIR is filed and the investigation is in progress or at the stage when the
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15.4 Bail and Anticipatory Bail

investigation is complete and the charge sheet is filed. However, as observed hereinabove, the normal
rule should be not to limit the order in relation to a period of time.

Cancellation of Bail: The court has power to cancel a bail granted at any stage. The court can cancel the
bail granted by it under sections 437(5) and 439(2) of the CrPC.

Specimen No. I

BEFORE THE HON’BLE MAGISTRATE_____, AT_____

Cri. Misc. Application No.____/20

In C.R. No____/20____ registered with _____

Police Station under section____, ____ & ____ of IPC

First bail Application under section 436 of CrPC

The Applicant most respectfully submits as under:

(1) The ______ Police station has registered the above mentioned case against this accused for the
alleged offences punishable under Section ____, _____ and _____of Indian Penal Code. The
accused was arrested on _____ date.
(2) It is submitted that this accused is not guilty of any offence as alleged or otherwise. The
allegations made against the applicant/accused are false, frivolous, vexatious and lack in the
material substance.
(3) The applicant is a resident at the above address and is residing there for past 20 years. The
applicant is working at ______ place as ______.
(4) The accused is innocent and is a respectable member of the society. The accused belongs to a
very good and reputed family and there is no criminal case pending against him.
(5) The applicant states that the dispute is of civil nature and does not attract any penal provisions of
law. The applicant states that the applicant has done the digging of the borewell on his premises
by following all the necessary norms. The applicant nor any of his employees, agents have
entered the adjoining property i.e. survey no. _____ at the time of digging of the borewell on this
applicant’s premises. So also, no damage is caused to Mr. _____ as alleged or otherwise.
 Page 5 of 14
15.4 Bail and Anticipatory Bail

(6) The applicant states that neither any recovery is to be effected from the applicant nor the
applicant is in a position to tamper with the prosecution evidence. The applicant undertakes to
cooperate with the investigation whenever he is required to do so.
(7) The applicant states that he is the only bread earner and his old parents are dependent on him.
(8) The applicant is a permanent resident and is working at _____ place and hence, there are no
such chances of his absconding from the course of justice.
(9) The applicant undertakes to present himself before the police/court as and when directed. The
applicant shall not leave India without the previous permission of the court.
(10)The applicant is willing to accept any other conditions as may be imposed by the court or the
police in connection with the case.
(11)If the applicant is not granted bail he will be deprived of his fundamental right to liberty.
(12)The applicant therefore most humbly prays:-

(i) That the application for bail may kindly be allowed and the accused may please be enlarged
on bail.
(ii) Pass any such other orders as deemed necessary proper in the interest of justice.

Place______

Date______ Advocate for Applicant/Accused

Specimen No. II

IN THE COURT OF HON’BLE SESSIONS JUDGE ______ AT______

Cri. Misc. Application No. ______/20____

In the Matter of section 439 of CrPC In the Matter of _____ P. Stn. C.R. No. ____/20__. In the Matter of
sections 324, 143, 147, 148, 149, 504, 506 and 326, 307 of Indian Penal Code Date of FIR: ______

Most Respectfully Submited Herewith:-

1. The informant Shri. ______ has filed complaint that the present applicants have injured Shri.
______ the grandson of the informant as the opponent has obstructed to construct the road near
his farming field at Village ____ near ____ in Gat No. ____. Thereby the complaint has been
registered on _____ date against the present applicants under sections 324, 143, 147, 148, 149,
504, 506 of Indian Penal Code. The applicants are the residents at Gat No. _____, and having
their residence in farm itself.
2. It is a fact that both the informant and present applicants are the residents of the same area, and
also having agriculture land adjacent to each other at Gat No.____ and _____. There are civil
suits and applications before revenue offices, pending between both the parties.
3. It is also pertinent to note that one application is also pending before Tahasildar at _____. In the
said application the Tahasildar at _____ has permitted and allowed the present applicants to
have access to the road from the land of the informant/opponent. The informant has approached
the appellate court in the said matter.
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15.4 Bail and Anticipatory Bail

4. The applicants state and submit that the applicants on the day of incidence, i.e., on _____ date,
were working on their agriculture land and were digging road in order to take sugarcane out of
the field from Gat No. _____. The informant along with 9 other persons came in and started
arguing with the applicants and finally started pelting stones towards the applicants. The
Applicant No. 2 herein has been injured in the said incident and was admitted to hospital wherein
stitches had to be put on his face. Thereafter, immediately the Applicant No. 2 herein has filed
complaint at _____ Police Station bearing Cr. No. __/20__ against the opponent _____ and 9
other persons.
5. The applicants further state that during the said incident while running and pelting stones towards
the present applicants from the place of the informant, the grandson namely. _____ of the
opponent fell on the ground and injured himself. The applicant states that one day after the said
incident, i.e., on _____ date, in the afternoon the informant Shri. ______ in order to nullify the
complaint of the present Applicant No. 2 has filed the counter-complaint against the present
applicants.
6. It is further stated by the applicants that only to counter to the complaint filed by the present
applicants, the informant Mr. _____ has filed false case against the present applicants before
_____ Police Station under sections 324, 143, 147, 148, 149, 504, 506 of Indian Penal Code.
The police of _____ Police Station have added section 326 of the Indian Penal Code on _____
date and later on, on _____ date, the police of ______ Police Station have added section 307 of
the Indian Penal Code.
7. It is pertinent to note that sections 326 and 307 of the Indian Penal Code have been added by the
police after one week of the said incident in the said CR.
8. The present applicants have been arrested by the _____ Police Station on _____ date at
midnight, thereafter both have been in PCR till _____ date and on _____ date, both have been
taken in MCR by the Hon’ble JMFC _____, Dist. _____.
9. The Applicants therefore, have Approached this Hon’ble Court for Bail on the following amongst
other Grounds thereto:-

i) That applicants are citizens of India and permanent residents of above mentioned address
and the applicants are having immovable properties at the above mentioned addresses.
ii) That the applicants have been falsely implicated by the opponent only due to the land dispute
and family feud between the applicants and the opponent. Applicants submit that number of
civil disputes are pending between the parties and the present complaint is an outcome of
various applications and complaints filed before various authorities including the police by the
applicants from time to time against the opponent herein.
iii) That there is absolutely no overt act whatsoever attributed towards the applicants. The
applicants submit that the present FIR registered on false and unsubstantial facts and the
facts stated in the FIR are fabricated, concocted and are baseless and the police has wrongly
implicated these applicants in the present case.
iv) That it can be gathered from the annexure annexed herewith that the applicants were digging
the road on their land and they never went to the premises of the informant, also that the
informant along with 9 others entered applicants land and attacked the applicants.
v) That nothing is to be recovered or discovered from the present applicants.
vi) That there is ample delay in lodging the FIR. The said FIR is an after-thought and is filed after
the FIR of the present applicants.
vii) The applicants are not likely to abscond or flee away from justice. The applicants undertake
not to change their residence during the investigations.
 Page 7 of 14
15.4 Bail and Anticipatory Bail

viii) That the applicants are ready to abide by the terms and conditions imposed by this Hon’ble
Court and that the applicants are ready to cooperate with the police machinery during
investigation.
ix) The applicants submit that the applicants have very good antecedents, they belong to a good
family and other than the present case, there is no criminal case pending against them.

10. It is, therefore, prayed that,

a. The applicant may kindly be released on bail in C.R. No. ___/20___ registered
by_____Police Station.
b. Any other just and equitable orders may kindly be passed in the interest of justice.

Place______

Date______ Advocate for the Applicants

Specimen No. III

IN THE COURT OF HON’BLE SESSIONS COURT____, AT____

Cri. Misc. Application No. ____/20

In C.R. No ____/20____ registered with ____ Police Station under section 467, 468, 471, of I.P.C

First bail Application under section 439 of CrPC

The Applicant most respectfully submits as under:

(1) The ______ Police station has registered the above mentioned case against this accused for the
alleged offences punishable under section ____, ____ and ____ of the Indian Penal Code. The
accused was arrested on _____ date.
(2) It is submitted that this accused is not guilty of any offence as alleged or otherwise. The
allegations made against the applicant/accused are false, frivolous, vexatious and lack in the
material substance.
 Page 8 of 14
15.4 Bail and Anticipatory Bail

(3) The accused is innocent and is a respectable member of the society. The accused belongs to a
very good and reputed family and there is no criminal case pending against him.
(4) That the applicant/accused is wrongly implicated due to enmity and family feud.
(5) The applicant states that neither any recovery is to be effected from the applicant nor the
applicant is in a position to tamper with the prosecution evidence. The applicant undertakes to
cooperate with the investigation whenever he is required to do so.
(6) The applicant states that he is the only bread earner and his old parents are dependent on him.
(7) The applicant is a permanent resident and is working at _____ place and hence, there are no
such chances of his absconding from the course of justice.
(8) The applicant undertakes to present himself before the police/court as and when directed. The
applicant shall not leave India without the previous permission of the court.
(9) The applicant is willing to accept any other conditions as may be imposed by the court or the
police in connection with the case.
(10)If the applicant is not granted bail he will be deprived of his fundamental right to liberty.
(11)The applicant therefore most humbly prays:-

i) That the application for bail may kindly be allowed and the accused may please be enlarged
on bail.
ii) Pass any such other orders as deemed necessary proper in the interest of justice.

Place______

Date______ Advocate for Applicant/Accused

Specimen No. IV

[Bail before the court convicting an accused who intends to present an appeal]

IN THE HON’BLE MAGISTRATE/SESSIONS COURT AT __ (PLACE)_________

Cri. Misc. P. No. ________/ 20___

In _________

S.C. /C.C. No.________ of 20____

Petition under section 389(3) CrPC for grant of bail on conviction

The petitioner/accused most respectfully submits as under:—

(1) The petitioner/accused states that this accused has been convicted of offence under section
________ of Indian Penal Code by the judgment and order dated _____ by the Hon’ble Court.
The accused by the said order is sentenced to ______ years’ imprisonment.
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15.4 Bail and Anticipatory Bail

(2) The petitioner/accused is dissatisfied and aggrieved by the order of this Hon’ble Court and hence
intends to prefer an appeal. The petitioner/accused harbours sanguine hopes of success in the
appeal.
(3) It is most humbly submitted that the offence for which the petitioner is punished is a bailable
offence and the petitioner/accused was on bail throughout the trial of the proceedings.
(4) The petitioner/accused therefore most respectfully prays that

(a) This accused may please be released on bail in view of the aforestated facts in the interest of
justice.
(b) Pass such other orders as deemed necessary and proper in the matter.

Place______

Date______ Advocate for Petitioner

Specimen No. V

Anticipatory Bail

BEFORE THE HON’BLE SESSIONS JUDGE, _____ AT____

Misc. Application No.______ /20____

In case under investigation with ____ Police Chawky,

____ Police Station, at ____

First Anticipatory bail Application under section 438 of CrPC

The Applicant most respectfully submits as under:

1. The applicant submits that the applicant is residing at the address mentioned in the caption of the
application since last ____ years. The applicant is highly qualified; he has completed his B.E. in
electronics and telecommunication (specialized in Radio Wave Propagation) M-Tech in
electronics and telecommunication (specialized in Planner antenna for mobile and aircraft based
application, Frequency selective surface, numerical methods) applicant is presently serving at
____ as _____.
2. The applicant submits that the applicant was serving at _____ in the year _____ for duration of
_____ months, where he was working as Sr. Engineer. The_____ Company deals in the
business of _____ Software. The applicant was also handling the Technical support team,
handling Simulation tool for advance industrial application, Antenna placement in the said
company, wherein except the present applicant nobody was as technically qualified as this
applicant. The present applicant has left the company in the month of October _____ to start his
own consultancy.
3. The applicant submits that the applicant was called by the constable Mr. ______ of _____ Police
Chawky (under _____ Police Station) at _____. There he came to know that Mr. _____ the
Director of _____ company (where this applicant was working) has lodged a complaint against
the present applicant of cheating. Applicant further states that it is contended in the said
 Page 10 of 14
15.4 Bail and Anticipatory Bail

complaint by Mr. ______ in January 20____ that the present applicant has done cheating of
“System Password Lock” etc., against the company. The present applicant states that Mr. _____,
the Director of the company was not happy with the fact that this applicant was to start his private
consultancy and apprehended that he would be a strong competitor to the company. Thus, in
order to threaten this applicant and dissuade him from starting his consultancy, Mr. _____ has
leveled false and fabricated allegations against this applicant. The Director Mr. _____ has also
threatened this applicant of dire consequences. Mr. _____ did not stop there and he gave
constant threatening calls to the present applicant because of which the present applicant has
filed criminal complaint at _____ Police Chawky on ____ date, under sections 504, 506 of the
Indian Penal Code against Mr. _____.
4. The applicant submits that the constable Mr. _____ of _____ Police Chawky has questioned and
inquired about the detailed relevant documents and information of the account regarding the said
transaction with _____ company to the present applicant and the same has already been
provided by this applicant to the police of _____ Police Chawky (under _____ Police Station).

That the police of _____ Police Chawky (under _____ Police Station) again called this
applicant on _____ date and inquired and verified all the relevant details but found that no
offence is made out against the present applicant. Hence police of _____ Police Chawky
(under _____ Police Station) did not register any offence against this applicant. But on _____
date when the present applicant was out of station at ______, Dist. ______ the said police
personnel from ______ Police Chawky again called the present applicant for further inquiry.
Since the present applicant was out of station he telephonically instructed his Advocate Mr.
______ to reply the said police station in writing that he is ready to face all the inquiry of the
said police station.
5. The applicant submits that the applicant herein therefore apprehends that this applicant may be
arrested in a false and concocted complaint made by the Director of ______ Company. That the
nature of complaint attracts the provisions of cognizable and non-bailable offences and thus this
applicant is approaching this Hon’ble Court with a request that the police may be directed to
release this applicant on bail in the event of his arrest on the following amongst other grounds
thereto—

i. This applicant is an innocent person. The applicant has not committed any offence as alleged
by the complainant or otherwise.
ii. The allegations and averments made in the complaint are of civil nature and do not attract
any criminal liability. The said allegations are not well founded.
iii. That there are no incriminating circumstances against the present applicant to connect him
with the offence, besides this, this applicant has not committed any act, which will amount to
an offence.
iv. This applicant says that his detention in the police custody and the Magistrate’s custody is not
at all required for investigation of the complaint.
v. Considering the nature of the complaint there is no likelihood of tampering with any kind of
witness and evidence. Also there is no likelihood of any intervention from the side of the
present applicant for the investigation. The applicant hereby undertakes to help and co-
operate the investigating machinery to find out the truth about the said complaint.
vi. The applicant is also ready to furnish security/surety and comply with terms and conditions
whatever the Hon’ble Court will impose.
vii. That the complaint does not disclose even a prima facie case and moreover the dispute is of
a civil nature. That the alleged complaint is totally based on documentary evidence, papers
regarding the issues, copies of any transaction, relevant documents etc. regarding the same
are already given to the police by the present applicant.
 Page 11 of 14
15.4 Bail and Anticipatory Bail

viii. That Mr. ______ has filed the complaint with an intention to pressurize this applicant and to
extract money from this applicant.
ix. It is pertinent to note that the present applicant has left the said company on ______ date,
and thereafter has not participated in the said business or the business of the company till
date.
x. That there are no incriminating circumstances against this applicant to connect him with the
offence. This applicant has not committed any act, which will amount to an offence.
xi. That the applicant has never been sentenced at any time before this case nor is he
prosecuted for any other offence under any of the sections of the IPC or any other prevalent
law. This applicant says that he is otherwise also entitled for bail.
xi. The present applicant is permanently residing at ______ since last 10 years along with his old
aged mother, wife and one-year-old son______. All the family members are dependent on
the present applicant. The applicant is the only bread-earner in the family.

6. The applicant submits that except the present application no other application for anticipatory bail
is filed before this court, High Court or any other court.
7. It is therefore prayed that:

(a) The applicant may kindly be released on anticipatory bail in connection with the case under
investigation with Police Chawky under _____ Police station, at ______.
(b) This applicant may be given interim anticipatory bail till the disposal of final application.
(c) Any other just and equitable order in the interest of justice may be passed.

Place______ Applicant

Date______ Advocate for Applicant

Specimen No. VI

Anticipatory Bail

BEFORE THE HON’BLE SESSIONS JUDGE, _____ AT____

Misc. Application No.______/20____

In case under investigation with _____ Police Chawky, _____ Police Station, at ______

First Anticipatory bail Application under section 438 of CrPC

The applicant most respectfully states as follows:—

(1) That the applicant is an employee at______for the past ____ years and is elected by ______
number of workers of the said organisation as their Union leader.
(2) That the applicant is a sincere worker and has always supported the cause of the workers and
enjoys good standing and popularity amongst the workers of______ Company.
 Page 12 of 14
15.4 Bail and Anticipatory Bail

(3) The applicant states that on or about ______ date the applicant met the managing committee
members with the demand for providing certain facilities and salary increments to the
workers/employees.
(4) The applicant states that Mr. ______ of the management committee spoke very arrogantly and
rudely with the applicant. The applicant provoked by the rudeness said to Mr. ______, that the
Directors and members of management committee are adding more and more luxuries to their
lives at the cost of the blood and sweat of the poor workers. That the management committee
members are making foreign tours but are not bothered about the plight of the workers and that
he will always fight for justice for all his colleague workers. The applicant states that the
managing committee was very annoyed due to the remarks made by this applicant.
(5) The applicant states that this applicant has no enmity with any of the members of the
management committee and was only advocating his concern for his colleague workers at the
meeting with the committee on ______ date.
(6) The applicant states that on ______ date at night Mr. ______, Director of the company, was
attacked by some unidentified persons and was stabbed. He is unconscious and is seriously
injured. Mr. ______ is in the ICU in _________ hospital.
(7) The applicant submits that other members of the managing committee are trying to implicate this
applicant falsely and intentionally for the said attack on Mr. _________
(8) The applicant submits that the applicant is a law abiding person and believes in fighting for a
cause but by abiding to the procedure established by law. This applicant has been working for
the past ______ years as Union Leader.
(9) This applicant submits that the applicant has not committed nor is concerned with such a non-
bailable offence in anyway whatsoever.
(10)The applicant submits that on ______ date when Mr. ______ was attacked this applicant was
with his family members and relatives at ______ lawns attending the wedding of his nephew Mr.
______. The wedding card is also produced herewith as also the photographs.
(11)The applicant apprehends that he may be falsely implicated into this coward and criminal attack
on Mr. ______ by the members of the managing committee and hence this application.
(12)The applicant states that the constable Mr. ______ of ______ police chawky (under ______
Police station) had called this applicant for inquiry. The applicant accordingly visited the said
police chawky and has submitted detailed information and relevant documents.
(13)The applicant states that Mr. ______, Director of the company is threatening this applicant of dire
consequences as he thinks that this applicant is involved in the attack on Mr. ______.
(14)The applicant submits that the applicant therefore fears and apprehends that he may be wrongly
implicated in a false complaint by the members of managing committee. That the nature of the
complaints attracts the provisions of cognizable and non-bailable offences and therefore this
applicant has approached this court with request that the police may be directed to release this
applicant on bail in the event of his arrest inter alia on the following grounds:-

i. This applicant is an innocent person. The applicant has not committed any offence as alleged
by the complainant or otherwise.
ii. The allegations and averments made in the complaint are false. The said allegations are not
well founded.
iii. That there are no incriminating circumstances against the present applicant to connect him
with the offence, besides this, this applicant has not committed any act, which will amount to
an offence.
iv. This applicant says that his detention in the police custody and the Magistrate’s custody is not
at all required for investigation of the complaint.
 Page 13 of 14
15.4 Bail and Anticipatory Bail

v. Considering the nature of the complaint there is no likelihood of tampering with any kind of
witness and evidence. Also there is no likelihood of any intervention from the side of the
present applicant for the investigation. The applicant hereby undertakes to help and
cooperate the investigating machinery to find out the truth about the said complaint.
vi. The applicant is also ready to furnish security/surety and comply with terms and conditions
whatever the Hon’ble Court will impose.
vii. The applicant states that he will not leave the country without the prior permission of the court
and that there is no criminal case pending against this applicant.
viii. That the applicant is a permanent resident and there are no chances of his absconding from
the course of justice.
ix. The applicant is having very good antecedents; he belongs to good and reputed family.
x. The applicant is the only bread earner and his wife, children and old parents are dependent
on him.
xi. If the applicant is arrested based on false and fabricated allegations he will be deprived of his
right to liberty.

(15)The applicant submits that except the present application no other application for anticipatory bail
is filed before this court, High Court or any other court.
(16)It is therefore prayed that:

(a) The applicant may kindly be released on anticipatory bail in connection with the case under
investigation with ______ Police Chawky under ______ Police station, at ______.
(b) This applicant may be given interim anticipatory bail till the disposal of final application.
(c) Any other just and equitable order in the interest of justice may be passed.

Place______ Applicant

Date______ Advocate for Applicant

7 Natturasu v State, 1998 Cr LJ. 1762 (Mad).

8 Webster New International Dictionary.
9 Legal Affairs v Amiya Kumar Roy Choudhury, (1974) 78 CWN 320, 325.
10 Lilaram L Revani v RD Gandhi, 1998 Cr LJ 14.
11 Suresh Vasudeva v State, 1978 Cr LJ 677.
12 Prafulla Jena v State of Orissa, Cr LJ 2681 (2684) MP.
13 Gurubaksh Singh Sibbia v State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 464, 474-75 : 1980 Cr LJ II25.
14 Suresh Vasudeva v State, 1978 Cr LJ 677 (Del).
15 Gurubaksh Singh Sibbia v State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 464, 474-75 : 1980 Cr LJ II25.
16 Jagannath v State of Maharashtra, 1981 Cr LJ 1808 (Bom).
17 Sushila Aggarwal v State (NCT of Delhi), 2020 SCC OnLine SC 98.
 Page 14 of 14
15.4 Bail and Anticipatory Bail

End of Document
 15.5 Maintenance
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.5 Maintenance

The provisions regarding maintenance are laid down in sections 125 to 128 of the Code. Section 125 is a
measure of social justice and special enactment to protect women and children, and falls within the
constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India.

These provisions provide for a speedy remedy to those who are in distress. They are intended to achieve
this social purpose. This section gives effect to the natural and fundamental duty of a man to maintain his
wife, children and parents so long as they are unable to maintain themselves. These provisions apply
and are enforceable whatever may be the personal law by which the persons concerned are governed.18

The provisions contained in sections 125 to 128 are applicable to all persons belonging to all religions
and have no relationship with the personnel of the parties.19

A woman who was in a marriage-like relationship, though not a legally wedded wife under section 125
could claim maintenance under the protection against Domestic Violence Act.20
15.5.1 Section 125, of Criminal Procedure Code, 1973

The proceedings under section 125 of Criminal Procedure Code are in the nature of civil proceedings.
Though they are wholly governed by the procedure of Code of Criminal Procedure they are really of civil
nature and are to be dealt summarily.

The expression “maintenance” is not defined in the Code. But undoubtedly it includes food, clothing,
shelter, medical expenses and other expenses related to the normal pursuit of life.21 Section 125 of
Criminal Procedure Code is as follows.

(1) If any person having sufficient means neglects or refuses to maintain:—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to
maintain itself, or
(d) his father or mother, unable to maintain himself or herself, A Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such monthly rate as such
magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to
time direct:
 Page 2 of 8
15.5 Maintenance

Provided that the Magistrate may order the father of a minor female child referred to
in clause (b) to make such allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if married, is not possessed
of sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this Sub-Section, order such
person to make a monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person as the Magistrate may
from time to time direct:

Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of the service of notice of the
application to such person.”;

Explanation.—For the purposes of this Chapter-

a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;
b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be.;
(3) If any person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole, or any port of
each month’s allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one
year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

Explanation.—If a husband has contracted marriage with another woman or keeps a

mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance
and expenses of proceeding, as the case may be from her husband under this section if she is
 Page 3 of 8
15.5 Maintenance

living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if
they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order.

In Bhuwan Mohan Singh v Meena, the Supreme Court held that any delay in adjudication of maintenance
of cases by the Family Court is not only against human rights but also against the basic embodiment of
dignity of an individual. The object of maintenance is to provide speedy remedy for supply of food,
clothing and shelter to the deserted wife and to prevent vagrancy and destitution. The court also
observed in para 3 “be it ingeminated that section 125 of the CrPC was conceived to ameliorate the
agony, anguish, financial suffering of a woman who left her matrimonial home for reasons provided in the
provision so that some suitable arrangements can be made by the court and she can sustain herself and
also her children if they are with her”.22

Specimen

Petition for Maintenance under section 125 CrPC

IN THE COURT OF ________ (PLACE)

Petition No._________/20___

Petition for Maintenance under section 125 CrPC

The petitioner/applicant above-named submits most respectfully as under:—

(1) The petitioner submits that the petitioner and the opponent are Hindus and were married on
_______ date as per Hindu Vedic rites and ceremonies.
(2) The petitioner submits that after the solemnisation of the marriage, the petitioner went to her
matrimonial home to stay with her husband, i.e., the opponent herein.
(3) The petitioner states that the opponent was and is habituated to drinking. During the petitioners
stay at her matrimonial home the opponent would constantly pick up quarrel with the petitioner,
he would come drunk to the house and mercilessly beat the petitioner. Due to all this the
petitioner left her matrimonial home and went to reside with her father at __________. The
petitioner states that because of the mental and physical cruelty committed by the
respondent/opponent this petitioner against her wishes and desire had to leave the matrimonial
home.
(4) The petitioner submits that she left her matrimonial home on ______ date and since then the
petitioner has been living with her parents. The petitioner’s father is a worker in a flourmill. He
has to look after his two sons and wife along with the petitioner. The petitioner submits that she is
unable to maintain herself.
(5) The petitioner submits that the opponent is working as Senior Clerk in _______ and is drawing a
salary of Rs._______/- per month. The opponent has no other financial responsibilities. His
parents are not alive.
(6) The petitioner submits that the opponent has not bothered to talk to this petitioner after she left
the matrimonial home. When the petitioner through letter dated _____ called upon the opponent
to pay her maintenance, as she has no other means to maintain herself, the opponent has not
 Page 4 of 8
15.5 Maintenance

bothered to reply to the said letter till date nor has provided any money to the petitioner in lieu of
maintenance.
(7) The petitioner submits that the opponent/respondent should pay an amount Rs. _______/- per
month as maintenance to the petitioner for the reasons stated hereinabove.
(8) It is therefore most respectfully prayed that—

(i) The opponent be directed to pay an amount of Rs._______/- per month to the petitioner.
(ii) Award costs of this application to the petitioner from the respondent.
(iii) Pass any other order as deemed fit and appropriate in the matter.

An affidavit in support is filed herewith.

Place______ Petitioner

Date______ Advocate for Petitioner

Section 126 elucidates the provisions regarding the jurisdiction, manner of taking evidence and grant of
costs in respect of proceeding under section 125. The proceedings under section 125 can be initiated
either where the husband resides or where he or his wife resides and where he last resided with his wife
or with the mother of an illegitimate child as the case may be. The court must record the evidence in
presence of the person against whom the maintenance order is sought to be obtained.

The court can conduct the proceedings ex-parte if the person is avoiding the service or in spite of
service, fails to attend the court.

Section 126 of Criminal Procedure Code is as follows:—

(1) Proceedings under section 125 may be taken against any person in any district—

(a) where he is, or

(b) where he or his wife, resides, or
(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate
child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an
order for payment of maintenance is proceed to be made, or, when his personal attendance is
dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed
for summons- cases: Provided that if the Magistrate is satisfied that the person against whom an
order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully
neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex
parte and any order so made may be set aside for good cause shown on an application made
within three months from the date thereof subject to such terms including terms at to payment of
costs to the opposite party as the Magistrate may think just and proper.
(3) The Court in dealing with applications under section 125 shall have power to make such order as
to costs as may be just.

15.5.2 Section 127 of Criminal Procedure Code

Section 127 of Criminal Procedure Code empowers the court to modify, alter, amend the maintenance
 Page 5 of 8
15.5 Maintenance

order passed under section 125. The party seeking modification of such an order may apply to court. The
relevant change of circumstances must be pleaded in the application.

For example, the wife starts earning after the order is passed under section 125 of Criminal Procedure
Code, then the husband can seek modification of the said order.

Order passed under section 127 of Criminal Procedure Code can be cancelled if it is superseded by the
civil court decree or if the parties enter into a compromise.

Section 127 in the Code of Criminal Procedure, 1973 is as follows:

127. Alteration in allowance. —

(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly
allowance for the maintenance or interim maintenance, or ordered under the same section to pay
a monthly allowance, for the maintenance or interim maintenance to his wife, child, father or
mother, as case may be, the Magistrate may make such alteration as he thinks fit, in the
allowance for the maintenance or the interim maintenance as the case may be.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil
Court, any order made under section 125 should be cancelled or varied, he shall cancel the order
or, as the case may be, vary the same accordingly.
(3) Where any order has been made under section 125 in favour of a woman who has been divorced
by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

(a) the woman has, after the date of such divorce, remarried, cancel such order as from the date
of her remarriage;
(b) the woman has been divorced by her husband and that she has received, whether before or
after the date of the said order, the whole of the sum which, under any customary or personal
law applicable to the parties, was payable on such divorce, cancel such order,—

(i) in the case where, such sum was paid before such order, from the date on which such
order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has
been actually paid by the husband by the woman;

(c) the woman has obtained a divorce from her husband and that she had voluntarily
surrendered her rights to maintenance after her divorce, cancel the order from the date
thereof.

(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to
whom a monthly allowance has been ordered to be paid under section 125, the Civil Court shall
take into account the sum which has been paid to, or recovered by, such person as monthly
allowance from the maintenance and interim maintenance or any of them, as the case may be, in
pursuance of] the said order.

Specimen

IN THE COURT OF________________ AT___________

M.P. No.________/ 20____

 Page 6 of 8
15.5 Maintenance

Application for enhancement of maintenance

The applicant/petitioner above-named most respectfully submits as follows:—

(1) That the petitioner submits that the respondent/opponent herein has been paying an amount of
Rs._______/- per month as maintenance amount as per the order and direction of this Hon’ble
Court to this petitioner and daughter by name _________.
(2) That the petitioner submits that the daughter Miss._________ was an infant at time of the order.
Now the daughter is ______ years old and the amount of maintenance is very less as compared
to the growing needs of her daughter.
(3) That the petitioner submits that the opponent/respondent’s financial status also has grown. He is
now working as “Manager” in _______ Bank, drawing monthly salary of Rs.______/- per month.
(4) That the respondent, therefore, can very well afford to pay an enhanced amount of maintenance
to this petitioner and their daughter _______ now aged _____ years.
(5) That the petitioner/applicant therefore submits that due to the change in the circumstances
(financial status of the respondent and financial needs of their daughter due to age) there is a
need to enhance the amount of maintenance payable to this petitioner/applicant and her minor
daughter by name _______.
(6) That in view of the aforementioned facts and circumstances the petitioner most humbly prays that
the amount of maintenance may please be enhanced to Rs._______/- per month payable by the
respondent herein and pass such further and other orders as deemed fit in the interest of justice.

An affidavit in support is filed herewith.

Place______ Petitioner

Date______ Advocate for Petitioner

15.5.3 Section 128

When an order under section 125 of the Criminal Procedure Code is made, but the party fails to make
payment then, the said order can be enforced under section 128 of the Criminal Procedure Code.

Section 128 in the Code of Criminal Procedure, 1973 is as follows:

128. Enforcement of order of maintenance.—A copy of the order of maintenance or interim maintenance and expenses
of proceedings, as the case may be shall be given without payment to the person in whose favour it is made, or to his
guardian, if any or to the person to [whom the allowance for the maintenance or the allowance for the interim maintenance
and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any
place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties
and the non- payment of the [allowance, or as the case may be, expenses, due.

For the enforcement of the order of maintenance under section 125, the normal rule is, at first, to issue a
distress warrant in the manner provided in the code for levying fines; but this rule need not necessarily be
followed in each and every case without considering the attending circumstances of the particular case.
In a case where the husband flatly refused point blank to make any payment to the wife in the matter of
the huge arrears of maintenance amount and persistently indulged in irresponsible behavior during the
court proceedings, the order sentencing the defaulting husband to imprisonment was held to be justified
even though a distress warrant was not issued by the Magistrate in the first instance.23
 Page 7 of 8
15.5 Maintenance

An application for an increase or decrease of the allowance can be made consequent upon a change in
the circumstance of either party at the time of the application for alteration.24

Specimen

IN THE COURT OF _________________

AT __________

Cri. M.P. No.__________/ 20____

Petition under section 128 CrPC

The petitioner most humbly submits as follows:—

(1) That this petitioner/applicant had filed Maintenance Petition under section 125 of CrPC bearing
M.P. No.______/ 20____. The Hon’ble Court was pleased to grant the petition by its order dated
_______ thereby directing the respondent/ opponent to pay an amount of Rs._______/- per
month to this applicant from 1st of June 20____.
(2) That the petitioner submits that in spite of the Hon’ble Court’s orders and repeated demands
made by this petitioner including the notice dated _______, the opponent/ respondent has failed
and neglected to pay the maintenance amount to this petitioner.
(3) The copy of the said order passed by the Hon’ble Court is annexed herewith.
(4) That the petitioner is facing serious hardship due to non-compliance of the order by the
opponent/respondent.
(5) The petitioner most humbly prays that,

a) The Hon’ble Court may be pleased to sentence the respondent to civil prison in lieu of
enforcement of maintenance claim proportionate to the default amounts till such time it is paid
and continues to pay maintenance amount awarded, regularly and pass appropriate orders.
b) Award costs of this application to the petitioner from the respondent.
c) Pass any other order as deemed fit in the interest of justice.

An affidavit in support is filed herewith.

Place______ Petitioner

Date______ Advocate for Petitioner

18 Bhatiya v State of Gujarat, 2005 (1) Crimes 1 (SC) : (2005) 3 SCC 636.
19 Nanak Chandra v Chandra Kishore Aggarwal, (1969) 3 SCC 802.
20 D Velusamy v D Patchaiammal, (2010)10 SCC 469.
21 Sushilaben Muhanlal v Mali Chunilal Hargovind, 1991 (2) Crimes 736, 738 (Guj.).
 Page 8 of 8
15.5 Maintenance

22 Bhuwan Mohan Singh v Meena, AIR 2014 SC 2875.

23 Bhure v Gomatibai, 1981 Cr LJ 789 (MP).
24 Meenakshi Ammal v J Balakrishnan, 1980 Cr LJ 1200, 1201(Mad).

End of Document
 15.6 Other Applications
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.6 Other Applications

Criminal Procedure Code provides for various applications that may be made during the trial. The object
is to protect the rights of the parties and to meet the ends of justice. It is therefore significant to learn how
to draft these various criminal applications under the Code of Criminal Procedure.
15.6.1 Application under Section 70(2)

Section 70 – Form of Warrant of Arrest and duration

(1) Every warrant of arrest issued by a court under this code shall be in writing, signed by the
presiding officer of such court and shall bear the seal of the court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it
is executed.

Every warrant of arrest shall be in writing and it must state the offence. The full description of the person
to be arrested must be given. It must state the name and designation of the person/s who is/are to
execute the warrant. The warrant of arrest should be duly signed by the presiding officer and sealed
(Form No. 2 of the Second Schedule of the Code of Criminal Procedure Code).

Specimen No. I

IN THE COURT OF THE DISTRICT AND SESSION JUDGE

AT __________

Cri. M. P. NO______ of 20____

S.C./ C.C. No.________ of 20____

Application under section 70(2) CrPC for cancellation of warrant of arrest

The petitioner/accused above-named states as under:

(1) The petitioner/accused is accused of an offence under section ______ of Indian Penal Code. The
petitioner/accused is innocent and has not committed any offence whatsoever.
 Page 2 of 8
15.6 Other Applications

(2) The petitioner/accused submits that on______ date the case was fixed for hearing but the
accused failed to remain present before the Hon’ble Court due to (state the reason) the sad
demise of his mother.
(3) As the petitioner/ accused failed to appear the Hon’ble Court was pleased to issue warrant of
arrest against the accused. It is submitted that the warrant of arrest has not been yet executed
against the accused.
(4) That the accused no. 1 submits that the non-appearance of this accused at the time when the
case was called out was due to genuine and bona fide reasons and not intentional or deliberate.
(5) That the accused no. 1 submits that the accused has due regards to the orders and directions of
this Hon’ble Court and has no intention to disobey the same.
(6) The petitioner/accused states that he is a law-abiding person and undertakes to appear before
the Hon’ble Court in future as directed by the court.
(7) The petitioner/accused therefore humbly prays that the Hon’ble Court may be pleased—

(a) To cancel/recall the warrant of arrest issued against this accused.

(b) Pass any such other order or further orders, as the court may deem fit and necessary in the
circumstances of the case.

An affidavit in support is filed herewith.

Place______

Date______ Counsel/Advocate for Accused

Specimen No. II

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS

AT _________

C.C. NO._________ / ___

Application under section 70(2) of the Code of Criminal Procedure for cancellation of warrant of arrest

The accused no. 1 above-named most respectfully submits as follows:—

(1) The complainant has filed the abovementioned case against this accused and others on false
and vexatious grounds without any iota of truth in the complaint. The accused is not guilty of any
offences as alleged or otherwise.
(2) It is submitted that the above mentioned case was fixed on _______ date for orders on the
applications filed by the accused for discharge. The accused no. 1 could not remain present
before this Hon’ble Court as his younger brother met with a serious accident on the same day.
The accused no. 1 had to admit and attend his brother in the hospital. Thus the accused no. 1
could not reach the court in time.
(3) That when the accused no. 1 reached the court, the case was already called out and this Hon’ble
Court was pleased to issue NBW (Non-bailable Warrant) against this accused no. 1.
 Page 3 of 8
15.6 Other Applications

(4) That the accused no. 1 submits that the non-appearance of this accused at the time when the
case was called out was due to genuine and bona fide reasons and not intentional or deliberate.
(5) That the accused no. 1 submits that the accused has due regards to the orders and directions of
this Hon’ble Court and has no intention to disobey the same.
(6) The accused no. 1 hereby undertakes to appear before this Hon’ble Court on all the future dates
of hearing without fail.
(7) Therefore, the accused no. 1 prays that this Hon’ble Court may be pleased to recall the NBW
issued on _______ date in the interest of justice.

An affidavit in support is filed herewith.

Place______

Date______ Advocate for Accused No. 1

15.6.2 Calling and Recalling of Witnesses

Section 217 of the Code of Criminal Procedure, 1973 provides for calling and recalling of witnesses.

Section 217 states as follows;—

217. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor
and the accused shall be allowed—

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness
who may have been examined, unless the Court, for reasons to be recorded in writing, considers
that the prosecutor or the accused, as the case may be, desires to recall or re-examine such
witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.

This section allows both the prosecutor and the accused to apply to the court for calling and recalling of
witnesses if a charge is altered or added to by the Court after the trial has commenced. However, the
Court may deny such right if it is of the opinion that the object is only to delay for the purpose of vexation
or defeating the ends of justice.

Specimen

IN THE COURT OF SESSIONS JUDGE AT_____________

Cr. C. No.__________/ 20_____

Application for recalling witness under section 217 of CrPC

The accused above-named states most respectfully as under:—

(1) That in the abovementioned complaint the complainant has examined PW1 and PW2 to prove
the charges in the complaint.
(2) That the accused submits that PW2 has deposed in his evidence that he was present at the
scene of the offence. However, it has now come to the knowledge of the accused that the PW2
 Page 4 of 8
15.6 Other Applications

who is a trustee of ________ was at ________ place and was attending meeting of Board of
Trustees of _______ at ________.
(3) That the PW2 has also signed the minutes of the meeting wherein the day, date and timing are
specified.
(4) That the accused therefore submits that the accused desires to recall the PW2 for further cross-
examination on this point in the interest of justice. The accused states that the testimony of PW2
cannot be relied on as the PW2 was not present at the scene of offence. It is therefore essential
to further cross-examine PW2 to disprove his deposition.
(5) That it is therefore most humbly prayed that the Hon’ble Court may be pleased to order recalling
of PW2 for further cross-examination in the interest of justice and pass such further and other
orders as deemed appropriate.

Place______

Date______ Advocate for Accused

15.6.3 Section 205 of CrPC. Magistrate may dispense with personal attendance of accused

Section 205 recognises the right of the accused to seek exemption from personal appearance before the
court. The general rule is that the accused should be present on all the days of hearings. However,
where there are genuine difficulties in remaining present before the court, exemption can be granted.

However, where the accused is moving freely and appearing in different offices, refusal of exemption
from personal appearance on the ground of old age, illness and distance place was held justified.25

Section 205 is as follows:—

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the
personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the
proceedings, direct the personal attendance of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.

[Application of Exemption from Personal attendance under section 205 CrPC]

Specimen

IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS

Cr. I. M. P. No.______ of 20__

In __________________

C.C. No._________of _______

 Page 5 of 8
15.6 Other Applications

Petition by Accused under section 205 of CrPC

The petitioner/accused most humbly submits as follows:—

(1) That the petitioner/accused is charged with offences under sections ______ _______ and
_______ of IPC. The accused has received summons for his appearance before this Hon’ble
Court on _______date.
(2) The petitioner/accused humbly submits that he is suffering from advance stage of cancer and is
undergoing chemotherapy. The accused is advised complete rest during the sessions of
chemotherapy. The accused is also advised not to travel and avoid going to crowded places to
protect from infection. (Medical Certificate is enclosed herewith)

Therefore the petitioner/accused is unable to attend the court on _________date, i.e., the
date of his first appearance before the court pursuant to the receipt of summons.
(3) The petitioner/accused submits that due to above-mentioned reasons, this petitioner/accused is
unable abide by the orders of this Hon’ble Court and therefore prays that the accused may
please be dispensed with the personal attendance on _________ date and the Adv __________
may please be allowed to appear to represent and defend this accused.
(4) And pass such order or orders as the court may deem fit and proper.

Place______

Date______ Petitioner/Accused

15.6.4 Disposal of Property under Sections 451 and 452 of Criminal Procedure Code
 Page 6 of 8
15.6 Other Applications

451. Order for custody and disposal of property pending trial in certain cases.—When any property is produced
before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of
such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if
it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or
otherwise disposed of.

Explanation.—For the purposes of this section, “property” includes—

(a) property of any kind or document which is produced before the Court or which is in its custody,
(b) any property regarding which an offence appears to have been committed or which appears to
have been used for the commission of any offence.

Under section 451, the Criminal Court can thus pass an order for interim custody of the property
produced before it during inquiry and trial.

The power under Section 451, Cr.P.C. should be exercised expeditiously and judiciously during inquiry or trial keeping in
mind various purposes, namely:—

(1) the owner of the article would not suffer because of it remaining unused or by its misappropriation
(2) the court or police would not be required to keep the article in safe custody and
(3) if proper zimanama before handing over possession of the article is prepared, that can be used in
evidence instead of its production before the court during the trial. If necessary, evidence should
also be recorded describing the nature of the property in detail.26

The provisions of section 451 are not confined merely to property which is subject to speedy and natural
decay but also wide rangingly extends to each and every case of property if the court is of the opinion
that it is otherwise expedient to make an order for sale or disposal thereunder.27

An order under section 451 of the Code of Criminal Procedure, granting interim custody of the disputed
land till the conclusion of the trial by delivery of custody of the land to the complainant is legal and
proper.28
15.6.5 Section 452

Section 452 deals with the provisions regarding disposal of property at the conclusion of trial. The
provisions to this refer to four classes of property or document:

(i) Produced before the Court or

(ii) In its custody or
(iii) Regarding which any offence is committed or
(iv) Which is used in committing any offence.

Such property can be disposed off in the following ways—

(a) destruction;
(b) confiscation;
(c) delivery to person entitled to its possession or otherwise.
 Page 7 of 8
15.6 Other Applications

The power of the court extends to the confiscation of the property in the custody of the court but it is not
in every case in which the court must necessarily pass an order of confiscation irrespective of the
circumstances of the case.29

Section 452 is as follows:—

(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it
thinks for the disposal, by destruction, confiscation or delivery to any person claiming to be
entitled to possession thereof or otherwise, of any property or document produced before it or in
its custody, or regarding which any offence appears to have been committed, or which has been
used for the commission of any offence.
(2) An order may be made under sub-section (1) for the delivery of any property to any person
claiming to be entitled to the possession thereof, without any condition or on condition that he
executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore
such property to the Court, if the order made under sub-section (1) is modified or set aside on
appeal or revision.
(3) A Court of Session may, instead of itself making an order under sub-section (1), direct the
property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the
manner provided in sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond
has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall
not be carried out for two months, or when an appeal is presented, until such appeal has been
disposed of.
(5) In this section, the term “property” includes, in the case of property regarding which an offence
appears to have been committed, not only such property as has been originally in the possession
or under the control of any party, but also any property into or for which the same may have been
converted or exchanged, and anything acquired by such conversion or exchange, whether
immediately or otherwise.

Specimen No. I

IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS __________

AT___________

Cr. R. C. No._________/20___

Application under section 451 of CRPC

The above-named applicant states most respectfully as follows:—

(1) The applicant submits that on _________ date theft had taken place at the residence of this
applicant, i.e., at ___________place. That valuables such as gold and silver ornaments, articles
studded with precious stones, etc. were stolen from the house of this applicant at ___________
place.
(2) The applicant has lodged a Police complaint regarding the same immediately on the same date.
(3) The applicant states that on investigation by the police, the said valuables were recovered from
Mr. _________ and has confessed the commission of offence of theft, at the applicant’s house.
 Page 8 of 8
15.6 Other Applications

(4) The applicant states that the list of valuables and its complete description is annexed to this
application. The said property has been duly identified by the applicant before the police as well
as before the Hon’ble Court.
(5) The applicant states that this applicant is the owner of the said property and has every right to be
in possession and in custody of the said property. Therefore, this applicant desires to have the
possession and custody of the said valuables. The trial will take considerable amount of time.
The applicant is ready and willing to furnish any bond or undertaking as may be directed by the
Hon’ble Court.
(6) It is, therefore, most humbly prayed that:—

(a) The applicant may please be given the possession and custody of the valuable articles as per
the list annexed herewith.
(b) Pass such other and further orders as deemed fit and appropriate by the Hon’ble Court in the
interest of justice.

Place______ Applicant

Date______ Advocate for Applicant

25 Kamaljeet Singh Ahulwalia v State of Orissa, 1998 CrLJ 2191 (Ori).

26 Priyabrata Sukla v State of Orissa, 2003 Cr LJ 2787 (2789) (Ori).
27 Balraj Singh v State of Punjab, 1982 Cr LJ 1314, 1377 (P&H (DB)).
28 Mag Das v State of Rajasthan, 1986 (2) WLN 586.
29 Suleman Issa v State of Bombay, AIR 1954 SC 312.

End of Document
 15.7 Criminal appeals
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.7 Criminal appeals

Right to appeal is a statutory right. Appeal means rehearing of the case both on facts and law points by a
superior court in hierarchy. Section 372 of the Code of Criminal Procedure states that no appeal shall lie
unless so provided by the Code.

Section 372 of the Code of Criminal Procedure declares that no appeal to lie unless otherwise provided.–
–“No appeal shall lie from any judgment or order of a Criminal Court except as provided for by the code
of criminal procedure or by any other law for the time being in force.”

Section 374. Appeals from convictions:—

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on
trial held by any other Court in which a sentence of imprisonment for more than seven years has
been passed against him or against any other person convicted at the same trial to the High
Court.
(3) Save as otherwise provided in sub-section (2), any person—

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session.

Thus, the Code enumerates against which judgment and order appeal is maintainable—

For example, section 373 lays down the provisions regarding appeals from orders requiring security or
refusal to accept or rejecting security for keeping peace or good behaviour.

There are other provisions also in the Code of Criminal Procedure which provide for right of appeal, e.g.,
sections 250, 449, 454, etc.

Specimen No. I
 Page 2 of 3
15.7 Criminal appeals

Appeal

IN THE COURT OF SESSION JUDGE ____________

C.A. No._______ of 20___

Criminal Appeal against the judgment and order dated______ in C.C. No.______/ 20____

The appellant above-named states and submits most respectfully as under:-

(1) The appellant/accused has preferred this appeal against the judgement dated _____ passed by
the judicial magistrate first class under section ______ and ____ of IPC wherein the appellant
has been convicted and sentenced under section ____ and ____ of IPC for one year of
imprisonment. Being aggrieved and dissatisfied by the said judgement and order, the appellant
has preferred the present appeal on following grounds:

i) The learned lower court has not followed proper procedure and this has resulted into
miscarriage of justice.
ii) The order passed by the learned lower court is violative of principles of natural justice, equity
and good conscience.
iii) The Hon’ble trial court failed to consider evidence in a judicious manner and the findings
arrived at are not supported by evidence on record.
iv) The Hon’ble trial court ought to have held that there was no criminal intent on the part of the
appellant/accused which is an essential ingredient to constitute an offence.
v) The trial court ought to have acquitted the accused/appellant on the ground of benefit of
doubt for the great many controversies committed in the evidence adduced by almost all
prosecution witnesses.
vi) The learned lower court should have rejected the entire prosecution case as highly
improbable because no proper punchnama was drawn up in support of the prosecution case.
vii) The trial court grossly erred in arriving at a tacit conclusion that there was an illegal omission
on the part of the accused.
viii) The learned lower court failed to consider the fact that the act of appellant in its nature is not
at all criminal and only on that merit the accused appellant deserves a clear exoneration.

(2) The appellant/accused states that on the aforestated grounds the judgement and order passed
by the Hon’ble Magistrate’s Court deserves to be set aside in the interest of justice.
(3) It is, therefore, most respectfully prayed as under:-

a) Call for record, release the appellant pending the disposal of appeal on bail.
b) Allow the appeal and the conviction and sentence passed by the trial court by its judgement
and order dated ______ in C.C.No. ______ may please be set aside.
c) Pass such other order as the ends of justice may call for and your appellant as in duty bound
shall ever pray.
 Page 3 of 3
15.7 Criminal appeals

Place______ Appellant/Accused

Date______ Advocate for Appellant/Accused

Specimen No. II

Appeal

IN THE COURT OF SESSION JUDGE ____________

C.A. No_______ of 20___

Criminal Appeal against the judgment and order dated______ in C.C. No.______/ 20____

That the appellant above-named states most respectfully as under:—

(1) That the appellant/accused being aggrieved and dissatisfied by the judgment and order passed
by the Court of the ____ Sessions Judge at _______ in C.C. No.________/20____ on _______
date prefers this criminal appeal on following grounds:—

Grounds of Criminal Appeal:

(i) That judgment passed by the Trial Court is against law, incorrect and improbable.
(ii) That the Trial Court has grossly erred in ignoring the contradictions of prosecution witnesses.
(iii) That the learned Trial Court has not taken into account the documentary evidence adduced
before the Hon’ble Court.
(iv) That the learned Trial Court ought to have taken into account the evidence in totality while
passing the judgment and sentence.
(v) That the learned Trial Court ought to have held that the appellant/ accused is innocent and has
been falsely implicated by the complainant/ respondent.
(vi) That the learned Trial Court ought to have given due weightage to the evidence of the accused.
(2) It is therefore most respectfully prayed that:

(i) This appeal of the appellant may please be allowed and the conviction and sentence passed
by the trial Court by its judgment and order date _______ in C.C. No._______ may please be
set aside.
(ii) Pass any other and further orders as deemed fit in the interest of justice

Place______ Appellant

Date______ Counsel for the Appellant

End of Document
 15.8 Revision
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XV DRAFTING AND PLEADING UNDER
CRIMINAL LAW

CHAPTER XV DRAFTING AND PLEADING UNDER CRIMINAL LAW

15.8 Revision

Sections 397 to 405 of the Code of Criminal Procedure, 1973 lay down the provisions of Revision.
Session Judge, Additional Sessions Judge and the High Court are vested with revisionary powers. It is to
be remembered that the revisionary powers conferred on these courts are very wide in nature and are
purely discretionary in nature.

The courts exercising revisionary powers can call for and examine the record of any proceedings before
any inferior court and satisfy itself as to the correctness, legality or propriety of order passed by the
inferior court. They can pass orders to remove the irregularity or illegality to prevent miscarriage of
justice. Revisional jurisdiction can be exercised on application of party or suo motu.

Revisionary powers cannot be exercised in relation to any interim or interlocutory order passed in any
appeal, inquiry, trial or other proceedings (Section 397(2))

The revisional jurisdiction is normally to be exercised only in exceptional cases where there is some glaring defect in the
procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice.30

15.8.1 Section 399. Sessions Judge’s powers of revision

(1) In the case of any proceedings the record of which has been called for by himself, the Sessions
Judge may exercise all or any of the powers which may be exercised by the High Court under
sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub-
section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may
be, apply to such proceeding and references in the said sub-sections to the High Court shall be
construed as references to the Sessions Judge.
(3) Where any application for revision is made by or on behalf of any person before the Sessions
Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no
further proceeding by way of revision at the instance of such person shall be entertained by the
High Court or any other Court.

15.8.2 Section 400. Power of Additional Sessions Judge

An Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under this
Chapter in any case which may be transferred to him by or under any general or special order of the
Sessions Judge.
15.8.3 High Court’s power of Revision
 Page 2 of 4
15.8 Revision

Section 401 lays down the scope and ambit of exercise of revisionary powers by the High Court.

Section 401. High Court's powers of revision. —

(1) In the case of any proceeding the record of which has been called for itself or which otherwise
comes to its knowledge, the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by
Section 307 and, when the Judges composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless
he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal
into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of
revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High
Court by any person and the High Court is satisfied that such application was made under the
erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to
do, the High Court may treat the application for revision as a petition of appeal and deal with the
same accordingly.

Specimen No. I

(Revision)

IN THE HIGH COURT OF JUDICATURE OF __________

AT___(PLACE)________

Cr. R. C. No._________/20___

The above-named Revision Petitioner craves leave of this Hon’ble Court to state most respectfully as
follows:—

(I) That the revision petitioner being aggrieved of and dissatisfied by the Judgment of the _______
Sessions Court (Place) in CA NO._______ of 20___ passed on _______ date thereby confirming
the judgment of _______ Magistrate (Place), passed on _______ convicting the accused to
undergo rigorous imprisonment for _____ term and to pay a fine of Rs.______ and in case of
default to undergo simple imprisonment for _______ among the followings:
(II) Grounds of Revision

(1) The Hon’ble Appellate Court has grossly erred in confirming the judgment of the Trial Court
as well as the sentence. The said decision is against law, improper, and against the
probabilities of the case.
(2) That by giving undue weightage to the evidence of PWs, both the courts have convicted this
petitioner to undergo ________ years of rigorous imprisonment is bad in law and needs to be
rectified as the same has resulted in gross miscarriage of justice.
 Page 3 of 4
15.8 Revision

(3) The court’s below have ignored the discrepancies of PWs in their cross-examination.
(4) The courts below have not decided the case on legal and admissible evidence and were
swayed away by considerations not relevant for the purpose of deciding the relevant
questions before it.
(5) The Hon’ble Courts below have overlooked the material evidence while passing the order
convicting this petitioner. (Give details from the judgment)
(6) [In similar way enumerate other grounds as applicable to the case/s].
(7) This Revision Petitioner therefore prays that the Hon’ble Court may be pleased to

i) Set-aside the judgment of the _________ Sessions Court at Place passed in C.A.
No._____ of 20___ date_______ and also that of _______ Magistrate passed in C.C.
No.________ of 20___ on _______date and
ii) Pass such other order or orders as deemed appropriate.

Place______ Petitioner

Date______ Counsel for Petitioner

Specimen No. II

(Revision)

IN THE HIGH COURT OF JUDICATURE OF __________

AT___(PLACE)________

Cr. R. C. No._________/20___

The above named Revision Petitioner craves leave of this Hon’ble Court to state most respectfully as
follows:—

(1) The Revision Petitioner being aggrieved and dissatisfied by the judgement of the ______
Sessions Court (Place) in criminal appeal no. ______ of 20____ passed on ______ date thereby
confirming the judgement of ______ Magistrate (Place) passed on ______ date convicting the
Accused/Petitioner to undergo rigorous imprisonment for ______ term and to pay a fine of Rs.
______ and in case of default to undergo simple imprisonment for ______ term, has therefore,
preferred the present revision petition inter alia on the following grounds:-
(2) Grounds of Revision:

i) The courts below failed to take into notice the considerable unexplained delay caused in
lodging the FIR.
ii) There was no injury on the person of the injured to make out the case punishable under
section _____ of IPC.
iii) The judgement and order passed by the courts below is against the weight of evidence on
record as the courts below failed to scrutinize and properly appreciate the prosecution
evidence on record.
 Page 4 of 4
15.8 Revision

iv) There is no independent corroboration of the statement of the complainant and the conviction
based upon the single testimony is wrong and illegal.
v) The judgement and order passed by the courts below are wrong, illegal perverse and against
the settled principle of law hence, liable to be set aside.
vi) The courts below ought to have held that the injury caused to the complainant was due to
accident and for which the Revision Petitioner is not responsible.
vii) The Prosecution has miserably failed to prove its case beyond all reasonable doubts. Hence,
the conviction order passed is bad in law The judgment and the orders passed by the court
below are contrary to the provisions of Criminal Procedure Code.

(3) The Revision Petitioner, therefore, prays that the Hon’ble Court may be pleased to;—

a) Set aside the judgement of Hon’ble Sessions Court passed in criminal appeal no. ______
dated ______
b) Pass such other and further orders as deemed fit and appropriate by the Hon’ble Court in the
interest justice.

An affidavit in support is filed herewith.

Place______ Petitioner/Accused

Date______ Advocate for Petitioner

30 Jagannath Choudhary v Ramayan Singh, AIR 2002 SC 2229.

End of Document
 CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

CONVEYANCING

End of Document
 16.1 Conveyancing
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

16.1 Conveyancing
16.1.1 Introduction

Conveyancing means an art of transferring titles to real estate from one person to another. In other words
conveyance means an act by which property is conveyed or voluntarily transferred from one person to
another by means of a written instrument and other formalities.

Conveyancing is described as an art of creating, transferring and extinguishing interests in property both
in dealing with substantive law and providing examples to illustrate its principles.1

The society which recognises private ownership of property and is governed by the rule of law must have
laws protecting the ownership and other incidental rights. Thus, a system of documentation was evolved
in course of time. If documentation is done systematically and meticulously, transactions would be devoid
of any ambiguity and vagueness. This would avoid future disputes and differences.

Conveyancing is an art of drafting deeds, whereby the land or any interest in land is transferred by one
party to another. “Law of Conveyancing” is that branch of law which governs and is related to the drafting
of the legal documents. The subject matter of this branch of law is related to the transfer of property and
the necessary document is used for the purpose of transferring any right, title or interest in any
immovable property from one person to another.
16.1.2 Meaning of Deed/Instrument

The Indian Evidence Act, 1872, under section 3 defines a document—“‘Document’ means any matter
expressed or described, upon any substance by means of letters, figures or marks, or by more than one
of those means, intended to be used, or which may be used, for the purpose of recording that matter”.
Section 3(18) of the General Clauses Act, 1897 also defines “document” in the same words, with the only
difference being that the definition stated by General Clauses Act is inclusive and the definition given
under the Evidence Act is exhaustive.

The Indian Stamp Act, 1899, under section 2(14) defines an “Instrument” to include every document by
which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or
recorded.

A deed means an instrument which is written on a paper or even a parchment or vellum, executed by a
party under seal and delivered as his act or deed expressing that the person so named, makes, confirms,
concurs in, or consents to some assurance, other than by way of testamentary disposition of some
interest in the property or some legal or equitable right, title or claim or undertakes or enters into some
obligation, duty or agreement enforceable at law or in equity or does or concurs in some other act
affecting the legal relation or position of a party to the instrument or some other persons or corporation.2
 Page 2 of 9
16.1 Conveyancing

According to Black’s Law Dictionary, 8th Edition, “Deed” means something that is done or carried out; an
act or action; a written instrument by which land is conveyed; at common law, “any written instrument that
is signed, sealed and delivered that conveys some interest in property.”

According to the Oxford Companion to Law by David M. Walker, “Deed” means instrument written or
otherwise marked on paper or similar substances expressing the intention or consent of some person to
make, confirm or concur in some assurance of some interest in property or some obligation, duty or
agreement, sealed and delivered as that party’s act and deed.

It has been rightly said, “deeds are instruments but all instruments are not deeds.” Deeds are of various
forms and they are usually classified as unilateral deeds or bilateral deeds or multilateral deeds. The
deeds which are made only by one party are called as Deed Poll and they are generally drafted in first
person. Those deeds wherein there are two or more parties they are called as indentures.
16.1.3 Drafting of a Deed

Drafting of a deed involves the following components:

(i) The law by which the parties are governed

(ii) Effect of the transaction
(iii) Certainty and clarity by using appropriate words and expressions. For any deed, the foundation is
the law, the facts are the structure and the language is the architecture.3 The draftsman must
conceive the design, effect of document before beginning with the drafting of a deed.

The draftsman must have thorough knowledge of the applicable laws, for example, Indian Registration
Act, Stamp Act, Transfer of Property Act etc. wherever they may be applicable.
16.1.4 Components of a Deed

There are certain features of a deed of conveyance. A deed of conveyance is generally drafted with the
following components:—
16.1.4.1 Name or title of the Deed

A name or title of the deed gives a clue to the reader as to the nature of transaction between the parties.
However, it is to be noted that it is not the name given to the document but the contents which decide the
name and nature of the document.
16.1.4.2 Date and place

The date of the deed and the place where the deed is executed are important because by virtue of the
deed of conveyance certain rights and obligations are created or transferred. Therefore, date and place
must be specified very clearly in every deed and generally at the start of the document.
16.1.4.3 Parties

Complete description of parties to the deed must be given. If the transferor or transferee is a corporate
body, Partnership firm, HUF, etc., the details, such as the name, registered office, karta of HUF, etc.,
should be stated in the deed. Depending on the type of document, the parties are described as ‘vendor’
and ‘purchaser’, ‘lessor and lessee’, ‘transferor and transferee’, etc. The parties to the deed are also
described as Party of the First Part, Party of the Second Part, etc. or Party of the One Part and Party of
the Other Part. A deed relating to Transfer of Property is not only binding on the parties, thereto, but also
on the persons claiming through them. Therefore, after describing the vendor or purchaser it is written
“which expression unless repugnant to the context or meaning thereof shall mean and include his heirs,
executors, administrators and assigns”; and in the case of corporate bodies, “their successors and
assigns”.

Sometimes a third party is required to be added as a party to the transaction though such party is neither
 Page 3 of 9
16.1 Conveyancing

the transferor nor the transferee. Such a party is added as ‘Consenting Party’ to the transaction.
Transferee is not a necessary party in all deeds of conveyance. But where the statute lays down so, then
it is mandatory to execute the document both by the transferor and transferee.
16.1.4.4 Recitals

Recitals state the background and purpose of the document. Recitals generally are of two types,
narrative and introductory. The narrative recitals relate to the title of the present vendor. They include a
brief narration of tracing the title of the transferor. Recitals should always be arranged in chronological
order of events narrated in it. Generally, the Paras in recitals begin with ‘whereas’.
16.1.4.5 Testatum

After the recitals, the operative part of the deed is to be drafted which is the main/primary operative part,
termed as Testatum. Testatum means witness. The main part begins with “NOW THIS DEED
WITNESSES AS FOLLOWS.”
16.1.4.6 Terms and Conditions

This part of the deed describes the terms and conditions which the parties have mutually agreed upon,
such as:—

(i) Transfer of property or interest

(ii) Consideration
(iii) Method of payment of consideration
(iv) Acknowledgement of payments made
(v) Covenant as to title
(vi) Nature of interest transferred
(vii) Possession
(viii) Other incidental clauses such as easement, etc.

16.1.4.7 Habendum

Now comes the habendum clause which states the estate/property which the purchaser takes as an
owner or otherwise. Therefore, in habendum the transferor allows and declares that the transferee is
entitled “To Have and To Hold” the property described in the deed.
16.1.4.8 Testimonium

The testimonium is the last or the concluding part of the deed. It is generally written as “IN WITNESS
WHEREOF the parties have put their respective hands/signatures on the day and year first hereinabove
written.”
16.1.4.9 Schedule of the property

After the testimonium the schedule of the property must be given with full description. Sometimes the
deed/document in question may require more than one schedule of the property. Then the title is given
as schedule of property-I and schedule of property-II, etc. The description of the property must state
where the property is situated, area of the land in square Metre, survey numbers, boundaries, etc., so
that the property can be identified.
16.1.4.10 Execution and Attestation

Any document will be of no legal consequences if the same is not executed and attested as required by
law. In the end, the parties to the deed put their respective signatures and initials on all the pages of the
deed. This is called as execution of the document. In case of a corporate body it is necessary to affix the
 Page 4 of 9
16.1 Conveyancing

seal of the company. If a person is illiterate then his thumb impression is obtained by smearing the
thumb, left or right with ink.

There is a difference between executing and signing of a document. Execution is not mere signing.
Execution of a document means signing a document written out, read over and understanding it. It does
not consist of merely signing a blank paper.4

The next formality to be complied with is defined under section 3 of the Transfer of Property Act, 1882
and under section 3 of the Indian Succession Act, 1882 for attesting Wills.

Section 3 of the Transfer of Property Act, 1882 reads:

“Attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more
witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person
sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal
acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the
instrument in the presence of the executant; but it shall not be necessary that more than one of each witnesses shall have
been present at the same time, and no particular form of attestation shall be necessary.

The document or deed after the parties have signed, requires to be attested by two witnesses who sign
the document with the intention to attest it.

For a valid attestation four conditions are laid down, namely—

(i) attestation must be by two witnesses at least where it is so required.

(ii) the witnesses must sign in the presence of the executants.
(iii) they must sign at the direction of the executant.
(iv) the signature of the executant should be either made in the presence of the witness or if earlier
made, it should be admitted or acknowledged by the executant to the witnesses.

Under Section 3 of the Transfer of Property Act, it is not essential for the attesting witness to actually see the executant sign
the document in question. It is sufficient if the attesting witness receives from the executant a personal acknowledgement of
his signature or mark in the document in question and he (the attestor) signs the said instrument in the presence of the
executant.5

It is important to add that the attesting witness should put his signature for the purpose of attestation only
and not in any other capacity.
16.1.5 Interpretation of Deed

The intention of the parties to the Deed has to be gathered by considering the recitals and the terms and
conditions in the document in totality. The principles governing the construction of a document are:

(a) The entirety of the document must be read as a whole;

(b) The document must be so read as to give effect to the pre dominant intention of the executants;
(c) The document must be construed in such a manner as to make it workable and make it
operative;6
(d) Where the words create some sort of uncertainty in the document, such words may be ignored
and if two interpretations of the document are possible then that interpretation maybe adopted
which gives meaning and effect to all parts of the document;
(e) It is the basic and well established principle of interpretation of documents that a deed should be
read and interpreted as a whole for ascertaining the true meaning of its several clauses. The
interpretation of a part of document should be in harmony with the other parts of the deed if such
 Page 5 of 9
16.1 Conveyancing

interpretation does not violate the meaning, which can naturally be suspected. While interpreting
a deed, it is the duty of the courts not to confine to the force of a particular expression but to
collect the intention of the parties from the whole of the instrument taken together.

16.1.6 Stamping and Registration

No transaction under the deed is complete without proper stamping. Today practically all documents are
required to be stamped under the relevant stamp legislation, except in the case of Wills. A document is
required to be stamped before, or at the time of execution, or immediately thereof (Section 17 of Indian
Stamp Act, 1899). The Indian Stamp Act of 1899 is an all India Act. However, the stamp duty being a
concurrent subject, many states have passed their own stamp legislations. Therefore, the draftsman
should have knowledge about the Stamp Act provisions by which the parties are governed.

The object of the Indian Stamp Act is to increase revenue and its provisions must be construed as having
in view only the protection of revenue.

It is now well settled principle of law that the stamp duty is leviable on the instrument and not on the
transaction. It is the substance of the transaction and not the form of the instrument that determines the
stamp duty. “If two interpretations are possible, the one favourable to the person who is required to pay
the tax or the duty will have to be adopted.”7

A document which requires to be stamped, if not stamped adequately or at all, is not admissible in
evidence before any person having authority to receive evidence and shall not be acted upon or
registered (Section 35 of the Indian Stamp Act). A document not duly stamped cannot be admitted even
for collateral purposes.8

Section 35 of the Stamp Act, read with section 91 of the Evidence Act excludes both the original
instrument and secondary evidence of its contents if it is unstamped or insufficiently stamped.

If a document is not stamped or properly stamped, it is liable to be impounded (Section 33 of Indian

Stamp Act) and the person executing the document is liable to be prosecuted and fined/punished
(Section 62 of the Indian Stamp Act).
16.1.7 Registration of Documents

The purpose of Registration Act, as disclosed in its provisions, is to provide information to people, who
may deal with property, as to the nature and extent of the rights which persons may have affecting that
property; in other words, it is to enable people to find out whether any particular piece of property, with
which they may be concerned, has been made subject to some particular legal obligation. There are
other purposes of the Registration Act. One is to give solemnity of form and legal importance of certain
classes of documents by directing that they shall be registered. Another purpose is to perpetuate
documents which may afterwards be of legal importance; and the general purpose is to put on record
somewhere, where people may see the record and enquire, what the particulars are and as far as land is
concerned what obligations exist with regard to it. The purpose of this is to prevent fraud.9

All documents enumerated under section 17 of the Indian Registration Act, 1908 are required to be
compulsorily registered.

Section 17. Documents of which registration is compulsory.—

(l) The following documents shall be registered, if the property to which they relate is situate in a
district in which, and if they have been executed on or after the date on which, Act No. XVI of
1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian
Registration Act, 1877, or this Act came or comes into force, namely:—
(a) instruments of gift of immovable property;
 Page 6 of 9
16.1 Conveyancing

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit
or extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation or extinction of
any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or
reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any
award when such decree or order or award purports or operates to create, declare, assign,
limit or extinguish, whether in present or in future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the [State Government] may, by order published in the Official Gazette,
exempt from the operation of this sub-section any lease executed in any district, or part of
a district, the terms granted by which do not exceed five years and the annual rents
reserved by which do not exceed fifty rupees.

(1A) The documents containing contracts to transfer for consideration, any immovable
property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882)
shall be registered if they have been executed on or after the commencement of the
Registration and Other Related laws (Amendment) Act, 2001 and if such documents are
not registered on or after such commencement, then, they shall have no effect for the
purposes of the said section 53A.
(m) Nothing in clauses (b) and (c) of sub-section (l) applies to—

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of
such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or
extinguishing any right, title or interest, to or in immovable property except in so far as it
entitles the holder to the security afforded by a registered instrument whereby the Company
has mortgaged, conveyed or otherwise transferred the whole or part of its immovable
property or any interest therein to trustees upon trust for the benefit of the holders of such
debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than the documents specified in sub-section (1A) not itself creating,
declaring, assigning, limiting or extinguishing any right, title or interest of the value of one
hundred rupees and upwards to or in immovable property, but merely creating a right to
obtain another document which will, when executed, create, declare, assign, limit or
extinguish any such right, title or interest; or
(vi) any decree or order of a Court 29 except a decree or order expressed to be made on a
compromise and comprising immovable property other than that which is the subject-matter
of the suit or proceeding; or
(vii) any grant of immovable property by 30 Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land
Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
 Page 7 of 9
16.1 Conveyancing

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing
the repayment of a loan made under that Act; or
(xa)any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any
property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any
property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part
of the mortgage-money, and any other receipt for payment of money due under a mortgage
when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a
Civil or Revenue-Officer.

Explanation.—A document purporting or operating to effect a contract for the sale of immovable
property shall not be deemed to require or ever to have required registration by reason only of the
fact that such document contains a recital of the payment of any earnest money or of the whole or
any part of the purchase money.
(n) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a
will, shall also be registered.

A document which is compulsorily registrable and has not been registered can be used for collateral
purposes and such collateral purposes vary from case to case and can be determined by the facts of
each particular case. The crux of the matter is that all purposes other than those which try to create,
declare, assign, limit or extinguish right, title or interest in immovable property are collateral purposes.10

Registered document operates from the date of its execution and not from the date of its registration.11
16.1.8 Documents of which Registration is Optional

The registration of certain documents is optional under section 18 of the Registration Act, 1908.

18. Documents of which registration is optional—Any of the following documents may be registered under this Act,
namely:—

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest, whether
vested or contingent, of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or payment of any consideration on account of the
creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under
section 17;
(cc) instruments transferring or assigning any decree or order of a Court or any award when such
decree or order or award purports or operates to create, declare, assign, limit or extinguish,
whether in present or in future, any right, title or interest, whether vested or contingent, of a value
less than one hundred rupees, to or in immovable property;
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or
extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered.

16.1.9 Effect of Non-registration of Documents Required to be Registered

 Page 8 of 9
16.1 Conveyancing

The consequences or effect of non registration of a document are stated under section 49 of the
Registration Act.

49. Effect of non-registration of documents required to be registered—

No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered
shall—

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power,
unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property
Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under
Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected
by registered instrument.

A compulsory registrable document, if unregistered, is inadmissible only for a limited purpose mentioned in section 49(c),
namely, as evidence of a transaction affecting immovable property comprised therein. It is admissible for collateral purpose.
For any purpose other than that of creating, declaring, assigning. Limiting or extinguishing any right, title or interest in
immovable property.(Bai Gulab Bai Vs. Dattayarji, 9 Bom.L.R 393) Where a document, which as a whole, required
registration, contains separable parts which do not require registration, those parts may be admitted in evidence to prove
transactions which ex-hypothesi do not affect immovable property of the value of Rs. 100 or upwards.12

16.1.10 Time for Presenting Documents for Registration

Subject to the provisions of sections 24, 25 and 26 of the Indian Registration Act, a document other than
a Will, is required to be lodged for registration within four months from the date of its execution.

A copy of a decree or order may be presented within four months from the day on which the decree or
order was made or where it is appealable, within four months from the day on which it becomes final. In
case a document is executed by several persons at different times, it may be presented for registration
and re-registration within four months from the date of each execution.
16.1.11 Persons Who Can Present Document for Registration

A document for registration is required to be presented by:

a. A person executing or claiming under the document;

b. By the legal representative; or
c. Assignee of such person; or
d. By the agent of such person duly authorized by the power of attorney which is required to be
executed only before the sub-registrar.

The amending act of 48 of 2001 has inserted a new section 32(a) which provides that the person
presenting a document for registration as well as the executing parties must affix their passport size
photographs and finger prints on the document of registration.

The Registration Act, 1908 has been amended by several states wherein certain documents which are
not required to be registered under the said Act, are made compulsorily registrable and have
incorporated various other amendments which may be noted.
 Page 9 of 9
16.1 Conveyancing

1 Goodeves Real Property (1929), p 72.

2 Halsbury’s Laws of England, 4th Edn, Vol 12, para 1305.
3 Deed & Document by GM Divekar, 9th Edn, p 11.
4 Birbal Singh v Harphool Khan, AIR 1976 All 23.
5 Sogra Khatun v Bhagaban Das, AIR 1977 Orissa 146.
6 Rabindra N Das v Santosh Kumar Mitra, AIR 1975 Cal 381.
7 Arundeep Singh v State of UP, (2005) 1 AWC 47.
8 Doddabasappa v Gurubasappa, AIR 2001 Kant 149 : 2001 (4) Kar LJ 104.
9 K Roy and Brothers v Ramanathdas, AIR 1945 Cal 37, p 40. Sanjeevarao’s Registration Act, 11th Edn, p 133.
10 Salam Rather v Mohd. Ganai, AIR 1964 J&K 46, p 49.
11 Principal Secretary, Government of Karnataka v Ragini Narayan, AIR 2016 SC 4545.
12 Hope Mills Ltd v Cawasji J Radheymoney, Bart, 13 Bom LR 162.

End of Document
 16.2 Adoption
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > ADOPTION

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

ADOPTION

16.2 Adoption

The law relating to adoption is governed by the Hindu Adoption and Maintenance Act, 1956.

The concept of adoption is a unique and ancient practice among the Hindus wherein, for religious and
secular reasons a son was adopted. Muslims, Parsis and Christians have no adoption law. They can take
children only for foster care.

Under the prevalent law, for valid adoption, no religious ceremonies are required to be performed. The
adopted child should be actually given and taken in adoption and there cannot be any consideration at
the time of giving or taking the child in adoption. So once adoption is done it cannot be cancelled. There
must be a physical delivery of the child from him or her, who gives in adoption, to him or her who takes in
adoption.
16.2.1 Requisites for a Valid Adoption under the Hindu Adoption and Maintenance Act, 1956

Section 6 of the Act speaks about the requisites of valid adoption. It reads as under:

6. Requisites of a valid adoption

No adoption shall be valid unless—

(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

16.2.2 Who Can Adopt

(a) Any male Hindu, who is not a minor or of unsound mind, can take a son or daughter in adoption.
(b) Any female Hindu, who is not a minor or of unsound mind, whether she is unmarried or divorcee
or widow, can take a male or female child in adoption as son or daughter.
(c) Either the father or the mother (if father is dead) or a guardian can give the child in adoption, the
guardian may be a legal or testamentary and de facto guardian.
 Page 2 of 6
16.2 Adoption

(d) Any unmarried Hindu (except the one who is already adopted) and who has not completed 15
years of age can be taken in adoption, barring any special custom to the contrary.

16.2.3 Who Cannot Adopt

(a) A person who has a son, or son’s son or son’s son’s son cannot adopt a son, and who has a
daughter or son’s daughter cannot adopt a son or daughter as the case may be (whether by
legitimate blood relationships or by adoption), living at the time of adoption,
(b) The age difference between adoptive father and adoptive daughter, or the adoptive mother and
the adoptive son cannot be less than 21 years.
(c) Same child cannot be adopted by two or more persons.

In case of adoption of an orphan, court’s order should be obtained as per section 9 of the Hindu Adoption
and Maintenance Act.
16.2.4 Persons Capable of Giving in Adoption

Section 9 of the Act speaks about the persons capable of giving in adoption. It reads as under:

9. Persons capable of giving in adoption.

(1) No person except the father or mother or the guardian of a child shall have the capacity to give
the child in adoption.
(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone
have the right to give in adoption, but such right shall not be exercised save with the consent of
the mother unless the mother has completely and finally renounced the world or has ceased to
be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been declared by a court of competent
jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world
or have abandoned the child or have been declared by a court of competent jurisdiction to be of
unsound mind or where the parentage of the child is not known, the guardian of the child may
give the child in adoption with the previous permission of the court to any person including the
guardian himself.
(5) Before granting permission to a guardian under sub-section (4), the court shall be satisfied that
the adoption will be for the welfare of the child, due consideration being for this purpose given to
the wishes of the child having regard to the age and understanding of the child and that the
applicant for permission has not received or agreed to receive and that no person has made or
given or agreed to make or give to the applicant any payment or reward in consideration of the
adoption except such as the court may sanction.

Explanation.—For the purposes of this section—

(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother;
(ia) “guardian” means a person having the care of the person or a child or of both his person and
property and includes—
(a) a guardian appointed by the will of the child’s father or mother; and
(b) a guardian appointed or declared by a court; and
 Page 3 of 6
16.2 Adoption

(ii) “court” means the city civil court or a district court within the local limits of whose jurisdiction the
child to be adopted ordinarily resides.

16.2.5 Inheritance Rights of an Adopted Child

The inheritance rights of an adopted child are similar to that of a natural born in the new family. Upon
adoption, a child loses his rights in the biological family but if a property vests in him before the adoption,
then the property will continue to be in his name.
16.2.6 Valid Adoption Cannot be Cancelled

Once a valid adoption is made it cannot be cancelled by the person taking in adoption or any other party
to it. The adoptee also cannot renounce the adoption and return to his or her family of birth (Section 15)

Though formal ceremony of giving and taking is essential ingredient for valid adoption, long duration of
time during which a person is treated as adopted cannot be ignored. Such fact by itself may carry a
presumption in favour of adoption.13

Burden of proving adoption is heavy and in the absence of documentary evidence in the support of
adoption, court should be cautious in relying upon oral evidence.14
16.2.7 Drafting of Deed of Adoption

(1) Adoption can be oral. However, considering the consequences of adoption, it is desirable that
parties make a record of adoption by executing an adoption deed.
(2) Full description and relevant information of the parties and the child, to be adopted, should be
given.
(3) The only formality of adoption, i.e., that the child was actually handed over by the person giving in
adoption to the person taking in adoption with the intention to transfer the child from the family of
birth to the adoptive family, should be clearly mentioned in the adoption deed.
(4) It is necessary to obtain consent of the mother whose child is given in adoption and also the
consent of the wife of the adoptive father.
(5) When the parents of a child are not alive, or who are not known or traceable, then the legal
guardian or testamentary guardian, as the case may be, can give the child in adoption with the
permission of the court.

16.2.8 Stamp Duty

Article 3 of the Indian Stamp Act, 1899 states the duty payable on an instrument recording an adoption or
conferring or purporting to confer an authority to adopt.

However, it is to be noted that no duty is payable if “Will” states the fact of adoption or if permission to
adopt is given by a Will.
16.2.9 Registration

It is not compulsory to register the adoption deed, except in Uttar Pradesh. However, as per section 16 of
the Hindu Adoption and Maintenance Act, 1956, if the adoption deed is executed and registered, there
shall be a presumption that the adoption has been made in compliance with the provisions of this Act
unless and until it is disproved.
16.2.10 Specimen

Specimen No. I

ADOPTION DEED
 Page 4 of 6
16.2 Adoption

DEED of ADOPTION is made at (place) on this____day of ___20—

BETWEEN

1) Mr.______________ Age________ Occupation ____________ Residing at ________, a Hindu by

religion (Hereinafter referred to as the party of the First Part,)

2) Mrs. ______ Age ___ Occupation ____ Residing at____________ a Hindu by religion (Hereinafter
referred to as the party of the Second Part)

AND

Mr._____ Age ___ Occupation ______ Residing at ____________ being the manager of the ___
orphanage at _____, (Hereinafter referred to as the party of the Third Part)

WHEREAS,

(1) Mr._______ i.e. party of the first part and Mrs. ____ i.e. party of the second part are married for
last 8 years and have no child.
(2) That the medical experts have opined that due to health complications in the party of first part
and party of second part they will not be able to have their natural child.
(3) The parties herein are therefore desirous of adopting a child and hence visited the ‘____(name)’
orphanage and have decided to adopt a boy by name _____ who is 1-year old.
(4) The said boy by name _______ was found abandoned on the steps of the temple at _______.
The NGO by name ______ brought the baby boy to the _____ orphanage.
(5) The orphanage officials and the police made all efforts to trace the parents of the boy but without
any success.
(6) An application to the court at _____(place)was made under section 9(4) and (5) of the Hindu
Adoption and Maintenance Act, 1956 by the manager of the _____ orphanage i.e. party of the
third part and the Hon’ble Court by its order dated _________ has authorised the party of the
third part to give the said boy in adoption to the party of first part.
(7) The party of the third part on ________ date delivered the said boy by name _________ to the
party of the first part with the intention to give the boy by name _____ in adoption and the party of
the first part took _____ (name) with the intention to take him in adoption as his son, in the
presence of witnesses to this deed.
(8) The party of the second part has given her full and free consent to the said adoption and
endorses the same by executing these presents.

NOW THIS DEED THEREFORE RECORDS THAT the party of the first part has taken the said boy by
name __________in adoption and the party of third part has given the said boy in adoption to the party of
the first part as authorised by the said court order dated ____.

IN WITNESSS WHEREOF, the parties hereto have put their hands on the day, month and year first
hereinabove written.

Signed by the First Part

Signed by the Second Part

Signed by Third Part

 Page 5 of 6
16.2 Adoption

In the presence of –

(1)

(2)

Specimen No. II

ADOPTION DEED

(Adoption by an unmarried woman)

THIS DEED OF ADOPTION is made on _________ day of __________ BETWEEN

WHEREAS,

(i) The party of the first part is working as “Branch manager” in ____ bank, and she is __________
years old. The party of the first part is unmarried and does not wish to marry in future.
(ii) The party of the second part is a widow and is diagnosed with advanced stage of cancer. The
party of the second part has a daughter by name _________, age _________ years.
(iii) The party of the first part and party of the second part are friends and know each other for almost
20 years. The party of the first part thus knows Miss_________, and has agreed to take her in
adoption.
(iv) That on __________ date at the residence of the party of second part, the party of the second
part delivered her only daughter by name ________ Age _______ years to the party of the first
part with the intention to give her in adoption to the party of the first part and the party of the first
part took her with the intention to take her in adoption as her daughter. The said informal function
was attended by close family friends who have attested this deed of adoption.
(v) Parties now are desirous of recording the said adoption as follows:

NOW IT IS THEREFORE DECLARED AND RECORDED AS FOLLOWS

(1) That on ________ date the party of the second part the natural mother of _________ Age____
years gave the custody of her daughter to the party of the first Part with the intention to give her
in adoption and the party of first Part took the custody of the girl; i.e. ________, with an intention
to take her in adoption and has now become her adoptive mother.
(2) The parties hereby declare that the said daughter i.e.______ has now ceased to be a member of
______ family i.e. party of the second part.
(3) The said girl child ______ will now be known by the name of ______.

IN WITNESS WHEREOF the parties have put their hands on the date written hereinabove.

Signed by Party of the First Part

Signed by Party of the Second Part

In the presence of –
 Page 6 of 6
16.2 Adoption

(1)

(2)

13 Kamala Rani v Ram Lalit Rai, (2018) 9 SCC 663.

14 Ratanlal v Sundarabai Govardhandas Samuka, AIR 2017 SC 5797.

End of Document
 16.3 Arbitration
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > ARBITRATION

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

ARBITRATION

16.3 Arbitration

Settlement of disputes by means of alternative dispute resolution mechanism has gained momentum in
today’s techno-commercial era. Arbitration is one of the most common and popular forms of Alternate
Dispute Resolution, today. Arbitration is a reference to the decision of one or more persons, either with or
without an empire, of a particular matter pertaining to which a dispute has arisen between the parties.
The provisions of arbitration are governed by the Arbitration and Conciliation Act, 1996 (as amended
from time to time, i.e., 2015 and 2019).
16.3.1 Arbitration Agreement

Arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is
structured. The jurisdiction of the arbitral tribunal emanates from the agreement between the parties. The
arbitration agreement prescribes the parameters of the scope and extent of the arbitral jurisdiction to
decide any or all the disputes comprehended by it.15

In an arbitration agreement, it is essential that the parties should intend to make a reference or
submission to arbitration, and should be ad idem in this respect. No particular form is necessary.

An arbitration agreement is defined under section 7(1) of the Arbitration and Conciliation Act, 1996 as
follows:

7. Arbitration agreement.—

(1) In this part, “Arbitration agreement” means an agreement by the parties to submit to arbitration all
or certain disputes which have arisen or which may arise between them in respect of a defined
legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of
a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if it is contained in–
(a) A document signed by the parties;
(b) An exchange of letters, telex, telegrams or other means of telecommunications (including
communication through electronic means) which provide a record of the agreement; or
 Page 2 of 8
16.3 Arbitration

(c) An exchange of statements of claim and defence in which the existence of the agreement is
alleged by one party and not denied by the other.
(5) The reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement if the contract is in writing and the reference is such as to make that
arbitration clause part of the contract.

From the above definition, it becomes clear that an arbitration agreement has to be in writing, and it will
be inferred that there is an arbitration agreement in writing when the parties have duly signed the
agreement, or exchange of correspondence indicates so, as is stated under section 7(4)(b) of the Act.
When there is an exchange of statement, claim and defence, and one of the parties asserts arbitration
agreement and the same is not denied by the other, it shall be presumed that there is an arbitration
agreement between the parties.

The terms of the arbitration agreement must be clear and certain. An arbitration agreement is void if its
terms are uncertain or there is no clear reference of arbitration. The words in the agreement and conduct
of the parties should disclose a determination and obligation to go for arbitration and not merely
contemplation or possibility for going to arbitration. An arbitration agreement has to be in writing even
though it may not be signed by the parties.16

An agreement even if not signed by the parties can be spelt out from the correspondence exchanged
between the parties.

A perusal of section 7(4)(b) and (c) would show that a written document which may not be signed by the
parties even then it can be an arbitration agreement. In present day of e-commerce, internet purchases,
tele purchases, ticket bookings on internet and in standard forms of contract, terms and conditions are
agreed upon. In such agreements, if the identity of the parties is established, and there is a record of
agreement, it becomes an arbitration agreement if there is an arbitration clause showing ad idem
between the parties. Therefore, signature is not a formal requirement under section 7(4)(b) or section
7(4)(c) or under section 7(5) of the Act.17

Reference to arbitration can be made even when there is an arbitration clause in the contract document
executed between the parties. Therefore, an arbitration agreement is an agreement to submit disputes,
which have arisen or which may arise, at present or in future, to arbitration. An agreement to refer future
disputes to arbitration is valid and binding.

The burden of proving the arbitration agreement lies on the party asserting it18 once this is satisfied, then
the burden of proof shifts on the other party to prove that the arbitration agreement cannot be relied
upon.
16.3.2 Arbitration Clause—Interpretation

The rules of interpretation require that an arbitration clause should be read in the ordinary and natural
sense except where that would lead to an absurdity. No part of a term/clause should be considered as a
meaningless surplusage when it is in consonance with the other parts of the clause and expresses the
specific intention of the parties.19
16.3.3 Form of Arbitration Agreement

The Hon’ble Supreme Court in Rukmanibai Gupta v The Collector, Jabalpur, has laid down that the
“Arbitration Agreement is not required to be in any particular form. What is required to be ascertained is
whether the parties have agreed that if disputes arise between them in respect of the subject-matter of
contract such disputes shall be referred to arbitration, then such an arrangement would spell out an
arbitration agreement.”20
16.3.4 Drafting of Arbitration Agreement

Arbitration agreement can broadly be put in two categories:

 Page 3 of 8
16.3 Arbitration

(1) A separate or independent agreement executed by the parties thereby consenting to refer all
their disputes to arbitration pertaining to a contract executed between them.
(2) By way of a clause in a contract document, wherein, it is mutually agreed to refer disputes arising
under that contract to arbitration.

It is not necessary to name the arbitrator in the clause or agreement; parties may state a name of sole
arbitrator in the agreement or clause, as the case may be.

It is an essential condition to invoke the arbitration agreement that a dispute has arisen between the
parties. A dispute is said to be between the parties when there is a claim, of one party and a denial or
repudiation of the said claim by the other party.

An Arbitration Agreement must have the following details:

1) Details of the contracting parties

2) Brief details as to the nature of activity of the parties to the contract
3) Mention the nature of relationship between both the parties to the agreement
4) Nature of disputes which can be referred to the Arbitral Institution/sole arbitrator/Arbitration
Tribunal
5) The procedure of referring the disputes
6) Period of notice before invoking arbitration agreement
7) The place of arbitration
8) The qualifications of the arbitrator/s, the powers and the process of their appointment
9) The language in which the arbitration proceedings to be conducted
10) Time frame within which the award must be made
11) Covenant as to costs of Arbitration

(To be borne by one party or by both the parties. Generally, the cost of Arbitration is split
between the parties and may be claimed as a part of the award.)
12) Stamp Duty and other incidental charges incurred at the time of an execution are to be borne
equally by both the parties
13) At end the place and date of the execution of the agreement and the signatures of the parties to
the Arbitration Agreement

16.3.5 Stamp Duty

Arbitration agreement is a form of an agreement which requires to be stamped like an ordinary

agreement, and is chargeable with a duty as stated under Article 5(c) of the Indian Stamp Act.
16.3.6 Registration

Arbitration agreement is not required to be registered even when the scope of the dispute relates to
immovable property because an arbitration agreement does not create a right, title or interest in the
immovable property. However, an award which purports or operates to create or declare, assign, limit or
extinguish, whether at present or in the future, any right title or interest, whether contingent, of the value
of rupees one hundred and upwards to an immovable property, is to be registered compulsorily under
section 17(1)(b) of the Registration Act.21
16.3.7 Specimen
 Page 4 of 8
16.3 Arbitration

Specimen No. I

Arbitration Agreement

This Arbitration Agreement is made and executed on this _________ day of __________ at
(place)__________

BETWEEN

Mr. P

Age: ___________;

Occupation: __________

Residing at: __________

Hereinafter referred to as Party of the One Part

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

And

M/S. ST Firm

Through its proprietor

Mr. Q

Age: ___________;

Occupation: __________

Residing at: __________

Hereinafter referred to as Party of the Other Part

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

WHEREAS Mr. P is the owner of the property situated at _________ bearing S. No. __________
admeasuring __________ Sq. mtrs and more particularly described in the schedule herein below stated.

AND WHEREAS Mr. P i.e. party of the one part is desirous of constructing a bungalow at the aforestated
premises.

AND WHEREAS the party of other part i.e. Mr. Q is a contractor by profession and carries on
construction work on contract basis under his proprietary firm name ______________

AND WHEREAS the party of other part has agreed to construct a bungalow as per the specifications
annexed to this agreement and the parties have also entered into an agreement dated ___________
regarding the terms and conditions of the construction of the said bungalow at _____________.
 Page 5 of 8
16.3 Arbitration

AND WHEREAS the parties have mutually agreed to resolve any/all dispute/s arising under the
agreement dated _____________ by means of arbitration.

NOW THEREFORE THIS AGREEMENT WITNESSES AS UNDER:—

(1) That if any dispute arises out of the agreement dated ___________ or with respect to interpretation of
any clause/s under the said Agreement then the dispute so arisen shall be referred to the sole arbitrator
Mr. __________, Age: _________, Residing at :__________ and that the decision of the said Arbitrator
shall be binding on both the parties.

(2) The parties agree to submit to arbitration as per the Arbitration Act of 1996 or any other law which
becomes applicable to the parties.

(3) That the said sole arbitrator shall make his award within a period of three months from the date of
service of a copy of this agreement by any of the parties hereto, provided that, the arbitrator will have
power to extend the said period from time to time with mutual consent of both the parties.

(4) That the Arbitrator will be bound to give reasons for the award and the place of Arbitration shall be at
___________place.

(5) That the arbitrator shall make such inquiries and shall call upon such evidences as he deems fit for
the determination of the dispute between the parties.

(6) That the parties agree that this arbitration reference shall not be revoked in the event of death of
either parties.

(7) The parties further agree that in case Mr.-----, the sole arbitrator stated hereinabove is unable to act
as arbitrator for any reason then the parties by mutual consent shall substitute the named arbitrator
herein.

SCHEDULE OF THE PROPERTY

All that piece and parcel of land bearing S. No. ______ admeasuring ______ Sq. mtrs. situated at
____________ within the local limits of ________ Municipal Corporation and is bounded as under:

ON OR TOWARDS:

East :

West :

North:

South:

IN WITNESS WHEREOF, the parties have signed this agreement on the date mentioned hereinabove.

Sd of Party of the One Part

Sd. of Party of the Other Part through its proprietor

In presence of
 Page 6 of 8
16.3 Arbitration

Witness No. 1

Witness No. 2

Specimen No. II

Arbitration Agreement

This Arbitration Agreement is made on this _________ day of ________ at (Place)

BETWEEN

_____ Pvt Ltd Company

(Incorporated under the provisions of the

Indian Companies Act, 1956/2013

Having its registered office at _____________________________ Party of the First Part through its
Director, name _____ age _____ residing at __________

Hereinafter referred to as Party of the First Part

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include its
successors, executors, administrators and assigns).

AND

_____ Pvt Ltd Company

(Incorporated under the provisions of the

Indian Companies Act, 1956/2013

Having its registered office at ______________ Party of the Second Part through its Director, name
_______ age _______ residing at __________

Hereinafter referred to as Party of the Second Part

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include its
successors, executors, administrators and assigns).

WHEREAS

i) The party of the First part and the party of the Second part have entered into an agreement dated
________ for the supply of (describe the goods) by the party of the Second part to the party of
the First part.
ii) The party of the First part and the party of the Second part have agreed to resolve any/all
disputes which may arise, pertaining to any aspects of the Agreement dated._______ by means
of Arbitration.

NOW THIS AGREEMENT WITNESSES AS FOLLOWS:-

 Page 7 of 8
16.3 Arbitration

The parties to this agreement hereby covenant and declare that:

(1) In the event of any dispute/s of every nature and kind both the abovementioned parties in respect
of the Agreement dated_____, executed on_______ dt between the aforesaid parties including
but not limited to the existence, validity, meaning and interpretation, enforcement, operations,
performance, non-performance, breach, continuance or termination of the agreement shall be
referred to arbitration.
(2) It is further stipulated that after a dispute has arisen, either party may demand the arbitration
proceedings to commence in writing within ______ days with the details of the dispute stated in
the said notice.
(3) The language of the arbitration proceedings shall be (Language).
(4) The place of the arbitration shall be ______ city.
(5) That the arbitrator/s shall make such inquiries and shall call upon such evidences as deems fit for
the determination of the dispute between the parties.
(6) Any amendments or modifications in the agreement or any additional obligation in connection
with this agreement shall be binding only in case the following is in writing and is signed by each
party.
(7) The terms of this agreement serves as a bar to any suit, actions or proceeding instituted in any
other court with regard to the disputes which require being referred to arbitration as per this
agreement.
(8) The parties agree to submit to Arbitration as per the Arbitration Act of 1996 as amended or any
other arbitration law that becomes applicable to the parties.

IN WITNESS WHEREOF the parties have signed this agreement on the date first written hereinabove.

Sd of the First Part

Sd of the Second Part

In the presence of –

(1)

(2)

Specimen No. III

16.3.8 Arbitration Clause

All the disputes and differences which may arise between the parties hereto, including any dispute or
difference pertaining to the interpretation of any provision or terms and conditions or the meaning thereof
or with regard to any claim made by one party against the other or with regard to the rights and
obligations of any party/s hereto under this agreement or otherwise, howsoever, the same shall be
referred to the sole arbitrator if agreed upon by the parties to this agreement or otherwise to two
arbitrators wherein each party will appoint an arbitrator of their choice and the two so appointed
arbitrators would appoint an umpire to resolve the dispute or difference arisen and that such arbitration
shall be governed by the provisions of the Arbitration Act for the time being in force.

Specimen No. IV

Arbitration Clause for resolving disputes in a partnership firm

 Page 8 of 8
16.3 Arbitration

The parties/partners to the Partnership Deed dated _____ hereby declare and agree that the
undermentioned disputes shall be resolved and decided by the process of arbitration.

i. Disputes arising from the interpretation of any of the clauses enumerated in the partnership deed
dated ______;
ii. Disputes among the partners in respect of their powers, functions, liabilities and responsibilities;
iii. Disputes pertaining to the running of the business of the firm among the partners;
iv. Disputes requiring dissolution of the firm;

It is hereby agreed that sole arbitrator shall be selected and appointed by the parties to the dispute who
will act and conduct the proceedings, in accordance with the Arbitration and Conciliation Act, 1996.

15 The Law and Practice of Arbitration, Indu Malhotra, 3rd Edn, p 354.
16 Tranvancore Devaswom Board v Panchamy Pack Pvt Ltd, 2004 13 SCC 510.
17 Govind Rubber Ltd v Louis Dreyfus Commodities Asia, Pvt Ltd, (2015) 13 SCC 477.
18 UC Aggarwal v Container Corp, AIR 2006 Delhi 199.
19 National Agricultural Co-op Marketing Federation India Ltd v Gains Trading Ltd, AIR 2007 SC 2327 : 2007 (5) SCC 692.
20 Rukmanibai Gupta v The Collector, Jabalpur, AIR 1981 SC 479 : (1980) 4 SCC 556 : 1980 (12) UJ 988 SC.
21 Lachhman Dass v Ram Lal, AIR 1989 SC 1923 : 1989 SCR (2) 250.

End of Document
 16.4 Gift
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > GIFT

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

GIFT

16.4 Gift

A gift is defined under section 122 of the Transfer of Property Act, 1882 as a transfer of certain existing
movable or immovable property made voluntarily and without consideration by one person called the
donor, to another called the donee, and accepted by or on behalf of the donee.

Therefore, the essentials of a valid gift are:—

(a) Gift is a transfer of an existing property (movable or immovable), by the owner/donor to the
donee.
(b) It must be made voluntarily and without consideration.
(c) It should be accepted by or on behalf of the donee.
(d) The acceptance of the gift must be during the life of the donor and while he is still capable of
giving.

If the donee dies before acceptance, the gift is void.

16.4.1 Donor and Donee

The donor is a person who gives. Any person who is sui juris can make a gift of his property.

On behalf of the donor the essential ingredient is that he should voluntarily and without consideration
transfer the property to the donee and the giving away implies a complete divesting of the ownership in
the property by the donor.

The donee is a person who accepts the gift. A gift may be accepted by or on behalf of a person who is
not competent to contract.
16.4.2 Subject Matter of Gift

As stated above, the subject matter of the gift must be certain existing, movable or immovable property.
16.4.3 Forms of Gift

A gift may be made of any of the forms—

16.4.3.1 A Permanent gift

When a gift is unconditional or unqualified it will be a permanent lifetime gift.

 Page 2 of 7
16.4 Gift

16.4.3.2 A conditional or revocable gift

When the gift is conditional; it would be void if the condition is not fulfilled.
16.4.3.3 Mortis Causa

When the donor makes a gift in contemplation of death it is called gift mortis causa.

A donor who makes a gift cannot give away more than what he is entitled to. A gift deed divests the
donor of all his rights, titles and interests in the property gifted.
16.4.4 Proving of Gift

In the absence of any specific denial to the execution of the gift deed, it was held by the court that it is not
mandatory for the donee to examine one of the attesting witnesses to the gift deed to prove it.22
16.4.5 Drafting of Deed of Gift

(1) A gift deed is similar to a deed of conveyance, as in both cases there is a transfer of property.
The significant difference between the two is as to consideration. A gift deed is without
consideration, or the consideration is generally of natural love and affection between the parties.
(2) A gift deed should unambiguously describe the property gifted. A gift deed should be of existing
property only. If any future property is included it will be void to that extent.23
(3) A gift has to be accepted by the donee. Therefore, it is desirable to make donee not just a party
but an executing party to the deed. However, if the donee is a minor, in such a case his guardian
can accept the gift on his behalf.
(4) A gift deed must include a clause that physical possession of movable or immovable property has
been given to the donee.
(5) A gift may be made revocable on the happening of certain specific event, which does not depend
on the will of the donor. Such clause can be added wherever applicable and necessary.
(6) A gift has to be absolute and therefore, the donor should gift the property absolutely without
reserving any right for himself in the gifted property.
(7) Gift can be made only by a person who is competent to contract. A minor cannot make a gift
unless the minor’s guardian is authorised to do so.
(8) As per section 123 of Transfer of Property Act, 1882, for the purpose of making a gift of
immovable property, the transfer may be effected either by a registered instrument signed by or
on behalf of the donor and attested by at least two witnesses. For the purpose of making a gift of
movable property, the transfer may be effected either by a registered instrument singed as
aforesaid or by delivery. Such delivery maybe made in the same way as goods sold maybe
delivered.
(9) Where a Gift is in the form of a single transfer to the same person of several things of which one
is, and the others are not burdened by an obligation, the donee can take nothing by the gift
unless he accepts it fully. Where a gift is in the form of two or more separate and independent
transfers to the same person of several things, the donee is at liberty to accept one of them and
refuse the others, although the former may be beneficial and the latter onerous gift to disqualified
person.—A donee not competent to contract and accepting property burdened by any obligation
is not bound by his acceptance. But if, after becoming competent to contract and being aware of
the obligation, he retains the property given, he becomes so bound.24

16.4.6 Gift under Muslim Law

The provisions of the Transfer of Property Act, 1882 regarding gift are inapplicable to the
Mohammedans. The Muslim law recognises an oral gift as valid even with respect to immovable
property. As per Muslim law, gift is a transfer of property without consideration, without duration and it is
 Page 3 of 7
16.4 Gift

unconditional. The donee must accept the gift. The other important requirement of gift is delivery of
possession. The delivery of possession may be actual or constructive.
16.4.7 Registration of Gift

(a) A gift of immovable property must be made by a registered deed. However, if the deed is
registered but the gift is not accepted by the donee, the mere registration will not make it valid.25
(b) A Muslim can make an oral gift of an immovable property but where it is recorded in writing, the
deed is required to be registered.
(c) A gift of movable property can be made by actual delivery of the property or by a registered deed.

16.4.8 Execution of Gift

A deed of gift must be signed by the donor. The donor’s signature must be attested by at least two
witnesses. The donee has to sign the gift to endorse his acceptance.

The gift cannot be evidenced by consideration, same cannot be valid, within the meaning of section 122
of the Transfer of Property Act. But it is clear from the document itself that no consideration is passed on
as per the registered gift deed. Mentioning of Rs. 5,000/- in the first page for the purpose of valuation
cannot be said to be consideration received by the donor for executing the gift deed.26
16.4.9 Stamp Duty

Stamp duty on a deed of gift is the same as on a deed of conveyance.

16.4.10 Specimen

Specimen No. I

GIFT DEED

(MOVABLE PROPERTY)

THIS DEED OF GIFT, made on this _______ day of ____ 20 ________ BETWEEN

Mrs. __________

Age: _________,

Occupation: __________,

Residing at: __________

PAN: ________

(Hereinafter called the Donor)

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include her
heirs, executors, administrators and assigns)

Party of the First Part

AND

Mrs. __________

Age: _________,
 Page 4 of 7
16.4 Gift

Occupation: __________,

Residing at: __________

PAN: ________

(Hereinafter called the Donee)

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include her
heirs, executors, administrators and assigns).

Party of the Second Part.

WHEREAS

i. The donor owns a collection of 30 books on ______ subject and 7 paintings which she has
purchased from time to time out of her own funds and means.
ii. The donor is a childhood friend of the donee and the donor bears natural love and affection for
the donee and therefore intends to gift her the said books and the paintings unto the donee.

AND WHEREAS the donee is ready and willing to accept the gift of the donor.

NOW THIS DEED WITNESSES as follows:

i. That the donor out of her natural love and affection for the donee does hereby makes a gift of her
30 books on _______subject and 7 paintings described in further details in the schedule
hereunder unto the donee absolutely and forever as the owner thereof.
ii. That the donee does hereby accept the said gift made to her by the donor.

Schedule of the property

i) List of books
ii) Description of 7 paintings

IN WITNESS WHEREOF the parties have signed hereunder on the date and the place first
abovementioned.

Sd of Donor

Sd of Donee

In the presence of

1.

2.

Specimen No. II

GIFT DEED

(Immovable property)
 Page 5 of 7
16.4 Gift

THIS DEED OF GIFT, made on this __________ day of 20________ BETWEEN

Name _______;

Age: _________,

Occupation: __________,

Residing at: __________

PAN: ________

(Hereinafter called the Donor)

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

Party of the First Part

AND

Name _______;

Age: _________,

Occupation: __________,

Residing at: __________

PAN: ________

(Hereinafter called the Donee)

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

Party of the Second Part

WHEREAS the donor, that is the party of the first part is the absolute and exclusive owner of the property
bearing CTS No. ___________ admeasuring ______________ Sq. Ft. and more particularly described in
detail in the schedule herein below. The value of the aforesaid immovable property is Rs. __________/.
The donor is also in physical possession of the aforesaid property.

WHEREAS the said property is the self acquired property of the donor purchased and acquired by him
out of his own funds and means.

WHEREAS the donee is the donor’s elder brother’s son by name Mr. ___________ i.e. the donee is the
nephew of the donor. The donee has been residing with the donor since the donee was 10 years old i.e.
from _________ year. The donor has no children of his own. The donor has great love and affection for
the donee and is therefore desirous of gifting the property mentioned above and more particularly
described in the schedule herein below to the donee out of natural love and affection.
 Page 6 of 7
16.4 Gift

WHEREAS the donee is ready and willing to accept the gift of the said property, if made to him by the
donor.

NOW THIS DEED OF GIFT WITNESSES AS FOLLOWS:

1. That in pursuance of the intention and desire and in consideration of natural love and affection
which the donor has for the donee, the donor out of his free will, without any fraud, coercion,
undue influence, etc., from any person whomsoever and in full possession of his senses does
hereby gift, convey, grant, transfer and confirm to the donee the property bearing No. _____,
admeasuring ________ together with all privileges, profits, advantages and all their
appurtenances whatsoever to the said tenements, hereditaments and premises TO HAVE AND
TO HOLD the premises hereby gifted unto and to the use of the donee forever and absolutely.
2. That the donee may from time to time and at all times hereafter quietly and peaceably without
any obstruction or hindrance from any person upon, have, hold, occupy, possess and enjoy the
property hereby gifted and receive and take the rents and profits thereof absolutely and forever.
3. That the donor does hereby declare and confirm that he the donor, shall not have any right, title
or interest in or over the said property or any part thereof.
4. That the donor does hereby assures unto the donee that the donor has clear and marketable title
to said property and the same is free from encumbrances and also that it is not a subject matter
of any pending litigation, acquisition or requisition proceedings.
5. That the donor also assures the donee that all the taxes, cesses, charges and assessments
payable in respect of the said property have been duly paid upto date by the donor.
6. That the donee hereby accepts the said gift made to him by the donor by executing these
presents.

SCHEDULE OF THE IMMOVABLE PROPERTY GIFTED

All that piece and parcel of the land___________ admeasuring ____________ Sq. mtrs. situate within
registration division and district __________ sub-division and Taluka ___________, within the limits of
________ Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ alongwith a building standing thereon admeasuring __________ Sq. mtrs. And bounded
by as follows

On or towards

East :

South:

West :

North:

IN WITNESS WHEREOF the parties have signed hereunder on the date and the place first
abovementioned

Signature of Donor

Signature of Donee

Witness
 Page 7 of 7
16.4 Gift

(1)

(2)

22 Govindbhai Chhotabhai Patel v Patel Ramanbhai Mathurbhai, AIR 2019 SC 4822.

23 Section 124 of Transfer of Property Act, 1882.
24 Section 127 of Transfer Property Act, 1882.
25 Chennupati Venkatasubbamma v Nelluri Narayanaswami, AIR 1954 Mad 215.
26 Jagdish Chander v Satish Chander, decided on 27 February 2019 by the Supreme Court.

End of Document
 16.5 Indemnity
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > INDEMNITY

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

INDEMNITY

16.5 Indemnity

Indemnity means a formal legal acceptance of responsibility against damage or loss. “A contract by
which one party promises to save the other from loss caused to him by the conduct of the promisor
himself or by conduct of any other person, is called a “contract of indemnity.” ”27

Distinction between Indemnity and Guarantee:—

Indemnity is express or implied, to keep a person who has entered, or is about to enter, into a contract of
liability indemnified against the liability independently of a question whether a third person makes default
or not, it differs from a guarantee which is a promise to pay the creditor if the principal debtor makes
default in payment. A contract of guarantee is rendered void without valid consideration.
16.5.1 Extent of Liability of the Indemnifier

The indemnifier is liable to make good his promise only when the indemnified suffer actual loss. Section
125 of Indian Contract Act states as follows:

125. The Promisee in a contract of Indemnity, acting within the scope of his authority, is entitled to recover from the
Promisor:

(i) all damages which he may be compelled to pay in any suit in respect of any matter to which the
promise to indemnify applies;
(ii) all costs which he may be compelled to pay in any such suit, if in bringing or defending it, he did
not contravene the orders of the Promisor, and acted as it would have been prudent for him to act
in the absence of any contract of indemnity, or if the promisor authorised him to bring or defend
the suit;
(iii) all sums which he may have paid under the terms of any compromise of any such suit, if the
Compromise was not contrary to the orders of the Promisor, and was one which it would have
been prudent for the Promisee to make in the absence of any contract of Indemnity, or if the
Promisor authorised him to compromise the suit.

The purpose of contract of Indemnity is to ensure that the other party to the contract is safe from any loss
caused, damages or costs required to be paid in any proceedings. It is a remedial measure and it is
compensatory in nature.
16.5.2 Form of Indemnity
 Page 2 of 4
16.5 Indemnity

An indemnity can be executed either as a clause inserted in any other deed or it can be a separate
indemnity bond. When an indemnity is given in the form of a bond, it is in the form of an agreement or an
undertaking. Indemnity may be against any loss, costs, charges and expenses suffered by the
indemnified without specifying the amount, or the liability may be limited to a specific amount.
16.5.3 Stamp Duty

Under the Stamp Act an agreement of Indemnity to make good the loss or damages is chargeable with
stamp duty as on an agreement, and in case of a bond, the stamp duty is payable depending on the
nature and type of the bond as stated under the Stamp Act. When indemnity is given as a clause in a
deed then the duty is payable as on the deed.
16.5.4 Registration

An Agreement of Indemnity or an Indemnity bond need not be registered unless it creates a charge on an
immovable property.
16.5.5 Specimen

Specimen No. I

Deed of Indemnity

THIS DEED OF INDEMNITY is made and executed at _________on this _____ day of ____________,
20____

BETWEEN

Mr. __________

Age: _________

Occupation: _____________

Residing at: _______________________________

PAN:____________

(Hereinafter referred to as “the Indemnifier”),

(which expression shall, unless repugnant to the context, mean and include his heirs, executors,
administrators and assigns).

Party of the One Part

And

Mr. __________

Age: _________

Occupation: _____________

Residing at: _______________________________

PAN:____________
 Page 3 of 4
16.5 Indemnity

(Hereinafter referred to as “the Indemnified”),

(which expression shall, unless repugnant to the context, mean and include his heirs, executors,
administrators and assigns)

Party of the Other Part

WHEREAS party of the one part has executed Sale Deed in favour of party of the other part dated
____________ and the same is registered in the office of Sub-Registrar at Sr. No. _____________.

AND WHEREAS the property bearing CTS No. ____________ admeasuring ________Sq. mtrs. together
with the structure standing thereon and as fully described in the schedule written herein below and
hereinafter referred to as the said property is the property which has been sold to the party of the other
part by the party of the one part as Karta of the said property which is a coparcenary property.

AND WHEREAS the party of the one part had assured and represented to the party of the other part that
the said property is sold for legal necessity and for the benefit of the estate and the other coparceners
are also a party to the aforestated sale deed of the said property.

AND WHEREAS the party of the other part is desirous of executing an indemnity deed from the party of
the one part in case of any cross claims in future or other losses caused to the other party.

AND WHEREAS as the sale deed has been executed between the parties and consideration has been
received by the party of the one part, the party of the one part agreed to execute this deed of Indemnity
in favour of the party of the other part.

NOW THEREFORE THIS DEED OF INDEMNITY WITNESSES AS UNDER:

(1) That the party of one part hereby declares and undertakes to indemnify and to keep indemnified
the party of the other part for any loss or damage caused to the party of the other part or to his
successors entitled with respect to the said property.
(2) That the party of one part hereby undertakes that in case of any dispute arising regarding the title
of the said property and any loss or damage is caused to the party of the other part or its
nominees, the party of one part shall indemnify and compensate the party of the other part to that
effect.

SCHEDULE OF PROPERTY

All that piece and parcel of the ___________ admeasuring ____________ Sq. mtrs. situate within
registration division and district __________ sub division and Taluka ___________, within the limits of
________ Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ alongwith a building standing thereon admeasuring __________ Sq. mtrs. And bounded
by as follows

On or towards

East :

South:

West :

North:
 Page 4 of 4
16.5 Indemnity

IN WITNESS WHEREOF the parties hereto have signed on the day and date first hereinabove written.

Signature of Party of the One Part Signature of Party of the Other Part

Witness

1. ________

2. ________

Specimen No. II

INDMENITY BOND

I Mr.___________________ Age: ___________ Occupation ___________ Residing at

_______________, do hereby execute this Indemnity Bond and hereby declare and confirm as follows:

(1) That in consideration of supplies made by ABC Firm having its registered office at
_______________ vide purchase order No.________ dated ____________ the said firm had
issued me a cheque of Rs. ____________/-.
(2) That I have lost my bag which had the said cheque in it and I have lodged a police complaint
regarding the same on _________ date at __________ police station.
(3) That on my request ABC Firm has issued me a second cheque of the same amount against the
cheque which has been lost.
(4) That I hereby undertake to indemnify the said ABC firm in the event of the earlier cheque being
presented to and paid by the Bank and further indemnify the said firm against all expenses which
may be incurred by it in relation thereto.

IN WITNESS WHEREOF I HAVE SIGNED HEREUNDER ON THIS __________DAY OF ____________

20 ____

Indemnifier

I know the indemnifier

Advocate

27 Section 125 of Indian Contract Act.

End of Document
 16.6 Lease
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > LEASE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

LEASE

16.6 Lease

The expression “lease” has been defined under section 105 of the Transfer of Property Act, 1882 as:

A lease of immovable property is a transfer of a right to enjoy such property, made for certain time, expressed or implied, or
in perpetuity, in consideration of price paid or promised, or of money, a share of crops, service or any other thing of value,
to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such
terms.

From the above definition, therefore, it can be inferred that by a deed of lease, what is transferred by the
lessor or the owner to the lessee is his right to enjoy the property, subject to the terms of the lease.
Therefore, by a deed of lease what is transferred by a lessor to the lessee is the right to enjoy and to
possess the demised premises and not the whole or any other part of the rights of ownership of the
lessor. A lease is not a mere contract but is a transfer of an interest in land, and creates a right in rem.

A lease must have some period for its duration, though the period may be in perpetuity. A lease without a
period would be void.28
16.6.1 Lessor, Lessee, Premium and Rent Defined

The transferor/owner is called the lessor and the transferee is called the lessee. The price is called the
premium and the money, share, service or other thing to be so rendered is called the rent.

The expression lease and tenancy are used interchangeably many a times. Generally, the expression
lease is used when the premises are given for a longer period, i.e., more than a year or so. Thus, a
tenancy for more than a year is generally called lease, though no distinction has been made by law.

A lease of an immovable property from year to year, or for a term exceeding one year, or reserving yearly
rent can be made by a registered instrument. All other forms of leases can be made either by oral
agreement, or by delivery of possession, or by registered instrument.
16.6.1.1 Section 106

According to section 106, in the absence of a contract or local law or usage to the contrary a lease of
immovable property for agricultural or manufacturing purposes, shall be deemed to be a lease from year
to year. The same can be terminable on the part of either the lessor or lessee by six months’ notice and
all other leases shall be deemed to be from month to month, terminable on the part of either lessor or
lessee by fifteen days’ notice. Existence of a valid lease a pre-requisite to invoke the rule of construction
embodied in section 106.
 Page 2 of 10
16.6 Lease

16.6.2 Rights and Liabilities of the Lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to
its intended use, of which the former is and the latter is not aware and which the latter could not
with ordinary care discover.
(b) The lessor is bound on the lessee’s request to put him in possession of the property.
(c) The lessor shall be deemed to contract with the lessee that if the latter pays the rent, reserved by
the lease and performs all the obligations binding on the lessee, he may hold the property during
the time limited by the lease without interruption.

16.6.3 Rights and Liabilities of the Lessee

The Lessee’s rights and liabilities are stated hereunder.

(a) The lessee is bound to pay rent.

(b) The lessee is entitled to pay taxes and outgoings (subject to any agreement to the contrary).
(c) The lessee is entitled to use the land for the purpose for which the lease is given and for no other
purpose.
(d) The lessee is bound to keep the property in good condition subject to normal wear and tear.
(e) The lessee is bound to adhere to all municipal rules and regulations governing the property and
the use thereof.
(f) The lessee is bound to allow the lessor or his agent to inspect the property.
(g) The lessee is bound not to use the property in such a manner as would be dangerous or
hazardous or amount to nuisance to the adjoining owners or occupiers.
(h) The lessee is bound to deliver the possession of the property to the lessor on the expiration of
the period of lease or earlier termination thereof.
(i) The lessee is entitled to enjoy the lease property for the duration as agreed to with the lessor
without any interference.

16.6.4 Agreement to Lease

Generally, when the lease is for a long period it is preceded by an agreement to lease, and finally by
execution of the deed of lease. The essential ingredients of an agreement to lease are:—

(1) The parties to the deed

(2) The property to be demised
(3) The duration of the lease
(4) The rent payable and deposit, if any
(5) The date of commencement of Lease
(6) Retransfer of property
(7) Covenants of the lessor and leasee
(8) Determination of lease

When a lessor enters into an agreement to sell the tenanted property to his lessee during the
subsistence of the lease, the execution of such agreement would not ipso facto result in the
 Page 3 of 10
16.6 Lease

termination of the lease unless the parties intended to surrender the lease, whether expressly
or impliedly.

The Supreme Court recently reaffirmed the non-arbitrability of disputes relating to tenancy
and eviction.29

16.6.5 Contents of Lease Deed

16.6.5.1 Parties to a Lease

The lease deed must state the parties to a lease, i.e., the lessor or the landlord and the lessee and the
tenant. According to section 7 of the Transfer of Property Act, every person competent to contract and
entitled to transferable property or authorised to dispose off transferable property, not his own, is
competent to transfer such property either wholly or in part, and either absolutely or unconditionally in the
circumstances, to the extent and in the manner allowed and prescribed by law for the time being in force.
So it means that the lessor must be competent to contract and must have the title or the authority to
execute the lease deed.
16.6.5.2 Subject Matter of a Lease

The subject matter under lease which shall be immovable property whether for agricultural, commercial
or residential purposes, the question whether a transaction in a particular case amounts to one of a lease
depends inter alia upon whether the subject matter of the lease is or is not immovable property. The
expression immovable property as defined in section 3 of the Transfer of Property Act does not include
standing timber, growing crops and grass, but it has been held to include benefits to arise out of land.
16.6.5.3 Delivery of Peaceful Possession

The lease deed should incorporate a clause as to delivery of possession of the lease property by the
lessor to the lessee.
16.6.5.4 Duration

The lease deed should state the duration of the lease. The deed must show the duration for which it will
operate, i.e., the date of commencement and the date on which it will expire if not renewed.
16.6.5.5 Consideration/Rent

The consideration/rent for the lease of the property should be specifically stated in terms of money and
the manner of payment as well as whether it is to be paid monthly or otherwise should be stated clearly
to avoid any vagueness.
16.6.5.6 Retransfer of Property

The lease deed must include a clause regarding retransfer of the property under lease, on the
determination of the lease period by the lessee to the lessor.
16.6.5.7 Covenants of the Lessor and Lessee

All the covenants of the lessor and lessee should be enumerated explicitly in the deed and also the
consequences in case of breach of the agreed covenants. The covenants are generally similar to those
which are already stated under the heading rights and liabilities of the lessor and lessee.
16.6.5.8 Determination of Lease

Section 111 of the Transfer of Property Act lays down conditions for determination of a lease of
immovable property:

111. Determination of lease.—A lease of immoveable property determines—

(a) by efflux of the time limited thereby,

 Page 4 of 10
16.6 Lease

(b) where such time is limited conditionally on the happening of some event- by the happening of
such event,
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same
extends only to the happening of any event-by the happening of such event,
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at
the same time,
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to
the lessor by mutual agreement between them,
(f) by implied surrender
(g) by forfeiture that is to say
(i) in case the lessee breaks an express condition which provides that on breach thereof the
lessor may re-enter
(ii) in case the lessee renounces his character as such by setting up a title in a third person or by
claiming title in himself, or
(iii) the lessee is adjudicated and insolvent and the lease provides that the lessor may re-enter on
the happening of such event and in any of these cases the lessor or his transferee gives
notice in writing to the lessee of his intention to determine the lease).
(h) on the expiration of a notice to determine the lease or to quit or of intention to quit the property
leased duly given by one party to the other.

Other general requirements of a deed of transfer as that of a mortgage deed or sale deed are also
applicable to a lease deed. A renewal clause may be inserted in the lease if agreed between the parties
and also the terms of such renewal.
16.6.6 Registration

As per section 17(1) of the Indian Registration Act, 1908, an agreement of lease with possession and a
lease for a period of one year or more is compulsorily required to be registered. However, an agreement
to lease without possession is not required to be registered. It is pertinent to note that a lease of more
than one year, an assignment of lease, surrender of lease and sub-lease are required to be compulsorily
registered under the said Act.
16.6.7 Stamp Duty

For the purposes of stamp duty, the annual rent payable under the lease deed and the number of years
of the lease or on premium, or partly on premium and partly on rent, as the case may be, the duty is
chargeable under Article 35 of the Indian Stamp Act. In case of surrender of lease, the duty is a fixed
amount under Article 61 of the Indian Stamp Act.
16.6.8 Specimen

Specimen No. I

Lease of Flat for Residential Purpose

THIS LEASE is made on the ______ day of 20___ at ______________,

BETWEEN

Mr. ABC

Age ___,
 Page 5 of 10
16.6 Lease

Occupation _________,

Residing at _______,

PAN

(Hereinafter called the ‘Landlord’ / Lessor )

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns)

Party of One Part

AND

Mr. DEF,

Age _____,

Occupation _______,

Residing at _____

PAN

(Hereinafter called the ‘Tenant’/ Lessee)

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns)

Party of the Other Part

WHEREAS

(ii) Mr. DEF _______ i.e. party of the other part was in need of residential premises for him and his
family members and that Mr. ABC is desirous of letting out his flat No.___ at ________Housing
Society, bearing CTS No._______ in ______city along with the furniture and fixtures (more
particularly described in the schedule) on monthly basis for ____________ duration.
(ii) That after due negotiations between the parties the party of the one part has agreed to give the
premises on lease to Mr. DEF i.e. party of other part on certain terms and conditions as
enumerated herein below.

NOW THEREFORE THIS DEED WITNESSES AS FOLLOWS:

(1) That in consideration of the rent hereinafter reserved and of the tenant’s covenants hereinafter
contained the landlord (party of the one part) hereby leases unto the tenant (party of the other
part) the flat No. _____situate at _______ city ________along with all the fixtures, fittings,
furniture and effects therein and more particularly described the schedules I and II respectively
annexed herewith) and TO HAVE AND TO HOLD the same unto the tenant for a term of ______
year/ years, from _____20____ and paying during the said term a monthly rent of Rs.________/-
(Rupees in words ______________) only payable in advance in the first week of each month and
the tenant hereby covenants with the landlord, as follows:
 Page 6 of 10
16.6 Lease

The tenant covenants:—

(i) The tenant shall pay the rent at the times and in the manner specified herein above.
(ii) Pay all other rates, cess and taxes as levied by concerned authorities during the term of
lease including payment of electricity bills other than the property tax.
(iii) To use the leased premises only for residential purpose.
(iv) Not to damage or injure the property or make any alteration in or addition to it.
(v) Not to misuse or cause damage to the demised premises and if any damage or loss is
caused to the demised premises then the tenant, i.e., the lessee shall compensate and
indemnify the landlord to that extent.
(vi) To use and preserve fixtures, fittings, furniture and effects from being destroyed or damaged
and not to remove any of them from the property.
(vii) To allow the landlord or the landlord’s agents at reasonable hours in the day time to enter the
property to view the state and condition thereof.
(viii) Not to sublet or part with possession of the property without the previous consent in
writing of the landlord.
(ix) To leave the furniture and effects at the end of the tenancy in the rooms or places in which
they were at the beginning of the tenancy.
(x) Not to do or suffer to be done to the leased property anything which may be or become
annoyance or nuisance to the neighbouring occupiers or may vitiate any insurance of the
property against fire or otherwise or increase the ordinary premium for such insurance.
(2) If the tenant fails to make the payment of the monthly rent or any part thereof and therefore is in
arrears of rent for a duration of 15 days after the same has become due and payable whether
demanded or not or if there shall be breach of any of the terms and conditions of this lease
agreement by the tenant, the landlord may re-enter on the property and the tenancy rights shall
forthwith absolutely determine without prejudice to the other rights and remedies to the landlord.
However, in order to re-enter the premises, the landlord shall give one month’s written notice to
the tenant, i.e., lessee.
(3) The landlord agrees to pay and shall keep the tenant indemnified against all rates, assessments
and outgoings in respect of the property except the water cess and electricity charges pertaining
to the leased premises.
(4) The lessor assures unto the lessee, the lessee shall have unobstructed enjoyment of the
demised premises during the period of lease.
(5) The lessor hereby undertakes to keep the demised premises in tenable and habitable condition
and if any repairs and maintenance is required then the lessor shall do the same at his own cost.
(6) That after expiry of the lease period the tenant, i.e., the lessee shall deliver the possession of the
demised premises to the lessor.
(7) That all expenses towards stamp duty, registration charges and incidental expenses thereto are
to be borne by the lessee and accordingly he has paid for the same.

SCHEDULE OF THE PROPERTY

All that piece and parcel of the flat no___________ admeasuring ____________ Sq. mtrs. situate within
registration division and district __________ sub division and Taluka ___________, within the limits of
__________________Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout
of S. No. ___________
 Page 7 of 10
16.6 Lease

On or towards

East :

South:

West :

North:

Schedule II

Description of Furniture and Fixtures

IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as above
mentioned.

Mr. ABC

Lessor

Mr. DEF

Lessee

WITNESSES

1.

2.

Specimen No. II

(Lease for open plot of land)

THIS LEASE DEED is made on the ______ day of ____ 20___ at _______________,

BETWEEN

Name

Age: ___

Occupation: _________

Residing at: _______

PAN: _______

(Hereinafter called the Lessor )

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns)
 Page 8 of 10
16.6 Lease

Party of One Part

AND

Name:

Age: _____

Occupation: _______

Residing at: _____

PAN: _______

(Hereinafter called the Lessee)

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns)

Party of the Other Part

WHEREAS the lessor is absolutely ceased and possessed of the property bearing plot No. __________
admeasuring __________ Sq. mtrs. situated at ___________ which is adjoining to ___________ Resort
and more particularly described in the schedule herein below and hereinafter referred to as the demised
premises.

AND WHEREAS the lessee is the owner of the adjoining resort by name ____________ and desires to
use the said demised premises for parking of vehicles by the guests who visit the resort and for his staff
who works in the resort.

AND WHEREAS the lessee approached the lessor and expressed his desire and after due discussions
between the lessor and lessee, the lessor has agreed to grant to the lessee the demised premises on
lease for a term of ____________ years on certain terms and conditions enumerated herein below:

NOW THIS DEED WITNESSES AS FOLLOWS:

(i) In consideration of the rent hereby reserved and the terms and conditions contained herein, the
lessor does hereby grant and confer unto the lessee a lease of the property bearing CTS No.
__________more particularly described in the schedule written herein below for duration of
________years and

TO HAVE AND TO HOLD THE SAID DEMISED PREMISES SUBJECT TO TERMS AND
CONDITIONS.
(ii) That the premium is agreed at Rs. ________/- and the lease rent is agreed at Rs.
____________/ per month.
(iii) That the lessee has paid the said amount of premium, i.e., Rs. _________/- by cheque No.
________ drawn on ________ bank dated ________ and the lessor hereby acknowledges the
said payment of premium for the said demised premises and a separate receipt for the same
shall not be necessary.
(iv) That the lessee shall pay the lease rent at the rate of Rs. ________ per month to the lessor on or
before 10th (tenth) of each month. If the lessee delays the said payment then the lessor is
 Page 9 of 10
16.6 Lease

entitled to charge interest on the said payment at the rate of _____% p.a. from the date of delay
till its actual realisation.
(v) That the lessor has delivered the actual and physical possession of the demised premises to the
lessee at the time of execution of these presents and the lessee hereby acknowledges the same.
(vi) That the lessor hereby declares and assures unto the lessee that:
(a) The lessor is the absolute owner of the demised premises and has full and absolute right to
grant lease in favour of the lessee.
(b) The lessor shall not create any encumbrance or any third party interest with respect to the
demised premises in any such manner which may affect the use and enjoyment of the
demised premises by the lessee.
(c) The lessor hereby allows the lessee to put up a covered parking shed on the demised
premises of a temporary nature.
(vii) That the lessee hereby undertakes and assures unto the lessor that:
(a) The lessee shall pay the monthly rent on time whether demanded or not by the lessor.
(b) The lessee shall construct the temporary parking shed by causing least damage to the
demised premises.
(c) Not to sell or dispose off any earth, gravel or sand from the demised premises and to
excavate the same except so far as may be necessary for the construction of temporary
parking shed.
(d) The lessee shall not sublet or sub-lease the demised premises.
(e) The lessee shall use the said open plot i.e. the demised premises only for parking of vehicles
and for no other purpose.
(f) The lessee shall not part with the possession of the demised premises during the tenure of
lease.
(g) The lessee shall keep the demised premises in good and proper condition at his own cost.
(h) The lessee shall not commit any act which affects the title of the lessor to the demised
premises in any manner whatsoever.
(viii) That if the lessee commits breach of any terms and conditions enumerated hereinabove
then the lessor shall be entitled to terminate the lease by giving a notice of one month and on
such termination; the lessor shall be entitled to recover the possession of the demised premises
from the lessee.
(ix) That at the end of the lease tenure or prior termination thereof the lessee shall remove the
temporary parking shed put up on the demised premises at his own cost and shall hand over
actual, vacant and physical possession of the demised premises to the lessor.
(x) That all expenses towards stamp duty, registration charges and incidental expenses thereto are
to be borne by the lessee and accordingly he has paid for the same.

SCHEDULE OF THE PROPERTY

All that piece and parcel of land bearing S. No. ______ admeasuring ______ Sq. mtrs. situate at
____________ within the local limits of ________ Municipal Corporation and is bounded as under:

ON OR TOWARDS:

East :
 Page 10 of 10
16.6 Lease

West :

North:

South:

IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as above
mentioned.

Sd of Lessor

Sd. of Lessee

WITNESSES

1.

2.

28 Anwarali v Jamini Lal Roy, AIR 1940 Cal 89.

29 Himangi Enterprises v Kamaljeet Singh Ahulwalia, (2017) 10 SCC 706.

End of Document
 16.7 Leave and Licence
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > LEAVE AND LICENCE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

LEAVE AND LICENCE

16.7 Leave and Licence

The expression Licence, with reference to leave and licence agreement means permission to use any
premises, i.e., immovable property either for residence, business or storage, subject to the terms and
conditions stipulated in the agreement between the parties.

Indian Easements Act, 1882 defines Licence under section 52 as,

Where one person grants to another or to a definite number of other persons, a right to do or continue to do in or upon the
immovable property of the grantor something which would in the absence of such right, be unlawful and such right does not
amount to an easement or an interest in the property, the right is called a licence.

Therefore, licence is a personal right given to the licensee. Licence does not create any interest in the
immovable property. It merely gives right to use the immovable property in a particular manner. No
exclusive possession is given in case of licence as can be seen from the definition. In case of licence, the
permission is given to use the property of which legal possession continues with the owner.

When interest is transferred in an immovable property then the transaction is a lease. Where merely a
right is created to use the immovable property without any interest, it is a licence. In order to make out
whether the parties intended it to be lease or licence, the intention of the parties needs to be considered
by carefully perusing the terms of the agreement.

A licence is a personal right given to the licensee and hence, it cannot be transferred by the licensee or
exercised by his servants and agents, except a licence to attend a place of public entertainment.30
16.7.1 Distinction Between Lease and Licence

1. A lease is a transfer of an interest in immovable property; however, in licence there is no transfer

of any interest in immovable property.
2. Lease grants tenant with exclusive possession of an immovable property while leave and licence
agreement only provides a permission to occupy a certain property.
3. In case of lease possession stands transferred; but in case of licence the legal possession is
never transferred, it remains with the licensor.
4. Leases are transferrable but licences are not.
 Page 2 of 9
16.7 Leave and Licence

5. Generally leave and licence agreement is signed up for a period of 11 months and can be
renewed once the term expires depending upon the mutual understanding of the licensor and
licensee; lease is generally for a longer duration.
6. A licence agreement is easier to terminate than a rent agreement/lease.

As seen from the meaning of licence given under section 52 of the Indian Easement Act, a licence is a
personal right granted to a person to do something upon immovable property of the grantor and does not
amount to creation of an interest in the property itself. It is purely a permissive right and is personal to the
grantee. It creates no duties and obligations upon the persons making the grant and is therefore
revocable except in certain circumstances expressly provided for in the Act itself.

Licence only legalizes a certain act which would otherwise be unlawful and does not confer any interest
in the property itself in or upon or over which such act is allowed to be done.
16.7.2 Drafting of Leave and Licence Agreement

1. The Leave and Licence Agreement should clearly identify the Licensor and Licensee.
2. The details of the property to be given on Leave and Licence, should be stated clearly.
3. The purpose of Leave and Licence should be stated (whether property is to be given for
residential or commercial purpose).
4. The authority of the Licensor to enter into the agreement must be stated (i.e., whether he is the
owner of the property or is authorized by the owner, etc.)
5. The term of licence should be explicitly mentioned in the agreement and that after the completion
of the term of licence, the relationship between the Licensor and Licensee comes to an end. A
renewal clause may be included in the agreement.
6. The details of security deposit should be mentioned in the agreement. The licensee is required to
maintain an interest- free security deposit with the Licensor. The purpose of keeping the security
deposit is to protect the licensor’s interest in case of non-payment of licence-fee or any other
breach committed by the licensee.
7. The licence agreement must state details about other facilities like use of common passage,
parking, club house, etc. if applicable. Details of furniture and fixtures should be meticulously
given.
8. Clause regarding termination of licenses –

The agreement must state grounds on which the leave and licence agreement is liable to be
terminated.

16.7.3 Contents of a Leave and Licence Agreement

(1) The title of the document – the title stating that it is a leave and licence Agreement.
(2) The date and place of the agreement.
(3) Parties—full details of the parties, i.e., the licensor and the licensee.
(4) Description of the property.
(5) Recitals.
(a) Narrative
(b) Introductory
(i) Narrative Recitals—these recitals should state the information about the title of the
licensor to the immovable property which is the subject matter of the agreement.
 Page 3 of 9
16.7 Leave and Licence

(ii) Introductory Recitals—the reasons for the transaction____ “the licensor was desirous of
giving the licensed premises on leave and licence basis.”
(6) Testatum—NOW THEREFORE THIS AGREEMENT WITNESSES AS FOLLOWS:
(7) The terms and conditions of the licence agreement
(i) Purpose of licence-residential/ commercial/ others (charitable / religious).
(ii) The duration of the agreement
(iii) The licence fee (state the amount)
(iv) When and how to be paid (mode of payment) (i.e., paid on 5th of each month by cheque
drawn in the name of ___________).
(v) Stipulations as to how the licensed premises ought to be used
(vi) Other obligations of the licensee.
(vii) Possession- no exclusive possession given.
(viii) Right of the licensor to revoke the licence in case of breach.
(8) Habendum —the right to the licensee to use and enjoy the licensed premises _______
(9) TESTIMONIUM—That the parties have signed the agreement in the presence of each other and
in the presence of the witnesses i.e. IN WITNESS WHEREOF _____.
(10)EXECUTION—The parties to the agreement, i.e., the licensor and the licensee shall sign the
document in the end and also should state in which capacity they are executing the said
document/s.
(11)ATTESTATION—The details of the witnesses, i.e., name, address, etc., and must sign the
document/agreement with the intention to attest the same.

16.7.4 Stamp Duty

Leave and licence agreement falls under Article 5(C) of the Indian Stamp Act, 1899, and hence, requires
stamping like any ordinary agreement. It is to be noted that as per the Bombay Stamp Act, 1958 under
Article 36A, it is chargeable with stamp duty.
16.7.5 Registration

A leave and licenceagreement does not create any interest in the immovable property, therefore, the
same is not required to be registered under section 17 of the Registration Act, 1908. In Maharashtra it is
compulsory to register by the virtue of section 55 of Maharashtra Rent Control Act, 1999.
16.7.6 Specimen

Specimen No. I

Leave and Licence Agreement

This agreement is made at ________on ____________day of _______/ 20_____

BETWEEN

Name: __________

Age: _________

Occupation: _________
 Page 4 of 9
16.7 Leave and Licence

Residing at: __________

PAN: __________

Herein after referred to as Licensor

(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and
include his heirs,, executors, administrators and assigns etc.)

__________________________Party of the One Part/ Licensor

AND

Name: __________

Age: _________

Occupation: _________

Residing at: __________

PAN: __________

Hereinafter referred to as Licensee

(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and
include his heirs,, executors, administrators and assigns etc.)

__________________________Party of the Other Part/ Licensee

Whereas,

(i) The licensor is the owner of a residential flat No. _____ in building No. _________ on
______floor in _______housing society on land bearing Survey No. _________, which is more
particularly described in the schedule written hereunder.
(ii) The said flat consists of hall, kitchen and two bedrooms and two toilet blocks totally admeasuring
________sq. mtrs. (built up). The said flat is owned by the licensor and is presently in his
possession and he is also the member of the said society.
(iii) The party of other party, i.e., Mr. ____wanted a flat on leave and licence basis and therefore
approached the party of the one part to obtain the aforementioned flat on temporary basis on
following terms and conditions:

Now, it is agreed by and between the parties as follows:—

(1) The licensor hereby grants on leave and licence to the licensee to occupy and use the said flat
(hereinafter referred to as the licensed premises) for a period of 11 months from the date hereof
for the residence of the licensee and his family.
(2) The licensee shall pay to the licensor a sum of Rs. ______/- per month as licence fee or
compensation to be paid in advance on or before the 5th day each month.
(3) All the Municipal taxes and other taxes and levies in respect of the licensed premises will be paid
by the licensor alone.
 Page 5 of 9
16.7 Leave and Licence

(4) The licensee shall be entitled to use common parking space for the purposes of parking vehicles.
(5) The parties hereby agree that the licensee shall not be deemed to be in the exclusive possession
of the licensed premises and the licensor will have the right to enter upon the premises from
sunrise to sunset to inspect the premises. The juridical possession shall be deemed to be with
licensor and one set of keys of the flat will remain with the licensor.
(6) The licensee hereby undertakes to maintain the licensed premises in good and proper condition
and will not cause any damage thereto.
(7) The licensee shall not cause any nuisance or annoyance to the people in the neighbourhood or
store any hazardous goods on the premises or near about and shall not do any act which would
be a breach of the bye laws of the said society or otherwise illegal.
(8) The electricity charges due and payable for the consumption of electricity shall be paid by the
licensee and the licensor shall not be responsible for the same. The licensee shall handover all
the paid electricity bills to the licensor during licence tenure. In case the licensee commits any
default in payment of electricity bill the licensor will be entitled to adjust it from the deposit amount
of Rs. ________/-.
(9) The licensed premises are given to the licensee on personal basis and the licensee will not be
entitled to transfer the benefit of this agreement to anybody else or will not be entitled to allow
anybody else to occupy the premises or any part thereof. Nothing in this agreement shall be
deemed to grant a lease / tenancy and the licensee agrees and undertakes that no such
contention shall be taken up by the licensee at any time.
(10)The licensee shall not carry out any work of structural repairs or additions or alterations to the
said premises. Only such alterations or additions as are not of structural type or of permanent
nature may be allowed to be made by licensee inside the premises with the previous permission
of the licensor.
(11)The licensee shall maintain the licensed premises in good condition and will not cause any
damage thereto. If any damage is caused to the premises or any part thereof by the licensee, his
family members, servants etc the same shall be made good by the licensee at his cost either by
rectifying the damage or by paying cash compensation as may be determined by the licensor.
(12)If the licensee commits a breach of any of the terms of this agreement then notwithstanding
anything herein contained the licensor will be entitled to terminate this agreement by 15 days
notice to the licensee.
(13)On the expiration of the said term or period of the licence or earlier termination thereof, the
licensee shall handover vacant and peaceful possession of the licensed premises to the licensor
in the same condition in which presently the premises are subject to normal wear and tear. The
licensee remaining in occupation of the premises after such termination will be deemed to be an
act of trespass.
(14)The licensor has received from licensee under this agreement an amount of Rs. ________/- by
way of deposit without interest for the due performance of the obligations assumed and
undertaken and agreed by way of security. If the licensee commits any breach of obligation the
licensor shall recover the said amount from the deposit amount. If however, this agreement is
terminated without any default or breach on the part of the licensee, its servants/agents the said
deposit will be refunded to the licensee on such termination forthwith.
(15)This agreement will stand terminated on the licensee going into liquidation.

SCHEDULE OF THE PROPERTY

I. DESCRIPTION OF THE PROPERTY

 Page 6 of 9
16.7 Leave and Licence

All the piece and parcel of land admeasuring ________i.e. ________sq. mtrs. bearing S. No. ________
and within the Registration District _________.

Sub-District Tal. ________ and within the limits of Municipal Corporation and bounded as follows:

ON OR TOWARDS:

EAST:

SOUTH:

WEST:

NORTH:

II. DESCRIPTION OF THE FLAT

Flat No. ______in building number _____on the _____ Floor (Give full description of the flat).

Note: The word First Floor shall always mean the floor above plinth or above the slab of stilt.

Admeasuring built-up area ______ sq. mtrs. including the area under balconies and exclusive
overhead/attached terrace/garden adjoining to said flat admeasuring ______ sq. mtrs.

IN WITNESS WHEREOF the parties hereto have put their hands the day,month and year first herein
above written.

Sd of Licensor

Sd of Licensee

Witness

(1)

(2)

Specimen No. II

FOR COMMERCIAL PURPOSE

This agreement of Leave and Licence is made on this ____________day of _______ 20_____at
____________ (place).

BETWEEN

Hereinafter referred to as “the Licensor”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).
 Page 7 of 9
16.7 Leave and Licence

Party of the One Part

AND

Hereinafter referred to as ‘the Licensee’

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

Party of the Other Part

WHEREAS

(i) The licensor is the absolute owner of the Shop no. ________ in complex bearing S. No.
________ admeasuring ___________ sq. mtrs., situated at __________ and the same is
described in the schedule written herein below and hereinafter referred to as the licensed
property or the said property.
(ii) The licensor was desirous of giving the licensed property on leave and licence basis subject to
certain terms and conditions and had accordingly put notice outside the said shop/property.
(iii) The licensee who is in business of selling books, stationery, etc. and who owns shop No.
_________ in same complex read the said notice displayed by the licensor and approached the
licensor with the intention to obtain the said property on leave and licence basis.
(iv) The licensor and the licensee after due discussions and negotiations between them mutually
agreed to enter into leave and licence agreement on certain terms and conditions.

NOW THEREFORE IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

(1) The licensor hereby grants leave and licence to the licensee to occupy and use the shop No. ___
in _____ Complex admeasuring _______ sq. mtrs. bearing S. No. ________ situated at _______
(more particularly described in schedule written herein below and referred to as the licence
property/said property) for a duration of 11 months from ________ date.
(2) The licensee hereby agrees to pay Rs. __________/- as licence fees to the licensor per month
on or before the _________day of each month.
(3) The licensor has fitted certain fixtures to the said licensed premises, i.e., fan, racks, two tube
lights and the Licensee hereby agrees to use the said fittings properly and cautiously subject to
normal wear and tear.
(4) The licensed premises shall be used only for business purposes (i.e. the book and stationary
business) of the licensee and for no other purpose.
(5) If the licensee desires to have any additional fittings and fixtures, then the licensee may do so at
his cost and as per applicable rules and regulations both of the local authority and the society.
The licensee shall remove such additional fittings and fixtures on the termination of the licence
failing which the said fittings and fixtures shall be deemed to be the property of the licensor.
(6) The licensee shall maintain the licensed premises in good condition and should not cause any
damage thereto. If during the licence period any damage is caused to the licensed property or
any part thereof by the licensee or by his servants, employees or agents the same shall be made
good by the licensee at the cost of the licensee either by rectifying the damage or by paying the
amount as compensation for the said damage as may be determined by the licensor’s architect.
 Page 8 of 9
16.7 Leave and Licence

(7) The licensee shall abide by all the society rules and regulations including the parking rules and
shall not cause any nuisance or annoyance to the members of the society or store any hazardous
goods on the licensed property.
(8) The licensee shall not be deemed to be in the exclusive possession of the licensed premises and
the juridical possession of the premises at all times vests with the licensor. The licensor shall
have the right to enter upon the licensed property at any time during the reasonable working
hours to inspect the same.
(9) The licensed property is given to the licensee purely on personal basis and the licensee is not
entitled to transfer the benefits of this agreement to anybody else and also is not entitled to allow
anybody else to use and occupy the licensed premises or any part thereof. Nothing in this
agreement shall be deemed to grant a lease and the licensee hereby declares, agrees and
undertakes that no such contention shall be taken up by the Licensee at anytime.
(10)All the municipal taxes and levies in respect of the licensed property would be borne by the
licensor alone. The electric charges and water charges for the said licensed premises are to be
borne by the licensee during the licence period and after having made the necessary payments
shall handover the receipts of the same to the licensor.
(11)The licensee shall not carry out any work of structural repairs or additions or alterations in the
licensed property. Only those changes/ alterations which are not of structural type or of
permanent nature may be allowed to be made by the licensee on the licensed property with the
previous written permission of the Licensor.
(12)In case the licensee commits a breach of any term of this Agreement, then notwithstanding
anything contained herein the licensor shall be entitled to terminate this agreement by 15 days
notice to the licensee.
(13)On the expiration of the term of this agreement or earlier termination thereof the licensee shall
handover vacant peaceful possession of the licensed premises to the licensor in the same
condition in which the premises now exists subject to normal wear and tear. The licensee’s
occupation of the licensed property of the said termination will be deemed to be that of a
trespasser.
(14)The licensor has received from licensee under this agreement an amount of Rs. ________/- by
way of deposit without interest for the due performance of the obligations assumed and
undertaken and agreed by way of security. If the licensee commits any breach of obligation the
licensor shall recover the said amount from the deposit amount. If however, this agreement is
terminated without any default or breach on the part of the licensee, its servants/agents the said
deposit will be refunded to the licensee on such termination forthwith.
(15)This agreement will stand terminated on the licensee going into liquidation.

SCHEDULE

All that piece and parcel of shop No. ___ in _____ Complex admeasuring _______ sq. mtrs. bearing S.
No. ________ situated at _______ within the local limits of ______ Municipal Corporation.

IN WITNESS THEREOF the parties hereto have put their hand on the date first hereinabove written.

Sd. of Licensor

Sd of Licensee

WITNESS

1. ________________
 Page 9 of 9
16.7 Leave and Licence

2. _______________

30 Section 56 of Indian Easements Act.

End of Document
 16.8 Mortgage
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > MORTGAGE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

MORTGAGE

16.8 Mortgage

The expression Mortgage is defined under section 58 of the Transfer of Property Act, 1882.

A mortgage is the transfer of an interest in specific immovable property for the purpose of securing payment of money
advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may
give rise to pecuniary liability.

The transferor is called a mortgagor, the transferee a mortgagee, the principal money and interest of which payment is
secured for the time being are called the mortgage money, and the instrument (if any) by which the transfer is effected is
called a mortgage deed.

In case of mortgage there is transfer of an interest in an immovable property. The purpose of such
transfer is to secure a loan.
16.8.1 Kinds of Mortgages

The Transfer of Property Act under section 58, states six kinds of mortgages.
16.8.1.1 Simple mortgage

In simple mortgage:

(i) The mortgagor does not deliver possession of the mortgaged property.
(ii) The mortgagor binds himself personally to pay the mortgage money.
(iii) If the mortgagor fails to pay according to the contract then the mortgagee is entitled to cause the
mortgaged property to be sold.
(iv) The proceeds of sale are to be applied, so far as may be necessary, in payment of the mortgage
money.

16.8.1.2 Mortgage by conditional sale

In the case of mortgage by conditional sale:

(i) The mortgagor ostensibly sells the mortgaged property.

(ii) On the condition that on default of payment of the mortgage money on a certain date, the sale
shall become absolute, or
 Page 2 of 7
16.8 Mortgage

(iii) On the condition that such payment being made, the sale shall become void, or
(iv) On such payment being made, the mortgage property is to be retransferred.
(v) The said transaction must be stated in the mortgage deed.
(vi) The mortgagee, thus, in case of default can exercise the right of foreclosure.

16.8.1.3 Usufructory mortgage

The peculiar features of this kind of mortgage are as follows:

(i) The mortgagee is put in possession of the mortgaged property as an essential part of the
transaction.
(ii) The mortgagee continues to remain in possession of the property till the payment of the
mortgage money.
(iii) The repayment is to be made from the rents and profits of the property.
(iv) The property is returned when the amount due is personally paid or adjusted towards the rents
and profits received.

16.8.1.4 English mortgage

In the case of an English mortgage:

(i) The mortgagor binds himself to repay the mortgage money on a certain date.
(ii) The mortgagor transfers the mortgaged property absolutely to the mortgagee.
(iii) There is a covenant that the mortgagee will retransfer the property to the mortgagor upon
payment of the mortgage money as agreed.
(iv) The mortgagee can exercise the right of sale in case of mortgagors default.

16.8.1.5 Mortgage by deposit of title deeds/equitable mortgage

Mortgage by deposit of title deeds is also called an equitable mortgage. The peculiar features of this kind
of mortgage are:

(i) This mortgage is created where a person in any of the following towns, namely the towns of
Calcutta, Chennai, and Mumbai and in any other town which the state government may, by
notification in the Official Gazette, specify, in this behalf.
(ii) The mortgagor or his agent delivers to the mortgagee all the documents of title deed with
intention to create a security thereon is a mortgage by deposit of title deeds.
(iii) There is no delivery of possession of property in this kind of mortgage.

16.8.1.6 Anomalous mortgage

The features of an anomalous mortgage are stated below:—

(i) A mortgage which is not of any of the kinds stated herein above is called an anomalous
mortgage.
(ii) This mortgage is a mixture of two or more of the mortgages above mentioned.

16.8.2 Drafting of Mortgage Deed

 Page 3 of 7
16.8 Mortgage

The following points shall be included while drafting a mortgage deed.

(a) Title to deed

(b) Date and place
(c) Description of the parties (mortgagor and mortgagee)
(d) Introductory recitals
(e) Narrative recitals
(f) Testatum
(g) Terms and conditions of the mortgage deed—the terms and conditions in the mortgage deed will
vary according to the form or type of mortgage.
(h) Habendum—To Have and To Hold
(i) Testimonium
(j) Schedule of the property
(k) Execution and attestation

16.8.3 Stamp Duty

All documents of mortgage of any kind, except equitable mortgage, including second mortgage and sub
mortgage or charge, are chargeable under Article 40 Schedule 1 of the Indian Stamp Act, 1899.
16.8.4 Registration

All the documents of mortgage as stated above, except an agreement to mortgage, require compulsory
registration under the Registration Act, 1908.
16.8.5 Specimen

Specimen No. I

DEED OF MORTGAGE

THIS DEED OF MORTGAGE is made at this day of ________20_______ BETWEEN

Mr./Mrs.________

Age: ________

Occupation:_________

Residing at: ________

PAN: __________

Hereinafter referred to as ‘The Mortgagor’

(which expression shall unless repugnant to the context mean and include his heirs executors,
administrators and assigns) Party of the One Part.

AND

Mr./Mrs.________
 Page 4 of 7
16.8 Mortgage

Age: ________

Occupation:_________

Residing at: ________

PAN: __________

Hereinafter referred to as “The Mortgagee”.

(which expression shall unless repugnant to the context mean and include his heirs executors,
administrators and assigns) Party of the Other Part.

WHEREAS

(a) The mortgagor is absolutely seized and possessed of the immovable property bearing CTS No.
__________ admeasuring ________ sq. mtrs., i.e., land with building on it and more particularly
described in the schedule written herein below and hereinafter referred to as the mortgage
property/said property. The said property is the self acquired property of the mortgagor herein.
(b) The mortgagor is in dire need of money for the medical treatment of the mortgagor’s wife who is
to undergo kidney transplant and other medical treatment and also for the business purposes of
the mortgagor.
(c) The mortgagor therefore approached the mortgagee to give him a loan of Rs. _______ for the
aforementioned reasons and after due discussions and deliberations between the mortgagor and
mortgagee, the mortgagee has agreed to advance loan to the mortgagor on certain terms and
conditions against the said/mortgaged property of the mortgagor as security for the repayment of
the loan.
(d) Thus the mortgagor has agreed to mortgage the said property in favour of the mortgagee as a
collateral security. The parties hereto have arrived at an understanding which they have decided
to reduce into writing being the presents as follows

NOW THIS DEED WITNESSES AS FOLLOWS:

(1) That the mortgagor does hereby mortgage the said/mortgaged property more particularly
described in Schedule i.e. _____ sq. mtrs., i.e., land with building on it and more particularly
described in the Schedule written herein below and hereinafter referred to as the mortgage
property/said /mortgaged property in consideration of the amount of Rs. ________/- lent and
advanced by the mortgagee.
(2) That the mortgagor is liable to pay unto the mortgagee an amount of Rs. __________/- per
month and the mortgagor hereby agrees to repay the amount of said debt within a period of
______ years from the date of execution of these presents.
(3) The mortgagor hereby assures to pay unto the mortgagee the said amount of Rs. ____ alongwith
interest thereon at the rate of _________ % per annum.
(4) That the mortgagor assures unto the mortgagee that the mortgage property/ said property is his
absolute property and no one else has any right, title or interest in the same and further more the
mortgagor hereby assures unto the mortgagee that the said property is free from all
encumbrances.
(5) That the mortgagor hereby assures and undertakes unto the mortgagee that he will not deal with
the said property in any manner so as to prejudicially affect the rights of the mortgagee.
 Page 5 of 7
16.8 Mortgage

(6) That on payment of the mortgage money that is the loan amount together with interest and other
monies as may be due and payable to the mortgagee by the mortgagor within the stipulated
period then the mortgagor shall be entitled to claim redemption of the said property from the
mortgagee.
(7) And it is further agreed and declared by the mortgagor that if the mortgagor fails to pay the loan
amount, i.e., Rs. ______/- with interest and all other monies when the same shall become due
and payable under these presents the mortgagee shall be entitled to claim foreclosure of the
mortgage and in the default of the mortgagor the mortgagee shall be entitled to enforce all such
remedies available against the mortgagor as are available to the mortgagee under simple
mortgage.
(8) It is further agreed that during the pendency of the security hereby created and until the
repayment of the mortgage amount the mortgagor will get insured and keep insured the building
and structure standing on the said land against any loss and or damages due to fire or any other
accident in the sum of atleast Rs. _________/- with some insurance company of repute and pay
all premium on the insurance policy as and when it becomes due and payable in respect thereof
to such company and shall handover the policy document to the mortgagee duly endorsed in his
name as assignee.
(9) That all the expenses towards stamp duty, registration charges and other incidental expenses
thereto are to be borne by the mortgagor.

SCHEDULE

All that piece and parcel of the land ___________admeasuring _________ sq. mtrs. together with
structure standing thereon by name _____ admeasuring _____ sq. mtrs., situate within registration
division and district __________ sub division and Taluka ___________, within the limits of ________
Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ and bounded by as follows:

On or towards

East:

South:

West :

North:

IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED HEREUNDER AT _______ AT THIS
_________DAY OF_______ 20________

Sd. of Mortgagor:

Sd. of Mortgagee:

WITNESS

1. ____________

2. ____________

Specimen No. II
 Page 6 of 7
16.8 Mortgage

Deed of Usufructory Mortgage

THIS DEED OF Usufructory Mortgage is executed at _____on this _____day _____20— BETWEEN

XYZ Pvt. Ltd, through its Director_____ (Company incorporated under the provisions of the Companies
Act, 1956/2013 having its registered office at_____.

(Hereinafter referred to as “The Mortgagor”).

(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and
include its successors, executors, administrators and assigns) of the ONE PART.

AND

Name: _______

Age: __________

Occupation: _____

Residing at: _____

PAN: _________

(Hereinafter referred to as “The Mortgage”).

(which expression shall unless repugnant to the context or meaning thereof be deemed to mean and
include his heirs, executors, administrators and assigns) of the OTHER PART

WHEREAS

I) The Mortgagor is the owner and is otherwise well and sufficiently entitled, seized and possessed
of the property at _____and which is more particularly described in the Schedule hereunder
written (hereinafter referred to as “the said property/Mortgage property”).
II) The Mortgagor is in need of finance to expand its business therefore approached the Mortgagee
to provide the necessary finance of Rs. _____/-.
III) The Mortgagee has agreed to lend and advance and has advanced Rs. _____/-(Rupees in
words____ ) with interest @ _______ % p.a. against the security of mortgage/said property by
way of Usufructory mortgage on certain terms and conditions stated herein below.

NOW THIS INDENTURE WITNESSES as follows:

1) That in consideration of the sum of Rs. _____/- (Rupees ____ only) paid to the Mortgagor by the
Mortgagee on or before execution hereof (the receipt whereof the Mortgagor hereby
acknowledges and admits.) the Mortgagor hereby transfers by way of usufructory mortgage, to
the mortgagee the mortgaged property/said property more particularly described in the Schedule
annexed hereto inclusive of right of possession of the mortgage property with intention that the
Mortgagee shall have right to reserve/retain such possession until payment of mortgage money,
and to receive rents and profits and to appropriate the same (after paying the necessary taxes,
levies as may become payable from time to time) in lieu of interest on the said sum of Rs.
_____/-
 Page 7 of 7
16.8 Mortgage

2) The Mortgagor hereby declares and assures unto the Mortgagee that the mortgage property is
free from all encumbrances or charge and that the Mortgagor has duly paid and discharged all
dues and liabilities with respect to the said property including the Municipal taxes, levies etc. till
date.
3) The Mortgagee hereby covenants that the mortgagor may redeem the mortgage at any time after
_____ years on repaying the said loan of Rs. _____/- with interest. On such repaying, the
Mortgagee will re-transfer the mortgaged property to the Mortgagor and will put him in actual
possession of the property.
4) The Mortgagee at the cost and expense of the Mortgagor shall be entitled to insure the said
property against any loss of damage to the said property by fire etc.
5) The Mortgagor hereby declares that no winding up petition is pending against the Mortgagor
before any court of law and neither have any winding-up notices been received by the Mortgagor.
6) The parties hereby covenant that the Mortgagor shall register this Mortgage deed with the
Registrar of Companies under the provision of the Companies Act, 1956/2013.
7) That the parties shall have all such rights and be subject to all such liabilities of a Mortgagor and
Mortgagee provided in the Transfer of Property Act 1882 as may be applicable to them.
8) The Stamp duty and registration charges payable on this instrument as also all other incidental
costs and expenses thereof shall be borne and paid by the Mortgagor.

Schedule of the Property

All that piece and parcel of the land ___________admeasuring _________ sq. mtrs. together with
structure standing thereon by name _____ admeasuring _____ sq. mtrs., situate within registration
division and district __________ sub-division and Taluka ___________, within the limits of ________
Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ and bounded by as follows:

On or towards:

East:

South:

West :

North:

IN WITNESS WHEREOF THE PARTIES HERETO HAVE SIGNED HEREUNDER AT _______ ON THIS
_________DAY OF _______ 20________

Sd. of Mortgagor:

Sd. of Mortgagee:

WITNESS

1. ____________

2. ____________

End of Document
 16.9 Partition
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > PARTITION

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

PARTITION

16.9 Partition

Partition is considered to be one of the species of transfer. The Indian Stamp Act, 1899 defines
“Instrument of partition” under section 2(15). “‘Instrument of partition’ means any instrument whereby co-
owners of any property divide or agree to divide such property in severality, and includes also a final
order for effecting a partition passed by any revenue-authority or any civil court and an award by an
arbitrator directing a partition”. The right to enforce a partition is a continuous right.31

The right of a co-owner to claim partition primarily depends on a fact to be proved that there are divisible
joint properties held by the co-owners. Partition is a division of a property between the joint owners,
whereby the property/s or their interests held by them in common are severed according to their
respective shares or rights, therein so that every co-owner holds his share independently and becomes
the sole owner of the part which is allotted to him.

Partition generally comes into effect either by executing an agreement or through court or by arbitration.
Partition within its scope includes an element of release, as each of the sharers relinquishes in favour of
the other or others, his interest in property allotted to other or others. If a document of release shows that
the executants are to get cash or other assets which formed part of common property, the document is
an instrument of partition.32

In dividing joint property, by metes and bounds it is sometimes not possible to allocate properties of
equal value to the co-owners. Properties of larger value go to one co-owner and properties of smaller
value go to another. In such a case there would have to be an adjustment of the values by providing for
the payment by the former to the latter by way of equalisation of their shares. Such a provision is termed
“a provision for owelty or equality of partition.”33

Partition is a division of a joint property among several co-owners, so that each person gets a share and
becomes the exclusive owner of the share allotted to him. On partition, each of the divided properties
gets a new title and each shareholder gives up his interest in the property in favour of others. Hence, it
can be said that partition is a combination of surrender and transfer of certain rights in the estate except
those which are easements in nature.

Partition under the Hindu law is governed by two schools of thought, i.e., Mitakshara and Dayabhaga.

Liabilities attached to Joint Property: While executing partition of Hindu Undivided Family property
provisions should be made for liabilities attached to the property such as debts if any, maintenance, etc.
16.9.1 Formalities of Partition
 Page 2 of 7
16.9 Partition

Partition can be made either orally or through an agreement. If suit is filed then, through court or by
means of arbitration. The partition so made can be reduced to writing by way of memorandum.

It is not necessary for the partition that the joint family property is divided by every bit of it.
16.9.2 Deed of Partition

A deed of partition does not require any particular form. The intention to divide and to hold the property
independently and in severality should be clearly indicated. The deed of partition generally enumerates
and declares the share of each of the party on partition and therefore it takes the form of transfer or
release by each co-owner as to his share in the joint property which is the subject matter of partition. It is
a common practice to execute a deed of partition in duplicate or triplicate, etc., and each of the
instruments is considered as an original so that each party can take and preserve a copy of the said
deed of partition. On executing deed of partition the title documents relating to the property/s allotted to
the share of a party should be delivered to the said party by others.
16.9.3 Can partition be re-opened?

Partition once made cannot be re-opened, except on the ground of fraud or mistake in including property
which did not belong to the joint family. If it is shown that partition was obtained by fraud, coercion,
misrepresentation or under influence, it can be reopened.

If some members are minors and partition is proved to be unjust and unfair and detrimental to their
interest, it can be re-opened, no matter when it had taken place.34
16.9.4 Contents of Partition Deed

(a) In a deed of partition the necessary recitals should be stated correctly and the description of the
property/s partitioned should be accurate and complete.
(b) The significant clauses in a deed of partition are the shares allotted to the parties under the deed
and the release clauses. The release clause indicates that each party relinquishes or releases his
right, title and interest in the properties allotted to the other party.

All the joint owners/co-owners should be parties to the deed of partition. If one of the co-owners is minor
he should be added as a party to the deed and should be represented by a guardian. The partition is
valid and binding on the minor if the same has been made for his benefit and is fair and equitable. If the
partition is not just and fair then the minor, on attaining majority, can repudiate the same and can
exercise his right to reopen the partition.
16.9.5 Registration of Partition Deed

When partition is made in writing, then it requires registration under the Registration Act, 1908, if the
immovable property involved is worth Rs. 100/- or more. As per section 17(1)(b) of the Registration Act
“other non testamentary instruments which purports or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the
value of one hundred rupees and upwards, to or in immovable property” requires registration. Therefore,
a deed of partition requires registration.

Document effecting partition in present and crystallising rights of parties is to be registered compulsorily.
If the document is not registered, it would not be admissible under section 49 of the Registration Act. If
the effect of partition or fact of partition cannot be looked into then benefits flowing from the said partition
also cannot be looked into.35
16.9.6 Stamp Duty

The instrument of partition is covered under Article 45 Schedule I of the Indian Stamp Act, 1899, and the
stamp duty is to be payable accordingly. Under the Indian Stamp Act of 1899, the duty is payable on the
value of the separated property/s.
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16.9 Partition

16.9.7 Specimen

Specimen No. I

PARTITION DEED

THIS DEED OF PARTITION is made on this ________day of ________ BETWEEN

Hereinafter called the “party of the First Part”.

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns.)

AND

Hereinafter called the “party of the Second Part”.

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns.)

AND

Hereinafter called the “party of the Third Part”.

(which expression shall unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns.)

WHEREAS the party of first part, second part and third part are the sons of late Mr. D who was resident
of __________. Late Mr. D died on ____ (date)____ at _____(place)__.

And Whereas, the parties to this deed own and possess certain properties jointly. The said properties are
ancestral properties.

AND WHEREAS the parties hereto are the joint and absolute owners of the properties briefly mentioned
herein below (and described in detail in the schedule ‘A’, ‘B’ and ‘C’)

(1) A flat at _________

(2) A shop at _________

(3) A shop at_________

WHEREAS, during the life time of late Mr. D, i.e., the father of the parties to this deed, the said properties
were orally divided and the parties herein were put in physical possession as stated below:

AND WHEREAS the party of the first part is in possession and occupation of the flat at _________
admeasuring ________sq. ft. in ________ housing society and is residing there with his wife and two
children.
 Page 4 of 7
16.9 Partition

AND WHEREAS the party of the second part is running Sweetmart business in shop at ____________,
admeasuring _________sq. ft. in lane no._______.

AND WHEREAS the party of the third part is running a Bakery by name ________ in the shop at
____________.

AND WHEREAS all the three brothers, i.e., party of the first part, second part and third part have
mutually and amicably agreed to execute this partition deed thereby retaining the property in their
possession, use and occupation and releasing rights in respect of other properties.

AND WHEREAS all the immovable properties are approximately of the same value.

NOW THEREFORE THIS DEED WITNESSES AS FOLLOWS:

(1) That in pursuance of the fact that all the three properties are of equal value and in consideration
of the full and absolute ownership acquired by the parties as per the mutual transfers and
releases:
(i) Party of the first part shall now by virtue of this deed of partition become absolute owner of
the Flat no.______ at _______ and party of second and third part shall have no rights in
respect of the said flat (more particularly described in Schedule A)
(ii) The party of second part shall become the absolute owner of the shop at _________ and
party of the first part and third part shall have no rights in respect of the said shop. (more
particularly described in Schedule B)
(iii) The party of third part shall become the absolute owner of the shop at _________ and party
of the first part and second part shall have no rights in respect of the said shop (more
particularly described in Schedule C)
(2) That the relevant title documents and papers pertaining to the abovementioned properties are
already in the possession of the respective parties to this deed.
(3) That the parties to this deed hereby declare that this partition deed is executed by all of them out
of their free will and consent without any duress, coercion or undue influence.
(4) That the parties further covenant that the partition effected by this deed shall not be re-opened
under any circumstances whatsoever.
(5) The parties hereto shall get their names entered in the record of rights in respect of the property
given to their respective shares.
(6) That all the expenses of stamp duty and registration charges and other incidental charges have
been borne out by the parties hereto equally.

SCHEDULE OF THE PROPERTIES PARTITIONED

SCHEDULE ‘A’, ‘B’ ‘C’

(1) Description of Property ‘A’

(2) Description of Property ‘B’
(3) Description of Property ‘C’

IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as first written
hereinabove.

Sd. of Party of the First Part

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16.9 Partition

Sd of Party of the Second Part

Sd. of Party of the Third Part

WITNESSES

1. ____________

2. ____________

Specimen No. II

DEED OF PARTITION BETWEEN TWO CO-OWNERS

THIS DEED OF PARTITION is made on this ________day of ________ at __________

BETWEEN

PAN: _______Hereinafter called the “party of the First Part”.

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

AND

Hereinafter called the “party of the Second Part”.

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

WHEREAS the party of the first part and party of the second part are co-owners and have equal share
with respect to the agricultural land bearing no ____ admeasuring ____ at Village _____. more
particularly described in the schedules of this deed of partition.

AND WHEREAS the parties to this deed had purchased the properties at___________ more particularly
described in the Schedule I and II from one Mr. ______________ vide a Registered Sale Deed dated
__________.

AND WHEREAS the family members of the party of the first and second part do not get along well with
each other and therefore the parties have now mutually agreed to partition/divide the said properties so
as to avoid any future dispute and to peaceably and quietly enjoy the said properties.
 Page 6 of 7
16.9 Partition

AND WHEREAS the parties after mutual discussions and deliberations and after considering the pros
and cons, have agreed to carry out partition of the said properties amicably and without any coercion,
force, fraud, etc.

AND WHEREAS the party of the first part has agreed to assign the said land described in Schedule I
written herein below comprising of area of_______ acres to the party of the second part and the party of
the second part has agreed to assign the land comprising of area of ______acres as described in
Schedule II to the party of the first part.

AND WHEREAS the parties hereby agree to extend necessary co-operation to each other for better and
beneficial enjoyment of the said properties.

AND WHEREAS the parties have taken the possession of the assigned properties respectively.

NOW THIS DEED WITNESSES AS FOLLOWS:

(1) That in consideration of party of the first part releasing/relinquishing his right with respect to the
property described in Schedule I in favour of party of the second part, the party of the second part
has also released his right in favour of party of the first part pertaining to the property described in
Schedule II.
(2) That therefore now party of the first part has become the absolute owner of the property
described in Schedule II and the party of the second part hereby declares that he has no right,
title and interest with respect to the said property.
(3) That therefore now party of the second part has become the absolute owner of the property
described in Schedule I and the party of the first part hereby declares that he has no right, title
and interest with respect to the said property.
(4) That the parties have jointly paid all the taxes, levies, etc. jointly till __________ date with respect
to the properties described in Schedule I and II and thereafter it shall be the liability of the
respective owners as per this deed of partition to pay the relevant taxes, cess, etc.
(5) That each party will execute such deed or document or do all other acts necessary which may be
requisite for more effectually assuring the party so requiring and at his cost and in the manner
required by law and to swear affidavits and appear before revenue and other authorities to have
mutation entries effected with respect to the property assigned to the party concerned.
(6) That the market value of the properties described in Schedule I and II together is Rs.
__________/-
(7) The parties hereto shall get their names entered in the record of rights in respect of the property
given to their respective shares.
(8) That all the expenses of stamp duty and registration charges and other incidental expenses have
been borne out by the parties hereto equally.

SCHEDULE I

All that piece and parcel of the agricultural land bearing S. No. ___________ ad-measuring
____________ hectares situated within registration division and district __________ sub division and
Taluka ___________, situated at Revenue village _____ and bounded as follows.

On or towards:

East:
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16.9 Partition

South:

West:

North:

SCHEDULE II

All that piece and parcel of the agricultural land bearing S. No. ___________ ad-measuring
____________. hectares situated within registration division and district __________ sub-division and
Taluka ___________, situated at Revenue village _____ and bounded as follows.

On or towards:

East:

South:

West:

North:

IN WITNESS WHEREOF, the parties have signed this deed on the day, month and year as above
mentioned.

Sd. of Party Of The First Part

Sd. of Party Of The Second Part

WITNESSES

1. ____________

2. ____________

31 Manohar Lal Behari Lal v Onkar Das, AIR 1959 P H 252.

32 Nanjunda Setty v. State of Mysore, AIR 1964 Kant 124 : AIR 1964 Mys 124.
33 TS Swaminathan v Official Receiver of West Tanjore, AIR 1957 SC 577.
34 Sukhrani v Hari Shankar, AIR 1979 SC 1436 : 1979 SCR (3) 671.
35 Luhar Tulsidas Narsibhai v Vrajlal Lalji Vaghela, AIR 2007 Guj 77.

End of Document
 16.10 Partnership
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > PARTNERSHIP

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

PARTNERSHIP

16.10 Partnership

Partnership is defined under section 4 of the Indian Partnership Act, 1932 as:

“Partnership is the relation between persons who have agreed to share the profit of a business carried on by all or any of
them acting for all

Persons who have entered into partnership with one another are called individually “as partners” and collectively “a Firm”
and the name under which their business is carried on is called the “firm name”.

Therefore, it can be seen from the above definition that the following are the requirements to constitute a
Partnership:

(a) There should be an agreement entered into, orally or in writing, between the persons who intend
to form a partnership.
(b) The partnership is formed with the object to share the profits of business which the parties intend
to carry on and the business must be carried on by all the partners or by any of them acting for all
of them.
(c) Partnership can be inferred even by conduct of the parties.
(d) Section 6 of the Indian Partnership Act, 1932 states:

6. Mode of determining existence of partnership—In determining whether a group of persons is or is not a firm, or
whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all
the relevant facts taken together.

Explanation I.—The sharing of profits or of gross returns arising from property by persons holding a joint or common
interest in that property does not of itself make such persons partners.

Explanation II.—The receipt by a person of a share of the profits of a business, or of a payment contingent upon the
earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons
carrying on the business;

and in particular the receipt of such share or payment—

(a) by a lender of money to persons engaged or about to engage in any business.

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16.10 Partnership

(b) by a servant or agent as remuneration.

(c) by the widow or child of a deceased partner, as annuity, or
(d) by a previous owner or part owner of the business, as consideration for the sale of the goodwill or
share thereof.

does not of itself make the receiver a partner with the persons carrying on the business.

The word “person” in section 4 of the Partnership Act means only natural and legal persons.36 A person
competent to enter into contract can enter into a Partnership. A minor cannot be a partner in a firm;
however, with the consent of all the partners he can be admitted to the benefits of the partnership
(Section 13).

The liability of the partners is joint and several.

16.10.1 Duration of Partnership

A partnership can be entered into for a specific duration or it may be limited to a particular adventure, as
laid down in section 8, or it may be partnership at will. It is pertinent to note that where the duration of the
partnership is not ascertained and the partnership is also not for a particular adventure then, as per
section 7 of the Act, the partnership shall be deemed to be a partnership at will.
16.10.2 Capital of the Firm

Generally, a Partnership Firm has its own capital to carry on its activities; however, it is not necessary
that each partner must contribute to the capital of the firm. Capital of the firm may be in the form of
money or any other property.

Capital of a firm is, however, different from the assets of the firm. On dissolution, the capital contributed
by the partner is refundable to him subject to payments of all the debts and liabilities. Hence, it is
essential to provide specifically about the capital contributed by the partner/s at the time of formation of
the partnership firm.
16.10.3 Authority of Partners

The contract of partnership is a variant of contract of agency; every partner is an agent of the firm for the
business of the firm (Section 18).

Besides the express authority that may be provided in a partnership deed, every partner has the implied
authority to bind the firm, by doing an act in the course of the business of the firm. However, unless there
is a usage or custom of trade to the contrary, a partner has no implied authority to do the following acts:

(a) Submit a dispute relating to the business of the firm to arbitration.

(b) Open a bank account on behalf of the firm in his own name.
(c) Compromise or relinquish any claim or portion of claim by the firm.
(d) Withdraw a suit proceeding filed on behalf of the firm.
(e) Admit any liability in a suit or proceeding against the firm.
(f) Acquire immovable property on behalf of the firm.
(g) Transfer immovable property belonging to the firm, or
(h) Enter into partnership on behalf of the firm.

Therefore, it becomes amply clear that a partner must not do any of the above acts without consulting the
other partner/s.
16.10.4 Rights and Duties of Partner
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16.10 Partnership

The rights of a partner are determined either by the partnership deed or by the course of dealing. In the
absence of any contract, a partner shall have the following rights:

(1) To take part in the conduct and management of the business of the firm.
(2) To express his opinion in deciding any matter when a difference of opinion arises. While ordinary
matters may be decided by a majority decision, there can be no change in the nature of business
unless all the partners agree unanimously.
(3) To have an access to, inspect and copy any of the books of the firm.
(4) To share the profits of the business equally, the partners shall bear the losses equally too.
(5) To receive interest on capital, if so agreed, out of profits only.
(6) To receive interest @ 6% p.a. or any payment or advance, in excess of the agreed amount of
capital, made for the purpose of the business.
(7) To be indemnified by the firm in respect of payments made and liabilities incurred, either in the
ordinary conduct of the business or in an emergency to protect the firm from any probable loss.
(8) To do all such acts necessary to protect the firm from losses, as a person of ordinary prudence
would do in his own case.
(9) To retire from the firm—(a) with the consent of all other partners, or (b) in accordance with the
terms of the deed, or (c) by giving a notice to all the other partners, of his intention to retire.
(10)To dissolve the firm by giving notice to all the partners, for its dissolution.

16.10.4.1 Duties of partner

(a) To carry on the business of the firm to the greatest common advantage, is the fundamental duty
of each partner. Each partner should attend diligently to his duties in the conduct of the business.
(b) To be just and faithful to each other.
(c) To render true accounts and full information of all things affecting the firm to any partner or his
legal representative.
(d) To indemnify the firm for any loss caused to it by his fraud or willful neglect, in the conduct of the
business of the firm.
(e) Not to ask for remuneration for taking part in the conduct of the business, unless so expressly
agreed.
(f) To shoulder the responsibility even in the firm’s losses.
(g) Not to derive secret profits from any transaction of the firm or from the use of the property or
business connection of the firm or the firm name, unless there is a contract to the contrary.
(h) Not to carry on a competing business to that of the firm, unless there is an agreement to the
contrary.

16.10.4.2 Property of partnership

All the assets, movable and immovable property brought in by any or all the partners into the firm, and
also the goodwill of the firm constitutes the property of the partnership firm.
16.10.4.3 Admission of a partner

No person can be admitted into partnership without the consent of the other partner or partners, unless
there is any contract to the contrary (Section 31).
16.10.4.4 Expulsion of a partner
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16.10 Partnership

Generally, a partner cannot be expelled from the firm by any majority of partners. Thus, a partner may be
expelled only when all the other partners unanimously agree to it. However, a partner may be expelled if
the following conditions are satisfied:

(a) The partnership deed expressly contains the power of expulsion.

(b) Such power is exercised by majority of partners.
(c) The majority must exercise this power in absolute good faith in the interest of firm (Section 33(1)).

Where a partner cannot be properly expelled it is better to go for dissolution of the firm. An improper
expulsion would be of no effect and the expelled partner would be reinstated in his position.
16.10.4.5 Insolvency of a partner

When a partner is declared as insolvent, he ceases to be a partner from the date of his insolvency,
whether or not the firm is dissolved by such insolvency (Section 34). Unless the partnership deed
contains a contrary provision, the firm shall be dissolved on insolvency of any partner.

In case the partnership deed specifically provides that the firm shall not be dissolved on insolvency of
any partner, the estate of the insolvent partner shall not be liable for any act of the firm, and the firm is
not liable for any act of the insolvent partner done after the date of his insolvency.
16.10.4.6 Death of a partner

The death of a partner ordinarily results into the dissolution of the firm, as regards all the partners.
However, the partners may agree otherwise, by way of a provision in the partnership deed that is they
may agree that the death of any of partners will not cause the dissolution of the Firm and the surviving
partners shall continue the business of the firm (Section 42).
16.10.4.7 Retirement of a partner (section 32)

A partner may retire

a) with the consent of all other partners,

b) in accordance with an express agreement by the partners, or
c) where the partnership is at will, by giving notice in writing to all the other partners of his intention
to retire.

16.10.4.8 Dissolution of partnership

A partnership may be dissolved in the following manner:

a. as a result of any agreement between all partners;

b. by adjudication of all the partners or all the partners but one as insolvent; or
c. by the happening of an event which makes it unlawful for the business of the firm to be carried on
in partnership; or
d. by events such as:
i. efflux of time
ii. death of a partner
iii. due to any incapacity arising in any one partner, i.e., insanity or bankruptcy.

If a firm is unregistered it cannot enjoy the following benefits:

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16.10 Partnership

i. a partner in an unregistered partnership firm cannot sue the firm for enforcing any rights under
the Indian Partnership Act
ii. cannot claim setoff in a dispute with a third party
iii. the firm cannot sue third parties whereas the third parties would be able to sue the firm
irrespective of registration.

16.10.5 Contents of Partnership Deed

The agreement of partnership may be oral or written. However, in order to avoid any dispute, it is always
desirable to have a written agreement which is commonly known as partnership deed. From the Income
tax point of view also a partnership deed is a pre-requisite for the assessment of the firm, as a firm.

A partnership deed is a contract in writing of the partnership entered into by the partners. It is blue print of
the rights and liabilities of partners, as to their capital, profit sharing ratio, drawings, interest on capital,
commission, salary, etc., and about the terms and conditions as to the working and functioning of the
firm, and the dissolution of the partnership business.

The contents of the partnership deed can be broadly divided into two categories, the general clauses in
the partnership deed and the special clauses in the partnership deed.
16.10.6 General Clauses

The following clauses are generally required to be clearly and explicitly stated in every Partnership Deed:

(a) Name and style of the firm, nature of business and place/s of business
(b) Commencement, duration and determination of partnership business
(c) Details about capital to be contributed by the partners separately
(d) The Profits and losses sharing ratio of the partners in the firm
(e) Withdrawals by the partners from the capital or assets of the firm
(f) Provision for opening bank account and the operation, thereof
(g) Maintaining of the account books of the firm and the place where the same shall be kept, and the
person who will be primarily responsible for its maintenance
(h) The preparation of balance sheet and profit and loss account
(i) The management of partnership business
(j) Increase of capital of the firm
(k) Stipulations as to loans, mortgage, etc.
(l) Provision for dissolution, disposal of the Goodwill and assets of the partnership, the realisation of
the outstanding due to the firm and restrictions regarding carrying on of similar business by the
partner/s
(m) Provision that in all other matters not provided for, the Indian Partnership Act shall apply
(n) The arbitration clause in case of dispute between the parties.

16.10.7 Special Clauses

Subject to agreement between the parties, certain special clauses may be incorporated in the partnership
deed, as regards the rights and duties of partners and restrictions thereon, retirement, death and
expulsion of partners, etc.
16.10.8 Registration of the Firm
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16.10 Partnership

Registration of a partnership firm under the Partnership Act is not compulsory, but is desirable. However,
registration of partnership firm has been made compulsory in some of the states by way of introducing
state amendments to that effect. Every change in the constitution of a partnership is also required to be
registered. If it is not so registered then there are certain serious consequences as stated in section 69 of
the Act. As per section 69, the partnership firm or its partner cannot file a suit against a third party. In
Maharashtra the section is made more stringent making registration almost compulsory. In order to avail
the Income tax benefits it is necessary to register a partnership with the department of Income tax under
sections 184 and 185 of the Income Tax Act, 1961. Registration may be applied for at any time.
Registration of partnership firm may be done at any time before starting a business or anytime during the
continuing of partnership.

Therefore, it is always advisable to register the firm with the Registrar of Firms since the registered firms
enjoy special rights which are not available to the unregistered firms.
16.10.8.1 Application to Register the Firm

An application from duly filled along with the appropriate fees is to be submitted to Registrar of Firms of
the State in which the firm is situated.
16.10.9 Stamp Duty

The Deed of Partnership is to be stamped in accordance with the provisions of the Indian Stamp Act,
1899. Article 47 of the Bombay Stamp Act, states the stamp duty payable on the deed of partnership.
16.10.10 Specimen

Specimen No. I

PARTNERSHIP DEED

THIS DEED OF DISSOLUTION is made on this ______day of _______(month and year) at _______
(place).

BETWEEN

Mr. XY

Age: _______

Occupation: _______

Residing at: _______

PAN: _____

Party of The First Part

Hereinafter referred to as the” arty of the First Part”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

AND

Mr. UV
 Page 7 of 13
16.10 Partnership

Age: _______

Occupation: _______

Residing at: _______

PAN:_______

Party of The Second Part

(Hereinafter referred to as the “party of the Second Part”.)

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

AND

Mr. WZ

Age: _______

Occupation: _______

Residing at: _______

PAN:_______

Party of the Third Part

Hereinafter referred to as the “party of the Third Part”.

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

WHEREAS –

The parties above named desire to carry on the business of _____ at ________ place and in future at
such other places as the parties may mutually decide to do so.

The parties hereto have proposed to commence and to carry on business in partnership on the following
terms and conditions and have proposed to execute this deed of partnership.

NOW THEREFORE THIS DEED WITNESSES AND IT IS HEREBY MUTUALLY AGREED BY AND
BETWEEN THE PARTIES AS FOLLOWS:

(1) The parties hereby agree to carry on the business of _________ in partnership on the terms and
conditions herein set out under the name and style of __________.
(2) The partnership shall commence its activities and come into effect from _____ date and the
period of the partnership shall be __________ years from the date mentioned above. The parties
may extend the said period by mutual consent.
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16.10 Partnership

(3) The partnership shall have its office at ___________ that will be the registered office of the firm
and the parties may open branches at such other places as may be suitable and mutually agreed
upon.
(4) The capital of the firm in the beginning shall be Rs. ____________/- to be contributed by the
partners as under:

(a) Party of the 1st part – Rs. ___________

(b) Party of the. 2nd part – Rs. __________

(c) Party of the. 3rd Part – Rs.__________

And the party of the third part has also brought in his immovable property, i.e., the
premises where the registered office of the partnership firm shall be.

(5) The net profits and losses of the firm shall be shared by the partners hereto in the following
proportions:

(a) Party of the first part – 20%

(b) Party of the second part – 20%
(c) Party of the third part- 60%

The net profit means the gross profits made in each year less the expenses and other outgoings
in respect of the business of the firm including salaries and wages of the staff, taxes and other
commissions paid.
(6) The firm shall regularly maintain in the ordinary course of its business a true, correct, complete
account of all its incomings and outgoings and all of its assets and liabilities in proper books of
accounts and the same shall be kept at the firm’s place of business. The accounting year of the
firm will be 1st April to 31st of March of each year.
(7) At the end of each accounting year, an account of the business carried on in that year will be
made and the statement of the accounts, i.e., the Balance Sheet and the Profit and Loss account
will be prepared and signed by the partners.
(8) The party of the third part will be managing the firm and will be primarily responsible for carrying
on the day to day business of the firm. The policy decisions however will be taken with the
consent of all the partners. The party of the third part will be paid Rs. _________/- per month as
remuneration.
(9) The partnership firm shall open a bank account in_________Bank in order to transact the
business of the firm and the authority to operate such account shall be given to any partner/s as
mutually agreed.
(10)No partner shall without the written consent of the partners do any of the following act, deeds or
things:
(a) Either directly or indirectly conduct/carry on any business activity competing with the business
of this firm.
(b) Transfer his interest in the firm by mortgage, sale or otherwise, introduce or attempt to
introduce any person into the firm under whatever name but being entitled to claim right in the
business of the partnership firm.
(c) To withdraw any amount for his own benefit or use or for any other reason without the
consent of the other except to the extend herein before provided.
 Page 9 of 13
16.10 Partnership

(d) Commit any act whereby the property of the firm may become liable.
(e) Submit any dispute with any other person to arbitration or compromise or relinquish the claim.
(f) Withdraw any legal suit of proceeding filed by the firm, admit any liability of the firm, borrow
any monies for or in the name of the firm or create any security or charge on the assets of the
firm.
(g) Stands as guarantor or surety for any person in the name of the firm or for and on behalf of
the firm.
(11)The parties agree to carry on the business of the firm:
(a) to the greatest common advantage of the firm and to be just and faithful to each other;
(b) render true accounts and full information of all the transactions and monies affecting the firm
to the other;
(c) indemnify the firm against any loss caused to it by willful negligence or fraud in the conduct of
the business;
(d) to attend to the business of the firm diligently and actively.
(12)All the assets of the firm including the goodwill, stock in trade, benefit of the business, benefits of
contracts will belong to the partners in proportion to their respective shares in the profits of the
firm and the property on which the firm shall carry on the business shall be used by the partners
exclusively for the business of the firm.
(13)No partner shall be entitled to dissolve the partnership during the said period of partnership for
___ years. However, any party hereto desires to retire from the firm he shall give to the others
atleast one month’s previous notice about the same and on the expiration of the said notice
period he shall be deemed to have retired from the partnership.
(14)Upon retirement from the firm the said partner will not be entitled to carry on the same or similar
business as that of the firm directly or indirectly for a period of ______ years from the date of
retirement and he shall not be entitled to carry on any business in the same name as that of the
firm.
(15)Where a partner retires from the partnership, an account of the assets and profits or losses of the
firm to be calculated and after ascertaining his share the same will be paid to him lump sum or
installments as may be agreed upon or in the absence of agreement as may be decided by the
majority.
(16)The partnership will stand dissolved on the expiration of the duration of _________ years unless
the partners or the majority of them desire to continue the partnership for such further period as
may be decided by majority.
(17)The insolvency or death of any partner shall not dissolve the partnership between the other
partners.
(18)On dissolution of the partnership an account will be made of the profits and losses and the share
of each of the partner will be ascertained and paid out of the assets of the firm or by the sale of
the assets or any part thereof.
(19)Any differences which may arise between the partners touching the business of the firm or
regarding the interpretation of these presents or regarding the liabilities of any partner or any
other matter or thing concerning the firm, the same shall be referred to arbitration of an arbitrator
if agreed upon failing which, the parties may approach the court for constituting a panel of
arbitrators to resolve the dispute by means of arbitration and the arbitration shall be governed by
the Arbitration and Conciliation Act of 1996.
(20)This deed is executed in three copies and one copy will remain with each of the parties hereto.
 Page 10 of 13
16.10 Partnership

IN WITNESS WHEREOF the parties have put their respective hands the day, month and year first above
written.

Sd by Party of the First Part

Sd by Party of the Second Part

Sd by Party of the Third Part

IN WITNESS OF

Witness No. 1. ____________

Witness No. 2. ____________

Specimen No. II

DEED OF DISSOLUTION OF PARTNERSHIP

THIS DEED OF DISSOLUTION is made on this _________ day of _________ (month and year) at
_________ (place).

BETWEEN

MR. XY

Age: ______

Occupation: ______

Residing at: ______

PAN: ____________

Party of the First Part

Hereinafter referred to as the “party of first part”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

AND

Mr. UV

Age: ______

Occupation: ______

Residing at: ______

PAN:___________

Party of the Second Part

 Page 11 of 13
16.10 Partnership

Hereinafter referred to as the “party of second part”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

WHEREAS –

(1) The party of the first part and the second part mentioned hereinabove have been carrying on the
business of ____________in Partnership under the name and style as M/s. ABC Partnership firm
as per the terms and conditions in the partnership deed dated. ______.
(2) In the course of business association, some sharp differences have surfaced between the parties
hereto and therefore the partners, i.e., the party of the first part and the second part have now
decided to mutually dissolve the said partnership from ______date on the terms and conditions
stated herein below.
(3) The Partnership firm by name M/s. ______ has following properties:
(i) The office premises admeasuring ______sq. mtrs. situated at ____________and more
particularly described in the Schedule I.
(ii) An amount Rs______ (Rupees______) contributed as capital to the said partnership
business.
(iii) The goodwill, the stock-in-trade, furniture, two scooters (for the staff), bank balances and out
standings.
(4) The parties have mutually agreed that the property described in Schedule I, i.e., the office
premises of the said partnership firm will be the property of the party of first part (as he had
provided this property belonging to him to run the firm office). The furniture, fittings, the two
scooters described in Schedule II will be the property of the party of the Second part on
dissolution and an amount of Rs ______ (brought as capital) will be returned to party of the
second part.
(5) That all other things, profits, payments bank balance, dues etc are to shared equally between
party of the first part and the party of the second part.

NOW THIS DEED WITNESSES AS FOLLOWS:

(1) The parties hereby agree and declare that the partnership firm by name M/s. ______having its
registered office at ______and carrying on the business of ______ is hereby dissolved with effect
from ______date.
(2) That the property described in schedule I shall now be the property of party of first part and the
same shall now cease to be a part of the assets of the firm. The party of the second part hereby
releases and renounces all his rights, interests, title if any as partner of the firm from the said
property.
(3) That the property described in the Schedule II shall now be the property of the party of the
second part and the same shall now cease to be a part of the assets of the firm. The party of the
first part hereby now releases and renounces all his rights, interests, title etc as partner of the
firm from the said property.
(4) The accounts of the firm, its assets, profits and losses are made and settled between the
partners (i.e., party of the first part and the second part) and the same are duly signed by the
parties and the parties confirm the same and hereby covenant and declare that no party is liable
to the other in respect thereof.
 Page 12 of 13
16.10 Partnership

(5) The parties hereby agree and undertake to sign all applications, documents and other papers as
may be required to properly transfer the properties and other assets allotted, assigned or
released to the other including all licenses and permits in the government or municipal or any
other official records or otherwise. The parties further agree that all costs, charges and expenses
in respect thereto shall be borne by the party requiring any such documents to be signed.
(6) The parties to this deed hereby declare and assure each other that they have not received,
collected or discharged any claim, payment, demand or credit due or to become due to the firm
or incurred any debt or liability or obligation that may now or hereafter directly or indirectly charge
or affect the partnership or any of its property or assets.
(7) It is hereby agreed that all the expenses, i.e., the stamp duty and registration charges and other
incidental charges for the purposes of execution of this Deed of Dissolution shall be borne by the
parties equally.

SCHEDULE I

All that piece and parcel of the _______________situated within registration division and district
__________ sub-division and Taluka ___________, within the limits of ________ Corporation, bearing
CTS No. _______ plot No. ________ carved out of the layout of S. No. ___________.

And bounded by as follows:

On or towards:

East :

South:

West :

North:

SCHEDULE II

(Give details of Schedule II)

IN WITNESS WHEREOF the parties have put their respective hands on the day and year first mentioned
hereinabove.

Sd by Party of the First Part}

Sd by Party of the Second Part}

Witnesses

1. ____________

2. ____________

36 Dulichand v CIT, AIR 1956 SC 354 : 1956 SCR 154.

 Page 13 of 13
16.10 Partnership

End of Document
 16.11 Power of Attorney
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > POWER OF ATTORNEY

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

POWER OF ATTORNEY

16.11 Power of Attorney

Power of Attorney is a document of agency. As stated by Butterworths: “A power of attorney is a formal

arrangement by which one person (donor/principal) gives another person (the attorney/agent) authority to
act on his behalf and in his name”. A power of attorney is executed in the form of a “Deed poll”
document.
16.11.1 Principal/Grantor/Donor

The person who grants the power to the other person to act on his behalf is termed as the principal or
grantor or donor.
16.11.2 Attorney/Agent/Donee

The person to whom the power is granted is termed as the attorney or agent or donee.

In a special power of attorney some specific or particular act is required to be done by the attorney. Once
the particular act is performed then the special power of attorney comes to an end.

The Power of Attorney Act, 1882 lays down the duties of an attorney.

Duties of an Attorney:

(a) To act for, and on behalf of the donor and in the name of the donor.
(b) To perform acts/deeds in accordance with the terms of his authority.
(c) The attorney should not exceed his authority.
(d) To exercise due care and skill.
(e) The attorney should not delegate his powers unless he is duly authorised to do so.
(f) Not to take advantage of his position to obtain any benefits to himself.
(g) Not to put himself in a position where his duties as attorney conflict with his own personal interest
or with the interest of the third party.

16.11.3 General and Special Power of Attorney

A power of attorney may be general or special. A general power of attorney covers more than one
subject matter while a special power of attorney relates to a specific subject matter, though it may contain
several powers relating to the same subject matter. The test to decide whether a power is general or
 Page 2 of 6
16.11 Power of Attorney

special is as to what is the subject matter in respect of which the power is given. If it is restricted to some
specific matter it is a special power, otherwise it is general.37

Where an authority is given by the principal to the agent to act on all matters relating to him it is called
General Power of Attorney. In Special Power of Attorney, the power granted by principal to the
agent/attorney is to do some specific or particular act.

A general power of attorney grants extensive powers to the attorney whereas in case of special power of
attorney only specific powers are granted to the attorney.
16.11.4 Durable and Non-durable Power of Attorney

Power of attorney stands revoked on the death of the Principal. However, if the Principal desired that the
power of attorney should continue even after his death then he has to mention in the power of attorney
instrument. Such a power of attorney is termed as durable power of attorney. If the instrument makes no
such mention, then it is a non-durable power of attorney.
16.11.5 Persons Competent to Execute Power of Attorney

Any person who is competent to contract can execute a power of attorney. A power of attorney given by
a company must be in conformity of the “Articles of Association” and bear the Common Seal of the
company.

A power of attorney which creates an interest in any immovable property, i.e., charge in favour of donee
is required to be registered.
16.11.6 Construction of Power of Attorney

The principles governing the construction of power of attorney are:

(1) The operative part of the deed is controlled by the recitals;

(2) Where an authority is given to do particular acts, followed by general words, the general words
are restricted to what is necessary for the performance of the particulars;
(3) The general words do not confer general powers but are limited to the purpose for which the
authority is given and are construed as enlarging the special powers only when necessary for
that purpose;
(4) A power is construed so as to include all incidental powers for its effective execution.38
(5) By a general or special power, a donor cannot, however, delegate to the attorney any function
which relates to the status of the donor, such as the status of a trustee, his professional work,
etc. His officer also cannot delegate his function or duty to give evidence in court. He cannot
delegate his power to make a will or to make an affidavit on oath. He cannot delegate his duty to
sign the income tax returns unless he is physically incapable to do so.39
(6) A power of attorney is an expressed authority as it is in writing.

16.11.7 Revocation of Power of Attorney

A power of attorney can be revoked or it would stand revoked under the following circumstances:

(1) It is revoked by the principal unless it is irrevocable

(2) If the principal dies or becomes of unsound mind
(3) If the business of the donor comes to an end
(4) If the principal/donor is declared insolvent
(5) With the efflux of time
 Page 3 of 6
16.11 Power of Attorney

Butterworth has summarised the events under which a power of attorney is revoked, they are as follows:

(i) By express revocation

(ii) By implied revocation, when the donor does anything which is inconsistent with the continued
operation of the power
(iii) By donor’s death
(iv) By donor’s bankruptcy
(v) By the donor’s supervening mental incapacity
(vi) The winding or dissolution of corporate donor
(vii) By attorney’s death, if he is the sole attorney or has been appointed to act jointly (and not jointly
and severally) with others
(viii) By the attorney’s supervening mental incapacity, if he was the sole attorney
(ix) By the winding up or dissolution of corporate attorney
(x) By efflux of time
(xi) By fulfillment of the purpose
(xii) By any event which renders the agency or its object illegal.40

A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable
property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to
do acts specified therein, on behalf of the grantor, which when executed will be binding on the grantor as
if done by him. It is revocable in a manner known to law. Even an irrevocable attorney does not have an
effect of transferring title to the grantee.41
16.11.8 Drafting of Power of Attorney

Every Power of Attorney needs to have the following clauses:

1. The identity of the Principal and the Attorney

2. The purpose for granting the Power of Attorney and the said object of granting/ execution Power
of Attorney should be legally valid.
3. Duration of Power of Attorney If no duration then whether Power of Attorney is durable or non-
durable
4. Enumerate all the powers granted to the attorney in case of General Power of Attorney
5. In Special Power of Attorney, the specific subject matter or particular act pertaining to which the
power is granted/authorized should be clearly mentioned. So also, the time frame within which
the specific act should be done must be stated in the power of attorney.

16.11.9 Execution of Power of Attorney

Section 4 of the Power of Attorney Act, 1882 provides that, when a power of attorney is executed by the
donor and the execution being verified by affidavit, statutory declaration or other sufficient evidence, such
an affidavit or a declaration should be filed in the High Court or the District Court within whose local limits
of jurisdiction it is made. Thereafter the court, on application will issue a certified copy of the power of
attorney and such certified copy shall without further proof be sufficient proof of the contents of the
instrument and of the deposit made thereof in the court. This procedure is very rarely followed and is
almost unknown to many. However, the other and the most common method for execution of power of
attorney is to sign it in the presence of and to get the same authenticated by a notary public or by any
Judge, Magistrate, Indian Counsel or Vice Counsel or representative of the Central Government. It is
 Page 4 of 6
16.11 Power of Attorney

better to get the power of attorney authenticated so as to avail the presumption under section 85 of the
Evidence Act, 1872. By virtue of section 85, a presumption is raised as to valid execution if it is executed
in the aforesaid manner.
16.11.10 Stamp Duty and Registration

A power of attorney is not required to be registered under the Registration Act, 1908. However, it is to be
borne in mind that by virtue of the provisions of sections 32 and 33 of Evidence Act, a power of attorney
executed for the purpose of presenting a document for registration must itself be registered.

A power of attorney authorising the donee to sell an immovable property and for consideration is required
to be fully stamped as a conveyance but need not be registered. Power of attorney is required to be
stamped as per Article 48 of the Stamp Act.

Under the Bombay Stamp Act, a power of attorney given to a promoter or builder for development of
property is required to be stamped as a conveyance as per the market value of the property.
16.11.11 Specimen

Specimen No. I

GENERAL POWER OF ATTORNEY

Know all men by these presents that I __________ son of __________Age_____ Occupation
____________Residing at _______________ about to leave India for _____ purpose on date
_______whereas, I am unable to attend to all my property and other matters personally and therefore I
hereby nominate, constitute and appoint my brother Name ___________ Age ___ Occupation
_________ Residing at ________

To be my true and lawful attorney (hereinafter called attorney) for me and in my name and on my behalf
to do all or any of the acts, deeds and things hereinafter mentioned that is to say.

(1) To operate all my current, savings bank a/c, fixed deposit/s or other accounts and also or safe
deposit lockers standing with any bank or bankers and to open and operate in my name all bank
accounts whatsoever.
(2) To sell, endorse, transfer and assign all or any government securities, units, bonds, NSCs,
shares, stock or debentures of any description whatever corporate or any other securities which
do now or shall hereafter stand in my name or to which I am now or may at any time hereinafter
be entitled.
(3) To demand, and receive from any person, company, corporation, government or other statutory
body, deposits, dividends, interests, bonuses or any other sums that may become due to me in
respect of any of my investments and likewise any capital sum represented by or compromised in
any of my investments and when the same shall be payable or repayable and for any such
purpose to sign, endorse and execute all receipts, dividends and interest warrants, cheques,
releases etc. that may be necessary or usual in the circumstances.
(4) To invest any moneys belonging to me in company deposits, provident fund, accounts, shares,
debentures, bonds, units, NSCs, mutual funds or corporate or other securities in such manner
and upon such terms and conditions as my attorney shall in his absolute discretion think fit and
from time to time withdraw any such moneys and apply the same for any purpose he may think
fit.
(5) To apply for the inspection of and to inspect all records and documents which I myself would
have been entitled to inspect and take copies of the same thereof.
(6) To appear and file petitions and applications before the appropriate authority for and on my
behalf in respect to the recovery of any claims relating to the shares, units and other investments.
 Page 5 of 6
16.11 Power of Attorney

(7) To draw, sign, endorse and negotiate all cheques, promissory notes, bills of exchange or other
orders for payment of money or delivery of property of every description.
(8) To sign and file returns under the Income Tax Act, 1961 and any other statutes to appear before
appropriate authorities for purpose of assessment of taxes and to represent me before any
tribunal or authority concerned and for all such purpose to sign, execute and deliver all such
documents as may become necessary or expedient.
(9) To appear and act on my behalf in all courts, civil, revenue or criminal whether original or
appellate and any other offices of Government or District Board, Municipal Board or any other
competent authority in connection with or in relation to exercise of the powers hereby conferred.
(10)To appoint and discharge any advocate, solicitor, revenue agents or any other legal practitioner if
needed and required.
(11)To compromise, compound and withdraw any or all actions, suits, proceedings claims and
demands whatsoever in connection with the powers hereby conferred.
(12)To purchase, take or lease on otherwise acquire lands, houses, flats as shall be considered
necessary and expedient for or in relation to any of the purposes or effects aforesaid.
(13)To perform all obligations related and incidental to such purchase of property such as stamp
duty, registration charges, payment of taxes and levies in order to complete all formalities of said
sale transaction.
(14)To execute and deliver on my behalf tenancy agreement, leave and Licence Agreement, lease
deed, for letting or leasing or licensing the whole or any part of the property so purchased or
acquired by my attorney.
(15)To repair from time to time and do other acts and things to keep the said building in good repair
and condition.
(16)To collect and receive from the licensees, tenants and occupiers of such properties all licence
fees, rents and other sums of money that may be due and to take all lawful proceedings for
recovery of the said sum.
(17)For the latter doing and executing of the matters and thing aforesaid, I hereby further grant to the
said attorney full power and authority to substitute and appoint in his place and stead on such
terms and salary as he thinks fit, one or more attorney or attorneys to exercise for me as my
attorney any or all the powers, authorities hereby confirmed and to revoke duly such appointment
from time to time and to substitute or any other or others in the stead of such attorneys or
attorney as the said attorney shall from time to time think fit.
(18)And I hereby agree to ratify and confirm and promise at all times to ratify and confirm whatsoever
the attorney shall lawfully do and cause to be done in and about the premises aforesaid.

Witness

I know the Executant Executant

Specimen No. II

SPECIAL POWER OF ATTORNEY

Know all men by these presents that I __________ son of __________Age_____ Occupation
____________Residing at _______________

Do hereby send greetings

 Page 6 of 6
16.11 Power of Attorney

(a) That I own the property bearing CTS No. _________ situate at ___________ admeasuring
____________ sq. mtrs.
(b) That I have sold off the said property to Mr. ______________ and have also executed a Sale
Deed on ___________ date in his favour.
(c) That the sale deed has been executed in favour of Mr.___________ however the formality of
registering the sale deed remains and it is not possible for me to attend the office of the Registrar
of Assurances for completing the registration formalities as I am required to take my mother by
name Mrs._______________ to ____________hospital for surgery and treatment and hence I
have decided to appoint Mr. ___________ to be my lawful attorney in this behalf.

I therefore do hereby nominate, constitute and appoint Mr. __________ Age: ____________
Occupation:___________ Residing at: ______________

To be my true and lawful attorney (hereinafter called attorney) to do for me and on my behalf all or any of
following acts, deeds and things regarding registration and registration formalities with regard to the sale
deed executed by me on ____________ date pertaining to the property mentioned herein above in
favour of Mr. ______________.

(i) To present the Sale Deed for registration and to admit the execution thereof before the Registrar
of Assurances to comply with other registration formalities including payments to be made for
obtaining copies, acceptance and acknowledgement of receipts.
(ii) To apply and obtain certified copies of the registered sale deed and other relevant documents.
(iii) To do all such acts, deeds and things as may be necessary for due and effectual execution of the
powers hereby conferred by me on my said attorney.

I hereby confirm and agree to ratify all acts and deeds done by my attorney in this regard, which shall be
deemed to have been done by me personally and I hereby undertake to confirm, own and ratify all and
every act whatsoever that my said attorney shall lawfully do or may cause to be done in my name, on my
account and behalf and for my benefit by virtue of this authority conferred on him by this power of
attorney.

IN WITNESS WHEREOF I HAVE SIGNED THE SAME ON THIS ______________DAY OF

_____________ AT _______________.

I know the Executant Executant

Witness

37 Western India Theatres v Ishwar Bhai, AIR 1959 Bom 386 : (1958) 60 Bom LR 1288 : ILR 1959 Bom 295.
38 Syndicate Bank, Bangalore v IK Amitha, ILR 1985 Kar 1900 : 1985 (2) Kar LJ 145.
39 Butterworth, vol. 31, 5th Edn, p 499.
40 Butterworth, Vol 31, 5th Edn, p 506.
41 Suraj Lamp and Industries Pvt Ltd v State of Haryana, (2012) 1 SCC 656.

End of Document
 16.12 Releases/Relinquishments
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > RELEASES/RELINQUISHMENTS

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

RELEASES/RELINQUISHMENTS

16.12 Releases/Relinquishments

The word release implies a discharge or renunciation of a right of action. To release is to set free or
absolve.

Release or Relinquishment is a specie of Transfer of Property. A person is said to have released or

relinquished his right when he gives up his claim over a specified property in favour of another. Release
may take the form of a principal transaction and sometimes it is a reciprocal or consequential transaction.

Releases are broadly of two types:—

(a) A form of conveyance by which an interest in land or in goods and chattels is transferred by one
person to another person who has already a vested interest therein and
(b) A discharge or renunciation by one person of some right of action or claim which he has against
another or against another’s property.42

Generally, when property is owned jointly by two or more persons, release deed or relinquishment deed
is executed.

A deed or release may be executed even if a person has no interest in the property. This is done either
when his claim to the interest is disputed or for the sake of caution and as a matter of estoppel. But in
such a case it is not proper or desirable to obtain a deed of release. ‘Release’ implies an interest which is
intended to be released or given up. The correct form of document would be a declaration stating that the
declarant claims no interest in the property.43

A disclaimer is a negative form of release. In case of a disclaimer, the person disowns his interest in a
property though he has an interest in the property. However, in a release the releasor admits that he has
an interest in the property, but he releases it, i.e., he transfers it to the releasee. A release deed can be
executed with or without consideration.
16.12.1 Drafting of a Release Deed

(i) A release deed or relinquishment deed can be drafted either as a deed poll document or can be
drafted as a deed.
(ii) The specific property which is the subject matter of release should be clearly described along
with the nature and extent of interest of the releasor in the said property.
(iii) The reasons for the release should be stated in the deed
 Page 2 of 5
16.12 Releases/Relinquishments

(iv) In a release deed, all releasors and all persons having an interest in the claim or property should
be included as parties to the deed.

16.12.2 Stamp duty

As per Article 55 Schedule I of the Stamp Act, a simple release deed is chargeable with stamp duty like a
bond (Article 13). Releases which fall within the provisions of section 23-A(1) of Stamp Act are
chargeable to duty, same as the instrument.
16.12.3 Registration

Where the deed of release is executed with respect to an immovable property, it shall be registered.
Release in respect of movable property, personal right or obligation is not required to be compulsorily
registered.
16.12.4 Specimen

Specimen No. I

RELEASE DEED

(Immovable Property)

THIS DEED of RELEASE is made and executed at ____________ on this __________day of

_________20

BETWEEN

Hereinafter referred to as ‘the Releasor’ ’

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

Party of the One Part

AND

Hereinafter referred to as ‘the Releasee’

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The party of the Other Part

WHEREAS the party of the one part and party of the other part are real brothers and are the members of
Hindu joint family and coparcenary.

AND WHEREAS the parties hereto are the joint owners of the immovable property situate at
___________(place) and more particularly described in the schedule hereinunder written. There are no
other coparcenary members other than the parties hereto.

AND WHEREAS the releasor does not desire to claim any interest or share in the said property as he
has settled abroad (state the details) and has achieved a respectable position in his profession.
 Page 3 of 5
16.12 Releases/Relinquishments

AND WHEREAS the releasor has therefore decided to release and relinquish his share in the said
property so as to enable the releasee to enjoy the said property absolutely and exclusively as per his
wishes.

NOW THIS DEED WITNESSES THAT:

(1) That the releasor does hereby releases, relinquishes, surrenders and transfers in favour of the
releasee all his rights, title and interest in respect of the said property and he is relinquishing all
his rights out of free will and without any coercion, fraud, undue influence, etc.
(2) That the releasor hereby confirms that he has no claims or demands of whatsoever nature
against the said property and confirms that the releasee is now in exclusive possession of the
said property. And that the releasee will be the sole owner of the said property.

SCHEDULE OF THE PROPERTY

IN WITNESS WHEREOF the parties have put their respective hands on the day, month and year first
written herein above.

Sd by Releasor

Sd by Releasee

In presence of witness

1. ____________

2. ____________

Specimen No. II

RELEASE DEED

THIS DEED of RELEASE is made and executed at ____________ on this __________day of

_________20 ____

BETWEEN

Hereinafter referred to as ‘the Releasor’

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The party of the One Part

AND

Hereinafter referred to as ‘the Releasee’

 Page 4 of 5
16.12 Releases/Relinquishments

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The party of the Other Part

WHEREAS the party of the one part is the real/full brother of the party of other part and they jointly own
certain movable properties such as jewellery, books, antique furniture, which is more particularly
described in the schedule written herein below.

AND WHEREAS the releasor has decided to spend his remaining life to promote and preach Yoga and
therefore has no interest in the movable properties which are held jointly by him and his sister i.e. party of
the other part.

AND WHEREAS the releasor has therefore decided to release and relinquish his share in the said
movable properties in favour of his sister i.e. the party of the other part.

NOW THIS DEED WITNESSES AS UNDER:—

(1) That the releasor hereby releases, relinquishes his share in the said movable property consisting
of books, jewellery, antique furniture, etc. described in detailed in schedule hereinbelow,
absolutely and forever in favour of the party of the other part.
(2) That the releasor hereby confirms that the movable property has been delivered to the releasee
and is now in exclusive possession of the party of the other party. i.e. the release.

SCHEDULE OF THE PROPERTY

MOVABLE PROPERTY

Jewellery

Books

Antique Furniture

IN WITNESS WHEREOF the parties have put their respective hands on the day, month and year first
.written herein above.

Sd by Releasor

Sd by Releasee

In presence of witness

1. ____________

2. ____________

42 Butterworth’s 59th Edn, Vol 33, p 160.

43 M Krishna Rao v ML Narasikha Rao, AIR 2003, A.P. 498.
 Page 5 of 5
16.12 Releases/Relinquishments

End of Document
 16.13 Sale Deed/Deed of Conveyance
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > SALE DEED/DEED OF CONVEYANCE

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

SALE DEED/DEED OF CONVEYANCE

16.13 Sale Deed/Deed of Conveyance

Sale is one of the species of transfer under the Transfer of Property Act, 1882. Section 54 of the Transfer
of Property Act defines Sale as “Sale is a transfer of ownership in exchange for a price paid or promised
or part-paid or part-promised.”

From the above definition, the following are the ingredients of sale:—

(a) There should be a transfer

(b) The transfer must be of full ownership
(c) The transfer must be backed by consideration
(d) Consideration implies the price paid or promised or partly paid and partly promised

A deed of sale is popularly called as a deed of conveyance. The contract for sale of immovable property
must be in writing. Section 55 of the Transfer of Property Act, lays down the duties, obligations and rights
of the vendor and the purchaser under an agreement for sale, as well as for sale. However, this section
applies only in the absence of a contract to the contrary.
16.13.1 Duties and Obligations of the Vendor

Stated below are the duties and obligations of a vendor:—

(a) To disclose to the buyer any material defect in the property and in the title, of which the seller is
and the buyer is not aware, and which the buyer could not with ordinary care discover.
(b) To produce documents of title in his possession and power.
(c) To answer all requisitions.
(d) On payment of the amount (price) (as agreed) to execute a deed of conveyance of the property in
favour of the purchaser.
(e) To take as much care of the property and all the documents of title relating thereto, pending the
delivery of possession to the purchaser.
(f) To handover possession of the property, on completion of sale.
(g) To pay all taxes and other outgoings and encumbrances upto the date of sale.
(h) To deliver title deeds to the purchaser on completion.
 Page 2 of 7
16.13 Sale Deed/Deed of Conveyance

(i) To give a covenant for title.

16.13.2 The Vendor/Seller has the following Rights

(a) To receive rents of the property till possession is delivered to the purchaser.
(b) To receive the price on completion of sale.
(c) To have a charge on the property for unpaid share/price.

16.13.3 Duties of the Purchaser

(1) To disclose to the vendor/seller the nature or extent of the vendor’s interest in the property not
known to the vendor but known to the purchaser (if applicable).
(2) To pay price as agreed, on completion.
(3) To pay all taxes and outgoings of the property after the completion of sale.

16.13.4 Rights of the Purchaser

(1) Where the ownership of the property has passed to him, to the benefit of any improvement in or
increase in value of the property, and to the rents and profits thereof;
(2) To have a charge on the property for money paid to the vendor, if the vendor improperly fails to
complete the sale.

16.13.5 Contract for Sale

The contract for sale of immovable property is usually preceded by an agreement for sale. The terms and
conditions are thereof settled at the time of agreement for sale.

The following are the contents of an agreement for sale:

(1) Description of the deed

(2) Date and place
(3) Name and description of the parties
(4) Recitals leading to the agreement
(5) The description of the property intended to be sold
(6) Consideration
(7) Mode of payment of consideration
(8) Acknowledgment of receipts
(9) Covenant as to marketable title
(10)Covenant regarding encumbrance
(11)Covenant as to production and inspection of title deeds
(12)Possession and delivery of possession
(13)Taxes, levies, cesses etc.
(14)Covenant as to other terms as may be applicable (recovery of rent, restrictive or protective clause
if any)
(15)Date of execution of conveyance (sale deed)
 Page 3 of 7
16.13 Sale Deed/Deed of Conveyance

(16)Stamp duty and registration

16.13.6 Deed of Conveyance

A document, whereby an immovable property is sold by one party to another is generally called a deed of
conveyance or a sale deed. As per section 55(1)(d), the vendor shall, on payment of price execute a
conveyance. The recitals in a sale deed or conveyance are:

(1) Description of deed

(2) Date and place of execution
(3) Full description of the parties
(4) Recitals
(5) Testatum
(6) Consideration
(7) Receipt
(8) Operative part
(9) Description of the property
(10)All estate clause
(11)Habendum
(12)Covenant, obligations, terms and conditions
(13)Testimonium
(14)Signatures
(15)Attestation
(16)Stamp duty and registration

16.13.7 Stamp Duty

Sale Deed is chargeable with the stamp duty as per Article 23 of the Indian Stamp Act, 1899 (subject to
state amendments).
16.13.8 Registration

Where the value of the immovable property is more than Rs. 100, it is required to be compulsorily
registered under section 17 of the Indian Registration Act.

Registered sale deed reinforces valid execution of the sale deed. A registered document carries with a
presumption that it was validly executed. It is, therefore, the party challenging the genuineness of the
transaction to show that transaction is not valid in law.44
16.13.9 Specimen

Specimen No. I

AGREEMENT FOR SALE

THIS AGREEMENT is made on this __________day of ________ _________ at (Place)

BETWEEN
 Page 4 of 7
16.13 Sale Deed/Deed of Conveyance

Hereinafter referred to as “the Vendor”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The party of the One Part

AND

Hereinafter referred to as “the Purchaser”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The party of the Other Part

WHEREAS

(i) The vendor is absolutely seized and possessed of or otherwise well and sufficiently entitled to
property bearing survey No. ________, Hissa No.________, admeasuring __________ situated
at __________ more particularly described in the schedule written herein below and hereinafter
referred to as the said property.
(ii) The vendor has agreed to sell the said property to the purchaser at the price and on the terms
and conditions hereinafter mentioned.

NOW IT IS AGREED BETWEEN THE PARTIES HERETO AS FOLLOWS:—

(1) The vendor hereby agrees to sell, transfer and convey the said property in favour of the
purchaser or his nominees.
(2) That the consideration of Rs. _________ (Rupees_____) is to be paid by the purchaser in the
following manner:—
(i) Rs._______ (Rupees_____) at the time of execution of this agreement (earnest money).
(ii) Rs. ________ (Rupees______) on ________date.
(iii) Rs. _______(Rupees______) at the time of final conveyance/sale deed.
(3) That the vendor hereby acknowledges and admits the payment of Rs. _____ (earnest money)
paid vide cheque No. ________ drawn on _______bank.
(4) The vendor shall make out a marketable title to the said property free from all encumbrances and
reasonable doubts.
(5) The vendor shall deliver to the purchaser the title deeds relating to the said property in his
possession and power on execution of these presents for inspection and investigation of title by
the purchaser or his advocate.
(6) That the vendor hereby agrees to apply for, obtain and furnish unto the purchaser all such
permissions as may be necessary under the prevalent laws for registration of sale deed.
(7) That the purchaser hereby agrees to make the payment of the agreed consideration within the
stipulated period and enumerated in Para (2) hereinabove.
 Page 5 of 7
16.13 Sale Deed/Deed of Conveyance

(8) That it is hereby agreed that the sale will be completed within six months from the date of
execution of this agreement.
(9) All the taxes, levies etc. due and payable against the said property shall be paid by the vendor till
the completion of sale and thereafter it will be the responsibility of the purchaser. The vendor
shall handover all the tax receipts etc. duly paid to the purchaser at the time of completion of
sale.
(10)That the vendor agrees to handover actual, physical and vacant possession of the said property
unto the purchaser at the time of sale deed.
(11)That if the vendor fails to make out the clear marketable title to the said property as aforesaid
then the purchaser will have the right to cancel this agreement by giving at least 15 days’ notice
to the vendor and after the expiration of the said period the agreement shall stand terminated and
the vendor agrees to return the earnest money to the purchaser.
(12)That if the purchaser fails to perform his obligations under this agreement within the stipulated
time then the vendor shall be entitled to make time as essence of the contract and will have the
right to cancel these presents by giving at least 15 days’ notice in writing to the purchaser. On
termination the vendor will be entitled to forfeit the earnest money paid by the purchaser.
(13)That all the expenses towards the payment of stamp duty, registration charges and other
incidental expenses in respect of these presents as well as for the sale deed shall be borne out
by the purchaser.

SCHEDULE OF PROPERTY

All the piece and parcel of _____ land admeasuring ______________ Sq. mtrs. within the registration
Division and District _______ Sub-Division and Taluka ________ within the limits of _______ Gram
Panchayat/ Municipal Corporation, bearing Survey No. ________, Hissa No. _____ and is bounded as
under.

ON OR TOWARDS

East :

West :

South:

North:

IN WITNESS WHEREOF the parties have put their respective hands the day and year first above written.

Sd by Vendor

Sd by Purchaser

In presence of witness

1. ____________

2. ____________

Specimen No. II

SALE DEED
 Page 6 of 7
16.13 Sale Deed/Deed of Conveyance

THIS DEED OF SALE is made and executed at _______ on this ______ day of ____

BETWEEN

Hereinafter referred to as “the Vendor”

(which expression shall, unless repugnant to the context and meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The Party of the One Part

AND

Hereinafter referred to as “the Purchaser”

(which expression shall, unless repugnant to the context or meaning thereof shall mean and include his
heirs, executors, administrators and assigns).

The Party of the Other Part

WHEREAS

(i) The vendor is absolutely seized and possessed of or otherwise well and sufficiently entitled to the
property bearing Gat No/ Survey No_____ admeasuring ________situated at ________ and
more particularly described in the schedule herein below as the “said property”.
(ii) That the said property originally belonged to one Mr. ______, who has sold the said property to
the vendor by sale deed dated ________ which is registered with the office of Registrar of
Assurances at ______ at Serial No. _______ on ________date and accordingly the name of the
present vendor, i.e., Mr. _______ came to be entered into the record of rights, vide mutation
entry No. ________dated ________.
(iii) That the vendor has entered into an agreement to sell with the purchaser herein on _______date
which is registered with the Registrar of Assurances at ______ at serial No. _______ on
_______date.
(iv) That the purchaser has requested the vendor to execute these presents which he has agreed to
do.

NOW THIS DEED WITNESSES as follows:

(1) That in pursuance of the agreement to sell dated ________ and in consideration of the sum of Rs
_________/-(total consideration) paid by the purchaser to the vendor, the vendor hereby
conveys, transfers by way of sale unto the purchaser all that piece of land bearing Gat
No./Survey No. ________ admeasuring ______ situated at ______ and more particularly
described in the schedule hereunder written and referred to as the said property together with all
the things permanently attached thereto or standing thereon and all other privileges, easements,
profits, rights, appurtenances whatsoever to the said property and other premises or any part
thereof belonging or anyway appurtenant thereto and ALL THE estate, right title, interest, use
possession, benefit claim and demand whatsoever at law or otherwise of the vendor to said
property hereby conveyed and every part thereof TO HOLD the same to the absolute use and
 Page 7 of 7
16.13 Sale Deed/Deed of Conveyance

benefit of the payment of all rents, rates, dues, taxes etc. that may be payable respect of the said
property.
(2) That the vendor has put the purchaser in actual physical and peaceful possession of the said
property on ________ date and the purchaser hereby admits and acknowledges the same.
(3) That the vendor hereby assures unto the purchaser herein that the said property or any part
thereof is neither a subject matter of any acquisition or requisition nor subject matter of any
dispute or pending litigation.
(4) That the vendor hereby assures and declares that the vendor has in himself good right and full
power and absolute authority to sell and transfer the said property in favour of the purchaser
herein.
(5) That the vendor hereby further declares and assures unto the purchaser that the title of the
vendor to the said property is clean, clear and marketable and the same is free from
encumbrances.
(6) That the vendor has delivered the prior sale deed of the said property as well as property tax-bill
and receipts which are all duly paid till the date of execution of these presents.
(7) That all the expenses towards stamp duty, registration charges and other incidental expenses
thereto are to be borne by the purchaser.

THE SCHEDULE OF THE PROPERTY

All that piece and parcel of the ___________ admeasuring ____________ Sq. mtrs. situated within
registration division and district __________ Sub Division and Taluka ___________, within the limits of
________ Corporation, bearing CTS No. _______ plot No. ________ carved out of the layout of S. No.
___________ along with.

IN WITNESS WHEREOF the parties have put their respective hands the day and year first mentioned
hereinabove.

Sd. by Vendor

Sd by Purchaser

In presence of

1. ________

2. ________

44 Jamila Begum v Shami Mohd, AIR 2019 SC 72.

End of Document
 16.14 Trust
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > TRUST

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

TRUST

16.14 Trust

Section 3 of The Indian Trusts Act, 1882 states “A trust is an obligation annexed to the ownership of
property and arising out of a confidence reposed in and accepted by the owner, or declared and
accepted by him, for the benefit of another, or of another and the owner”.

The person who reposes or declares the confidence is called the “author of the trust”. The person who accepts the
confidence is called the Trustee. The Person for whose benefit the confidence is accepted is called the beneficiary. The
subject matter of the trust is called the Trust Property or trust money and the instrument if any by which the trust is declared
is called the Instrument of Trust.

A Trust has some features which are common and similar to certain other legal relations such as
contract, agency, gift, etc.

In Halsbury’s Laws of England (3rd Edition) Vol. 33, p 87, it is observed:

a trust in the modern and confined sense of the word is a confidence reposed in a person with respect to property of which
he has possession or over which he can exercise a power to the intent that he may hold the property or exercise the power
for the benefit of some other person or object.

16.14.1 Types of Trust

A Trust is created or comes into existence mainly in two ways:—

(i) By act of party

(ii) By operation or fiction of law
(iii) By act of party, includes the following:
(a) By a document or
(b) Orally or
(c) By conduct

16.14.2 Who Can Create a Trust

As per section 7 of the indian trust act, trust may be created by:
 Page 2 of 7
16.14 Trust

(a) Every person competent to contract, and

(b) with the permission of a principal civil court of original jurisdiction, by or on behalf of a minor; but
subject in each case to the law for the time being in force as to the circumstances and extent in
and to which the author of the trust may dispose of the trust property.

As per section 4 of the indian trust act, all purposes are said to be lawful unless it:

i. Is forbidden by law
ii. Defeats the provisions of law
iii. Is fraudulent
iv. Involves injury to another person or his property
v. Is immoral or against public policy

16.14.3 Subject of Trust (Section 8)

The subject matter of a trust must be property transferable to the beneficiary. it must not be merely
beneficial interest under a subsisting trust.
16.14.4 Who May be Beneficiary (Section 9)

Every person capable of holding property may be a beneficiary.

Disclaimer by beneficiary.—A proposed beneficiary may renounce his interest under the trust by
disclaimer addressed to the trustee, or by the setting up, with notice of the trust, a claim inconsistent
therewith.
16.14.5 Who May be Trustee (Section 10)

Every person capable of holding property may be a trustee; but, where the trust involves the exercise of
discretion, he cannot execute it unless he is competent to contract. no one is bound to accept a trust.

Acceptance of trust.—a trust is accepted by any words or acts of the trustee indicating with reasonable
certainty of such acceptance.

Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period,
disclaim it, and such disclaimer shall prevent the trust property from vesting in him. a disclaimer by one of
two or more co-trustees vests the trust property in the other or others and makes him or them sole
trustee or trustees from the date of the creation of the trust.
16.14.6 Conditions Essential for a Valid Trust

For creation of a valid Trust it is essential that the author of the Trust must indicate with reasonable
certainty, his intention to create Trust, the object of the Trust, who will be the beneficiaries and the Trust
property.
16.14.6.1 Intention to create

A Trust can be created by word of mouth. It must, however, be shown that there was either an express
declaration as to the Trust or that there is evidence of language or expressions used by the owner of the
property to indicate with reasonable certainty that a Trust was created.

If there is no express declaration or if there is no language, from which it can be inferred that a Trust was
declared or created, then there must be at least evidence of acts or conduct and that evidence must be
clear evidence to show that the owner of the property intended to constitute himself or another person, a
trustee of the property for someone else. No formal language is necessary to constitute an effective
declaration of Trust but the language used must be certain.
 Page 3 of 7
16.14 Trust

(i) That the settlor intended to constitute a trust binding in law on himself or the person to whom the
property was given and
(ii) That he intended to bind definite property by the trust.
(iii) That he intended to benefit a definite person/s in a definite way.45

16.14.7 Private Trust and Public Trust

A Trust may be a private Trust or a public Trust. Where the purpose of the Trust is to benefit an individual
or a group of individuals, or his or their descendants, or any legal person, and who is capable of holding
property, it is a private Trust.46

When a Trust is created for the benefit of public at large or any section of the public, then such a Trust is
a public trust. Private Trust is governed by the Indian Trust Act, 1882. Many states have passed special
Acts governing the public trusts, e.g., The Maharashtra Public Trust Act, 1950.

A private Trust is Trust for the private convenience and support of individuals or families, while a public
Trust is for the benefit of public at large or some class of it answering a particular description, the object
being to benefit an uncertain and fluctuating body and the Trust being of a permanent and definite
character.
16.14.8 Duties and Liabilities of Trustees

The Indian Trust Act, 1882 under sections 11 to 30 has prescribed the duties and liabilities of the
trustees. These duties and liabilities are absolute and not subject to any contrary provisions in the Trust
deed. Similarly, the obligations, duties and liabilities of the trustees of a public Trust are laid down under
the relevant state enactments.
16.14.9 Extinction and Revocation of Trust

A Trust is extinguished:

(i) When its purpose is completely fulfilled, or

(ii) When its purpose becomes unlawful, or
(iii) When the fulfillment of its purpose becomes impossible by destruction of the Trust property or
otherwise, or
(iv) When the Trust being revocable, is expressly revoked (Section 77 of the Indian Trust Act, 1882).

A Trust created by Will can be revoked at the desire of the testator, and a trust, otherwise created, can
be revoked in the following conditions:

Where all the beneficiaries are competent to contract by their consent, or

(1) Where the Trust is created by a non-testamentary instrument or by word of mouth, then in
exercise of power of revocation expressly reserved to the author of the Trust, or
(2) Where the Trust is for the payments of the debts of the author of the trust and not being
communicated to creditors at the pleasure of the author of the Trust.

16.14.10 Declaration of Trust

In order to create a Trust, the intention should be expressed in the deed in unequivocal language and
with certainty. If the author of the Trust proposes himself to hold the property on Trust he can execute a
declaration of Trust declaring that he would be holding the property as a trustee instead of as the
beneficial owner for the benefit of some individuals, in case of a private Trust or for the benefit of some
charitable object.
 Page 4 of 7
16.14 Trust

16.14.11 Registration

The declaration of Trust pertaining to an immovable property must be registered irrespective of the value
of the property.47

However, a Trust created by “Will” requires neither any registration nor stamp duty.
16.14.12 Stamp Duty

A trust created, otherwise than by a “Will”, is covered under Article 64 Schedule I of the Indian Stamp
Act, 1899, and accordingly, is chargeable with stamp duty under Article 64.
16.14.13 Specimen

Specimen No. I

TRUST DEED

(Private Trust for the Benefit of Children)

This Deed of Trust made and executed on this____________day on __________at ____________

BETWEEN

Mr. _____________

Age: ____________

Occupation:_____________

Residing at: _____________

PAN: _______

Hereinafter referred to as “The Settlor”

(which expression shall, unless repugnant to the context mean and include his heirs, executors,
administrators and assigns).

The Party of the One Part

AND

(i) Mr. _____________

Age: ____________

Occupation:_____________

Residing at: _____________

PAN:
(ii) Mr. _____________
 Page 5 of 7
16.14 Trust

Age: ____________

Occupation:_____________

Residing at: _____________

PAN:
(iii) Mr. _____________

Age: ____________

Occupation:_____________

Residing at: _____________

PAN: ________

Hereinafter jointly and collectively referred to as the Trustees

(which expression shall, unless repugnant to the context mean and include the said trustees, surviving
trustees, trustees appointed for the purpose of trust).

The Party of the Other Part

WHEREAS the settlor is having a sum of Rs. ____________ and he desires to settle the amount of Rs.
____ in Trust for the benefit of his children namely _________ and ___________

AND WHEREAS the settlor lost his wife in an accident on __________ date and the settlor is suffering
from serious illness and therefore now the settlor is desirous to settle the said fund in Trust for the
beneficiaries being the minor sons of the settlor.

AND WHEREAS the trustees have at the request of the settlor (who are all close friends of the settlor)
have agreed to act as the trustees of the said Trust.

AND WHEREAS the settlor has already transferred a sum of Rs. __________/- to the trustees to be held
by them on Trust.

NOW THEREFORE THESE PRESENTS WITNESSES AS FOLLOWS:—

(a) In consideration of the premises and in order to give effect to the said desire of the settlor, the
settlor hereby transfers an amount of Rs. ____________unto the trustees and the trustees are
now to hold the said total amount of Rs. ______________/- upon the Trust and with the powers,
provisions, claims and declarations contained herein. The said amount so transferred to the
trustees shall be referred to as the Trust fund.
(b) That the trustees shall act collectively and shall take decisions by majority. The trustees shall
invest the Trust fund, and shall collect and receive the interest, dividend, rents and profits and
other income accruing on such investments from time to time.
(c) That the trustees shall use and utilise the Trust fund for the education of the settlor’s sons, their
day-to-day maintenance, medical expenses, other necessary and incidental expenses of the
 Page 6 of 7
16.14 Trust

beneficiaries and after meeting all these expenses of the beneficiaries, the trustees shall make
investments as stated above and in keeping with the provisions of law.
(d) That the trustees in order to manage the Trust funds shall open bank accounts and any two of
them will be entitled to operate such accounts. All income by way of interest, dividend, etc. shall
be deposited in the said account and all expenses should be made as far as possible by
cheques, except where circumstances require payment by cash.
(e) That the trustees shall hold and continue to hold the said property or fund for the benefits of the
minor, i.e., master _________ and master_________ (the beneficiaries herein) till they attain
majority. In the event when the youngest child, i.e., Mr. ____________ attains majority, the
children of the settlor thus having acquired majority shall have a free choice and option to put an
end to the Trust and in that event the trustees shall cease to be trustees for them.
(f) That the Trust hereby created is irrevocable in nature for the settlor, and the beneficiaries may in
their option be entitled to put an end to the Trust after attaining majority.
(g) That the trustees shall not use and enjoy the said property/Trust fund for their personal benefits
nor shall lend the same to each other.
(h) That the trustees shall cause proper accounts to be kept of the Trust funds and all additions
thereto and the income thereof respectively and the accumulations of such income and the
application thereof from time to time and shall on checking the same sign the account books
every six months in each year. The account books so signed by the trustees shall be examined,
audited and certified by one or more properly qualified auditors once in each year and the audited
statements of accounts shall be likewise be signed by all the trustees.
(i) That the trustees shall not keep in hand any cash which is not required for any immediate
application of Trust objects and shall invest the said amounts in any nationalised bank or banks.
(j) That in the event, the trustees cannot act or any trustee dies or goes abroad or retires or refuses
to act or become incapable of acting, the remaining trustees may appoint one or two trustees as
the case may be and if the settlor is alive, he may also appoint one or more trustees so that there
can always be three trustees in a position to act and carry out the purposes of the Trust.
(k) That in an event of putting an end to the Trust by the beneficiaries, the beneficiaries shall be
entitled to the Trust fund together with the interest, dividends, etc. and all other benefits and
additions thereunder in equal proportion.

IN WITNESS WHEREOF the settlor has executed these presents and the trustees have accepted the
trusteeship on terms and conditions contained herein on the day, month and year first above written.

Signature of Settlor. ____________

Settlor

Signature of Trustees

(1) Mr. _________________

(2) Mr. _________________
(3) Mr. _________________

Trustees

Witness

1. ____________
 Page 7 of 7
16.14 Trust

2. ____________

45 Madhav Prasad Nanuram Pandit v Monghilal Ramchand Maheshi, (1928) 30 Bom LR 186 : 108 Ind Cas 482, the
Madras HC has expressed the same view in R Venugopala Reddiar v Krishnaswamy Reddiar, AIR 1971 MAD 262 :
(1971) 84 Mad LW 263.
46 State of UP v Bansi Dhar, AIR 1974 SC 1084 : 1974 SCR (2) 679.
47 Section 17, Registration Act.

End of Document
 16.15 Will and Codicils
Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed
Dr Medha Kolhatkar

Dr Medha Kolhatkar: Drafting, Pleading and Conveyancing, 2nd ed > Medha Kolhatkar: Drafting,
Pleading and Conveyancing, 2e, PB > CHAPTER XVI CONVEYANCING — PRACTICE AND
PROCEDURE > WILL AND CODICILS

CHAPTER XVI CONVEYANCING — PRACTICE AND PROCEDURE

WILL AND CODICILS

16.15 Will and Codicils

WILL:—A will or testament means a declaration made by a person making the Will as to his wishes to
take effect upon or after his death. The Indian Succession Act, 1925 under section 2(h) defines Will as
the “legal declaration of the intention of a testator with respect to his property which he desires to be
carried into effect after his death.”

A Will takes effect only on the death of the testator. It can be revoked by the testator during his lifetime.
Through the instrument of “Will”, a testator can dispose off or deal with any property movable or
immovable pertaining to which he has a right to dispose off.

Codicil:—The expression “codicil” is defined in section 2(b) of the Indian Succession Act, 1925. Codicil is
“an instrument made in relation to a will, and explaining, altering or adding to its disposition, and shall be
deemed to form part of the will.”
16.15.1 Forms of Will

The Indian Succession Act recognises two kinds of wills. (i) an unprivileged Will and (ii) privileged Will.

Under certain special circumstances and situations, a Will can be made orally or may be with or without
attestation. Sections 63 and 64 of the Indian Succession Act provide for such special situations, and a
Will made under these circumstances is termed as a “Privileged Will”.

A soldier, an airman or a mariner engaged on an expedition or in actual warfare can make a Will (i) in
writing or orally; (ii) if the Will is in the testator’s hand writing, it need not be signed by him or attested; (iii)
if it is written, wholly or partly, by another it must be signed by the testator but need not be attested by
any witnesses. A Will made by any other person is an “Unprivileged Will”.
16.15.2 Forms of Unprivileged Will

An unprivileged Will can be of different forms. Stated below are the various forms of a Will:

(i) Oral Will

(ii) Holograph Will
(iii) Mutual Will
(iv) Joint Will
(v) Contingent Will
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16.15.2.1 Oral Will

A Will can be made orally only among the Muslims. As per section 64 of the Indian Succession Act,
1925, a privileged Will can be oral.
16.15.2.2 Holograph Will

When a Will is written in the hand writing of the testator, it is called as holograph Will. The handwritten
Will must be duly signed and attested.
16.15.2.3 Mutual Will

This type of Will is generally made by husband and wife. In this Will one bequeaths his or her property to
the other, and vice versa.
16.15.2.4 Joint Will

A joint Will is a testamentary disposition by more than one testator of their properties operating on the
death of each testator on his properties, and is, in effect more than one Will combined into one.48
16.15.2.5 Contingent Will

A Will that is made to be effective on the happening of any event or condition is called a contingent Will.

Property that can be disposed of by Will: Any property movable or immovable over which the testator can
exercise disposing power, can be disposed of by Will. The testator is said to have disposing power where
he is the absolute owner of the property and he can transfer the property inter vivos during his life time.
16.15.3 Validity of Will

A Will or testament, will be construed as valid if the testator had the capacity to make the Will (sound
state of mind, no coercion, fraud etc.) and all other formalities as required by law are complied with, such
as attestation and execution.

The true intention of the testator has to be gathered not by attaching importance to isolated expressions
but by reading the Will as a whole, with all the provisions and ignoring none of them as redundant or
contradictory.
16.15.4 Revocation of a Will

A Will can be revoked during the life of the testator, though the Will is stated to be irrevocable. A Will
must be revoked in the manner stated in section 70 of Indian Succession Act. A Will may be revoked by
conduct as well. If there are two Wills made, the latter one will not revoke the previous one unless the
latter Will clearly provide to that effect or the latter Will is inconsistent with the provisions. They will be
treated as one Will.49

Section 70 of the Succession Act, 1925 provides that no unprivileged Will or codicil, nor any part thereof
shall be revoked otherwise than by marriage or by another Will or codicil or by some writing, giving
instruction to revoke the same and executed in the same manner in which an unprivileged Will is required
to be executed or by burning, tearing or otherwise destroying the same by the testator or by some person
in his presence or by his direction with the intention of revoking the same50

For treating a Will as having been destroyed under section 70 of the Act, destruction is not sufficient. It
must be with the intention to revoke the Will. Mere cancellation is not the mode of revocation of a Will.51
16.15.5 Drafting of a Will

The relevant provisions of the Indian Succession Act, 1925 (Sections 74 to 111) should be thoroughly
studied before drafting a “Will”. There is no standard form prescribed by law. The language of the Will
should be clear and unambiguous.
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16.15 Will and Codicils

Full and complete instructions should be obtained from the testator at the time of drafting the “Will”. The
properties which the testator intends to bequeath should be described in detail with complete clarity.

A Will is drafted in first person as a deed poll document.

The following points should be enumerated in the Will—

(1) The details of the testator (name, age, occupation, address etc.).
(2) Mention that all previous testaments, if any, stand revoked. Such a declaration is very important
as it makes the present “Will” valid and binding.
(3) Details of assets and beneficiaries. If they are in relation to the testator, the relationship, e.g.,
son, daughter, wife, etc. should be stated. If the property is bequeathed to a third party then
reasons for such bequeath should be stated in order to avoid any discrepancy.
(4) Details of the executors of the Will (the beneficiary under a Will can be appointed as executor).
(5) The sound state of mind and health of the testator should be stated.
(6) Testimonium comes in the end. The date of the Will can be mentioned either at the beginning or
in the testimonium.
(7) Last but not the least is the signature and attestation. The testator must sign the Will and after his
signature the attesting witnesses should sign. The details of the witnesses also should be stated.
(8) In case of senior citizens it is better to annex a medical certificate of fitness to give authenticity to
the Will.

16.15.6 Stamp and Registration

No stamp duty is required to be paid on a Will. Therefore, a Will can be made on any plain paper.

As per the provisions of the Indian Registration Act, a “Will” is not required to be compulsorily registered.
The registration of a Will is optional as per section 18 of the Registration Act.
16.15.7 Specimen

Specimen No. I

I, (state the name, age, occupation) an Indian inhabitant, residing at _________, do hereby revoke all my
previous Wills and/or Testamentary Writings that I may have executed and

I hereby declare this to be my last Will and Testament:-

(1) I appoint (i) Name__________ R/at __________ (ii) Name_____ R/at____ to be the executors of
this Will. (Hereinafter referred to as “the executors”).
(2) The following are my only legal heirs and representatives:
(i) Mrs. ‘W’ is my wife (state the complete details of wife, i.e., name, age, R/at)
(ii) Mr. ‘S’ is my son unmarried (state the complete details of son, i.e., name, age, R/at)
(ii) Mrs. ‘D’ is my daughter (married) (state the complete details of daughter, i.e., name, age,
R/at)
(3) The following are the assets and properties owned by me:
(a) Villa by name ______ situated at _______ (here give complete address of the property)
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(b) Land at _________ admeasuring ______ sq. mts/acres at ________ (state the details of the
property)
(c) Flat at ______ in _______ Housing Society (State the details of the flat)
(d) Flat at _______ in _________ Housing Society
(e) Bank accounts, shares, debentures, investments in UTI, National Saving Scheme, Public
Provident Fund Scheme and jewellery and fixed deposits etc. and
(f) Any other residuary estate standing in my name or belonging to me or inherited or
bequeathed to me or acquired by me at any time hereinafter or otherwise.
(4) I hereby give, devise and bequeath the property mentioned 3(a) and 3(b), 3(e) and 3(f) to my wife
(state the name – Mrs. ‘W’) solely, absolutely and forever. I further declare that my wife shall
have absolute right to deal with and dispose of the said bequeathed properties to her in the
manner she deems fit and proper and at her own discretion. If my wife predeceases me then the
properties shall go to my son ‘S’ and daughter ‘D’ in equal proportion.
(5) I hereby give, devise and bequeath the estate mentioned in clause 3(c) to my daughter ‘D’ solely
and absolutely.
(6) I hereby give, devise and bequeath the estate mentioned in clause 3(d) to my son Mr. ‘S’
absolutely and forever.
(7) I am in sound state of mind and good health and I have made this Will without any duress and
out of my free will, knowing fully well the consequences of this testament.

Signature of the Testator

Witnesses

1. ________

2. ________

(Signed in the presence of each other and testator)

Specimen No. II

Will

I Mrs. _______ Age _______Occupation ________ Residing at________ on this _______ day of
________(month) 20_____, do hereby make this as my last Will and Testament.

I have not made any Will or any testamentary document earlier; however, if any made, I hereby revoke
all my previous Wills and codicils if any and hereby state and declare that this is my last Will and
testament.

(1) My family consists of one daughter by name________ age ________ Residing at _________
who is married and is living happily at her matrimonial home at _________. One son by name
______ age _______ Residing at ______ with whom I am presently staying.. My husband by
name______ died on ______ date in a road accident.
(2) I own and possess the following immovable properties—
(i) Bungalow by name ________ situated at S. No. ________, in ________ Society.
______________ (here give complete address of the property.)
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(ii) Flat no. _______on _________Floor, admeasuring _________ sq. mtrs in ________wing, in
_______building constructed on land bearing S. No. ________ at _________ ___________.
(3) I hereby bequeath my bungalow by name ______ as described above to my son _______
absolutely and forever.
(4) I hereby bequeath my flat admeasuring _______ sq. mtrs in _______housing society to my
daughter by name _____ absolutely and forever.
(5) All my movable property is as follows—
(a) Fixed deposit receipts—
(i) Rs. _________in _________ bank
(ii) Rs. _________in _________ bank
(iii) Rs. _________in _________ bank
(iv) Rs. _________in _________ bank
(b) Locker No. ______ in ________bank.
(6) I bequeath all the gold ornaments in my locker No. _______in_____ bank mentioned in (5)(b) to
my daughter by name ________.
(7) I hereby bequeath my fixed deposit receipts mentioned in (5)(a) _______ and also all my
properties which I may be found to be possessed of or entitled to but not stated hereinabove to
my son __________absolutely and forever.
(8) I am in a sound state of mind and health and I have made this Will without any duress and out of
my free will, knowing fully well the consequences of this testament.
(9) I hereby put my signature hereunder in the presence of attesting witnesses on this _______ day
of ________20______.

Sd. of Testator

Witnesses

1. ________

2. ________

(Signed in the presence of each other and testator)

Specimen No. III

(CODICIL)

I, Mrs. ________ Age _________ Occupation _________ Residing at __________make this codicil to
my last Will and testament dated_______.

(1) I have made my last Will and testament on _______ date and I have not revoked the said Will
and testament.
(2) In my last Will dated ________ inadvertently I have not mentioned about my bank locker No.
__________ in ________Bank at ________(place and address). The said locker has gold
jewellery worth ________tolas (two necklaces, four bangles, 1 chain and 2 hand rings).
(3) Therefore, now through this codicil I hereby bequeath the aforementioned gold jewellery of
_______ tolas to my daughter-in-law by name _______ forever.
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(4) Subject to above addition by this codicil, I hereby confirm my last Will and testament dated
_______.
(5) This codicil is made by me on this _______ day of _____20_____. I have made this codicil out of
my free will and I am in a sound state of mind and health.
(6) I hereby sign this codicil in the presence of witnesses.

Signed by the Testator

Signed by the witnesses

1. ________

2. ________

(Signed in the presence of each other and testator)

48 K Govindan v T Lakshmi Amma, AIR 1959 SC 71 : 1959 SCR Supl. (1) 1.

49 Gendlal v Ratanchand, AIR 1960 MP 255.
50 Jaswant Kaur v Amrit Kaur, AIR 1977 SC 74.
51 CG David Tharakan v Lily Jacob, AIR 1993 Ker 9 : I (1994) DMC 154.

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